This Week In Law 260 (Transcript)

Evan Brown: ( - @internetcases) Coming up next on TWiL. I will be talking with Jeff Garzik and Jonathan Peters. We will be talking about government transparency, the NSA, the death penalty and Bitcoins. All that and much more on This Week in Law.

Netcasts You Love, From People You Trust. This is TWiT! (TWiT logo) Bandwidth for This Week in Law is provided by CacheFly at (CacheFly logo)

This is “This Week in Law,” Episode 260 recorded May 23, 2014

Transparent Bitcoins

Evan: Hi everyone, and welcome to episode 260 of This Week in Law. I’m Evan Brown hosting the show this week, while Denise is out. We’ve got a really fun conversation, as usual, on tap for today. So, let’s get right to it. Let me introduce you to our guests, first say hello to Jeff Garzik, hi Jeff.

Jeff Garzik: ( - @jgarzik) Thanks for having me.

Evan: it’s great to see you Jeff. And you know Jeff, I’m going to let you in a little bit do most of the talking about what it is you do, who you are, what you call yourself because you seem to defy easy categorization. You self-identify as a colonel and a BITCOINS core developer and an armchair foreign-policy nerd. So those sound like some really interesting combinations, so looking forward to talking to you and fleshing out interesting issues about BITCOINS and other things today. So thanks for being here with us.

Jeff: Thank you, I’m definitely all over the map.

Evan: Right on, right on. So, like to welcome back to the show Jonathan Peters. Hi Jonathan.

Jonathan Peters: ( - @jonathanwpeters) Hey Evan, thanks for having me back.

Evan: Yeah, it’s good to see you again. Jonathan is a, gosh you’re all over the map to, an attorney, a journalists, a professor currently you’re in Columbus, Ohio, but I hear you’re moving later this summer. Right? Where are you heading in August?

Jonathan: That is right. Yeah, I’m moving to Lawrence, Kansas to be an assistant professor of journalism at the University of Kansas and then to do research on Internet governance in the KU information and telecommunication technology center. So moving from Ohio to Lawrence pretty soon.

Evan: Very cool, very cool. So, yeah, Jonathan is the press freedom correspondence for the Columbia Journalism Review. And as he mentioned head to the University of Kansas later this summer. So, great to have you guys. Let’s get into it. Let’s talk first about BITCOINS. Always an intriguing subject and Jeff it’s great to have you here. Few people on the planet know more about BITCOINS then you do, we establish that fact. We established that assertion, got that right before our conversation started. Let me just start by throwing over the question to you, why is BITCOINS so disruptive? Take it from there.

Jeff: Well, it’s, it’s the, to steal online from Mark Andresen, it’s the first time that we have conquered the problem of being able to send a digital file a crossed Ethernet to someone else, securely transfer the ownership of that, securely transfer digital property without any third party. Usually we have either PayPal, we are familiar with, as a third party to transfer value on their system.  And BITCOINS solved that problem of, for example, if you are going to design digital cash, you have to first figure out, well, I have that file on my hard drive, can’t I just copy it, and thereby copy $20 to my grandmother, and then copy it again and give that $20 to my mother? Why can’t I do that? And BITCOINS really solved that problem of securely transferring digital properties. So that’s, the first application, shall we say of that technology is a currency and that is what you hear about in the headlines BITCOINS. But it’s also a technology sort of a register of assets, or register of ownership, if you will, and the first application of that technology is a currency. So, I have probably already melted everyone’s brains. So, looping back to the beginning, my two word explanation of what is BITCOINS is it’s “digital cash.” It’s digital cash.

Evan: You say it’s more than a currency or more precisely what I think I’ve heard you say here today is that the first application of it is as a currency. When we look to the future, what other applications might we see of it? Or another way of saying it is, what is it, besides a currency, it’s not just a currency what else is it?

Jeff: Well, the BITCOINS, the technology is essentially a register of ownership. It’s in the “cloud” (Air quotes) who ever owns various BITCOINS. Now a bitcoin is just a simple digital token and that digital token can represent itself, which is value. Bitcoin the currency or in the future, we can assign a digital token to a car, or a house, or a subscription to a magazine. And so, from there you can imagine any digital, any item in the real world, which can be associated with the digital item can then become private property that’s easily transferred to anyone else in the world with a simple digitally signed message. So, it’s BITCOINS the currency was really the first application of this register of deeds or register of assets technology, that is so powerful and so disruptive. In the, through one of many qualities, but one of the qualities is decentralization. It’s resilience. Right? If you design a centralized system where there’s a single person and a single administrator who is regulating the transfer of, let’s say houses between owners in a community, I just bought a house in my community in Atlanta, Georgia. BITCOINS pauses it, instead of a central administrator you have thousands and thousands of individual nodes crosschecking each other to verify that Jeff Garzik did indeed purchase a house from this previous owner. So, it’s really a very, very general technology and the, that’s why it is so disruptive is, the currency is just the first of many applications which trickle their way into contracts, in the legal world, private property rights, autonomous agents, and robotics and other second and third order affects down the line. So, that’s why, you see many venture capitalists in Silicon Valley really diving into this as a technology not as purely a currency.

Evan: What are we going to see from Fortune 500 companies in the next few years making use of this technology? I have heard you forecast that it is going to be even much more mainstream, certainly, people are becoming more aware of it these days. More people certainly know about it than they did a year ago, but when is it really going to get to the point where people’s grandparents are going to be using the technology with ease, without giving much thought to it.

Jeff: That is always the question that is put to the technologists. Early adopters are always willing to dive into these ugly user interfaces which are incomprehensible to anyone but computer nerds.  And so, how do you bridge that gap from there to your aunt, your uncle, your grandmother? And, really, the back end of most Fortune 500 companies is where this technology is first introduced. And so, for example, if you have a multi-national company. They typically transfer funds between individual subsidiaries in each country and to do that they use a host of banks, a host of bank accounts, each of which must settle against each other and balance across multiple countries. Whereas BITCOINS is really, perhaps excluding gold itself, really the first global currency, certainly one of the first global digital currencies.  And being borderless you really introduce a lot of efficiencies which otherwise are very cumbersome and have to go through three, four, six counter parties as you are crossing borders, it’s now as simple as an email to just transfer digital value or in the future digital property between two individuals. So, there is that. But over and above that, in terms of a trust. BITCOINS really paucities some new trust relationships at various levels. For example, corporations and businesses; to be concrete, one of the features of BITCOINS is that you can require multiple signatures on a transaction before that transaction can mathematically be spent.

Evan: Is this what we would call the “smart contract”? You were talking about that earlier in your genre that you were talking about earlier.

Jeff: This is a very simple example of a “smart contract”.  Where we might see the CTO, the CEO and the treasurer must all approve a transfer of funds or the BITCOINS protocol will simply reject that fund transfer. So, it’s mathematically provably either all or none for of funds transfer there is no way to, if one of the authorities is corrupted, under duress, or anything of that nature than the funds can’t be transferred.

Evan: would it come back,

Jeff: That’s just a very simple example of a “smart contract” where multiple parties are agreeing and it is digitally provable, whether they have satisfied the clauses in the contract.

Evan: That’s  fascinating and that is certainly something that is interesting to those of us in this conversation with, who are legally trained and those of us listening. So, I want to unpack that concept a little bit more, but Jonathan let me just turn it over to real quickly. Do you have any direct experience with BITCOINS? Have you used it, the technology as a currency or do you have any direct experience with it?

Jonathan: I have no direct experience with it. No, I certainly no opposition to it. But I think I would need to learn more about it, which I am today before I would dive in. So, keep talking at me. Jeff you’re selling me.

