Blown To Bits

The Forces Align Against Anonymity

April 17th, 2010 by Harry Lewis
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Stories on successive days in the New York Times make me wonder if there is any hope of preserving anonymity on the Internet. The forces of security and commerce are lining up to end it, and I am not feeling a lot of pushback.

On Friday, there was some apparently happy news: At Internet Conference, Signs of Agreement Appear Between U.S. and Russia. It takes awhile to learn the nature of the common ground between American and Russian cybersecurity experts.

“Anonymity is an invitation to criminals,” General Miroshnikov said.

Mr. Baker agreed, saying, “Anonymity is the fundamental problem we face in cyberspace.”

And then today, there is a stunning report on refinements in the business of discount coupons. The coupons you print off the Internet look generic, but the bar code may have everything but your social security number in it — even including your IP# and the search terms you used to get to the site where you printed the coupon. This information enables aggregation of extremely fine-grained information about your shopping habits — and adjustment of what offers get extended to which customers.

“When someone joins a fan club, the user’s Facebook ID becomes visible to the merchandiser,” Jonathan Treiber, RevTrax’s co-founder, said. “We take that and embed it in a bar code or promotion code.”

“When the consumer redeems the offer in store, we can track it back, in this case, not to the Google search term but to the actual Facebook user ID that was signing up,” he said. Although Facebook does not signal that Amy Smith responded to a given ad, Filene’s could look up the user ID connected to the coupon and “do some more manual-type research — you could easily see your sex, your location and what you’re interested in,” Mr. Treiber said. (Mr. O’Neil said Filene’s did not do this at the moment.) …

“Over time,” Mr. Treiber said, “we’ll be able to do much better profiling around certain I.P. addresses, to say, hey, this I.P. address is showing a proclivity for printing clothing apparel coupons and is really only responding to coupons greater than 20 percent off.”

Is this the Internet we want?

Another Monkeywrench in the Google Books Settlement

April 8th, 2010 by Harry Lewis

Representatives of photographers have filed suit against Google for digitizing their photos without permission, in the course of scanning books to create the Google Books library. For a long time, the photographers (and several other groups, whom I lump together as “the photographers”) have been annoyed that they aren’t getting any of the revenues from the settlement; they told the court that in no uncertain terms. The Authors and Publishers, in the course of working out their proposed settlement with Google, completely ignored them, and they are now following through on their threat to make trouble.

The interesting thing about this suit is that the complaint is not that the photographers are being deprived of revenues. In fact Google blacks out the copyrighted photos in the digitized books.

The photographers are complaining that the very act of scanning the books creates an illegal copy of the photographs, even if it is never displayed to a Google Books user. Kind of  logical, or would be in a looking glass world.

In its suit, p. 20, the photographers make quite modest demands:

Hmm. $150K per image, times how many images in how many books? You do the math.

James Grimmelmann has a quick analysis of the merits. Whither now the settlement?

The FCC Can’t Regulate the Internet

April 6th, 2010 by Harry Lewis

When the FCC landed on Comcast for slowing Bittorrent traffic to a crawl–in essence, discouraging people from watching Internet movies, and steering them to their Comcast Cable TV channels instead–Comcast took the FCC to court. Comcast protested on three grounds, but the basic ground was that the FCC had no authority to tell Comcast to do anything with its Internet service. A panel of three judges has unanimously ruled that Comcast is correct (and therefore didn’t bother with Comcast’s arguments #2 and #3). Public Knowledge has a good explanation of the decision and where it leaves us.

I am disappointed, but I can’t say I am surprised. Congress did not anticipate the Internet when it made telephone regulations, just at it didn’t anticipate the telephone or the radio when it made telegraph regulations. So if there is going to be net neutrality, it appears Congress will have to act. That was on Obama’s campaign agenda, but regulation of anything is not an easy sell in Washington.

