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In the same FCC meeting yesterday in which opening the “white spaces” was approved, there was supposed to be a discussion of changing the rate structure that the telephone companies use for passing calls to each other. This is an amazingly complex and highly regulated business, and what makes it even more complicated is the fact that some of the terminology on which the regulatory structure rests is meaningless in the context of new technology. In the end the FCC just decided to do nothing for the time being.

Saul Hansell of the New York Times does as good a job explaining some of the issues as is humanly possible, I think.

I have an op-ed in the Boston Globe today about Internet Censorship. The FCC proceeding to which the piece refers is Proceeding 07-195 (pdf). Here’s the beginning of the Globe piece:

SUPPOSE that government regulators proposed to read all postal mail in order to protect families from things they should not see. Anything not legally prohibited would be delivered. Any unlawful words, pictures, or videos would be thrown away.

Today is supposed to be the day for an FCC decision on allowing unlicensed use of the “white spaces” between television broadcast channels. The television industry and Broadway have lined up against it — television with predictions of screens going dark all across America because of interference, and Broadway (aligned, improbably, with churches) predicting that their wireless microphones won’t work any more. The FCC engineers have been studying this for six years and have concluded that these fears are exaggerated (cf. Chapter 8 of Blown to Bits). But the entertainment industries are powerful, and so are churches.

A good story in the New York Times on this today, and a good post last week by Susan Crawford. The Times has a good quote from the FCC chairman on this.

“We’re being very cautious about protecting the broadcasters, but at the same time making sure the technology allows us to make greater use of this invaluable resource,” Mr. Martin said.

He added that he thought some opponents, like the broadcasters, were fighting the proposal because they were unnerved by the rise of interactive tools that offered a less passive media experience. “The empowerment of consumers is threatening,” he said.

And it turns out that most of those wireless microphones that churches and Broadway are so concerned about being functional in the future were never operating within FCC regulations anyway. They are essentially arguing that their illegal use of the spectrum should be grandfathered.

So reassures the mother of Daniel Harrington, who apparently lost a memory stick in the parking lot of a pub in England. Harrington works for an IT firm that supplies services to the British government. The flash drive evidently contained not personal records, but source code and passwords that might enable someone to access those personal records. As a result, the “Government Gateway” system has been shut down.

The device was found a couple of weeks ago, and yesterday was turned over to the Daily Mail, which is having a lot of fun with the story. A sample of the reactions:

Shami Chakrabarti, director of Liberty, said the civil rights group had conducted an audit which showed that the Government had lost 30million pieces of data in the past year.

‘That’s one data bungle for every two people in the country,’ she said. ‘Still they plough on with their Big Brother ambitions; ID cards and the scary central communications database: disasters waiting to happen at our expense.’

Lib Dem MP Norman Baker said the Government were asking for data from taxpayers that they could not protect.

‘The Government cannot be trusted with all this information but they collect more and more,’ he said.

I’ll bet these data breaches are no more common in the UK than in the US, but they certainly have had a bad run of them lately, and you can see why the MP is worried about the government’s plans.

In a development that bears a family resemblance to the deal Google cut with the book publishing industry, Myspace has reached an agreement with one big part of the entertainment industry. Its users will be allowed to continue posting video clips from the Colbert Report and other TV shows without anyone getting hassled with DMCA takedown demands.

When the user posts a video, third-party software will identify it automatically, and place a visual tag on the clip, at the bottom of the screen. Advertising will be posted and the viewer will be given the opportunity to buy the whole episode. The revenue from the advertising and episode purchases will be split up among Viacom, Myspace, and the company that makes the software that identifies the videos. Everybody makes a little money (except, of course, the people who are doing the posting and the people who are doing the viewing!).

This deal is narrow — it affects only MySpace and Viacom. Google’s deal is broader — it is a deal with the group that represents publishers and authors — but the court hasn’t approved it yet. And of course, it covers only Google, not anyone else who might like to create a book search service. Do these deals show the outline of a more encompassing, public solution to the problems with DMCA and the Internet?

Talk about cases the Founding Fathers could not have anticipated. A federal court has ruled that computing the hash of a data file (a picture, for example) is a search, and is therefore subject to Fourth Amendment restrictions (that is, the police are supposed to get a search warrant before doing it).

What’s a hash? Hashing is a way of squeezing a lot of data down into a few bits. The same input will always give you the same output (which is called the hash, or the hash value). But because some information is inevitably thrown away in the squeezing process, it’s possible (in general) for two different inputs to give you the same output. The trick in the design of hashing algorithms is to make that unlikely.

Let’s take an example. Suppose we want to check to see if the photograph we have is one of a list of bad photographs (known child pornography, for example). Just storing all the photos on the bad list would take a huge amount of space. But we could hash each of them and just store the hash values. Then we could check our suspect photo against the list of bad photos by computing its hash and seeing if that value was in the list of hash values of bad photos. That check would be quick. Of course, if we got a match, before we arrested anyone, we’d want to compare the photos themselves just to make sure we hadn’t gotten an accidental “collision” where two photos happened to have the same hash.

