Jason Whong: Renaissance Man-in-Training

I’ve been consumed recently by an issue that I learned about through Metafilter: a wedding photographer in a very conservative town in Colorado said he was in a quandary over whether, if the question came up, he would shoot a gay wedding and risk offending potential straight clients, or refuse to shoot the gay wedding and risk offending gay clients, and possibly risking a discrimination complaint.

The photographer mentioned a recent case heard before the New Mexico Human Rights Commission in which a lesbian couple complained that a photographer refused to shoot their commitment ceremony, and while they did not demand punitive damages, they won reimbursement of more than $6,000 in legal fees, effectively penalizing the photographer for their decision not to offer their services. The Commission also found that the wedding photographer was discriminatory against same-sex couples.

I don’t like bigotry. I prefer to be kind to everyone. And frankly, I don’t let my religious views decide who I will be friends with, talk to, or conduct commerce with. So, if I were to become a wedding photographer, I would shoot a gay wedding. Because I would approach it from a photojournalist perspective, it would be clear that my presence at the event was neutral, just as it would be for a straight wedding. And if any of my future clients have some sort of “have you shot a gay wedding before?” litmus test, they are probably too dumb to be my client anyway.

But the more I thought about it, the more I came to think that there are two issues at play: the right of equal access versus the right of an artist to define the scope of their work. Specifically, I believe that the freedom of the press mentioned in the First Amendment to the U.S. Constitution includes the freedom to create works of authorship, as well as the freedom not to create works of authorship. I do not think it is constitutional for a law to compel any person to create original works of authorship (photos, poems, videos, plays, etc.) that express an idea that person doesn’t want to express.

So if a photographer doesn’t want to express support for gay marriage, what about a caterer? Do they also get to refuse service at a gay wedding, on the basis that they don’t do gay weddings? I would argue no, because the caterer provides a service that is not considered a “work of authorship fixed in a tangible form of expression” under U.S. copyright law. As creative as a chef is, and while the food may be called a work of art by some, it is not considered a work under the law. Images, on the other hand, are necessarily considered works of authorship under the law. My argument is very specifically about the rights of artists to determine what works they will and won’t create, and what ideas they will and won’t express.

It sets a bad precedent when a law compels the reluctant creation and publication of any work of authorship, no matter how well-intentioned that law may be. Just because a person takes money for their work doesn’t mean they should lose the right to reject a job because of the ideas they would be asked to express (which is entirely different than rejecting the job on the basis of a client’s skin color, gender, race, religion, etc.) If there is a photographer that only wants to create images of Catholic weddings, because they think all non-Catholic congregations to be heretical, and that creating images of them expresses ideas legitimizing the beliefs of the heretics, they should have that right. It’s discriminatory, but so what? There are probably wedding photographers who think that Catholicism is really paganism, and won’t create images of Catholic weddings. That’s fine by me, too, but it is probably illegal in New Mexico. And if it is your wedding, do you really want a photographer that is only there because you approached him or her and the law compels his or her presence? Or do you want a photographer that is eager to please you?

Federal law considers photographers to be similar to poets, writers, graphic artists, sculptors, musicians in that they are all people that express ideas as original works of authorship in a tangible form of expression. So if a wedding photographer can be compelled to shoot a wedding they don’t want to, it creates a precedent in which a person can be forced, by law, to communicate ideas they don’t want to. What’s to stop a later law from compelling a pacifist poet to write an ode to glorious war? What’s to stop a conservative commentator from being forced to write articles in support of liberal causes? Can a photographer or painter of the future be forced to create nude images against their will? Can a vegetarian musician be forced to do an ad campaign for the beef industry? Maybe a newspaper can be forced by law to report on something that’s not an issue they want to cover. Maybe an R&B artist can be forced to record classic rock?