Evan: So, Jeff, let me ask you this. You introduce the concept of the smart contract, the verifiable transactions so that you can use the technology to prove that something actually has happened and I certainly am not aware of any situation where there have been lawsuits, let’s say, for breach of contract. Where the manner of payment was in BITCOINS where let’s say, for example, somebody wants to buy goods and they got issued a purchase order and part of the requirements were, like what you are talking about, the CTO and the CEO has to sign off on the documentation.  And then, you can verify that those conditions for the enforceability of the contract have been met. Let’s say at some point in the future, a lawyer comes to you saying, Jeff. I want to hire you as an expert because I have to go to court and prove that the transaction took place that the certain conditions to the contract were met and we have got to show that the reality is, what the reality is, the facts are. What the facts are; are we are alleging here. And we’re going to use this technology to demonstrate this certain version of reality is true. How would you go about analyzing that situation, unpacking the  problem, what kind of questions would you ask, what kind of technology, what kind of information with you need to see in order to serve in an expert capacity, helping somebody out in a lawsuit, in that way?

Jeff: Well, one of the very useful attributes of this technology, and upon which smart contract, BITCOINS itself is all built upon is simply cryptographic digital signatures. And other digital techniques whereby you can prove in software with 100% certainty that a condition did or did not exist, and so if I were called upon in an expert capacity. Typically, the first thing that you would look for is the digital signatures, which were created by the parties in question using cryptographic software. And that’s for BITCOINS itself; that is all behind the scenes, once you type in your password, as it were, then

Evan: Let’s stop right there before.

Jeff: Sure.

Evan: Before it gets too complex. What would that look like and keep it very simple. Remember, you are going to be presenting this to a judge might very well be, I don’t want to introduce any ages in here, but you know what I was about ready to say. Somebody who doesn’t have a good grasp of this thing. And the moment you say cryptographic key, their eyes will have glazed over. So make it real simple what it is that you would really need to get into to look at to start demonstrating that the signature had occurred.

Jeff: Well, before answering that. I would say, I would jump to an even higher level that. “Smart contracts” are really more, they include their own enforcement regime, I guess is the best way to put it; is that, not only do you have a provable way of saying this person did or did not transfer the funds but in BITCOINS case in particular, the funds transfer is irreversible. And so, even if you take, you go to a court of law in your jurisdiction. The funds are not going to be immediately recoverable through that course of action. And by extension, that BITCOINS is really introducing the notion that where software and the decentralized network that crosschecks each other are really providing the enforcement regime as well as the rule. And the enforcement regime is clearly defined by math rather than by a human legal system. And so, answering that question, I tend to say it, and most “Smart contracts” you already had enforcement executed, and if you’re in a court of law. You are really, it’s sort of like a murder happens. You’re punishing the attacker but the crime is irreversible. And so you are just cleaning up the damage at that point.

Evan: Gotcha, gotcha. So, I guess what I would also want to sort of cover is that notion you were talking about earlier.  About property, the ownership of property, you talked very briefly on it. And you were talking about it in a pretty intriguing way before we actually went live. About ownership of property within the chips, so it is property, it was owning property, what was that? Can you unpack that concept that you were introducing there, it’s pretty intriguing.

Jeff:  Absolutely, I think that the BITCOINS technology or to be more specific, or more general. Decentralized technology really introducing the sense regards to private property rights and that is it you can have a computer chip that can generate a random number that fulfills the minimum requirements necessary to have what’s called a BITCOINS wallet. Which is the minimum requirement to hold digital value.  And since BITCOINS is entirely digital, and entirely programmable. If you control a BITCOINS wallet. You can hire people, you can buy and own property, you can invest in investment schemes, you know, all this is stating the obvious, but there is one crucial, interesting point, which many people really haven’t thought of before BITCOINS. What if the “thing” controlling the BITCOINS wallet is a “thing” and not a person? What if it is a car? What is your car can, invest in other cars or if it’s an autonomous vehicle, which Google already has on the roads. What if your autonomous vehicle decides that running a lift or an Uber service is very profitable, and your car decides to invest in another car? And so on. It really causes interesting ideas for private property rights. Where a thing can own a property and there is no entity behind that, no corporation behind it, no single person that’s both intentionally criminally liable, civilly liable or and in general just controllable

Evan: How is that different than the situation where you have a computer deciding what stocks to buy and sell, because that’s the application of algorithm to make decisions affect the disposition of property and results in the allocation of funds, the transfer of funds. Help me to understand a little bit better. The issue you are putting your finger on here by differentiating it from that?

Jeff: Well, I’d say that there are two key differentiators. The one being, or the main one being that those high frequency trading algorithms are not really autonomous. They are preforming a function automatically, but basically given a goal directed at a high level by a human being somewhere along the line. And then, from a legal perspective, you still have someone or someones who are legally liable. Usually it is a corporate entity, in this case. Though, another interesting posit from the BITCOINS community is what if you had a corporate entity with no humans at the top, that it was a set of software rules be executed? So there again, it imposes interesting legal liability questions of who get sued if something goes wrong? Who’s responsible?

Evan: Yeah, yeah, this is a concept that comes up from time to time again on this show. There are two sides to the coin, no BITCOINS pun intended. There’s this idea of liability, the responsibility that these agents have, and just setting aside for a moment, the controversial questions of when that agent becomes autonomous and self-aware and may have consciousness and what have you, but assuming that actually does arise as an emergent property; the other side of that coin is what rights does an entity have if it’s sentient,  if it has feelings,  if they can make decisions and acquire properties, and dispose of that property, well, thought it not be able to boat, for example, or hold political office or something like that. Jonathan have you ever given any thought to notions like this about, really, it’s a larger question about artificial intelligence and the question where responsibility should be traced back to if there is some sort of malfeasance arising from autonomous systems like what Jeff is talking about?

Jonathan: I have given the up side to it, my research hasn’t taken me into that area, but certainly there would be many, many hundreds of law review articles that can be written about that. Different dimensions of it. But no, unfortunately I don’t have any kind of specialized background or expertise to offer on it.

Evan: Yeah. Well, you know, that has never stopped me from before from pontificating on these things. Well, let’s leave BITCOINS technically, but I want to weave it into the conversation as we continue on here. But I want to turn attention to a topic, Jonathan that you raised. There was a new law that was signed, Vladimir Putin signed it earlier this month that really cracks down on online speech. Jonathan why don’t you unpack that a little bit for us, and tell us what’s going over in Russia with online speech?

Jonathan: Sure, yeah, there was a new law passed. It was in early May in Russia that requires online voices, so these are bloggers to register with the government and that would give of course, the government a really wide ability to track says what online. And in a broad sense, this does is borrow a page from, the playbooks in places like China, places like Turkey, Egypt that have long restricted access to the Internet and have long restricted particular types of content that is available on the Internet. It’s collequitively called the bloggers law, basically, it specifies that any site with more than 3000 visitors daily will be considered a media outlet in Russia;

(Webpage: New York Times: Russia quietly tightens reins on the web with ‘bloggers law’)

