The Charlie Hebdo Attack – A Foreshadowing of a U.S. Nightmare

At the risk of overstating causation, I have come to believe that the Jungian notion of collective unconsciousness operates like an unseen force in the world of terrorism.  This seems especially true in the context of modern, loosely affiliated terror groups.  While top-down organizational planning occurs in some cases, it is striking how many incidents are characterized as “lone wolf” exploits.  Despite this characterization, we know that these actors do not act alone in a broader sense.  Putting aside self-identification with a radical ideology, they also exhibit discernible patterns of approach and action.  Their tactics are drawn from a well of depravity over time and place, and show signs of adaptive continuity.  And, this brings me to my point.  I see a confluence of terror actions that reflect a shared vector of thinking which ought to raise alarms.  I am very worried that it is only a matter of time before a US school undergoes a commando style terrorist attack.  There are too many behavioral signals that lead in this direction.

The Paris terror attack on Charlie Hebdo magazine comes on the heels of the Pakistan school massacre where Taliban terrorists indiscriminately attacked a school and left 153 dead.  In the Pakistan school attack, a relatively few attackers were able to inflict massive casualties through a coordinated military style attack on a “soft” target.  The Charlie Hebdo attack was also a small coordinated action against a soft civilian target. But, the Paris attack also bears a similarity to the Boston Marathon bombings.  In each case, the perpetrators are disaffected immigrant bothers. Whether the Tsarnaev brothers influenced the suspected brothers in the Paris attack is not known, yet it bears a signature.

Following this Gestalt, the United States suffered the worst school shooting in history at Sandy Hook School in Connecticut in December 2012.  While not undertaken by a “terrorist” in the classical sense, the event was a proof point that very large casualties can be achieved by one actor, and schools are generally defenseless.  It also inflicted vast damage to the US national psyche.  Simply put, attack schools and you attack the very heart and soul of America.  Whether Adam Lanza inspired the Pakistan Taliban would be pure speculation, but again there is a signature of evil bearing a resemblance.  While the Taliban have routinely attacked small girls’ schools in Afghanistan under the pretense of religious offense, the Pakistan school attack had an entirely different tone. It was undertaken purely to exact great retribution and strike massive fear in the Pakistani population.  Framed differently, Sandy Hook showed feasibility and effect. A terror mind could not help but be influenced by the reality of its devastating effect.

The Paris attack has a linger to the Mumbai terror attacks in November of 2008 which resulted in 164 dead and over 300 wounded.  Mumbai was a tactical and behavioral departure point.  It showed that commando style attacks by a small coordinated group could exact large casualties on soft civilian targets.  While bombs were used, the use of automatic weapons was prominent.  The “success” of this style of attack again left its mark on the master psyche of terrorists.  The Charlie Hebdo attack just reinforced this notion. 

Going back even further though, it is possible to follow this deadly lineage and extract some lessons.  In 1998, the United States embassy bombings occurred which killed hundreds of people in simultaneous truck bomb explosions in Dar es Salaam and Nairobi. The date of the bombings marked the eighth anniversary of the arrival of American forces in Saudi Arabia.  These bombings succeeded the Khobar Tower bombing in 1996, which was an attack on a US airman residential complex.  These attacks, while striking an arguably governmental targets, were nonetheless soft targets.  In the Khobar case, a petroleum truck bomb was detonated sheering off half of the building and killed 19 airmen in Saudi Arabia.   A year earlier, in 1995, Timothy McVeigh blew up the Alfred P. Murrah Federal Building with a truck bomb filled with fertilizer, collapsing half of the building and killing 168 people and injuring over 600 others.  The Oklahoma City attack was preceded by the first Twin Towers attack in 1993 when a truck bomb was driven into the belowground garage and detonated.  Even further back in time, we find the 1983 Marine Barracks attack in Beirut, which killed 229 servicemen with two truck bombs.  The Khobar attack a decade is eerily similar to it.  It is difficult to avoid the parallelism and conspiracy in thought that propels the next act of barbarity.