If you read through the aforementioned Vanessa Willock vs. Elane Photography LLC decision by the New Mexico Human Rights Commission, you may notice the 27th paragraph under “Findings of Law”, which reads:

To the extent that Elane Photography’s arguments in this proceeding sought to raise questions as to the constitutionality of the NMHRA or questions as to an automatic preemption of of the NMHRA by the United States Constitution, the New Mexico Constitution or the New Mexico Religious Freedom Restoration Act, those questions are not before the New Mexico Human Rights Commission for determination in this proceeding, and, accordingly, are not addressed here.

Based on my non-lawyerly reading of this, I think it is possible that some part of the law that ended up penalizing the photography studio may be found unconstitutional by a court of law, if it is challenged. If it happens, perhaps you read it here first: the right to a free press includes the right not to be forced or penalized by law to create works of expression that you don’t agree with.

Technorati Tags: gay marriage, Willock v. Elane Photography, first amendment, civil rights

The Washington Post has a great article about how making ethanol from corn is bad for the environment and drives up food prices.

I have a friend who is a corn farmer and rather than being happy about the higher prices he gets for corn, he’s upset at the bigger picture.

The Democratic National Committee recently launched FlipperTV, a website that hosts pretty much every video of every Republican candidate that their operative create on the 2008 campaign trail. It would be fine if that were all it was, but it goes a step further. The site says:

With FlipperTV, Americans can now watch and download this video, and use the footage as they wish, putting raw material into the hands of the American people to hold these candidates accountable for their comments and actions.

This video is released to the public domain. You may download and use the video as you wish, with no restrictions.

This is where things get really weird, at least from a rights perspective.

For starters, the courts have long held that people have a right for their likenesses not to be used commercially without their consent. This is why non-journalist photographers and videographers carry waivers for their subjects to sign, and it’s also part of why motion picture companies hire “extras” to appear as extra bodies on-screen. it’s also the reason a lot of reality TV programs have a budget for obscuring the faces of people for whom no waivers are on file. If they were to slip-up and include a person who had not waived their rights, they could find themselves the targets of a lawsuit.

These videos released by the DNC easily contain the images of thousands of people. These people have the same rights as anyone else concerning the use of their likenesses, regardless of whether the work that contains their likeness was released by its creator into the public domain.

(I wonder what would happen if hundreds of the non-candidates in the videos complained to the DNC about the use of their likenesses for political purposes without their consent; perhaps something like that could kill the site even in its infancy…)

Other issues that beg questioning by anyone wanting to create a derivative work of video released by the DNC into the public domain:

1. Copyright provenance. The DNC says it is releasing the video into the public domain, but a central question is whether the DNC held the copyright to the videos (and, by extension, the right to release the videos into the public domain) in the first place. Under current copyright law, works created in the U.S. are automatically protected by Copyright at the time of creation. Which means that the work actually belongs to the operative that created the video, unless the operative somehow transferred the copyright to the DNC by contract. It’s possible that the work might be considered “work for hire”, and thus it would already belong to the DNC (just as my own images from work don’t really belong to me), but the DNC doesn’t say anything to assure us of this. It says “staffers” took the videos, but if they are volunteer staffers, it’s not clear that the work is considered work made for hire without an agreement.

Suppose for a second that the copyright somehow didn’t get transferred to the DNC: all it would take is one RNC infiltrator to give them a video, then sue for infringement when the DNC posts it, and everyone would have egg on their faces.

2. Do they know what they’re doing? It’s not clear to me that the DNC fully understands what it is doing with this site. On the front page, they release the video into the public domain, but on the bottom of every page, including the pages that include the video, they assert copyright, without an exception for the video they released into the public domain. (OK, maybe this makes sense because the site might be a derivative work that includes material in the public domain, which can be protected by copyright… But why leave it up to the imagination?) This makes me wonder whether they really thought to give all of their staffers work-for-hire agreements, since the whole venture is new for any U.S. political party.

