"No matter how cynical you get, it's impossible to keep up." - Lily Tomlin
No more
That was not just sad and unfortunate. It is absolutely unacceptable in a supposedly civilised society that an inoffensive, non-political legal researcher and information technology journalist perceived such a real threat to her privacy and that of her correspondents that she decided she had no choice but to stop using the internet almost entirely.
The metaphor of the canary in the coal mine springs to mind. If such an honourable, upstanding, straight arrow, good government supporter passionately dedicated to the rule of law like Pamela Jones could no longer believe that her privacy remained relatively safe using the internet and email, we are all in big trouble.
Pamela Jones - who calls herself PJ - introduced herself and her blog called Groklaw to me via email more than 10 years ago in early 2003 after I began covering the legal assault on Linux by a struggling former Linux distributor named Caldera. Caldera had bought a small and steadily declining x86 Unix operating system business from the Santa Cruz Operation (SCO), renamed itself SCO and thereafter filed a $1bn civil lawsuit against IBM, alleging primarily Unix copyright infringement by IBM in furtherance of its support for Linux.
I was of course thoroughly derisive about SCO's claims and chances of prevailing, but some of my copy at the time didn't conform to proper legal usage and PJ gently corrected me about it then, which I appreciated. We soon became friends via email, and I've considered her a friend ever since. So on one level this decision that PJ has been forced to make by intrusive government surveillance is a personal tragedy for someone I view as a good friend, although I've never met her in person. That's surely bad enough, but it's more significant than that.
The INQUIRER was the first general information technology (IT) news website to mention her excellent legal research on the SCO follies at Groklaw, and many other IT industry publications have followed Groklaw ever since.
Groklaw is - well, was - a collaborative legal education blog that taught software developers how the US legal system works and taught lawyers how software development works, especially for Free and Open Source Software (FOSS) that's licensed under the GNU General Public Licence (GPL) and other FOSS licences. It has been an invaluable resource for 10 years, and over the years it attracted a large following of readers and volunteer contributors. That's over now, evidently, but it's simply outrageous that PJ was forced to decide that she had to shut it down.
PJ concluded that she had to close Groklaw because rogue, lawless elements at the shadowy US National Security Agency (NSA) and elsewhere in the US government like the White House and US Department of Justice decided that the Fourth Amendment to the US Constitution is a dead letter, that US citizens no longer have the right to privacy, and that committing journalism and peaceful citizen advocacy are tantamount to treason.
These stances are simply unconstitutional on their face, and therefore illegal and void, according to a number of landmark historical precedents established by US Supreme Court rulings consistently handed down throughout the history of the United States.
This must not be allowed to stand. Groklaw was a serious, immensely valuable forum and resource at the crucial nexus of information technology and the law that had an impact that was far out of proportion to its size. At one point during the SCO follies, SCO's crew of Salt Lake City sharpies and hangers-on in the press tried to claim that PJ didn't really exist, that her online persona was in fact a fictitious front for a large cadre of IBM lawyers.
That was of course ridiculous and it was quite funny at the time, but the claim reflected the positive impact that Groklaw was having against the propaganda campaign promoted by the SCO scamsters, their shady allies at a few ethically challenged proprietary software companies and certain disreputable members of the IT and Wall Street financial press.
PJ and all the members of Groklaw can be very proud of that, even though Groklaw itself, for now at least, is no longer in operation.
As an example of Groklaw's impact, I edited Groklaw's Open Letter to SCO's CEO, Darl McBride, and The INQUIRER published it on 20 September 2003, because at that time Groklaw was hosted at Blogspot and couldn't hold up under the high traffic volume that generated. That letter was later submitted by IBM in US District Court as Exhibit 608 in opposition to SCO's summary judgment motions.
Amazingly enough, that SCO v. IBM lawsuit is still ongoing, because SCO prepaid its lawyers more than $30m to fight to the last ditch. Otherwise, SCO is now in Chapter 7 Bankruptcy in Delaware, practically penniless and awaiting dissolution.
At the time, however, SCO had sent letters to 1,500 companies threatening to issue invoices demanding that they pay for licences to run Linux, the Unix-like operating system that was independently created by Linus Torvalds and developed with the voluntary, unpaid assistance of thousands of software developers worldwide.