Yet it is clear that monopolies are a bad idea, and the business community, except for Verizon, Comcast, and a few other biggies, should support the free flow of bits over the Internet pipes. My previous post is remarkably relevant on this point. Listen to Gardiner Hubbard’s description from 125 years ago of the fate of one small business bullied by the Western Union monopoly:

A few years ago a man started a news bureau in Cincinnati. A correspondent in New-York filed the market reports each morning and the Cincinnati gentleman sold the information to customers. The Western Union asked him to sell out to them and he refused; thereupon his messages were taken away from the “through” wire and sent by a “way” wire. The difference in time was an hour, and the man was ruined. (New York Times, February 8, 1883)

As far as I can see, there is no reason why Comcast couldn’t do exactly the same thing tomorrow. Plus ça change, plus c’est la même chose.

HWCKL #4: Carrier Monopolies

April 3rd, 2010 by Harry Lewis

According to a recent Business Week story, government agencies are starting to get worried about the possibility that Comcast may buy NBC Universal.

At least five states are involved in the U.S. antitrust review of cable operator Comcast Corp.’s plan to acquire NBC Universal, two people with knowledge of the process said. Florida has started its own query.

Attorneys general in five states — New York, California, Florida, Oregon and Washington — have joined phone interviews led by U.S. Justice Department officials, said one person who participated and sought anonymity because the call was private.

As Susan Crawford explains, the FCC itself acknowledges that once the dust has settled on its 100-squared broadband plan, the number of broadband carriers serving most parts of the United States will be ONE. Information monopolies are never a good idea, and if it wasn’t bad enough to contemplate an unregulated industry that could control what information flows through the information pipes, think what it would be like if the same companies owned the content too.

Actually, you don’t have to imagine these scenarios. You can go back to this 1883 New York Times story to read how it worked when all the information had to flow through the Western Union telegraph wires. Western Union bullied those on whom it was dependent. This comes from a description of Gardiner G. Hubbard before Congress. Hubbard, whose daughter was deaf, would under-write Alexander Graham Bell’s development of the telephone — and became Bell’s father-in-law. The story sounds to me stunningly modern. An excerpt:

HWCKL #3: The Resurgence of “Hot News Misappropriation”

March 28th, 2010 by Harry Lewis

Facts can’t be copyrighted. So if I know something is true, in general I can publish it, no matter how I learned it. But there are limits. Publishing “hot news” that was gathered by professional journalists is freeloading on the labor of others, and can be illegal as a matter of unfair competition. Sam Bayard has an excellent run-down on the legal history of “hot news misappropriation,” which he describes as a doctrine that was in decline only a few years ago, scorned by jurists and nearly useless in practice. But the Internet has given the concept new life. News organizations, faced with bloggers’ newfound ability to skim the cream off a variety of sources and publish the gist almost instantly, are being sued by the original news gatherers. And, in at least one recent case, winning on the basis of hot news misappropriation.

The case involves a site called Fly on the Wall, which was sued by Barclays Capital, Inc. Fly’s creator, Ron Etergino, claims he does not simply steal the news coming passed on to him by Barclay’s clients. Instead,

According to Etergino, he checks first to see what Recommendations have been reported on Bloomberg Market News.  Then he checks Dow Jones, Thomson Reuters, and Fly’s competitors such as TTN, StreetAcount.com, and Briefing.com.  Next, he visits chat rooms to which he has been invited to participate by the moderator. . . . Etergino also receives “blast IMs” through the Bloomberg, Thomson Reuters, or IMTrader messaging services that may go to dozens or hundreds of individuals.  Finally, Etergino exchanges IMs, emails, and more rarely telephone calls with individual traders at hedge funds, money managers, and other contacts on Wall Street.

As Sam says, that “looks a whole lot like good-old fashioned journalism.  And it largely relies on information that is publicly available through mainstream and Internet media reports, IM blasts, and what appear to be open chat rooms.”