Jonathan: Akin to a newspaper and that therefore it is going to be responsible for the accuracy of the information published. In addition, the law tells bloggers that they may not remain anonymous. And so organizations that provide platforms for there were, like search engines they have to maintain computer records on Russian soil of everything posted over the previous six months. As a number of critics have pointed out, the law. It’s very likely to cut the number of critical voices and the number of opposition voices at least it will mute those voices. And then around that same time, he, Putin signed another law separate but related, in so far as it stands to restrict speech; but this is both off-line and online. It levies heavy fines for using common four letter for vulgarities in the arts and that would include literature, movies, plays, TV, any of those distributed online or off. A few months before these developments there was another law passed in Russia that gave the government power to block websites. What Putin did, his government immediately use that against many of the most vocal critics. And all of this is done against a backdrop of PEW polls and PEW research polls that have been conducted recently that shows that roughly, it’s well over 50% of people in in Russia and around the world, and even in other authoritarian nations like Turkey; that the vast majority of their citizens support free speech and oppose government censorship of the Internet. And so, when I look at this I think that this is the problem of government restriction, certainly, but I think it’s important to consider the issues using a wider lens to include private restrictions on content too. And what I mean by that is, to borrow a phrase from Rebecca MacKinnon the Internet scholar. The sovereigns of cyberspace like Google, Facebook, Twitter, and so on; they are writing the current chapter on the story of free speech, they are conducting private worldwide speech regulation. And they are doing so by writing, interpreting, and enforcing their own edicts about what type of content is permissible and impermissible on their platforms. In doing that, what they are really doing is developing a de facto free speech jurisprudence and that is a significant development here because of the tremendous power of those companies in private platforms to shape public discourse. So, online communication is going to continue to proliferate and the platforms enabling that, they are trying to be flexible, I think so that they can strike, what they would consider to be the proper balance among democratic values, legal obligations, and business interests. To put it another way, this is the way that Jonathan Zittrain put it from Harvard. He said that companies are benevolent rulers, trying to approximate the kinds of decisions they think would be respectful of free speech is valued but also, human safety. And so, companies that are based in the United States, Google, Facebook, Twitter, and so on, they enjoy First Amendment freedom of speech that encompasses the right to make its own policies as to what type of speech they host. Because they are private rather than government actors, seemingly they are not constrained by the First Amendment. They can set whatever rules they want and they also are bound to comply with all local laws of every country where they operate; otherwise it can create some serious potential liabilities. So one of the outstanding issues here in regards to the Russian bloggers law is will large international social media or search companies like Google, like Twitter, like Facebook will they really have to keep their data in Russian databases or face fines and possible closures. I don’t know, that is not clear from the face of the law and if you take more broadly, the issue of private companies operating as arbiters of free speech on a global scale. I think that you would find no better example of that than; it will have been not this last fall, but the fall before in 2013 or 12, rather; The Innocence Of Muslims video that was posted on YouTube a couple of times by the same person. It’s a very long involved story, but the short story is: there was a man who developed a screenplay for what turned out to be The Innocence of Muslims video. And the original screenplay focused on the life in Egypt more than 2000 years ago, but in editing, the trailer was, was edited over  to basically dramatize the life of Mohammed, and it incorporated scenes based on slurs about him that are often repeated by people who, you might characterize as Islam-aphobic. And the clip was clearly designed to offend Muslims. When the New York Times reported on it, they basically said that the trailer opens with scenes of Egyptian security forces standing idle, as Muslims pillage and burn the homes of Egyptian Christians and so on and so forth. It depicted the prophet Mohammed as a child of uncertain parentage, a buffoon, a womanizer and many other terrible things. This created a really interesting problem for Google the parent company of YouTube which again was hosting the video. There were protests raging in the Middle East at the time, we have flaring in Yemen, in Nigeria, Iran, Jordan. As they flared, Google began acting as an arbitrator of free speech, restricting access to the video here, leaving an unrestricted there, all while performing a delicate balance that normally is performed by courts in these areas. And, Google, ended up blocking access to the video in Egypt, and in Libya citing the very difficult situation in those countries, there was a lot of violence raging in those countries then, some of it connected with the video, some of it not. In other parts of the world, Google blocked access to Innocence of Muslim for the video either on its face or by inciting riotous behavior, it violated local laws. So again, I think that when you consider the effects of any restriction on online speech, you have to consider the wider lens. Because, I think in an ideal world, we would have a single global Internet and we would have a governance structure that would reflect it, and when individual countries do things like Russia did with its bloggers law; you create these really small jurisdictional silos where you’re basically cordoning off, your network from freer networks around the world. And, I think that there ought to be on the part of the companies, so Google and a couple of other major American Internet companies announced in response to the Russians’ bloggers law that they were reviewing it to evaluate how they would comply with it. And one thing that I guess, I would encourage Internet companies to do, and this is not news to them in any way, they are companies that have pulled out of countries where they believe that they just can’t operate consistent with their principles. I would encourage them to thoughtfully, thoughtfully continue to do that and I would also hope they would be more transparent about the decisions they make and the basis of those decisions. Again returning to that Innocence of Muslims example, when they were making decisions, country by country, whether to leave the video up. They released one singular statement that basically said we work hard to create a community where everyone can enjoy YouTube, this is really hard because speech that is offensive here might not be offensive there and vice versa. And they said that the video in your jurisdiction is going to remain up because it does not violate our community guidelines. And it was really no more particularized than that and it made it very difficult when you are looking country to country to apply the criteria that the company use to make that decision. And so, I guess my larger point is that, we don’t really know where the greatest threats to free speech and the web in the next decade are going to come from. They could come from China, they could come from Russia, Iran, where political censorship is commonplace. They could come from European countries.  A couple of weeks ago we saw laws, European Union decisions that would require Internet companies to remove posts, search engine results rather, that offend, that could offend or otherwise defame without, is a technical matter of law  ‘defaming’ somebody. I guess I don’t know where these great threats to free speech will come from, but they’re many, and they vary and this is certainly one of them.

Evan: There’s all this talk about restriction and keeping stuff, either off the web or certainly being restricted from getting to certain classes of Internet users and these are largely efforts of governments and as you’re articulating Jonathan often in collaboration or conspiracy, if you want to be a little more negative, connotation about it with large Internet companies that intermediaries. Jeff let me ask you, if there is anything for us to talk about in discussing this, these efforts of restriction, in framed by the question of whether or not it is even plausible or possible to do that or in other words, whether it would be entirely futile for governments to try to restrict the presence of speech, or the delivery of certain contents to certain users? What I’m trying to borrow from is the concept of information wants to be free, which you identified as one of the key things that had to happen for BITCOINS to gain prominence and widespread adoption. I wonder if you would talk about what you think about restriction, for example, point to Russia here and its bloggers law, is it futile in the first place? What do you think of that?

Jeff: It approaches futility, yes. My information wants to be free, I frame it as an engineering statement. And what I mean by that is that digitally information will always be easier to copy and leak then to keep it secret and that is why it only takes one Edward Snowden, or Bradley Manning, etc. to leak an entire government’s worth of secrets assuming that they are digital, which in this digital age, they are increasingly are. With regards to just the NSA and the Russian thing, I think there are quite a few parallels.  With the Snowden’s disclosure what we saw was increasingly that encouraged other countries to develop what Jonathan described quite aptly as information silos and you saw a bit of a move in particular by governments but also by some corporations to pay more attention to where there data is located geographically and unfortunately for us, they tended to choose outside of the United States. Now, that also has implications for, for example in Russia and China, where free speech is much more restricted and the press has much more control, direct control is that that technology itself often enables a restrictive or repressive regime to easily restrict information flows in gross or in mass. And so naturally, anyone who wants to restrict information and restricts speech, they are going to, and referencing John Robb’s “Brave New War Here”.  It’s a fascinating book that really urges everyone to look at the economic costs, an ROI of any attack, whether that is political, etc. from an engineering perspective and a cost perspective; very easy to use technology to repress speech from large flows of information.  Whether that’s large websites and that’s why they’re going after websites with larger than 3000 users or broadcast mediums, such as television, where it is easy to impact the source. But information wants to be free. And you can never truly restrict the flow of information as long as free thinking people exist in this world, they will always find a way to encrypt or change their behavior in such a way that communications get out. I think that’s the larger lesson of history. That even before the digital age, information always leaks out. So, while I think that and unfortunately for me, as an engineer, but the technology will continue to enable repressive regimes to restrict speech, but that’s countermanded perhaps by the axiom “information wants to be free.”

