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A year and a half ago I blogged about the case of Steven Warshak, whose email the US government had obtained without a search warrant. At that point the opinion of the court was that no warrant was needed to obtain your email from your ISP. The reasoning was a bit like the original court view of telephone wiretapping–no warrant needed, since after all, what did you think was going to happen to your conversation once it left the confines of your house?

A US court of appeals has now held that the government needs a search warrant to get your email. “Given the fundamental similarities between email and traditional forms of communication,” the court writes, “it would defy common sense to afford emails lesser Fourth Amendment protection.” The court has elected to go with common sense. Bad people do a lot of bad stuff by email, but there is no reason why investigators shouldn’t have to take the same steps to justify their searches they would have to do to open postal mail or listen in on a phone call.

Read the EFF’s announcement, which has a link to the decision.

if PFC Manning had given the documents only to the leaders of China, North Korea, and Iran?

That is the name of the bill introduced this week by Senators Lieberman, Collins, and Carper, giving broad powers to the executive branch to control the Internet in case of certain emergencies. It is an important bill and it’s going to excite a lot of discussion about how much we need, and how much we fear, government control of the Internet.

The worries have been growing. A year ago a similar bill was introduced by Jay Rockefeller of WV. Richard Clarke’s Cyberwar is #1605 on Amazon as I write this post. We all know the damage that teenagers and criminals can do — imagine what an organized cyber-attack orchestrated by our enemies could accomplish.

As the worries have been growing, so has the skepticism. There was a terrific Intelligence Squared debate a couple of weeks ago about whether the “cyberwar” risks had been exaggerated. Mike McConnell of Booz Allen Hamilton, and former director of the NSA, argued that the risks had not been exaggerated, and he was joined by Jonathan Zittrain. Arguing the other side were privacy expert Marc Rotenberg and computer security expert Bruce Schneier. Shneier listed some of the purple language that had been used to describe the attacks that are occurring already — 9/11, Pearl Harbor, etc. — and noted that we in the U.S. love to use war language for describing things that are not wars but crimes, almost as much as we hate labeling as wars things that really are wars, our decade-old undeclared wars abroad. McConnell acknowledged that “war” is a metaphor, but so was “Cold War,” and no one doubts that the risk was real and that we won.

But it was Rotenberg who drilled down on the underlying problem with the rhetoric, which is not the semantic question of metaphors and language, but that purple language has repeatedly been used by the government in the past to argue for sweeping technological controls that undermine personal liberties. Rotenberg referred to the demands (recounted in Chapter 5) for government control of encryption technology, key escrow requirements, and the proposed requirement for the Clipper Chip). None of these supposedly essential measures wound up being approved, Rotenberg notes, and here are our friends from NSA back to help us again. McConnell responded that there was no danger to civil liberties — you just have to get the laws right and then unwarranted government surveillance would be illegal. Mark exploded that mere illegality had not stopped warrantless wiretapping under the Bush administration. McConnell promised to return to the issue if asked to, but it never happened.

I do think that exchange was at the crux of the issue. If you could trust the government, we wouldn’t worry about government monitoring what we are doing. But the whole Constitution is premised on the fact that we can’t trust the government always to do the right thing. Even reasonable-sounding laws are written with vague edges — especially laws about technology, which are drafted to cover innovations that haven’t happened yet. Prosecutors and other government officials, confronted with people they don’t like and a law with elastic edges, will stretch the law to cover the situation, and such cases often don’t even come to trial because the defendant pleads to a lesser charge rather than risk the judgment of the court on whether a harsh law is being stretched too far. (See Harvey Silverglate’s gripping and scary Three Felonies a Day.)