A federal judge has nonetheless required Fly to delay publication for long enough to give clients of Barclays and the other market researchers a head start. And what could be wrong with that?

What could be wrong with that is that it is another way for owners of knowledge, already well protected by copyright laws, to prevent others from publishing the truth. Barclays would have used the simple expedient of a DMCA takedown against Fly if it had been available, but the facts Fly reports can’t be copyrighted. As Bayard says, the hot news misappropriation doctrine “creates a pseudo property right in facts that copyright law says are in the public domain.”

And the problem with that is Google News and its kin, “news aggregator” sites that link to a variety of primary news sites. These have been contentious as newspapers continue to decline, since the ad revenue on the aggregator sites goes to the aggregator, not the news organizations themselves. And when you click on a link at Google News and get directed to the St Louis Post-Dispatch or some other newspaper site, you are unlikely to pay much attention to the ads there, much less to wander into other parts of the newspaper.

All of which argues for sympathy with the beleaguered organizations that create, in the words of Alex Jones’s stirring book Losing the News, “the iron core” of the news, the hard facts that are costly to dig out and for which the news organizations need compensation. But using the hot news misappropriation against the aggregators raises serious First Amendment issues, since as Bayard quotes a relevant precedent, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

I don’t know exactly where the balance should be struck, but every time I see a plaintiff win a reasonable-sounding judgment against a publisher by means of a creative application of a legal principle that was meant to cover a different situation, I cringe to think how that principle will be used in the future to curtail the free flow of knowledge.

Is Your Bank’s Site Really Connected to Your Bank?

March 24th, 2010 by Harry Lewis

The intrepid Chris Soghoian, about whom I have blogged previously, has just released another potential blockbuster.

At a trade show he found an equipment manufacturer making these claims about a box it was offering for sale to government investigators:

“Users have the ability to import a copy of any legitimate key they obtain (potentially by court order) or they can generate ‘look-alike’ keys designed to give the subject a false sense of confidence in its authenticity. … IP communication dictates the need to examine encrypted traffic at will. … Your investigative staff will collect its best evidence while users are lulled into a false sense of security afforded by web, e-mail or VOIP encryption.”

To back up a step, SSL encryption — which lies underneath the secure browsing you take for granted when you see “https” preceding a URL such as bankofamerica.com — does not by itself guarantee that the site to whom you are connected is in fact the site of the Bank of America. Your browser relies on the site presenting a certificate, and a certificate authority certifying that the certificate really does belong to Bank of America. There are hundreds of these third party certificate authorities — Verisign is the one you are most likely to have heard of — and there is a protocol for those authorities themselves to be certified as reliable. If a certificate authority is issuing bogus certificates — “certifying” that the FBI is really Gmail, for example — then the impostor could read your email or banking transactions, and no one would be the wiser.

What else could the company, Packet Forensics, mean by promising to provide a “false sense of security”? Its answers to Wired, which called the company, certainly are not reassuring.

Company spokesman Ray Saulino initially denied the product performed as advertised, or that anyone used it. But in a follow-up call the next day, Saulino changed his stance.

“The technology we are using in our products has been generally discussed in internet forums and there is nothing special or unique about it,” Saulino said. “Our target community is the law enforcement community.”

Good for Chris. It will be interesting to see how many worms come out of this can. For good summaries, read the Wired or EFF news items. But the paper itself is well written and does not require an advanced education to read.

Google “leaves China” … for Hong Kong

March 22nd, 2010 by Harry Lewis

Finally closing the loop on its refusal to self-censor its search results in mainland China, Google has flipped the switch. The google.cn site is now being served, uncensored, from Hong Kong. In principle, that is, they are providing uncensored search inside China, since Hong Kong is part of China. Google has also put up a page, which it updates every day, indicating which Google services are available, blocked, or partially blocked from the mainland.

The Chinese government has responded with anger and contempt, claiming (for reasons that are a bit unclear to me) a double-cross on Google’s part.