Or, maybe they really know what they are doing. By encouraging others to use the video “with no restrictions”, they probably have already calculated that they can’t be held liable for misuse of the videos. But they don’t warrant that they will assist you when you get sued by someone who claims that their rights to privacy or publicity were violated. Video editors beware.

Technorati Tags: democratic national committee, video, copyright, public domain, legal, rights, privacy, publicity, democrats, flippertv

The Asian American Journalists Association recently sent an advisory cautioning editors against mentioning that Cho Seung-Hui is Korean or an immigrant, saying that it has nothing to do with the massacre.

When I was a student, I was a member of AAJA. It was because a newswriter at WJLA told me to join because “we Asians need to stick together because of our disadvantages.” It almost made sense to me then: culturally speaking, I did not have generations of American experience on my father’s side. Because of this, I might have more ease with American culture than an immigrant, but not as much ease as a person who had many generations of experience on both sides of their family. But I’m digressing. I am not currently a member of AAJA, mostly because I don’t prefer categorization by race.

Here’s the crux of what AAJA is talking about:

We understand the need to research the background of Seung-Hui Cho (first name is pronounced “sung hee”) and to provide details about him as a nation struggles to make sense of the horrific incident.

But we are disturbed by some media outlets’ prominent mention that the suspect is an immigrant from South Korea when such a revelation provides no insight or relevance to the story.

That’s right, editors: the AAJA says please don’t mention he is Korean, but please pronounce his Korean name correclty, and please know the order that Korean names appear in.

So here begins my open letter to the AAJA:

This atrocity in Virginia is the top story in Korea. If anything, its newsworthiness in Korea is worth several stories in American media.

While I agree that race, ethnicity, nationality, et. al. had nothing to do with the incident, I don’t think it’s out of line to mention that Cho is an immigrant for the following reasons:

• If Cho had naturalized, AP would call him Seung-Hui Cho instead of Cho Seung-Hui. Explaining that he is South Korean makes it clear to readers why they use his family name first. (Either that, or AP screwed up and is keeping last name first order for consistency.)
• Knowing how old he was when he came to America provides clues to what challenges he may have faced, coming to a new country and making new friends at such a young age.
• Because he has committed such a heinous crime, it is not unusual to report every detail, relevant or not. Why do we know Lee Oswald’s middle name? Is it unfair to people with a middle name of Harvey to refer to Oswald by his full name?
• Would the AAJA object to reporting on Cho’s nationality if Cho had been naturalized Canadian or British? Or what if Cho were born in Australia? What if he were white and from France? Would the AAJA object if we called him French?
• Did the AAJA object when American media reports mentioned that Osama Bin Laden is Saudi?
• Would AAJA members find it rude or offensive to postal workers to use the term “going postal” in everyday speech?
• Because the crime involved the legal purchase of firearms, isn’t it important to note that Cho was a “resident alien”?

I don’t think it is out of line to mention that Cho was Korean, a “resident alien”. There are too many dimensions to the story that make it relevant.

Technorati Tags: Virginia Tech

The existence of a deity can not be proven by science. The non-existence of a deity also can not be proven by science. Such is the nature of deity.
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I found RonaldMcHummer.com recently. It’s a site set up to protest McDonald’s and its promotion of the Hummer by giving toy Hummer cars free with children’s Happy Meals. It invites its readers to use a clever script to place whatever lettering they desire onto the iconic McDonald’s sign.

Now, say what you want about Hummers. I won’t buy one, and the reason is not just because they’re pricey. I just prefer small, fuel-efficient vehicles. The idea of walking or biking to prevent the burning of gasoline is very appealing to me, as is the idea of driving a smaller car that uses less gasoline. Efficiency is a turn-on for me.