Evan: One of the things that we have to do on this show here. Or one of the things that we choose to facilitate folks who are listening and hoping to get professional credit, whether it be  CLE or what have you; is drop in some catchphrases or some passphrases to prove that you have listened and report to the agency. So, we will make the first CLE passphrase for this episode, “restrictive regime.” So if you are listening for CLE. “Restrictive regime.” Jonathan, would a law like this ever pass, would it ever fly, would it ever remain in effect in the United States like the bloggers law?

Jonathan: No. No, not a chance. It would be immediately struck down as a first amendment violation, and it would be seen in part as a prior restraint, well, just historically. One of the first reason we have the First Amendment, we were trying to get away from a British licensing system where printers and publishers in Britain, this was around the time of the Revolution. The king required all printers and publishers to come to him and to ask for permission to get a printing license. And you have to pay a fee for it, the licenses were not freely given and they were certainly never given to anybody who had criticized the king, the king’s officers, or the church. And so, what it did, it created an economic incentive for the licensed printers to rat out unlicensed printers. The bootleg printing was a big business that then. But there was an economic incentive for the licensed printers to go after the unlicensed ones because they would be able to drive business, drive their competitors out of business simply by turning them in. Obviously that system had a tremendously restrictive impact on free speech, at the time of the revolution in Britain, we imported that system to colonial America. And that was one of the reasons why we drafted the First Amendment, we wanted to get away from that and we wanted to prevent the government from creating a licensing system here. And so, if you were to try to create a list or criteria that would determine, yeah, this person qualifies as a journalist, this person doesn’t. For example, if you created a qualifying exam, like the bar exam or the medical boards that would also violate the First Amendment’s for the same reason. We don’t want the government in the business of making decisions about who gets to do journalism and who doesn’t, because the margin, the room for error there is just far too significant for the government picking and choosing based on content. So, then you could have a content-based restriction on speech, directly or indirectly, that also presumptively violates the First Amendment. And just to give you a little background on prior restraints. For example, if the US government came in and said well, we are not going to permit anybody to publish unless they come to us and get a license. You would fly in the face of some of strongest First Amendment cases in, among them Near v. Minnesota, 1931 case, Anthony Lewis, the late New York Times writer, once described it as the first free speech case in the United States. And then he said speech may be prevented only in exceptional cases, and the example in the context of that case was to protect troops in a time of war. And so, the general idea that flows from that case, from cases in its progeny are the basic idea is just that we are not going to let the government do that, and get in the business of deciding who may do that. And I will qualify all of this by saying, certainly there are places where expert, governmental bodies and governments do kind of, sort of get into the business of deciding who is a journalist and who is not. And one easy example would be with reporters’ shield loss. The First Amendment based privileges as well as statutory shield laws, retraction statutes, also arise, raise these issues and so do credentialing practices for governmental agencies. So if I just use, for example, the shield law. In order to qualify for the privileges given to a public communicator by a shield law. A shield law, by the way gives a public communicator in certain circumstances, the right to tell in court that you’re not going to testify about your sources, about any unpublished information that you may be sitting on, things of that nature and the threshold question in any shield law case is,  ‘do you qualify for it?’ And in order to evaluate whether you qualify for federal courts, state courts, all around the country have developed varying criteria to determine who fits and who doesn’t. Some of them are quite narrow, they focus on employment by traditional media, others are quite broad and quite easily accommodate changes in technology and bloggers. And so that is an area right now where we’re seeing a lot of movement in, but just to circle back, plainly, the answer to your question, could something like that ever happen here? No, no, it couldn’t.

Evan: Another facet of this, that seems like it would offend the First Amendment itself and also the hardwired sensibilities that we as Americans have because of our free speech rights is the idea of anonymity. Having to turn your information over to the government that raises a bunch of different issues. Jeff, what do you think about anonymity and the lack, the affect that eroding anonymity has on the restriction of speech and feel free to talk about it in this context, and then also the sort of illusion of anonymity, if you will when it comes to BITCOINS. Can you talk about that as a concept?

Jeff: Well, yes, but first I’d like to respectfully disagree with Jonathan a bit with the can’t happen here and think about, I ask you and your audience to consider money as speech. And what I mean by that is that one of the interesting aspects of BITCOINS is that as activists turn it monetary freedom. The government can’t tell you what to do with your BITCOINS, they can’t freeze your bank account and to make this concrete consider WikiLeaks. WikiLeaks was receiving donations via MasterCard and Visa and they had all of their rounds of funding  slowly terminated through various back channels, a term that I will revisit in a minute, de-risking. And more recently there is something you can Google for operation chokepoint. Which was originally created to squeeze very, very usurious 1000% interest paid to loan lenders out of the business by denying them bank accounts. And what’s that is now being used for, we’re seeing increasing reports of for example, adult film stars, which the government feels are a high risk are being denied and having their bank accounts closed. And so you see through not a direct channel on free speech, which I do maintain that the United States is the best country in the world when it comes to protecting free speech rights, but that being said, if you consider money as speech, the ability of myself to donate to a worthy cause that the government might find radical or the simple engaging in a business, for example, the adult business, which the government finds a little bit controversy all or immoral. The government is in the United States directly going after those funding sources and closing them off. And so, while not direct censoring speech itself. The controlling of money is pretty much the same thing as I would argue. So, I would respectfully disagree that they are not going after free speech, you just do it through back channels. You control the strains that controls the strings everyone has to eat, everyone has to pay rent, and even long-haired activists need to buy their Starbucks coffee. So, (laughter)

Evan: You just recently got a haircut, right? When was that? Sometimes? Jonathan let me give you the opportunity to respond to that. And if anybody would like to talk about anonymity, I would love to steer the ship there at some point too. Jonathan?