A simple example of a hashing algorithm would be to treat the image as a sequence of 24-bit numbers and just add them all up, throwing away any numerical overflows. (Like doing arithmetic and just hanging onto the rightmost digits.)

Here’s how Arstechnica reports the relation of all this to the situation of one Robert Crist.

Crist had fallen behind on his rent, and his landlord hired a father-and-son pair to move the delinquent tenant’s belongings out to the curb, where a friend of one of the movers, Seth Hipple, picked up Crist’s computer. When Crist returned home, he began freaking out over his vanished machine‚Äîwhile Hipple was freaking out over what he’d found in a folder on the hard drive: Videos appearing to depict underage sex, which he promptly deleted.

Hipple called the East Pennsboro Township Police Department, and though the computer had been reported stolen, it soon found its way to the Pennsylvania Attorney General’s Office, where special agent David Buckwash made an image of the hard drive and began sifting through its contents using a specialized forensics program called¬†EnCase. Rather than directly examining the contents of the hard drive, Buckwash initially ran the imaged files through an MD5 hash algorithm, producing a unique (for practical purposes) digital fingerprint, or hash value, for each one. He then compared these smaller hash values with a database of the hash values of known and suspected child porn, maintained by the¬†National Center for Missing and Exploited Children. He came up with five definite hits and 171 videos containing “suspected” child porn. He then moved to gallery view, inspecting all the photos on the drive, and ultimately finding nearly 1,600 images that appeared to be child pornography.

No warrant had been sought to do any of this, however, and the judge threw out the evidence gathered from Crist’s computer as a result.

The government is likely to appeal, and a lot rides on the case. If, for example, the ruling is overturned and hashing isn’t a search, then the government would not need a warrant to go to your service provider’s central servers and hash every file, looking for illegal materials.

The tale of Joe the Plumber is developing a thousand derivative lives. One, at least, is a bits story.

After Joe Wurzelbacher became a celebrity, someone in the Ohio Department of Job and Family Services ran a check on the state databases to see if he owed any child support. The McCain campaign has cried foul, and accused the Obama campaign of doing it. The Department has a non-political explanation, reported here:

Given our understanding that Mr. Wurzelbacher had publicly indicated that he had the means to purchase a substantial business enterprise, ODJFS, consistent with past departmental practice, checked confidential databases to make sure that if Mr. Wurzelbacher did owe child support, or unemployment compensation taxes, or was receiving public assistance, appropriate action was being taken.

Believe that or not as you wish. There doesn’t seem to be a written policy that spells this out, or a list of the other people who have been subject to this practice. It’s not helpful that the head of the office is a $2500 donor to the Obama campaign. On the other hand, what she describes (.pdf here) as the standard practice seems reasonable enough: that they follow up on phone tips about big spenders who may have skipped their child support payments, and they compare the list of big lottery winners to their lists of deadbeat dads. No such office wants to be embarrassed by reading in the newspaper what they could have figured out on their own just by being awake and alert.

This case resembles one we reported earlier, when Oklahoma tax officials went to town after reading students’ boasting about the success of their keg party business. Bits don’t come tagged with fine-grained access and usage restrictions. You may be able to stipulate who sees them and who doesn’t, but new situations arise every day and it’s impossible to lay down the rules with mathematical or legal precision limiting who can use them or for what. Human judgment is always going to be involved, and human judgment must be shaped by training and broad principles as well as being limited by formal access restrictions. What’s changed is that there is so much more information and so many more people who have the potential to access it. When it was hard to get at the data, the likelihood of its being misused was much lower.

Siva Vaidhyanathan has a good summary of the deal, in the details of which may lie the devil. Like me, he regrets that we won’t now get any clarification on the limits of fair use in the digital age — though he thinks Google would have lost, which would have been a disaster since it would have strengthened the hand of the content industry to keep cracking down on people using small amounts of material for commentary or indexing.

He notes that as long as we rely on Google book search, it’s better for us if it works better. And it will work better — Google will be free to show larger excerpts from copyrighted works. But the deal also will firm up Google’s status as the dominant digital book depository. And in light of the anti-trust issue that raises, Siva notes an interesting coincidence: Google CEO Eric Schmidt hit the road campaigning for Barack Obama last week, just at the moment when the parties must have been hammering out the final draft of this agreement.

And finally, he cautions us not to get too excited about the deal until the court has approved it.

In a related development, Harvard has announced that its library won’t be extending its cooperation with Google to its collection of in-copyright materials, because the deal places too many restrictions on the ways in which they would be made available. Google has been digitizing only the out-of-copyright works in Harvard’s collection, though apparently Harvard’s position has been that Google’s entire project was legal. Not clear to me that Harvard’s decision poses any great problems for Google, since there tend to be multiple sources for copyrighted works.