See Rebecca MacKinnon’s blog for the most cogent summary of the present state of affairs and the choices now available to the Chinese government. She argues, correctly I think, that the government’s bluster is only going to make the Chinese people more aware of what they are missing, causing many more to learn about circumvention tools. She quotes a tweet coming out of China summarizing the irony beautifully: “One Google, On World; One China, No Google.”

Legislative Sanity

March 21st, 2010 by Harry Lewis

Tamar Lewin of the New York Times reports that some state legislatures are showing some common sense about sexting. They are recognizing that it doesn’t make a hell of a lot of sense to prosecute a teenager on child pornography charges for snapping a cell phone photo of herself and sending it to her boyfriend. If the perpetrator is the same as the victim, it’s like prosecuting a failed suicide as attempted murder.

Legislatures are so often happy to have old laws applied to new technology as long as they expand the scope of criminality. Perhaps in these cases they recognize that the kids doing the sexting could be their own children — as many as 20% of teens may have done something similar. Nice to see the pattern reversed, and for the problem to be treated as one of education and parental responsibility. The criminal justice system is not the vehicle for fixing whatever is going wrong here.

Also on the child pornography front, Japan, which apparently does not take real child pornography very seriously, is cracking down on Manga (cartoon) child pornography. A weird inversion of values. The Economist reports that an American court recently convicted someone for possessing Manga child pornography, which I should have thought was hard to do in the US, given the emphasis on harm to the victim. Apparently the grounds are obscenity, which is still illegal, though rarely prosecuted, in the US.

National Broadband Plan, and HWCKL#2

March 13th, 2010 by Harry Lewis

A pair of stories from today’s papers put the promise and peril of the digital explosion squarely before us.

The FCC is set to release its National Broadband Plan on Tuesday. There is good reporting on it in both the New York Times and Computerworld.The key catch phrase is “100 million squared”—get 100Mb/s broadband into 100 million homes by 2020. This is NOT an overly ambitious goal, though it may look to some as extravagant as it must once have looked to bring electricity, and then telephone service, to every rural farmhouse in America. Electricity and telephony were not just conveniences of civilization to which some political theorist thought agrarians should have the same access as city dwellers. They were engines of workplace efficiency and economic growth. The nation made investments, and supported private investments, in connecting Americans to these resources because it was good in the long run for everyone for everyone to be part of the network. So it is with broadband Internet today. Nor are the numbers ridiculous. Remember, Google is accepting applications to bring gigabit broadband, ten times faster, to some lucky community.

So the connectivity plan is all good. And it is also good that the plan anticipates broadband Internet being the mother of all media in the future, gobbling up telephone and television.

But somebody has to pay for it, and this is a lousy time to be asking taxpayers to foot the bill. If you think that the incumbent Internet providers are going to do the job anyway, think again. Verizon is slowing down its deployment of FIOS broadband. There is not enough competition to stir demand (though I would love to think that the Google initiative would create some).

The FCC can collect some money by re-directing the Universal Service Fund, the proceeds from a tax that supports telephone service to those Kansas farms. But a big chunk of the money has to come from elsewhere. And a likely candidate is spectrum auctions: Recovering underutilized parts of the spectrum from incumbent broadcasters, putting the spectrum up for auction to raise money, and also using some of the spectrum for connectivity and some for so-called “unlicensed” uses. Excellent.

The incumbent broadcasters, needless to say, hate this part. They see the writing on the wall and have their own plans for a vertically integrated Internet. The proposed Comcast-NBC merger is a perfect example of that: Put the content provider in bed with the content carrier. If that sounds like the way forward for connectivity, read the section of B2B where we talk about how Western Union’s exclusive deal with the Associated Press worked out for news dissemination in the 19th century.

Moreover, the incumbent broadcasters don’t see any reason to give up any of their spectrum. Except, of course, to paraphrase Scott Brown, it isn’t their spectrum. It’s the people’s spectrum. All the laws about the broadcast spectrum are clear about that.