Jonathan: Sure. Yeah, just a quick response, I certainly would never ever make the argument that there are not challenges and threats to free speech in the United States. I mean as press freedom correspondent for the Columbia Journalism Review, I wouldn’t have a job. If that were the case. And I think that what Jeff has outlined a related but separate issue. As a plain matter, it would not possible in the United States to pass a law that would license journalists in the same way that the Russian bloggers law would which was the question at issue. I agree with him, there are plenty of ways for intermediaries to basically operate as chokepoints in speech. So, one of the points that I make in some of my classes that I teach in media law is, that new Medias are changing our capacity to speak. To put it in the terms of a lot of old famous first mimics say, more people can speak more easily than ever before using the Internet and mobile networks is their modern-day leaflet or printing press. Today, though the technology behind that speech, it’s vulnerable to chokepoints and to surveillance. And I think that both of those things have the potential to endanger the global ecosystem and a large amount of speech. I say global because, we have moved in the world through trade, and foreign investment and travel to a point where there is a degree of interdependence among all nations. That demands the global marketplace of ideas, a global Internet infrastructure and as Lee Bollinger, president of Columbia University once put it, we can expect censorship anywhere to be censorship everywhere. To me, the problems of chokepoint and surveillance, they are related and to circle back to.  I will just give you a few other examples. I will begin with the example that Jeff gave. And broadly thinking about that. That’s the problem of payments service providers acting as an intermediary between you and your audience. Payment services provider, PayPal’s and whatnot, they make it possible for users to send and receive payments online, they bridge the gaps between senders, financial institutions, and receivers and online donations through those services. They can provide the support necessary to political causes, to candidates, to activists. They can fund journalism on of site like Spotus, they can fund poetry books on a site like Kickstarter. They both rely on craft out funding to finance story pictures and art projects, respectively. The threat here, is government and private actors can pressure those payment service providers to cut off a speaker, which means the financial support. The threat would apply. I think chiefly to sites that engage in controversy all speech. Which is not to say that it is not unprotected speech, it very well could be. But it’s controversy over and therefore easily and frequently targeted. And so, yeah, in 2010 WikiLeaks really struggled to cover its operating expenses because PayPal and other services bound to government pressure and stopped processing the organization’s donations, for a while. The only way to donate to WikiLeaks was by sending them money or a check to a physical mailing address that was at a PO Box out of the country. And so, I think putting aside any personal views, that anybody might have about WikiLeaks or Julian Assange, I do think that is a considerable, it is of considerable importance that we have to be vigilant against payment service providers being conscripted into the service of censorship. Other intermediaries that can be targeted like that, web posting services. So these obviously allied host your own website, the server can be small like Angelfire, or large like Go Daddy. These are very often the recipients of defamation of copyright claims demanding the take down of posted material, some of the demands are eminently legitimate so a photographer demanding the website remove an image used without authorization, but some demands are not so legitimate where you file a an NCA requests for someone to take down a letter with the express and intent to get the content taken down for a while to make it go away, so that nobody has access to it. Another intermediary that can be targeted is search engines. The leading engines, Google, Bing and Yahoo. They are becoming magnets for censorship in large part, just because you can’t get around the web without using one. Some authoritarian government block entire search engines or they forced them to blacklist certain queries or to limit access to websites and materials that just don’t fit the government’s official version of reality. A good example of that would be until 2010 Google had agreed to censor its search results in mainland China and then when the company ended that agreement, Google began routing all of its Chinese traffic through Hong Kong servers, which were beyond the Beijing, which was a loss. So, Maine, users can still use Google, but the connection breaks if they search for different terms. It is no longer Google basically conspiring in the censorship. It’s the government and its so-called great firewall of China. And the last little intermediary example I will give you is, third party platforms. Facebook, YouTube, Twitter, you can send private messages, you can post public content and for many people these platforms are their principle means of online communication. And unfortunately some of these platforms when hit with takedown requests for legal threats, they opt for the easy solution of simply taking something down or banning users. And something in the first place, just did not develop, I guess clear, clear, easily administrable content rules and guidelines. So then they are kind of mired in a mess trying to make individual decisions that in practice turn out to be very inconsistent. And then you overlay that with the problem of increasing numbers of state laws, and by state here I mean nation. National laws that attempt to require these companies to regulate the content that is posted. So, the European Union’s decision a couple weeks ago is a good example of that. Argentina has had a long like that on the books now for, I think it’s more than a year and a half, maybe two years, you are has very different concepts of privacy, then we have here in the United States. So, I would agree wholeheartedly with Jeff that there are, there are many, many dozens of iterations on threats on free speech, online and that we need to be vigilant about all of them. And I think one of the challenges here is that many of the legislators who are drafting laws and policies in these areas, some of which I think purport to protect civil liberties. I question whether they fully comprehend the technology that they are attempting to regulate.

Jeff: No, they don’t comprehend it at all.

Jonathan: (laughter) That’s right. So, yeah, I’m wary of all of those efforts, the good, the bad, and the ugly. And again, if there were no threats to free speech, I would be out of a job.

Evan: One of the things that really strikes me about the Russian law is, having people to register and I will go ahead and introduce the topic of anonymity. Which, you know I want to talk about here, and the of fact that the government knowing about who you are and what you are saying, what that has, what role that can play on restricting speech. So, let me just go right back to you. Jonathan on that. Would a law that require people simply register their identity online so that you can always tie a particular identity online with an actual user, would that had constitutional muster in the United States?

Jonathan: I don’t think it would. No, I think it would run right into the events. It’s in a 1995 or 1996 case, McIntyre v Ohio. It’s a case that is a different context. It’s an off-line context, but it provides for a right of anonymous speech in political and social matters. The issue there, I believe was political leafleting and pamphleteering, but David Goldberger, who is the Council on that case, and one that at the US Supreme Court. He was actually my advisor, mentor in law school. And I did; it was an interview at the Harvard Law and Policy and Review about a year and a half ago on that issue. On anonymous speech online, and I went back to him and asked, there has been raging debate whether McIntyre implies on the online contents because 1995, the Internet, to state the obvious, was very, very different from the Internet that we have today. And so I wondered whether, not contemplating the Internet as it exists today, in 1995. Could that 1995 case  apply;  and David said yeah, that there would be and in my readings supports that, that there are no principles in that case, that would limit it to an off-line context. And I think that either there were a couple of other issues to bear in mind here. One of them is a point well made by Jack Balkan, and I chair in constitutional and First Amendment law at Yale Law school and he wrote, it was a law review article, God it was in the last year, year and a half something like that; in which he’s talking about the importance of democratic culture in free expression to the Internet and was throwing these concepts up against one another. And the argument he makes is that the purpose of freedom of speech is to promote the democratic culture. And he says that, a democratic culture is more than representative institutions of democracy, and it is more than the deliberation about political issues, rather a democratic culture is one in which individuals have a fair opportunity to participate in the forms of meaning making, you know that constitutes them as individuals. And so, with that in mind, democratic culture is individual liberty as well as self-governance, it’s about each person’s liberty to participate in the production and resolution of culture. So looking at it that way. Free speech is a system and people exercise their freedom by participating in that system. They interact with others, they make new meanings and new ideas out of old ones and when you couch all of that stuff in Internet speak; free speech values, interactivity, mass participation, the ability to modify and transform culture. Those things have to be protected through, not only laws, but technological design and through administrative, legislative regulation of technology. And then, you would obviously have the more traditional method of judicial creation and recognition of constitutional rights, including those under the first amendment. The question of anonymity, also praises an issue that we may discuss further. In a little bit, but I’ll just toss it out, really, really quickly right here. It can affect for groups that are not engaged in journalism per se, but maybe they just express themselves about public issues. It can implicate the freedom of the association. There is a case pending right now, a First Unitarian Church of Los Angeles v the NSA. That’s where 22 organizations including the Unitarian church is suing the NSA for highlighting their First Amendment right of association by illegally collecting their call records, and one of the arguments embedded in that case is that privacy in your associational ties is closely linked to freedom of Association. The theory here is that there's an interesting situation that brings in these ideas, and by ideas I mean it brings in freedom of association, anonymity and also bitcoin. Recently the Federal Elections Commission introduced regulations that allow donors to send donations to political candidates via bitcoin and to donate to political action committees, PACs, up to $100, which is the limit on the law anyway. An existing federal requirement is that donors be identified; who they are, what they work for, and so we could explore the idea whether that's constitutional because it would seem to impact your freedom of association, your freedom to associate with certain political candidates, but apparently that passes constitutional muster. But what I really would like to do to move the conversation is, Jeff, ask you, the risk that certain commentators have identified, I want to go to you to see if this is a valid risk. I don't want to go to the idea of the false assumption that bitcoin is anonymous. We know that it's not anonymous, but at best can obfuscate somebody's identity. But is there a real risk that some commentators have identified, that if you make a donation to a political campaign using bitcoin, and also comply with federal regulations that require you to identify yourself as having made that contribution, including your workplace and all that stuff, is there a risk that that's going to jeopardize the anonymity that you may have established in the transactions in the block chain, both in the past and in the future? Can you comment on that?