As far as the recent Paris attack is concerned, the perpetrators appear to have some connection with Syria.  As thousands easily move through Europe to fight with ISIS, these radicalized fighters will return as better trained, battle hardened zealots in Europe.  We can see the risks and challenges that European nations will continue to face.  But, the United States is hardly better off.  Without entering into the debate over semiautomatic weapons, the fact is powerful weapons are readily accessible and the United States’ porous borders affords small groups of terrorists relatively easy entry to the country. To assume we will remain insulated from motivated radical terrorists is a deadly mistake.  The means, proven feasibility, massive psychological terror factor and intent are all present.  The chance of commando style attach on a school by a few individuals is a real threat, as is a truck bomb attack.  While obtaining large quantities of explosive materials is difficult, hijacking or stealing a fuel tanker is not.  Driving a tanker into a school facility and detonating is a real possibility given past exploits.  Finally, using the two tactics in combination is also a possibility, given that have used similar tactics in Afghanistan and Iraq on police and army compounds.

In speaking with one law enforcement person about school safety, he indicated that most schools are not worried about active shooters, and are dealing with more practical day to day security problems.  While I can appreciate this pragmatism, there is an overarching pattern of potentiality borne out of past conduct that we ought to recognize.  I greatly fear that a terror attack on an U.S. school by militants is only a matter of time, and the effects will rock this Nation to its core.  I hope and pray that I am wrong. 

Yet, we need to heed the clarion call and continue to make changes in our security posture.  First, schools buildings need to be shielded from a truck assault.  Any large truck, like a tanker or trailer truck, needs to be routed and controlled outside a blast zone until it is verified.  Regional areas should have quick reaction counterterror swat teams that are equipped to respond and defeat well equipped and military trained terrorists.  Schools and law enforcement agencies need to have real time collaboration capabilities for situational awareness and ground truth for tactical advantage. Being able to communicate with school personnel and see inside schools is essential.  Glass windows and doors need to be upgraded to be more breach proof to delay an assault.  Reinforced safe areas should be created in schools.  More one-way exits should be installed to enable personnel and students to evacuate without going through bottleneck points and feeder spaces that create kill zones.  While many of these suggestions may seem over the top, a terrorist attack is by its nature dealing with the unthinkable.  The cost of hardening our schools is a small price to pay if it can save the lives of several hundred or more innocent children – namely ours.

Why the Aereo Court Got it Wrong and What it Means

Image Credit: Wikipedia Public Domain

The US Supreme Court got it wrong in the Aereo[i] Decision, and it exemplifies a problem in US courts today.  Judges with little or no understanding of technology are making decisions that have far-reaching impacts on future innovation.  As a general matter, the Federal court system, especially at the appeals level, is comprised of older judges, many of whom are technically illiterate.[ii]  Further, even at the circuit level the vast percentage of judges as a matter of educational background and experience are lacking in the most basic technical understanding to be minimally equipped to make sound decisions.[iii]  Yet, it is nearly universally acknowledged that that our economy has undergone a shift from manufacturing to a digital information economy, and it is the court system that adjudicates disputes and is often forced to make decisions either based on outdated laws or immature digital laws that require an appreciation of technical context and nuance.   Aereo is a classic failure to intelligently navigate the realities of new technology that appear to trespass on old laws.   

In brief, Aereo Inc., is an innovative internet based video distribution company that uses individual antennas to receive locally broadcast TV transmissions then retransmits them to subscribers over the internet one a one to one basis.  The content of the transmission is not altered and is merely passed on to an individual subscriber that elects to request and receive the retransmitted stream for his viewing.   ABC and other broadcasters sued Aereo alleging copyright infringement.  In June, 2014, the US Supreme Court ruled that Aereo violated the Copyright Act of 1976 because Aereo infringed on a copyright owner’s exclusive right to perform the copyrighted work.  The Court relied on amendments to the Copyright Act that were introduced nearly 40 years ago when Congress took aim at Community Access Television (CATV) providers.  CATV providers were organizations that erected large antennas clusters to capture weak TV signal transmissions and retransmit them to underserved viewers in communities.  The Congress revised the Copyright Act to specifically state that the act of retransmission is a right reserved to copyright owners, reversing an earlier line of court decisions that held that merely retransmitting a broadcast without altering its content was not a performance protected under copyright laws.  Making an analogy to CATV providers, the Court essentially found that Aereo was performing the same function and therefore the Congress must have meant to prohibit Aereo’s activities.  