But i can’t agree with those like me who would be so incensed about Hummer toys in happy meals that they’d ignore civility and piss all over McDonald’s Corp.’s trademarks. These people subscribe to one or more of the following schools of thought:

• hatred and closed-mindedness: Anyone who drives a Hummer is obviously not someone who thinks like you, therefore they’re evil; for McDonalds to pitch such an evil lifestyle on the children of America makes them evil, too. This is the cultural elitist mindset.
• no faith in humanity: Since McDonalds told the children that Hummers are fun, there’s no way they or their parents can possibly resist buying one, or perhaps the kids will grow up and buy them in disproportionate numbers.

I’m not going to debate the haters; they’re just going to hate. However, it’s really easy to debate the people who think families are unable to resist the marketing pull of free Hummer toys in happy meals. We all have free will. We are not powerless to resist the marketing muscle of GM and McDonald’s. And just beause kids may think Hummers are fun toys doesn’t mean they’ll grow up and drive Hummers. Just as kids who play violent video games are not likely to become sociopaths. Banning toys won’t prevent people from driving Hummers. Banning video games won’t prevent people from shooting others (nor will banning guns.) All it does is limit freedom.

There may be concerned people who think that Hummers are generally a bad idea, and that marketing Hummer toys to children is somehow unethical (even though they will not be in the market for a vehicle for many years). These are not the kind of people who set up immature websites like this. Rather, these are the people who start letter-writing campaigns and boycotts.

So, here’s the sign I made from the site:

Make your own sign, and share it, if you like.

If you don’t want people to be able to drive Hummers, write Congress or elect people that will legislate against them. Don’t vilify McDonalds. They’re just selling cheap unhealthy food, cheap toys and good times. That’s how they stay in business.

If you want to mock the Hummer, why not just make a video of yourself humping one, like they do at ihumpedyourhummer.com? Only, try not to touch the car when you do it. It’s not yours.

I think most of the facts about my previous post can be found here: Wikipedia: Jesse Macbeth

If someone sends you the link to the Jessie Macbeth video, kindly inform them that the video is anti-government propaganda, likely laced with exaggerations and outright lies.

I ran into the video on Metafilter, and I knew something was wrong with it. The more I listened, the more outrageous his claims became:

• He says he personally has killed about 200 innocent civilians at close range
• He describes a Rangers infiltration of a mosque. When women and children pray, the Rangers ambush them and hang their mutilated corpses inside the mosque. Then they write anti-Allah graffiti on the walls.
• He says the Rangers interrogated parents by shooting their children one-by-one if they didn’t answer correctly.
• He says he is haunted by the memories of seeing a woman, marked by the blood of her own child, pleading for her life with three children in her arms before he kills them all “because he had to.”

Already lots of military blog sites are going to town on this guy for claiming to be a Ranger when he isn’t wearing a proper ranger uniform. I don’t feel qualified to comment on the completeness of his uniform, so I will refrain. I will, however, note some of the innaccuracies I have noticed in his stories at several places.

What’s in a name

The video says he is Jessie Macbeth. He’s easier to find under the name Jesse MacBeth or Jesse Macbeth.

The question of time

The video says Macbeth spent 16 months in Iraq with the Rangers.

MacBeth told the Eastern Arizona Courier in November of 2003 that he “returned to the states two-and-a-half months ago after sustaining an injury in his back.” That puts him back in America about 6 months after hostilities began in Iraq.

The question of medals and wounding

Macbeth told SocialistAlternative.org a few things:

What medals did you get in Iraq?
I got a lot. I got a purple heart. Half of them, I don’t remember. I got five or six medals just for landing. I got a bronze star.

What injuries did you get?
I got stabbed many times. I got shrapnel in my knee. I got shot in the back.

Stabbed many times? Um. Wow. Maybe there are insurgents that carry knives or bayonets, but, umm. That’s unusual.

But he didn’t say any of this to the Eastern Arizona Courier in November, nor to the ASU State Press in April of 2004, which notes he came back to “recover from a back injury.”

The question of service

Macbeth tells SocialistAlternative.org that he was in the Third Ranger Battalion.