Jeff: In a word, yes. The anonymity as a general problem is very, very, very hard. But to answer that specific question, a lot of people, myself included, think that bitcoin is actually too public and it needs more consumer privacy protections if it's going to achieve wide success. As of right now, you can transfer to me 1 bit coin, and if others in the world know that that transaction exists, it's very easy to look through the transaction block chain (that's the timeline of every single transaction since January 5, 2009), and see that Mr. 123 sent 1 bitcoin to Mr. 456 at this specific date. Know, you don't know who Mr. 123 and Mr. 456 are, but just like the NSA analyzes telephone metadata and discerns the connections between people, you can analyze the block chain data and discern the same information. And so, for that reason, if for example, I was looking over your shoulder while you were buying a Starbucks coffee with bitcoin, it might straightforward for me to then go to the block chain and examine that transaction and look at related transactions. So, it's not trivial to unpack the privacy, but it is definitely not anonymous as you noted. That is one reason why some people would like more mixing or switching up of the coins and values to make it harder to trace, because right now it's very easy to trace. But in general, moving beyond bitcoin itself, anonymity itself, if you're an activist, is very, very, very hard. Even if encrypt, for example, all of your telephone conversations and your electronic conversations, the connections that you make each time you communicate are also a digital footprint that you leave. Any time you walk down the street, as we know from watching popular Hollywood movies and TV shows, those are data points which can easily be processed through biometric software, etc. And so, as technology advances, as cloud storage and cloud processing costs continue to decrease as they do year over year, it becomes easier and easier for, not just the NSA, but for any tin pot dictator or local law enforcement department or corporation to run their own NSA so to speak with biometric software, with tracking, etc. With that in mind, all of that is pushing against your personal efforts to be anonymous. I think we're, due to technology itself, headed to a future where privacy has to be, it really needs to be  a constitutional amendment or some very strong laws, otherwise technology is just going to sweep us all by, and we'll wonder where all our privacy went.

Evan: That's such a compelling issue, and you see that in some of the different litigation going on against the NSA. There were a handful of cases filed last summer after the Snowden revelations. In one of the cases, ACLU vs. Clapper, the judge in that case held that the job of the NSA in evaluating these relationships that can be ascertained from the analysis of vast amounts of data is very important. It can pick up on very transient or very ephemeral relationships and Judge Pauley, in that case, alluded to the fact that maybe 9/11 wouldn't have happened had the NSA surveillance program been in place before 9/11. Isn't that a provocative thing to say. But then you've got the same reality, you've got the situation in the case called Klayman vs. Obama, this is where Judge Leon was talking about how (I'm just reading from the case), saying that he could not possibly navigate these uncharted Fourth Amendment rights to be secure in your persons and effects and information in the cloud; using as my North star as case that predates the rise of cell phones. The point being we're creating so much more information, as you're talking about Jeff, the processing power, the ability to analyze that information, to draw conclusions really is a strong threat to our privacy in that front.

Jeff: I describe it as ever stronger than that. I would say that it's a threat to freedom of association and freedom of thought itself because when your every move can be tracked, every single tire in a car has a RFID tracking chip in it, it's trivial to track license plates, and we all have smart phones so we all voluntarily pave the way for our own  Orwellian tracking devices. If you consider all those data points, we're all perhaps, not consciously, but we're all opting into a global tracking system where technology already makes it easy to track the every single real time whereabouts of your entire population. And when you consider that, you consider what are impacts on political speech itself. What are the impacts on freedom of association? In that very famous NAACP case that Jonathan referenced, freedom of associations simply won't exist.

Evan: I've often wondered what it would be like if nanotechnology develops to such a point where today's drones seem like pre-history where you could have quadrillions of nano-devices being released into the environment at the sub cellular level to infiltrate every cubic inch of space within a jurisdiction with extremely high resolution capability of gathering all different types of data, including within the organisms that inhabit that data and in the brain. Imagine a network of unfathomable numbers of nano-devices actually, essentially being able to read the thoughts of our individuals. You can get pretty crazy pretty quickly thinking about what could happen in the future. It just seems to be a natural extension of what you're talking about there, Jeff. This idea of just more and more information, more and more data points can be connected in a higher resolution picture of each individual to be painted, right?

Jeff: Absolutely, and DARPA in fact (that's the experimental research arm of the Department of Defense), are already experimenting with insect sized drones, so you can imagine a fly on the wall being a literal high tech, high definition surveillance device. Over and above that, there's a lot of interesting research; one of my other favorite examples of that an FMRI can be employed to read your mind. Existing tests have demonstrated where test subjects will see a set of images, a car, a house, a banana, etc., and then the MRI machine which has been hooked up to a computer doing nothing but simple statistical analysis, will then recall what you were thinking at the time you saw those images. And by extension, once it learns your brain patterns, it knows when you're thinking about a banana, a car or a house. So we all emanate these wonderful little electrical signals which at present are very difficult to monitor, many people seriously theorize that your brain waves could be monitored. Those silly guys with tin foil hats might not be so silly 10 years from now.

Evan: I hope the tin foil will keep the stuff out. I want to get onto the issue of the death penalty, as if we haven't talked about enough provocative issues already in our conversation here. But to make a segue into that I want to latch onto the idea of anonymity and identity because this does play a role in this story, Jonathan, that has become very near and dear to you. You've written about it very eloquently recently. It's the idea of this problem that you've identified and other commentators are talking about and there's actually some litigation over it; having to do with government secrecy and the concealment of information about the drugs that states are using to impose the death penalty on inmates, and how this plays into the Eighth Amendment guarantee against having to endure cruel and unusual punishment. But Jonathan, you've so well brought into it a First Amendment angle. Can you take what I have rolled up there and sort of unroll it and give a framework of how this issue looks and what you’re thinking and analysis is along these lines.