The Lieberman-Collins proposal allows the President to declare a “national cyber emergency” (the term is defined, but based on the examples in Clarke’s book and McConnell’s debate remarks, the NSA would probably argue that we have been in one several times, perhaps continuously). A new bureaucracy, the National Center for Cybersecurity and Communications, would reside within Homeland Security and would be charged with developing plans for responding to emergencies and seeing that they are implemented. CNET’s Declan McCullagh described the legislation as creating an Internet “kill switch,” separating problematic servers from the Net by government edict. Lieberman’s spokespeople were offended, saying that the legislation actually restricted authority the president already had under the 1934 Telecommunications Act.

The devil will be in the details.

Missing in the immediate reaction is the answer to a question raised by Chris Soghoian in the Intelligence Squared debate. None of this would be as much of a problem if our computer software wasn’t buggy. If Microsoft’s operating system were not so vulnerable to attack, the risks to the nation of being attacked would be a lot less. Is anyone in Washington thinking about requiring Internet security  at that level–with some significant financial penalties for violators?

Ireland is implementing a very aggressive Internet filtering scheme. The nation’s largest ISP, Eircom, will be getting the IP addresses of alleged offenders from Irma, the Irish Recorded Music Association. Once Eircom has identified the owner of the account associated with the IP address, it will initiate an increasingly threatening contacts. As the BBC News explains,

Initially they will be sent a letter and a follow-up phone call from a new unit set up by Eircom to deal with the issue. They may also get a pop-up warning on their screen.

If they are identified a third time they will have their service withdrawn for a week and, if a fourth infringement occurs, will be cut off for a year.

What about the EU’s rejection of three-strikes laws as human rights violations? Nonsense, says the head of Irma, Dick Doyle. They have it backwards.

“The European Parliament has been talking about internet access as a basic human right. It absolutely is not. Intellectual property protection is a right.”

Look forward to other countries following suit, including our own, if the AntiCounterfeiting Trade Agreement is as rumored.

Sherry Turkle gave a talk at Harvard recently, not about any of these issues, in which she spoke movingly of her immigrant mother telling her that the great thing about America is that the government can’t open your mail. In the US, if a music CD arrived in our home via the postal service, the government couldn’t open the envelope to check it, without a warrant based on probable cause. Stay tuned for the rules for the Internet to be exactly the opposite.

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.

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:

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.

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.

“There needs to be some legislative changes to the definition of what matter is,” the head of the Massachusetts District Attorneys said yesterday, after the Supreme Judicial Court read the state laws very closely and agreed with the defense that lewd text messages were not “matter” as defined in state law. It’s a great example of how hard it is to write laws that both stay current as technology changes, and are not so over-broad, in an effort to cover cases no one has yet thought of, that they unintentionally wind up criminalizing innocent activities.

Here is the heart of the statute (MGL Chapter 272, Section 28):

Section 28. Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished by imprisonment in the state prison for not more than five years ….

“Matter” is defined elsewhere as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” Now that list was drawn up with some care–it obviously includes everything they could think of at the time, which seems to have been several technological generations ago. I wonder if anyone has similarly challenged whether DVD’s constitute “motion picture films”?

In his opinion, the judge noted that the legislature had changed the law a few years ago to lengthen the prison term to five years, but didn’t bother to change the list of media. So, he concluded, computer to computer communications aren’t covered, and the court has to assume the legislature didn’t intend to include them. The omission is easily remedied, but  it’s not up to the court to do that.

So one creep at least dodged a bullet, and the legislature will no doubt change the law going forward. But it’s a great reminder that the law is a statement of rules, not intentions.

And that it gets stale, not just because of technology changes. Until I was browsing the state’s web site, for example, I didn’t know that adultery was still illegal in Massachusetts (MGL Chapter 272, Section 14):

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Fornication (“sexual intercourse between an unmarried male and an unmarried female”) is still illegal too, but less serious (“punished by imprisonment for not more than three months or by a fine of not more than thirty dollars”).

Any criminals out there?

I’ve now both listened to and read Secretary of State Hilary Clinton’s speech on Internet freedom. (That’s a link to the State Dept. home page, where it is still featured. I imagine it will move off shortly.)

