There is no inconsistency between protecting an open Internet and safeguarding intellectual property. Protecting intellectual property is not the same as censorship; the First Amendment does not protect stealing goods off trucks.

This isn’t even wrong: it just takes two unrelated concepts — internet content and theft — and puts them in vague proximity to one another. We’re supposed to hear “stealing” and think oh noes stealing! and then blindly sign on to whatever it takes to make the stealing stop — which, in this case, means making the internet, as we know it, stop.

Because what our current laws do protect (sticking with this demented mixed metaphor for a moment) is the right to drive your truck around even if there’s a chance that it contains stolen goods — or, more to the point, even if someone gets it in his head that it contains stolen goods and asserts as much, without proof. If we were to apply the same standard to truck content as this stupid bill does to website content, then:

1. The truck could be forced off the road if some jerk with an axe to grind writes a letter to the Trucking Authority saying he suspects it’s carrying contraband. That’s all it would take. No judge, no lawsuit, no cops — just a notice.
2. The trucking company could be cut off from its payment processors and advertisers — effectively preventing it from doing business — and removed from the yellow pages. Again, without due process.
3. Furthermore, any third party running an ad for — or otherwise directing customers to — the trucking company would also be breaking the law, and be liable for damages, because of the bill’s “anti-circumvention” clause.
4. Conversely, if the Trucking Authority — either through an (understandable) excess of caution, or for more nefarious reasons — preemptively does any of this stuff without an actual due-process-free takedown notice, they’d be effectively immune from liability.

And this is to say nothing of the government itself — which, as the silencing of Wikileaks has demonstrated, is more than willing to bring extra-legal pressure to bear in order to silence its critics, even without the express authority to do so.

In short: if this becomes law, we can look forward to media behemoths training their giant howitzers on little guys who post non-infringing content, taking them down without even having to pull the trigger. We can look forward to curated link sites like BoingBoing and Slashdot severely curtailing what they link to, and getting sued out of existence if they’re not careful enough (or even if they are); and sites that depend on user-generated content (like Facebook and Twitter and YouTube and MetaFilter) going dark, unless they find a way to severely restrict what people can post.

We can look forward to sites suddenly disappearing from the internet, just like that.

Again: the end of the internet as we know it. An endless vista of possibility reduced to a nightmare of chainlink fences and disappeared websites and everyone always looking over their shoulder, not sure where the next blow is going to come from, or why.

Anybody who tells you this isn’t a free speech issue is either deeply confused about what free speech is or — far more likely — lying. Don’t believe them.

Gruber and Marco have both mounted their inevitable defense of the iPhone’s muting behavior — but, uncharacteristically, I actually agree with something Marco said:

The user told the iPhone to make noise by either scheduling an alarm or initiating an obviously noise-playing feature in an app.

The user also told the iPhone to be silent with the switch on the side.

The user has issued conflicting commands, and the iPhone can’t obey both.

It’s a typical design problem: it can’t be heavy and light and big and small. Neither decision will satisfy everyone all the time or cover every edge case: if Apple implemented Mute in Ihnatko’s preferred way, millions of people would be just as irritated when their scheduled alarms didn’t wake them up.

This is hard to quibble with. If you have one mute switch and no ability to tell the alarm what you want it to do in that situation, then, yes, you’re going to piss somebody off.

So Marco makes a good point: under those constraints, there is no right decision. But then he goes on to say that Apple made the right decision:

When implementing the Mute switch, Apple had to decide which of a user’s conflicting commands to obey, and they chose the behavior that they believed would make sense to the most people in the most situations.

That’s good design.

But that’s not good design. That’s just choosing one of two bad designs, on a hunch.

I think this is emblematic of the Apple enthusiast mindset: that it doesn’t even occur to them to expand the scope of the problem beyond the constraints that Apple has imposed. There are other options: you could make the alarm vibrate instead. Or you could present the user with a choice (something that Apple rarely does) — in the alarm app itself, say, or the first time the user puts the phone on mute with alarms active. Or something. But all other options are, apparently off the table: the alarm either must go off or mustn’t go off. Those are your choices.