Jonathan: Sure. Both of you terrified me with all of the nanotechnology  invading my personal spaces and brains. I was about to disconnect from this call and go preserve my naivety. The issue here with death penalty secrecy; much of the secrecy that we see today, it stems from efforts by prison officials in the last 3 to 5 years to procure lethal injection drugs, after the manufacturers were pressured by the European Union to prevent their products from being used for capital punishment. So, a number of states, Oklahoma among them, fresh in everyone's mind from their botched execution  a few weeks ago, to turn to what are called compounding pharmacies. They're located in the United States. They are likely regulated less. They mix drugs to order. Their quality control has been a significant concern. In the last months there were at least 2 men who were executed through an injection of compounded drugs. One in Ohio, the man gasped for more than 10 minutes after being injected, and this was a different Oklahoma man, not the one executed just a few weeks ago, but after he was injected with compounded drugs he was reported to have said, "I feel my whole body burning." What states have done despite concerns about quality control, or as I had noted in an article, perhaps because of those concerns, more states are beginning to shroud in secrecy more pieces of their execution protocols. Some of them are even arguing that drug manufacturers themselves are part of the execution team whose identities are routinely kept confidential. That has long been the case, that the actual executioners are able to maintain their confidentiality. Around the country, these secrecy practices have triggered a lot of legal challenges in Louisiana, in Georgia, in Missouri and elsewhere, obviously in Oklahoma most recently as I mentioned in an article I wrote on this about 2 weeks ago. Judicial independence there died a quick death, irony intended. When the states report it stayed the execution that turned out to be a botched one, they stated in advance, which means that for those of you that are not steeped in the law, it means they delayed it, they put a stop to it. Then they reversed course. A couple of days later after the governor refused to honor the stay and a state lawmaker introduced impeachment proceedings against the justices on the state Supreme Court who voted for the stay. So most of the discussions about these issues have focused on the Eight Amendment and due process implications. So you've got death row inmates arguing the secrecy prevents them from investigating whether drugs in proper dosages would violate the Eighth Amendment's ban on cruel and unusual punishment. On the other side you prison officials arguing that secrecy is necessary to protect the execution team members, again including pharmacies, compounding pharmacies, from credible threats of violence. I think that those are really, really important concerns, but in a piece I did, I argued that the constitutional questions at play here are even broader than that. Without going so far to say as a matter of fact that this thing exists, I do believe that you can make a principle argument that the press and public may have a qualified right of access  to information about lethal injection drugs protected by the First Amendment. And the argument that I make, and I am drawing here from the work of a guy named Nate Crider, who is a third year law student at Columbia, and who is in the process of publishing a length scholarly piece on this himself. The argument is that the First Amendment assumes a special importance here because of the relationship between the First and the Eight. The First is essential to realizing the safeguards of the Eighth's prohibition on cruel and unusual punishment. And so, the angle is that you've got a long line of cases now at the US Supreme Court where traditionally the court interpreted the First Amendment to create a negative right that prevents the government from restricting protected speech. But since the 1940s, a body of case law has emerged focusing on the audience's right, your right and mine as readers, as viewers, as listeners to receive information, and in some cases the court has held that right requires the government to provide the press and public access to information that is uniquely in its possession. This has come up in the context of prisons, it has come up in the context of court cases, of jury selection, hearings, preliminary hearings in court, and then if you kind of jam all of that together, I conclude that if you want to make a case for a First Amendment right of access to information about lethal injection drugs, what you have to do is focus on the audience's right to receive information, and you have to acknowledge the importance of that information to the court's analysis of whether a particular a particular execution method violates the Eight Amendment. I won't drone on here, but I'll just make a couple of final points about the death penalty secrecy stuff. Correctional facilities have not been traditionally open to the press and public, but I kind of view executions as a sort of proceeding in the presumptively open criminal justice system. It's the closing chapter, as I described it in my piece of long book of trials and appeals. And historically executions themselves have been open. And they've been conducted in ways that leave little doubt of the exact mode of death. The actual process of killing a convict remains open to media observers today. States yes, have long shielded the identities of executioner's themselves, but  I am aware of no practices or policies that have shielded, historically speaking, rope makers, bullet makers, blade makers which conceptually would be the equivalent of a compounding pharmacy. And I think that this is especially important because the shift to compounding pharmacies, and the flawed executions that follow, they have raised really serious questions about the integrity and effectiveness of new and largely untested drug combinations. The press and public simply can't evaluate whether a state's execution method creates a risk of violating the Eighth Amendment. If the press and public don't know where the drugs ingredients came from; whether they come from a reputable producer, whether the finished product is pure and sterile; and essentially I go back to a line that Thurgood Marshall once included in a dissenting opinion in a death penalty case, and the quote is this, "the opinions of an informed public differ significantly from those of a public unaware of the consequences of the effects of the death penalty. And here we have a public very unaware of the lethal injection protocols used. And the legal issue is whether a state can withhold from the public certain information about the way the state kills people.

Evan: So, there's a lot of objectors out there who just say you're dealing with murderers and rapists and child rapists and what have you. So why care in the first place? Why put all these resources behind trying to ensure that the process is there? I know the quick answer is to say, well it's the Eighth Amendment, it's the Constitution. We should value these constitutional principles. I can buy that, that we ought to not trample over any portion of the Bill of Rights, the Eighth Amendment included, no matter how loathsome a person's crime was. They enjoy those protections because that's the Bill of Rights that we were given with. But how would you answer those objectors in really saying that it's important from a First Amendment perspective, to make this tie between the First Amendment and the Eighth Amendment? Can you elaborate on that particular point a little bit Jonathan?

Jonathan: I think that it's really important to note, the issue here, it's not about the propriety of capital punishment, it's not about the terrible offenses that many of these people have committed, it's not about their victims; I even mentioned this in the article that I wrote, the victims are largely and tragically lost in the coverage in many executions and that is particularly true of botched executions, where all of the focus there is on what the state did or didn't do. So frankly, I think that you could probably do a service to the victims and the system itself if you would address that and remove those questions. And an easy way to remove those questions, and those criticisms, is simply to open up the process a little bit more. In addition to that, I think that the main import of the First Amendment argument and interest here is that we ought not trust the government. I think that this was put best by Megan McCracken and Jennifer Moreno, who work in the death penalty clinic at Berkeley's law school in a New York Times essay that they wrote a couple of months ago, where they basically say that if prison officials conceal crucial information from judges, lawyers, the public, we have only their word that the drug will cause death in a manner that complies with the Constitution. I don't think that we can leave that to trust. I think that leaving things to trust generally is something the press and public in a democracy can't afford to do. I think that no government regulation should put the press and public in that position especially where the government, and this is an argument that's made very effectively by a guy named Vincet Blasi, who's a First Amendment scholar; the government has unique capacity to employ legitimized violence. In a society where that is true, that I think means, that the freedom of speech and freedom of the press are so incredibly important because that is the press and public's check on the unique capacity to employ legitimized violence. We generally not lawfully permitted to rise up in violence against our government. So the way that we check them is through speech and we cannot evaluate the propriety of the capital punishment system, how the capital punishment system operates, if we don't know anything about it. That's kind of the broader point for me. It's not that I'm paranoid here, it's that there is strong evidence that states have quite badly managed parts of their execution protocols. So if you look at Missouri, there's a guy named Deron Lee who is a correspondent for the Columbia Journalism Review, and about a month and a half ago he did a long read on the execution protocols in the State of Missouri. It was looking at their attempt to conceal from the public the identity of one of the state medical doctors who was involved in the execution process, and he was responsible for, I believe, administering the lethal cocktails. What came out of that investigation was that originally news media were told they could not publish the identity of that doctor. News media ended up doing that and now the state has gone after the news media. The ACLU of Missouri has got involved and the issue is now one of prior restraint, where the question is can you prevent a news organization from publishing the name once that name has been lawfully acquired by a news agency?  Can that news agency publish it or can the government issue a prior restraint on that publication? The important facts here is that the doctor, it was revealed, had been sued quite a few times for medical malpractice, had been barred from practicing medicine in certain areas, and ultimately as a result of those revelations was removed from his position, having been deemed unfit for it. These things we never would have been know, and his removal probably never would have happened, if we had not had the disclosures and the forced transparency in that case that we ultimately did.

Evan: One thing that seems that could be going on here, and I don't want to be too cynical about it, but I'm just trying to see what certain commentators might have to say about this; that what this is really by bringing it into a First Amendment context is really smoke and mirrors to just be anti-death penalty. You might think that people who have some objection to the death penalty for whatever reason; it might be more of a progressive sensibility or what have you, that's not the point of my comments here to label or anything, are looking for reasons to point out why the death penalty should be done away with altogether, and that this First Amendment argument is just a way to sort of shoehorn in another argument against that. So, just a couple of questions, I want to get your answers on this quickly Jonathan, because I want to move on and eventually wrap up here, is I guess I boil it down to one question. Is there anybody who's coming at this from the First Amendment angle who otherwise may be labeled someone who is pro-death penalty; someone who hasn't otherwise in other contexts gone on record saying the death penalty ought to be done away with altogether? What about that?

Jonathan: You know I'm not sure specifically if I'd be able to identify somebody like that, meaning in the interest of whole disclosure I don't support the death penalty. It's not really a moral issue for me. I see too much room for error in the criminal justice system. There's too much bias in it in general and the margin is too high I think to exact that kind of final judgment on somebody. When you look at the post-conviction DNA exonerations there have been many, many, many hundreds of those in the last 8 to 10 years and I am convinced that we have put to death many, many, many people who I'm sure in fact were innocent. So, that is my chief problem with the system so I come at it from the perspective of somebody who doesn't like it, but as an attorney can put that aside and say I'm going to  peel away this one issue to look at it. I really think that if you were to make the argument that every time you criticize one element of the death penalty that what you're trying to do is overthrow the whole system. I'm sure that that would not be true in all cases. I'm sure we'd be able to find someone if we looked hard enough who would support the death penalty as long as it would be reasonably and safely administered.  In my piece and in my analysis of it I've kind of shunted that question off to the side where I just don't consider that relevant to my analysis. Even in the interest of full disclosure, I don't like it, but again it's for very practical reasons rather than moral reasons. I'm just afraid, at least if we sentence somebody to life without parole and then we realize 15 or 20 years later that we made a mistake,  at least it's not too late then to attempt to un-ring that bell. If we put somebody to death, the bell is rung. We can't unring that. The First Amendment argument, at least my approach to it, it was a genuine good faith approach where I was not looking at it as intending it to be any kind of smoke and mirrors broadside on the system itself. In fact if you look at my closing paragraph in that piece, I say that even if the state's capital punishment system is less than perfect for the circumstances, at least it can be transparent. So if we make the decision as a state whether we are Ohio or Oklahoma or Louisiana, that we believe we should have the death penalty, and if we accept as a matter of fact, which I think is inevitable, that there will be problems with it, the very least it can be is transparent so we can identify those problems when we see them, and we can resolve them immediately to comply with constitutional mandates.