In reality, the Supreme Court made a decision on gut feel, effectively concluding Aereo had created some kind of “infernal machine” that beat the system.  In so many words, the Court divined that a 1970s Congress would have been offended by the outcome of Aereo’s technology rather than its substance.

In making its decision, the Supreme Court rejected several Aereo arguments that sought to distinguish it from a CATV provider.  These arguments included that unlike a CATV provider, Aereo was a one antenna to one viewer retransmission.  Whereas a CATV provider essentially rebroadcasts to anybody within its reception range, an Aereo subscriber, if it chooses to watch a show, must request the show and then when it does, a single antenna is enlisted to pick up the signal which is then converted to IP, temporarily stored and then forwarded to the requesting viewer.  In essence, Aereo argued that a one to one retransmission was not a public performance.  Aereo further argued that it was not a transmission within the meaning of the Copyright Act because it was not a broadcast transmission, meaning that it was not simultaneously transmitted in a wide area or a large number of viewers.    Calling upon poor analogies, the court rejected these arguments, and, most importantly, stated it was deferring to Congress’s intent.

When interpreting a law, deferring to the lawmaker’s intent, that is- determining what lawmakers meant when they enacted a law, has been recognized as the standard of proper judicial review since our founding.  However, despite the appearance of deference in this case, the Supreme Court, in reality, did the opposite.   Essentially, the Court took a nearly forty year old law that could not possibly have conceived or foreseen the technology at issue and speculated what Congress’ intent would have been if it understood the technology.  At some point, extrapolating intent to new circumstances moves beyond reasonable assumptions to activist speculation. This is the case here.

One of the fundamental principles underpinning the validity of any law is its certainty and clarity.  When a law is vague, it deprives all citizens of substantive due process, because a citizen cannot reliably determine whether an act is lawful or unlawful. Not knowing which the case is, a citizen must either forbear from an activity in fear that it may subsequently be determined unlawful or engage in activity under the threat of potential future jeopardy.  This is often referred to in the law as having a “chilling” effect.        

When the Aereo defendants claimed that the Court, if it sided with the plaintiffs, would chill innovation, the Court cast aside this concern while gratuitously acknowledging that Congress does not want to dissuade innovation.  Rather than undertake any substantive analysis, however, the Court merely ordained that the decision would have no adverse impact.  In justifying its determination, the Court emphasized that its ruling was limited and pointed to legislative history that the “[transmit amendment] does not determine whether different kinds of providers in different contexts also ‘perform’.”  But, this precisely what Aereo is.  A different kind of provider in a different context.   To this point, It should not go unnoticed that Court employed used car analogies and “knobs” in its decision to elucidate its technology analysis.  To prop up its finding, the Court turned to legislative history and selectively chose the history which best suited its decision.  Yet, by its own admission, it recognized that Congressional history specifically cautioned that new technology would not necessarily fall within the strictures of the retransmission amendment.    

So, how did the Aereo Court get it wrong? [iv] I would argue it simply did not understand technology to a degree necessary to appreciate the substantive technology issues in question. The Court was fumbling with and failed to grasp the concept of transmission.  A digital broadcast signal is encoded and then decoded when it is received.  This is the case with every TV with a digital receiver.  Once the signal is received, it is decoded and then “retransmitted” across a bus (a carrier) to a processor that then runs an application or function to visually display the data on a screen.  Aereo is simply distributing the same functions over space.[v]  Instead of using an internal bus, it is using the internet to deliver the signal to a computer viewer.  It is as if Aereo removed the box around the TV, and then separated and spread its components over distance and then reconnected the components with very long wires.  Is their a substantive difference merely because a passive box encloses the retransmission function?   Or, is it that the retransmission occurs within some undefined proximity to a viewer that the Court intuitively senses but never articulated?  As for the antenna aspect, again by viewing the function, Aero is no different from a viewer that rents a TV with a digital antenna, except the viewer just rents the antenna component in the Aereo case.  Again, we come to not so much to function as much as packaging and form factor.