Most of iOS’s “user-centric” design decisions are predicated on the notion that Apple knows best. But this is a situation where Apple not only doesn’t, but can’t, know best. I’d be a lot less annoyed with Apple zealotry if it would just acknowledge this: not that Apple makes mistakes, but that their uncompromising ethos often forces them into situations where every available option is a mistake.

Well, waterboarding is torture. It’s illegal under international law and under our law. It’s also immoral. And it’s also very impractical. There’s no evidence that you really get reliable evidence. Why would you accept the position of torturing 100 people because you know one person might have information? And that’s what you do when you accept the principle of torture. I think it’s uncivilized and has no practical advantages and is really un-American to accept on principle that we will torture people that we capture.

It’s too bad Paul is so cooky in other ways — he’s smart and consistently reasonable about these sorts of things, certainly more so than most of his peers. Herman Cain sounds a lot more like a GOP candidate:

I agree that it was an enhanced interrogation technique….I don’t see it as torture. I see it as an enhanced interrogation technique.

I think the lesson for the kids here is that the way to get away with doing bad stuff is through the magic of calling it something else. Example:

Teacher: Young man, I want you to stop talking during my class.

Lil’ Yoo: I wasn’t talking. I was practicing extroverted thinking techniques.

Teacher: What?

Lil’ Yoo: I was thinking with sounds.

Teacher: You were talking to Lil’ Rummy.

Lil’ Rummy: He was extroverted thinking in my direction.

I’d call this Orwellian, but it lacks the panache of something like, say, the Ministry of Love. It’s just dumb.

When you realize your home’s look hasn’t evolved much since its post-college phase, you put the Ikea bookshelves on Craigslist, start searching for a contractor who won’t drive you crazy, scrutinize endless tile samples and stop considering Pottery Barn too public a venue to fight with your spouse. Then you prepare the neighbors and pay the county.

Instantly, powerfully nauseating.

“The problem with most Christians is that they are educated beyond their obedience.” — John Maxwell

My first reaction was to recoil in disgust. My second was to look around the room and marvel that everybody else wasn’t retching in their seats.

For the record: ignorance is never the solution. It is always the problem.

The only slight wrinkle to this familiar story is that Steve Jobs called the guy. Not to grant him an exception or anything: just to reiterate his demented policy, with — I gather — a couple of toothless palliatives thrown in. Because there are no exceptions. There is only the Way.

The developer, who seems like a very nice guy, was gracious about it:

Steve Jobs has a well-deserved reputation for creating great quality products and for his passion for excellence and user experience. I’ve also read that he is a detail-oriented executive and a hands-on guy who is intimately involved with his company’s work (in a way that few other CEOs are).

His phone-call reinforced those notions and went further to suggest that he was also a very conscientious guy who cared about people. The fact that he took the time to read my email, think about the app and then personally call me was amazing.

I guess we’re supposed to be impressed that Lord Jobs would deign to call a mere developer to tell him personally that he’s shit out of luck, but really I find this kind of thing profoundly depressing. Not so much because Apple continues down their draconian path with iOS — that’s just the way it is, and there’s no point in lamenting it anymore. Mostly you just avert your eyes. What’s bumming me out is that at least some portion of the development community now accepts Apple’s ecosystem lockdown as a fact of nature, entirely inaberrant. And, worse, they feel actual gratitude when its mastermind reaches down from on high, like a benevolent deity, and … doesn’t help them, at all. A kind of deus ex machina, minus the part where the deus does something useful.

This is how the ridiculous and the unacceptable worm their way into the general consciousness — slowly, bit by bit, until you forget what it was like, back in the old days, when you were allowed to fix your bugs.

BP has resisted entreaties from scientists that they be allowed to use sophisticated instruments at the ocean floor that would give a far more accurate picture of how much oil is really gushing from the well.

“The answer is no to that,” a BP spokesman, Tom Mueller, said on Saturday. “We’re not going to take any extra efforts now to calculate flow there at this point. It’s not relevant to the response effort, and it might even detract from the response effort.”