Now here’s the nugget - the 3rd Ranger battalion eventually became the 3d Battalion, 75th Ranger Regiment - in 1986… but it doesn’t appear they went to Iraq at all.< (I could be very wrong on this one - but everything I read about the unit talks about the invasion of Panama... nothing much about OIF. But I have not had the time to investigate this further. update: They were there.

USA Today broke the story today that the NSA (National Security Agency) has a database containing information about most phone calls made in the nation since 2001.

The government quickly called a press conference to point out that the database is full of information about telephone calls, not the calls themselves. (Computer nerds call information about information “metacontent” or “metadata.” The NSA calls it “external data.”) They didn’t go into specifics, but there are only a few pieces of information about a phone call that don’t have anything to do with the content that I can think of:

• originating telephone number
• receiving telephone number
• date and time of origination
• date and time of termination

Maybe also “date and time of connection” - to note the time that the recipient actually picked up the call, but I’d really have to know more about how the phone system works before saying for sure. Also “duration” might exist, but it could easily be calculated from the start and end times.

So, of course, lots of Americans are outraged that such information would be voluntarily turned over to the government. I’m somewhat bothered by it.

The government thinks it can use this information to fight terrorism. Maybe it can. Maybe it can’t.

They are probably thinking that collecting the information doesn’t violate anyone’s civil liberties, because a phone number, like an IP address or license plate number, does not uniquely identify a person. Let’s keep that in mind as we consider just how the government might use this information.

If I were the government, here’s how I would use it:

I’d start with a list of known terrorists. Maybe throw in a list of suspected terrorists. And I’d probably know many of their phone numbers already.

I’d check their phone numbers against the call database, and plot a “personal network” much like friendster, myspace, or orkut. Maybe it would be easier to visualize by redrawing the network at varying thresholds (say, not plotting lines unless more than one call was made, at least a day apart from each other.)

If “island” networks appeared at certain thresholds, meeting certain criteria for suspiciousness ratings (with some new “suspicion heuristic” algorithm much like SpamAssassin uses to identify possible spam), I’d assign people to watch those networks, and maybe listen in on the calls.

I’d have an army of programmers creating ways to analyze and visualize the data (perhaps with time lapses, different colors, etc.), and I’d have an army of sociologists and psychologists looking at the results. And they’d talk to each other to keep making the software smarter and better. And when they found terrorists, we’d pounce on them (or use them to find out where Osama is hiding.)

That’s how it would be if I ran things (and could justify actually having the metacontent in the first place).

Now, let’s consider some other questions: If they can collect personal network information from phone companies, and have the capabilities to process and analyze it, wouldn’t that mean they probably also have the capability to spider data from all of the social networking sites? Could they have a constantly updated copy of MySpace, Orkut, Friendster, and all of that? Could they have a search and data visualization engine that knows more than Google? Could they find a way to “stitch” known and suspected relationships from the public data to the phone call metadata? Could they also “stitch” the call database to a database of taxpayer records? (You can voluntarily disclose your telephone number to the Federal government on your tax forms- surely that’s stored somewhere.)

Odds are, if you’re a privacy freak, you would have already thought of all of this, and that’s why you’re not on Orkut or Friendster. Most Americans don’t care about privacy; they’re way too loose with their information. That’s why identity theft is so rampant here. (Though, even many victims are careful.)

Anyway, I am only mildly perturbed (instead of majorly perturbed) because I don’t think the government gets its jollies spying on the average joe. I think most people joined the NSA, the FBI, the CIA, etc. to be heroes and catch bad guys. Wasting time spying on ordinary Americans and learning all of their dirty secrets doesn’t make anyone a hero, and I honestly think a majority of agents would find it boring.

What worries me is that, like spam filters and other heuristic algorithms, there are always “false positives” and “false negatives.” I am sure that any suspicion scoring algorithm would also have the same problems, possibly resulting in suspicion of innocent people. Every time I get onto a plane, I get searched by a TSA official away from everyone else, because the TSA has designated me a “selectee” for reasons they don’t have to disclose. I comply with the searches because I want to fly on the plane, and because I have nothing to hide. But I still find it very annoying and degrading. (Maybe this has changed; I haven’t flown since 2003.)