Evan: Good deal. I need to drop in another CLE pass phrase here. So if you’re listening for CLE credit in your jurisdiction we'll do as a second CLE phrase, exoneration. So if you're a lawyer looking for CLE credit, you ought to know how to spell that too so I won't bother spelling it. Jeff, let me turn it over to you. Let me get your comments. This is an intriguing and provocative topic. What are some of the things you're taking away and going through your mind when you hear what Jonathan is putting forward so articulately?

Jeff: Democracy dies without transparency. It is absolute crucial in general speaking from general principles that we have transparency in sunlight. To draw an analogy to bitcoin, bitcoin interestingly enough posits not that you trust the creator and the smart guys who created the software, but it is open source. It is entirely open to inspection and so the entire system, all its flaws etc., are open to inspection. And moreover, the currency transfers itself, etc., they are all cross checked by hundreds of thousands of computers all over the globe. To draw an analogy, you not only have transparency, but cross checking. And I think that's what's lacking in some of the procedures that Jonathan was describing. It's clear that additional transparency is needed at every level, particularly when a human life is at stake.

Evan: Very good. That was interesting topic. We could talk about that all afternoon, no doubt. But we do need to think about landing this craft at some point. Here in the next little while let's talk about our resource and tip of the week. Our resource of the week comes from Kashmir Hill over at Forbes. She's a friend of TWIL and has been on the show a number of times. She wrote a piece earlier this month about her experiences she had gone through yet again in 2014 and a similar experiment she'd done in 2013; living a week only on bitcoin, so she wrote a piece, "21 things I learned about bitcoin living on it second time." Some of the things that she observes are that it was easier this year. Last year she had to walk everywhere, move out of her home, and lost 5 pounds. This year she ate a 17 course dinner, went on a wine tour and used ride sharing services. So, Jeff did you take a look at Kashmir's article? And to what extent have you tried to live on bitcoin to the exclusion of more traditional, conventional methods of currency?

Jeff: Absolutely, and I've been attempting what she's been attempting for years now. It's a very interesting chicken and egg process where when you're rolling out a new currency and it's not a large corporation or government behind it, you have merchants who wonder, should I take bitcoin? And naturally they're not going to accept a new method of payment until they have customers that have it in their wallets. And customers are not going to have it in their wallets until they have businesses at which they can spend that new currency. So it's a really unique grassroots experiment, very slowly over the years. I first got involved in July 2010, which makes me a very old man in the bitcoin space. I have been selling, for example, goods from lawn mowers and your Craigslist items to, I've been listing real estate properties for bitcoin as well. So every transaction that you perform in bitcoin is one more, sort of step in building the bitcoin economy as it were. My weekly pizza and beer get together with some of my buddies is paid for with bitcoin. I'll use that to buy a gift card which in turn lets you get whatever your favorite brand of pizza is; whatever your favorite brand of adult beverage is. So, bitcoin is really making inroads in those areas of life. There are property managers who are accepting bitcoin for rent. Just about any basic staple you can buy with bitcoin, just as you can buy with dollars or Euros or Yen, and it's a really fascinating social experiment. You meet all sorts of new and interesting people and you get all sorts of new and interesting, quizzical looks when you first talk about, hey would you accept bitcoin for this instead of dollars. But most people's curiosity usually wins out and it's a lot of fun talking about this strange new internet currency.

Evan: Kashmir in her article sites to data suggesting that 75% of people still don't know what bitcoin is, and 80% wouldn't consider using it. But she does say anecdotally that in the Bay area at least, and by anecdotally I suppose she means  people she's talked to. 75% had heard of it and many were skeptical about using it, which doesn't seem too surprising, a higher awareness in the Bay area. Finally I thought it was funny what she said toward the end of the piece, whether she'll do it next year, she said I might start feeling like Mitch Maddox. Do you remember Mitch Maddox either one of you? Jonathan do you remember him from around 2000? Jeff do you remember him?

Jeff: I surely don't.

Evan: He was aka dot com guy. He legally changed his name to dot com guy, whose claim to fame was living on the internet during all of  2000; hardly an impressive feat now, but he bought everything, he never left his home in 2000. He ordered everything off the internet. No big deal now.

Jeff: These days everything we get delivered via drone.

Evan: That's right. It's not just ordering it on the internet, but not having it ever touch a conventional mode of transport would be the intriguing thing. Alright, our tip of the week. We got this from a tweet that you put out Jonathan. And by the way, everything should be following Jonathan @jonathanwpeters on Twitter. It says to my former Mizzou students who graduated Friday, remember what I told you. The keys to success are confidence, class and cat memes. That sounds like a tip. Jonathan, what's going on there?

Jonathan: Basically, if you had the misfortune of suffering through any of my lectures, you'd find that my Powerpoints are a little unusual. I include a lot of memes on them. I've got a lot of videos that I splice into them, and cat memes are among my favorites. So on the last day of class I always give them a little bit of life advice mixed in for what it's worth, along with some more substantive material. So I just feel like the more cat memes the merrier. Nobody has ever gone wrong with a cat meme. I'm really not quite sure how I'm a professor. It amazes me every day that they allow me to come back and have not preemptively de-tenured me.

Evan: So watch out University of Kansas, the cat memes are on their way. Alright Jeff, wonderful to talk to you, really enjoyed meeting you. Tell folks where we can go and find out more about you online and keep track of what you're up to.

Jeff: Well, is where I seek my employment every day. But is where you can find out more about bitcoin itself; both the currency and the technology behind it. It's an open source project. Anyone can join, anyone can contribute. Take a listen, take a read.

Evan: And you are on Twitter as well, where is that?

Jeff: @jgarzik

Evan: Very good. Jonathan, awesome to see you again. Thanks for coming back.

Jonathan: Absolutely Evan, thanks for having me.

Evan: And tell folks how they can keep track of you. I've already mentioned your Twitter handle, where else can we learn about Jonathan Peters?

Jonathan: Twitter handle usually is the best, also if you just Google Jonathan Peters and CJR or Columbia Journalism Review, you can find all my pieces there. More generally, if you just Google Jonathan Peters and First Amendment or mediate law, you'll get a lot stuff that I've written or that I'm commenting on, but generally Twitter is the best way.

Evan: Well, thank you both for being here and thank you all out there who are watching and listening; folks in IRC as well. As you know if you're listening to this live you tuned in at 11:00am Pacific, 2pm Eastern on a Friday morning / afternoon depending where you are. Find us at also on YouTube and other ways you get your content like this. Denise will be back next week, and I'll be co-hosting of course. Send email to us throughout the week. We love hearing ideas for topics on the show. Denise is, I'm, follow me on Twitter @internetcases, check out my blog Lots of fun. Enjoyed interacting with you folks today, so until next week, we'll see you then!

All Transcripts posts