So tell me again why the company that has caused what may be the greatest ecological calamity in a generation, and has no idea how to stop it, gets any say in the matter? Big Government? Hello?

In contrast, the iPad becomes the app you’re using. That’s part of the magic. The hardware is so understated – it’s just a screen, really – and because you manipulate objects and interface elements so smoothly and directly on the screen, the fact that you’re using an iPad falls away. You’re using the app, whatever it may be, and while you’re doing so, the iPad is that app. Switch to another app and the iPad becomes that app. If that’s not magic, I don’t know what is.

First: Gag.

Second: if the iPad were able to, say, transform itself into a live ostrich that does your taxes for you, then I’d be prepared to call it magical. But what we’re talking about here is a beautifully-engineered, impeccably-designed tablet computer that only knows how to do one thing at a time. This is decidedly non-magical, and everybody really just needs to calm down.

But the problems keep getting fixed, and there’s very little left to complain about. Even Apple’s app-review process has dramatically improved over the last few months to be much faster and offer more detailed feedback for rejections, which eliminates or trivializes most of the problems with app review.

I don’t doubt that the process is getting better, I just think it’s besides the point. None of Apple’s process improvements change the fact that the contract under which developers operate is ridiculous. The EFF recently managed to dig up the details of that agreement, and it’s eye-opening:

App Store Only: Section 7.2 makes it clear that any applications developed using Apple’s SDK may only be publicly distributed through the App Store, and that Apple can reject an app for any reason, even if it meets all the formal requirements disclosed by Apple. So if you use the SDK and your app is rejected by Apple, you’re prohibited from distributing it through competing app stores like Cydia or Rock Your Phone. [Emphasis mine]

Kill Your App Any Time: Section 8 makes it clear that Apple can “revoke the digital certificate of any of Your Applications at any time.” Steve Jobs has confirmed that Apple can remotely disable apps, even after they have been installed by users. This contract provision would appear to allow that.

We Never Owe You More than Fifty Bucks: Section 14 states that, no matter what, Apple will never be liable to any developer for more than $50 in damages. That’s pretty remarkable, considering that Apple holds a developer’s reputational and commercial value in its hands—it’s not as though the developer can reach its existing customers anywhere else. So if Apple botches an update, accidentally kills your app, or leaks your entire customer list to a competitor, the Agreement tries to cap you at the cost of a nice dinner for one in Cupertino.

This is what a monopoly looks like: the App Store’s feudal lords get to dictate insane/surreal/draconian/should-be-illegal terms, and — if you want to develop software for what is arguably the most exciting platform out there right now — you just have to deal with it.

It’s impossible to deny that the App Store has led to a fluorescence of innovation, and has on balance been a good thing for developers — today. But it seems to me that focussing on the current state of affairs, and effectively ignoring the havoc that Apple could wreak if they wanted to, is dangerous. Apple gets away with this shit because they can — not because it’s right.

Unfortunately, Pogue devotes half of the column to a rant about the “paranoid” people who are complaining about the app’s privacy issues:

1. It uploads what you’re saying to its own servers, which do the transcription and then send the text back down to your phone (it may also store those transcripts; it’s unclear); and
2. It automatically grabs all the names out of your address book and transmits them to those same servers, to make it easier for the application to recognize names you might often say.

Pogue’s reaction to the controversy is, sadly, a bunch of completely-missing-the-point hokum of the usual variety: who cares if they’re storing your data, it’s on secure servers anyway, there are already many other services that do the same kind of thing, etc, etc. I found this particularly galling:

OK, first of all, this business of your audio being sent to Nuance for transcription rings a very familiar bell. Remember the Gmail brouhaha? When Gmail debuted, it offered a fantastic e-mail account, paid for by small text ads on the side whose subjects are matched to the e-mail contents.

At the time, everyone was hysterical about the supposed privacy violation: Google will be reading my e-mail! Of course, no humans were looking at your e-mail. It was just a bunch of servers analyzing keywords. Today, everybody’s forgotten all about it. But now the issue rises again with Dragon Dictation.

