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The more an advertiser knows about you, the better it can target ads at you. So there is enormous value in information about your Internet behavior. For a long time it wasn’t feasible to analyze every packet your Internet Service Provider delivered to you; there were too many and the analysis would slow them down. Moore’s law has solved that problem, and there are now boxes to do such “deep packet” inspection. A company called NebuAd is in the forefront, and when some ISPs announced that they were going to experiment with the product, privacy advocates got into the act. There were hearings today before the House Telecommunications and Internet Subcommittee, as reported by PC World.

Much of this report is centered on Massachusetts Congressman Ed Markey’s pressing the question of whether such deep packet inspection should be the default, with consumers being given the option of not having their packets inspected and data collected about them. That would be an “opt-out” protocol. Markey, and privacy advocates, prefer an “opt-in” protocol, where consumers have to affirmatively state that they wish the data to be collected (which might be to their advantage; who wants to see irrelevant ads?).

NebuAd apparently claims that opt-in or opt-out isn’t as important as informing the public of what they are doing. In theory that might be right, but in practice it isn’t. Few people ever change the defaults on anything. There has been widespread discussion, in the US and the UK, of changing the default on cadaver organ donations from opt-in (stating at the time you get a driver’s license, for example, that you wish to be an organ donor) to opt-out (you’re a donor by default, unless, when given the information, you affirmatively declare you don’t want to be). An opt-out protocol would greatly increase participation in organ donor programs. And an opt-out protocol on NebuAd would result in vastly more useful data about consumer behavior.

As in the case of the draft Massachusetts legislation about web surfing privacy discussed here last week, we are facing a situation where technology is advancing faster than social practices. A lot more than advertising revenue is at stake here, since deep packet inspection is the very antithesis of the end-to-end philosophy on which the Internet was founded, and threatens net neutrality. (See page 313-315 of Blown to Bits. In today’s hearing, MIT professor Dave Reed “compared ISPs using NebuAd to a package delivery company looking inside every box it handles,” the same metaphor we use near the bottom of page 315.)

Can the government search your email without telling you it is doing so?

The USA PATRIOT Act gives the federal government broad authority to search electronic communications crossing the US border, under the general guise of anti-terrorism and the rough analogy that the government could search your possessions as you brought them into the country. But what about purely domestic eavesdropping, not part of any terrorism investigation?

In an important 8-5 decision, the Sixth Circuit Appeals Court has ruled that such clandestine searches of email are at least sometimes not “unreasonable searches” in the sense of the Fourth Amendment. The Register (UK) has an excellent summary of the ruling is in an article aptly called “Court cheers warrantless snooping of e-mail.” The Court’s decision is here. It doesn’t actually endorse the constitutionality of the law under which the clandestine email snooping took place, saying instead that the issue was not “ripe” for a decision on constitutional grounds. The defendant, Steven Warshak, could have used other means to keep the evidence out of court.

The dissenting opinion of Judge Boyce Martin and four other judges takes a far dimmer view. I quote its last paragraph in full:

While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.

We’ve added an Events link above, listing all author appearances related to the book. For our friends in England, note that Hal will be at Blackwell’s in Oxford next week.

Apparently Congress knows it’s important, but — reasonably enough — can’t pass a law protecting it because it doesn’t know what it is. According to the Washington Post, Sen. Bill Nelson of Florida can recognize it when he sees it — and he doesn’t want his online newspaper keeping track of what he’s reading.

Too late — that’s probably happening right now.

Industry representatives, and some other members of Congress, claim no legislation is needed. Everyone knows privacy is important, so of course the industry has an incentive to safeguard it.

Well, yes; they have an incentive to be seen as guarding it, and also have an incentive to make the most profitable use of the available information. And if you’re a newspaper, for example, you probably can’t afford to throw information away that would be useful to your advertisers.

An interesting question noted in the article is that it’s not even clear what “personally identifying information” is. Is an IP address “personally identifying”? The Recording Industry surely thinks so — they use them to make charges against copyright infringers. But there is hardly a one to one correspondence of IP addresses to individuals.

And by the way, IP addresses are going to be less and less identifying, because we are running out of addresses. These are 32 bit numbers, so there are only about 4 billion of them. They are 85% gone already, and the supply will reportedly be exhausted by 2011. IPv6 with its 128-bit addresses is the solution, and a transition is occurring, but it’s unlikely to have been completed in time. There are workarounds, which will be annoying and clumsy. It would be cleaner if we could all move to IPv6 tomorrow — just as it would have been cleaner if the US had gone to the metric system. In the Internet too, the world won’t come to an end because we haven’t moved to a sensible standard all at once.

On page 29 of¬†Blown to Bits, we talk about the tiny dots that certain laser printers print, identifying the printer and the precise time at which the document was printed. The official rationale is to catch counterfeiters, since color laser printers can produce excellent facsimiles of US currency. But that’s not the only possible use. Today this became a national story, in USA Today. Worth a read — the possibility we talked about has become standard as Moore’s law and its relatives have driven down the price of color laser printers.

Well, probably not the worst ever, but for 2008, terrible.

My crime? I forgot that my username was case sensitive. I typed it in lowercase rather than mixed upper and lower, along with the correct password.