SCO was threatening in the press to sue companies, but Groklaw's open letter promised to sue it in every jurisdiction that we could find if it sent out those Linux invoices. It was a rather powerful statement, and it read, in part:
"With regard to the invoices you have said you will mail out by October 15, we caution you that we believe that any such action will expose you to civil lawsuits under both federal and state consumer protection laws, as well as to possible criminal prosecution and penalties should state and federal agencies, attorneys general, and district attorneys decide to get involved, which we fully intend to ask them to do upon receipt of any invoice from you. [...]Thanks to the group collaboration of many contributors made possible by Groklaw, SCO was confronted with potentially serious legal liabilities including likely ruinous and crippling legal expenses if it tried to carry out its scheme to hijack Linux.
"Should we receive invoices from you, we will initiate civil actions under the anti-fraud and consumer protection statutes wherever we live, according to our respective circumstances. We also intend to contact our state attorneys general to request that they seek criminal as well as civil penalties against you, in addition to injunctive relief. In addition, we will file complaints with the FTC and other federal and state agencies, as appropriate. Some individuals have already sent letters to legislators in their respective states and in Washington, DC."
Faced with an aroused FOSS community armed with virtual pitchforks and in a distinctly angry mood, SCO blinked hard and didn't send out any unsolicited invoices, although it did manage to bully a couple of firms into paying 'licence' fees for Linux, much to their later chagrin.
Although I don't want to make too much of that episode, as SCO most likely would have run aground eventually in the courts even if it had sent out invoices for so-called Linux 'licences', it was an important victory for all free and open source software developers and advocates. The entire community stood together and made it crystal clear, with one voice, that we were determined to fight that scurrilous, illegitimate attempt to steal our intellectual property, and therefore we won without ever having to actually go to court.
I believe Sun Tzu said in the Art of War that the best general is the one who wins without fighting. Faced with SCO's dire threats, it seems that our best general to defend free and open source software was the young woman who called herself PJ and wrote at a blog that she had named Groklaw.
Of course it didn't hurt that SCO had sued IBM, and thereby bit off far more than it could ever chew. However, that had not played out then, and SCO's threat was immediate. Conceivably it might have worked, too, at least for a little while, and damaged Linux.
The SCO litigation attacking Linux might seem like ancient history now, but I refer to that small piece of the story here because many people who are developing and using free and open source software might not have been paying much attention 10 years ago, possibly because they were still in grammar school or high school then.
That was a serious attack on the freedom to develop and use free and open source software involving both major litigation in US federal court and a public relations campaign of fear, uncertainty and doubt (FUD) directed against Linux, surreptitiously funded and encouraged by Microsoft and Sun, which between them funnelled millions of dollars to SCO disguised as payments for software 'licences' that they didn't need.
That campaign backfired, ironically, but at the time we couldn't know that it would, so it was necessary to defend the right to develop software collaboratively and license it under terms that encourage continued development by requiring modifications that are distributed to be shared with the original base of developers. It was a crucial battle.
Oracle has since bought Sun, but Oracle is even more ambivalent about and at times antagonistic towards free and open source software than Sun ever was, and its ongoing litigation with Google over Java and Android proves that. And Microsoft is still around, of course, and it's still just as much a mortal enemy of open source software as it was in 2003, except that now it has moved the still ongoing battles to software patents.
Unfortunately the threats to free and open source software have not gone away, so the FOSS community still needs Groklaw as a resource to assist its defence, more than ever.
Therefore I hope that ultimately PJ will reconsider, come to realise that illegal US government surveillance of the internet and email was already under way throughout all of Groklaw's history, come to terms with that ugly fact emotionally, even if she cannot accept it intellectually, find a reserve of defiant grit and determination, and reopen Groklaw, perhaps under the protection of a foundation with formidable legal resources.
No one should have to accept that, of course, and the people of these United States should not accept it, because such egregiously sweeping internet surveillance clearly is unconstitutional and totalitarian, and it must be either stopped or rendered irrelevant and ineffective through the further development and widespread adoption of reasonably secure email encryption. But either of those alternatives is likely to take some time, and meanwhile Groklaw might be quite helpful.
However, and be that as it might be, it is unacceptable to me that Groklaw has been forced off the internet by the spectre of totalitarian police state surveillance at the hands of the US government. I find it totally appalling, and I firmly believe that the entire free and open source community must do something about this that will be effective, before we lose our freedoms entirely.
"Big Dark coming." - Hunter S. Thompson
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