It’s a good speech, I think. At least it was good enough to annoy the Chinese. A columnist for the People’s Daily snorted that Google had been reduced to an “ideological tool” of the US government and noted, correctly, that Google is losing the competition with the native Chinese search engine, Baidu. (Note: You can compare for yourself the search results returned by the US version of Google, the Chinese version of Google, and Baidu. But be aware that the link for Chinese Google takes you to servers inside the US, while the link for Baidu takes you, I think, to China. The result is that you may not see google.cn, the Chinese version, as the Chinese experience it. When I tried Googling “Falun Gong” inside China, I lost the Internet connection to my hotel room.)

The China Daily simply denies that Clinton is telling the truth. [A Foreign Ministry spokesman] “said the speech indicated China restricts internet freedom. ‘It is a far cry from the truth,’ he said.” And the People’s Daily accuses the US of hypocrisy. “It is common practice for countries, including the United States, to take necessary measures to administer the Internet according to their own laws and regulations. The Internet is also restricted in the United States when it comes to information concerning terrorism, porn, racial discrimination and other threats to society.” The paper goes on to cite Steve Ballmer as one of the good guys. “Noting that most countries exert some sort of control over information, Microsoft Chief Executive Steve Ballmer said Friday his company must comply with the laws and customs of any country where it does business.”

In fact, in her speech, Clinton, after stirring invocations of the US First Amendment and the Universal Declaration of Human Rights, conceded the point about Internet freedom having its limits. Here is the crucial paragraph:

Now, all societies recognize that free expression has its limits. We do not tolerate those who incite others to violence, such as the agents of al-Qaida who are, at this moment, using the internet to promote the mass murder of innocent people across the world. And hate speech that targets individuals on the basis of their race, religion, ethnicity, gender, or sexual orientation is reprehensible. It is an unfortunate fact that these issues are both growing challenges that the international community must confront together. And we must also grapple with the issue of anonymous speech. Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.

Now that passage contains a remarkable juxtaposition. A grand buildup.  A concession that there are limits to expressive freedom. A citation of the example of mass terrorism. OK, I’m listening. The next examples are the usual nondiscrimination categories, presented as hate-speech categories. Now I am getting worried; what counts as hate speech is so often in the ears of the listener. To be sure, it is easy to imagine a Tibetan rant about Chinese oppression that the Chinese could reasonably tag as ethnic hate speech. This is beginning to sound like a list of exceptions to freedom big enough to put almost anyone in shackles. Then there is the “issue” of anonymous speech. Secretary Clinton has nothing good to say about it, and then in a flat declaration puts Osama Bin Laden in the same box with millions of American teenagers—in the box of “those use the internet to recruit terrorists or distribute stolen intellectual property.” At this point I think the speech loses its operative edge. It leads inevitably to the conclusion that the speech control tools aren’t the problem—they are necessary in fact—only the way they are used.

So I finished the speech feeling good; it’s certainly better than a speech that emphasized cooperation at all costs, and that might have been expected. On the other hand it leaves me unconvinced that the administration actually has a consistent point of view on cyber-freedom.

One ironic footnote. The streaming video comes via a service called Brightcove. If you click on the “Information” icon on the video window while the speech is playing, you get Brightcove’s who-knew? privacy policy, which explains that “By using the Site, you agree to the terms and conditions of this Privacy Policy. If you do not agree to the terms and conditions of this Privacy Policy, please do not use the Site.” Much of the privacy policy does not apply to visits to the state.gov site, which requires no login and hence generates no personal information. But of course viewing the Internet Freedom video does send Brightcove your IP address, which Brightcove treats as “Non-Personal Information.” And, it says, “we reserve the right to share Non-Personal Information with affiliates and other third parties, for any purpose.” So Brightcove could, for example, sell Harvard University the information that I watched the Internet Freedom video via the wired jack in my Harvard office. Freedom does have its limits, but I might have hoped they fell a bit farther out than that.