No wonder people hate computers. This is a major financial services business. When the Web was young, and people were having their web sites coded by their 16 year old children, customers might have put up with that sort of indifference and hostility. No more. I am closing my account — or will, once I get the paper form I need to fill out.

Khalil Gibran’s wonderful poem begins, “Your children are not your children.” They are of your lineage, that is, but you can’t control them like possessions.

I thought of this reading the woes iPhone buyers. From the beginning, Apple intended the iPhone to be usable only with AT&T cellular service. Steve Jobs was not amused when people figured out how to hack the phone so it could be used with other cellular service providers. So when he released the new iPhone, he made it harder to change the device’s intended functioning. You have to activate it while he (or his appointed representative at your friendly Apple store) is watching. Turns out the activation software was problematic and it’s been a very frustrating experience for many buyers, such as this one. Long lines in the store, people sent home and told to try from there, and discovering that they still can’t get the thing working. (There are many similar stories.)

Much can be said about Apple having — temporarily, no doubt — turned an engineering marvel into a public relations disaster. But if you look beyond the surface, there is an important philosophical point here. iPhone buyers thought they were buying a phone, and most people think that when you buy something, you should be able to do what you want with it. What Apple actually wants is to tether the phone to the company, making sure it gets used only in the ways Apple wants. You aren’t really buying a phone at the Apple store, because when you walk out of the store you are dragging the tether behind you, and Apple can jerk the tether any time it wants.

As long as things work perfectly and as the customer expects, tethering may be a sound business strategy. But in this fiasco Apple has bluntly reminded iPhone buyers that the thing they think they have bought isn’t really theirs. This larger point may ultimately cost Apple.

Here’s¬†a good AP column about the way the major players limit what can be said in order to satisfy what they consider appropriate standards of taste. There is a wonderful example of a Dutch photographer whose documentary photo of a street scene in Romania was taken down from Flickr — twice. The problem? It showed a young adolescent boy smoking, as happens a lot on the streets of Romania. Flickr didn’t want to encourage youth smoking, or perhaps didn’t want to be accused of encouraging youth smoking, or perhaps received actual complaints about the photo and found it easier to censor than to argue.

This is a tough problem, as private enterprises should generally be left to do whatever they feel is best for business, and it’s hard to see this kind of censorship as harmful. But as sites like Flickr become the technological equivalent of the public square, attracting huge numbers of participants because a huge number of participants are already there, it’s equally hard not to think that the personal judgments of random employees should not be decisive in what can be shown and what can’t be. And government regulations immediately raise the problem that web sites are multinational and governments aren’t.¬†

Politico reports today on Congressional efforts at data security. The story is prompted by claims from Rep. Frank R. Wolf (R-Va.) and Rep. Chris Smith (R-N.J.) that computers used by their staffers had been “hacked” by the Chinese government because the good congressmen supported the speech rights of Chinese citizens.

Unfortunately, as far as I could tell, the congressmen did not provide any forensic evidence about what the “hack” was or where it came from. These are not trivial matters; even if an attack looks like it is coming from China, that could be a spoof — the actual attacker might be half a world away.

More importantly, I suspect this incident reveals more about the sloppiness of congressional offices than about the sophistication of Chinese hackers. I don’t doubt that the Chinese are sophisticated, but even sophisticated criminals prefer soft targets to hard ones. Was it necessary for multiple staffers to have sensitive data, unencrypted, on their computers? Had any of the staffers opened any questionable attachments or gone to any virus-infected sites lately? Note that Supreme Court Justice Stephen Breyer’s recent identity theft happened because a staffer at an investment firm used the same computer for client records and music file sharing. Share one file, share ’em all.

The bad guys are out there, for sure, but when a Congressmen starts creating an international incident out of something that happened two years ago and won’t disclose the details, remember Pogo’s profundity, which I quote in the Politico article: “We have met the enemy and he is us.”

A bill is before the Massachusetts legislature that would require web sites to give users the option of not having the records of their visits retained to be used to aid in targeted advertising. I am quoted briefly in the Patriot Ledger story on the bill, which seems unlikely to pass because, well, it’s July and the legislature wants to go on vacation. (See also this State House News Service story.)

I can’t speak to the details of the bill, in which many devils generally lie. It’s hard to argue against requiring an opt-out provision, which is likely not too hard to implement and won’t affect the advertising business model very much since few people ever change the default options on anything. (If you have the option of registering as an organ donor when you renew your drivers license, for example, participation rates vary hugely depending on whether the default is to be a donor or not to be a donor.)

Nonetheless, some of the sweeping statements about this issue are debatable. “It’s really your business what you visit on the internet,” said Rep. Daniel Bosley, speaking in support of the bill. Well, sort of; it’s also the web site’s business decision whether to send you a page when you ask for one. Google is not a public utility, even though it doesn’t require you to register in advance. Disclosure and transparency are good principles, but so are the laws of economics.

Randy Skoglund of the Americans for Technology Leadership, also supporting the bill, says “Most consumers aren’t aware how much info on them there is and how it’s being used. Consumers need to feel safe and protected online.” The first statement is absolutely true; people need to be more aware, and our book and the various disclosure mandates are steps toward educating the public. I am not so sure about the second. Is is the job of the government to make the public feel safe and protected online?