When viewed within a comparative functional analysis, the court is simply off base.  The only valid argument one could raise is that transmitting a signal beyond is natural extent (i.e., the receivable coverage area) is exercising a transmission right more broadly than what the content owner intended.   Considered in this light, the question must be put whether any content owner or broadcaster that permits or engages in a broadcast over licensed spectrum to the general public at large is, by the very act itself, waiving its right to select who and how viewers may receive a signal.  It is as if an author dumped an unlimited number of copies of his book into the public square with a “free as long as you don’t tear out or add pages” sign, and then complains if Mr. Smith picks a few up and delivers them to the convalescent home.   If the format is generally decodable and the medium is receivable in the public airwaves, it certainly defies logic that a one-to-one re-transmission does anything more than the original act itself, assuming the viewer had the ability to or ought to have received the signal to start with. But the Court never reaches this level of inquiry in its decision.

Even assuming that Aero was engaged in something analogous to CCTV, the next question is what substantive harm has occurred if the content is unchanged and the content is broadcast for free.  If anything, the act of retransmission in unadulterated form advances the commercial interests of the broadcaster and owner.  It could be argued that the broadcaster suffers harm because the presentation has a particular placement in a series of presentations whereby if the presentation in question is not seen in series it diminishes its value.  This argument would be specious at best, because viewers have the unfettered ability to change channels, nor has any broadcaster attempted to impose a license condition that requires a viewer to be tethered to a channel for a series of programs.  Quite the opposite.  Each “show” is advertised and promoted as a separate work or performance such that no broadcaster adds any transformative value by showing a series of shows in any particular combination.      

Further, to the extent retransmission reaches a larger set of eyes and delivers the original advertising, it seems inexplicable how any broadcaster can claim harm.  If anything, retransmission furthers the economic interests of the broadcaster, and thus the owner of the work.  If the answer is “just because the owner is the copyright holder”, then the question must be whether there is a legally and morally sufficient basis to warrant the chilling of innovation when there is no readily apparent harm.   To this point, it is granted that an artist can control the distribution of his works.  For example, a private painting made for a person or special viewing may very well warrant protection because it was created with the specific purpose of a limited distribution.  The limited or private distribution is part of the original work itself.  It has a creative intimacy in its purpose.   On the other hand, by allowing broad public dissemination of a work to any and all who might view it, the work has lost its intimacy with its creator and there can be no compelling reason why it should be controlled as long as it does not cause economic harm. 

As technology accelerates and provides increasingly more ways in which viewers may receive, view, interpret, interact and enhance works, the courts need to recognize that technology is forcing courts to dig deeper into the substantive nature of intellectual property and understand precisely what is protectable and why a work is protected.  Simply dithering and fudging around the edges with narrow holdings and vague notions does not advance the interests of society, and harms innovation and creativity because of uncertainty.   They create vast uncertainty, because it is impossible to distill any rational boundaries that can be applied by a technologist. 

Our judiciary is in desperate need of qualified jurists with a sound understanding of technology, otherwise the ingenuity and creativity that drives our economy will suffer in the morass of legal uncertainty. 

Disclosure:  The author has no direct or indirect interest in Aereo or any party related or affiliated with Aereo.

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[i]  American Broadcasting Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014) (Web Link: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf)

 

[ii] See, for a discussion of aging judges: http://www.slate.com/articles/news_and_politics/jurisprudence/2011/01/the_oldest_bench_ever.html

 

 

[iii] See, discussion of general expertise of judges:  http://www.libertylawsite.org/2014/02/05/posners-tyranny-of-expertise/

 

[iv] See, Copyright: ABC, Inc. v. Aereo, Inc., 128 Harv. L. Rev. 371 (Nov. 2014), for an interesting discussion of “purposivism and textualism”.

 

[v] Id. Some describe this as raising uncertainty with “cloud” implementations.  Again, it misses the point.  Even the NIST definition of what a cloud service is ambiguous at best.  See, NIST Special Publication 800-146 which contemplates hybrid implementations.  An understanding of how technology is doing a function is essential as what it is doing in any substantive analysis, because the "how" informs the "what."