If it’s revealed that the NSA connects the phone call database with the selectee list, I’ll be majorly pissed off. But, odds are they’ve already evaluated it and decided it’s crap (much like Congress has). Until such a revelation occurs, I remain only mildly upset. The idea of building a better, private MySpace, and using it to catch terrorists, is too exciting to me (for all of its nerdy possibilities.) And maybe I’m gullible, but I really think that’s all the government is doing with the data.

Critical questions:
1) Is collection of metadata by the federal government necessarily “domestic surveillance?”
2) Is a heuristic algorithm ever fit to determine who’s suspicious and who’s not? (I don’t know for sure that an algorithm is being used, but it is very likely.) And, is a heuristic algorithm better or worse than “profiling?” Or is it the same, just with some binary logic applied?
3) Do you really trust the government not to use the data for other applications aside from tracking terrorists?
4) Does the idea of the government creating its own “social network” visualization software scare you? Or, does it intrigue you?

It just occurred to me that in my last post, I made a straw man argument. Debaters construct a straw man by misrepresenting or oversimplifying an opposing viewpoint, then refuting it convincingly. It’s very persuasive, but it’s also misleading.

Here’s what I said in the immigration protests post:

There are some people who believe that rendering The Star-Spangled Banner in any other language than English is disrespectful. I would disagree…

I set up an argument that was really easy to knock down. It was really specific, and also sounded like a plausible position that all opponents of Nuestro Himno might subscribe to. In real life, not all of the opponents are part of the “some people” that I addressed in the last post.

Some may not like Nuestro Himno because the song is being championed by immigrants without the legal right to live or work in America — exactly the group of people that should not frame national debates. Such an objection would be reasonable.

Some of the opponents may like that America is, by majority, an English-speaking country; they may interpret Nuestro Himno as an attempt to destabilize American culture by imposing Spanish on the rest of America. It’s reasonable to fear impending change (though, not reasonable to hate people because of those fears).

Then there are the purists like Rochester, N.Y. media personality Bob Lonsberry, who think that any variation from the norm when performing the song is disrespectful:

And you should keep it simple.

You should sing the notes that are on the paper and you shouldn’t add any more of your own. There are plenty of vehicles of self-expression, but this doesn’t happen to be one of them.

Because this isn’t your song.

This is your country’s song.

I think Bob’s opinion is valid, too.

Where does that leave us? I’ve acknowledged all the other possible reasons for being opposed as reasonable. How can I still not be bothered by Nuestro Himno?

I’m O.K. with it because I think that the opponents’ reasons for being upset about the song are just as well-reasoned and valid as my reasons for not being upset are. We don’t have to agree on everything in America, and it’s fine as long as we still respect each other. And in the end, I don’t think anyone is talking about banning the song. The law already says it’s not the National Anthem, and that’s probably all the protection the song is going to get, under the U.S. Constitution.

The true tragedy of the debate of Nuestro Himno is that it distracts people from the issue of why so many millions of people live in the U.S. illegally under current U.S. immigration policy.

To the brilliant British record producer who thought it would be a good idea to hire Latin pop stars to sing Nuestro Himno, I hope your only motive was defining a market based on a side of a political debate, and profiting from the people that are going to buy up your disco compacto like caliente-cakes. Because if you intended to influence the immigration debate, you failed. On the day when people were marching in the streets, pundits were wasting so much time debating your song when they could have asked serious, critical questions about immigration policy. That money you’re planning to “give back to the community” for each sale (no doubt, in the form of 6-foot long photo-op checks to immigrant rights organizations) should really be considered a form of penance rather than generosity. (Maybe you can write “sorry for obfuscating your community’s real problems, but thanks for the platinum record” in the memo.)