There is so much wrong with these two paragraphs. For one thing, the fact that people have stopped screaming about google’s practice of reading your email to target ads at you does not in any way remove the actual problem. People have other things to worry about, are not generally concerned about their privacy, and are constantly bombarded with “paranoia” propaganda by well-meaning people like Pogue, who should know better.

Second, this line of argument depends on trusting implicitly the claims of the corporations who are harvesting your data. Pogue quotes the makers of Dragon Dictation on this point:

Nuance says nope, it’s just a bunch of computers, maintained in a secure facility,

Oh good! That should be fine, then. Because if there’s one thing we’ve learned over the past decade, it’s that personal information stored in impregnable data strongholds by organizations that will suffer absolutely no legal consequences for losing that data is completely safe.

Third, it’s just incredibly short-sighted. The fact that we are not at the moment under the thumb of a corporate/government megalopoly tells us nothing about what’s going to happen in the future. Have any of us really thought deeply about what it means to have our lives tracked by entities whose entire purpose is to profit from what used to our private information? Yes, this is already happening. And yes, it can get much much worse. And will, if we already assume that the game is lost.

Ok. Having said all that, I’m very aware of the fact that we are sliding inevitably into a future where a good portion of our lives will be stored in the cloud. The “cloud” is a terrible metaphor, incidentally, if for no other reason than it suggests concealment, of a sort. We can’t afford to assume that anything that leaves the confines our computers is in any way concealed. I’d rather we just cut through the crap and say what we’re really doing here: storing data in the open.

But, again, fine — that ship has sailed, and there are real advantages to decentralized data storage. What bugs me about this is the sneakiness. It’s probably ok that Dragon Dictation uploads what you’re saying into the ether, because most stuff people say is innocuous, and because the coolness that Nuance has achieved on an underpowered computer like the iPhone just wouldn’t be possible otherwise. It’s less ok that they upload your contacts, but, since it’s just the names — they claim — maybe no harm done here either.

But, for the love of god, tell us that’s what you’re doing! And I don’t mean tell us in your EULA, which, like all EULAs, is painstakingly engineered to ensure that absolutely no one reads it.²

When the application starts, the first thing you should see is a question:

In order to improve our voice recognition capabilities, we’d like to upload the names of your address book contacts to our servers. We won’t send anything but the names. Is that ok?

The app should only send your stuff up if you click Yes.³ By the same token, before they do the first transcription, they should pop up a message telling you that everything you say will be transmitted to their servers. Just so you know.

Which gets us back to the terrible, ubiquitous canard that people often fall back on in these situations: “But everyone else already has all our data.” It manifests this way in Pogue’s column:

What I don’t understand is: Why don’t these same people worry that Verizon or AT&T is listening in to their cellphone calls every single day? Why don’t they worry that MasterCard is peeking into their buying habits?

It’s a specious argument. The point isn’t that other services are already listening in. It’s that a layman wouldn’t expect this particular application to be transmitting your words into the open in order to do what it does, and we certainly wouldn’t expect it to be sharing our contacts, unbidden.

This is the real battle: not how to turn back this tide of stored-in-the-Cloud information, but how to enter into the new world with our eyes open, understanding the consequences of everything we do. If we’re going to blast our data out into the great beyond, then we have to know that we’re doing it. Any application that doesn’t go to great lengths to inform us of the consequences of our actions is an application we should avoid.

Jeff Atwood tooted something along these lines yesterday:

He’s talking about Facebook’s byzantine and sometimes deceptive privacy settings, but the principle applies in general.

This line of reasoning used to freak me out, but now I think it’s really the only way to go: assume that everything you do that has an online component will be visible to everyone, and act based on that assumption.

Pogue would call this paranoia, I suspect. I call it prudence.

We can (and should) operate under that assumption now, of course. But there are limits to even this simple recipe. As the lines between our personal computers and the ether blur, it’s hard to tell exactly what’s being made public, and what’s not. Which is why applications like Dragon Dictation have an obligation to tell us.