The RIAA (Recording Industry) went after Joel Tenebaum, alleging that he downloaded seven copyrighted songs while he was a teenager. Thousands of teenagers get similar notices and pay up. Joel fought back, and the case has reached an extraordinary juncture. Joel is represented by Charles Nesson of Harvard Law School, Founder of the Berkman Center. The defense is arguing that the statute under which he is being charged is unconstitutional, among other reasons because the penalties are so high that it is essentially a criminal law in the clothing of a civil law.

Here is the news release I just received:

LEADING INTERNET LAWYER TO ARGUE COPYRIGHT THEFT DETERRENCE ACT UNCONSTITUTIONAL

Is the Constitution ready to embrace the reality of the Internet?

Cambridge, MA (October 2008) – The Recording Industry Association of America (RIAA) is in the process of bringing to bear the full might of its combined lobbying and litigating power. And one defendant, Joel Tenenbaum, is fighting back with the help of his mother, a leading copyright and internet lawyer, and a Harvard Law School cyberlaw class.  What makes this counterclaim remarkable is not the legal tit-for-tat that is inherent in any contentious issue, but rather the fact that this legal team has taken its argument to the next level: constitutionality.

Joel is being threatened by the RIAA with punishment of more than a million dollars for downloading seven songs. Charles Nesson and his team of Harvard Law students are counterclaiming for abuse of process.  They argue that the statute, which mandates damages of up to $150,000 for each willful download, is unconstitutional.

But is the Constitution ready to embrace the reality of Internet?

Nesson’s team alleges that the RIAA is abusing law and the civil process of the federal courts. “At its core this counterclaim raises a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” says Nesson.¬† The counterclaim also alleges that the RIAA’s action in the name of “deterrence” constitutes an abuse of process used for the ulterior purpose of intimidating others by extreme example.

In the only previous situation in which an RIAA music-downloading case such as this has gone to trial, Chief Judge Michael Davis set aside a jury verdict of $221,000, declaring the statutory damage award to be “unprecedented and oppressive.”

Are there limits to how we deal with copyright in the age of ubiquitous information?¬† And that’s exactly the question they hope the courts will finally address.

For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/.

——————-

The filings in the case contain some pretty stirring language, for example:

——————-

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. To members of the born-digital generation, for whom sharing music on the Internet is as commonplace and innocuous as driving 60 in a 55 mph zone, the prosecution of Joel Tenenbaum and others like him is wholly analogous to this hypothetical. Congress lacks the constitutional power to delegate such a prosecutorial function to a private police, which is the role that the recording companies and its industry organization, the RIAA, is embodying.

This is the industrial consortium resisting global Internet censorship about which I blogged yesterday. The site is now up, and you can download three documents, on the principles, implementation guidelines, and governance, accountability, and learning framework. I cut and paste the central principles below:

• Participating companies will respect and protect the freedom of expression of their users¬†by seeking to avoid or minimize the impact of government restrictions on freedom of¬†expression, including restrictions on the information available to users and the¬†opportunities for users to create and communicate ideas and information, regardless of¬†frontiers or media of communication.
• Participating companies will respect and protect the freedom of expression rights of their¬†users when confronted with government8 demands, laws and regulations to suppress¬†freedom of expression, remove content or otherwise limit access to information and ideas¬†in a manner inconsistent with internationally recognized laws and standards.
• Participating companies will employ protections with respect to personal information in all¬†countries where they operate in order to protect the privacy rights of users.
• Participating companies will respect and protect the privacy rights of users when¬†confronted with government demands, laws or regulations that compromise privacy in a¬†manner inconsistent with internationally recognized laws and standards.

And this is from the implementation guidelines:

When required to restrict communications or remove content, participating companies will:

• Require that governments follow established domestic legal processes when they are¬†seeking to restrict freedom of expression.
• Interpret government restrictions and demands so as to minimize the negative effect on¬†freedom of expression.
• Interpret the governmental authority‚Äôs jurisdiction so as to minimize the negative effect on¬†to freedom of expression.

And these implementation items seems particularly interesting:

• Participants will refrain from entering into voluntary agreements that require the participants to¬†limit users‚Äô freedom of expression or privacy in a manner inconsistent with the Principles.
• Voluntary agreements entered into prior to committing to the Principles and which meet this¬†criterion should be revoked within three years of committing to the Principles.

Now the first one is just what the principles as a whole are about. The second one suggests that the companies signing onto these principles are supposed to get out of deals they have already cut with the governments — the very deals that created the pressure to bring these principles into being. That’s an important provision, and puts immediate action items in front of management of some companies.

An amusing “Bits” detail. This site was not live yesterday when I blogged about the initiative after seeing the New York Times story, and it did not turn up in a Google search done yesterday morning. It must have gone live yesterday afternoon. But apparently Google was indexing it, even when the page design was under development and had filler for content. Here is what the Google search shows as the page content for the Global Network Initiative site as of 8:55am EDT today: “Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Morbi commodo, ipsum sed pharetra gravida, orci.” If you’ve used a graphic or web page design package, you’ll recognize as the default text.