What isn’t mentioned in the current reporting on the Broadband Plan is Net Neutrality. That may be just one too many battles for the FCC to take on—the scalding letter it received from the telecomms may have scared the Commission.

Now for the bad news.

The Texas Board of Education has adopted new standards for the state’s Social Studies Curriculum, rewriting history through a series of party-line votes on individual amendments. OK to mention Martin Luther King, but you have to talk about the Black Panthers in the same breath. Phyllis Shlafly and the Moral Majority are required subjects. “Capitalism,” curiously, is out—you have to say “free enterprise system.”

But this is the worst:

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone.

Oh my god, if you will pardon the expression (and even if you won’t). Aquinas unseats Jefferson in the Texas school system?

First of all, though the story says that the new curriculum “will put a conservative stamp on history,” this isn’t conservatism. It’s revisionism with a political agenda. These so-called conservatives are simply finding common cause with the reviled critical studies movement, skeptical that any ideals represented as products of the life of the mind are anything but a political power play. There should not be more dentists than historians on a panel rewriting history.

But where is the Bits angle in this story? It’s in this paragraph:

The board, whose members are elected, has influence beyond Texas because the state is one of the largest buyers of textbooks. In the digital age, however, that influence has diminished as technological advances have made it possible for publishers to tailor books to individual state.

So I guess this is good news. If the citizens of Texas want their children to be ignorant, the digital revolution has created the technological support for their preferred version of American history. The textbook publishers no longer have to aim for the consensus view.

No more E pluribus, unum, in other words. We can just stay the many rather than becoming one through communication and education.

Homophily rules. Universal connectivity won’t bring us together; it will simply create the opportunity for likeminded souls, no matter how extreme and ridiculous their views, to come together in their own ignorant corners of the Internet. Or the nation. And that is How We Could Know Less, #2.

How We Could Know Less #1

March 5th, 2010 by Harry Lewis

I have been thinking for awhile about the myriad ways in which we could wind up knowing less, not more, as a result of the digital explosion. So this will be the first in a series. Feel free to post or email others you’d like to suggest.

The editor of the European Journal of International Law is going to stand trial in criminal court in France, because a book review on a web site associated with the journal displeased the author of the book. The book’s author demanded that the review be taken down; the editor wrote a thoughtful response, inviting the reviewer to alter his review if he wished, and inviting the author to post a comment of her own if she wished. (These are book-review innovations that could not have happened in the pre-Internet world.) The reviewer chose not to alter his review, and instead of posting a response, the author sued the editor, personally, for libel. Apparently, under French law, this ball, once rolling, can end only in the courthouse. The editor, not even a Frenchman I think, has to show in Paris in June to defend himself.

This is madness. Without pretending to any expertise about French law, it seems that the European prioritization of personal dignity over free speech as a human right here has crazy, and more importantly censorious, consequences. Who will dare to write a critical book review on a blog if it means the expense and risk of defending oneself in France?

The editor’s telling of the tale is here. The review itself is here.

Hard to know where this case could end. Even if the editor spends a lot of money, gets a good lawyer, goes to France, and wins his case, who, in the future, will dare either write or publish a critical review of anything by a French author? What sort of system of liberté is this? Is this really what the French fought their revolution to protect?

The editor invites help of two kinds. First, and this applies particularly to scholars who are themselves editors,

You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com Kindly write, if possible, on a letterhead indicating your affiliation and attach such letters to the email. Such letters may be printed and presented eventually to the Court.

The editor asks that letters not be sent to the book author. And second, the editor asks,

it will be helpful if you can send [to the same address] scanned or digital copies of book reviews (make sure to include a precise bibliographical reference) which are as critical or more so than the book review [linked above].

If you have links to reviews that meet that condition, let me know and I’d be glad to pass them along.