Blown To Bits

Archive for the ‘The role of government—laws and regulations’ Category

Private Censorship

Monday, January 18th, 2010 by Harry Lewis

Google’s stated rationale for threatening to pull out of China is the withering barrage of cyberattacks it has experienced, apparently aimed at getting access to the Gmail accounts of Chinese dissidents. In an article that appeared this morning, Rebecca MacKinnon presses on another aspect of the Google-in-China drama: China’s insistence that Google censor its search results. That was, of course, what created the dilemma for Google in the first place, and caused the initial controversy. A part of me thought that pulling out because of the cyber-attacks—happy though it made me—was a bit of a cop-out, suggesting that it would be happy to keep on censoring if only the Chinese crackers would cut out their attacks.

In China, if companies fail to track and remove content or block conversations that regulators deem violate laws or regulations (a court or judge is almost never involved), they risk heavy fines at best and permanent shutdown at worst. …

To operate in China, Google’s local search engine,, had to meet these “self-discipline” requirements. When users typed words or phrases for sensitive subjects into the box and clicked “search,” was responsible for making sure that the results didn’t include forbidden content. …

Ever since launched in 2006, I’ve occasionally run tests to see how its compares to its homegrown competitor Baidu. consistently censored less than Baidu did. This is how Google executives justified the ethics of their presence in China: Chinese users, they argued, were still better off with than without it.

Things changed for Google in 2009, however. Regulators demanded that it ramp its self-censorship up to Baidu’s level. The Chinese state-run media attacked Google numerous times for failing to protect youth from smutty Web sites when — horror of horrors — those innocent kids happened to type in smutty words and phrases.

Now the important message in MacKinnon’s column is the effectiveness of self-censorship, and how hard it is to fight—and that for that reason, other countries are trying their own versions.

From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

“Not Your Father’s Censorship,” to use the title of a piece I wrote for the Chronicle of Higher Ed last year. The argument for open publication, and holding the intermediaries blameless for the sins of the authors, is not an easy one. Before anyone goes down that path in search of a safer society, it is worth taking the Chinese example to heart.

Is It Illegal to Record an Arrest?

Tuesday, January 12th, 2010 by Harry Lewis

Depends on who you talk to.

In Blown to Bits, we talk about citizen vigilantism—people taking vengeance on people they see doing bad things, or just snapping pictures of crimes being committed, pictures that may help identify the culprits. The digital explosion has engendered a lot more of this, for both better and worse—we once did not all have cameras on us all the time.

Of course, a technology generation later, we all have not just still cameras, but audio recorders and video cameras too—in cell phones and even iPods. And people are whipping them out when they observe arrests being made, and are using the recordings to embarrass the the police, or to help in the defense of the party being arrested.

Except now, as the Boston Globe reports,  the police are increasingly fighting back, accusing those making the recordings of illegal surveillance, under wiretapping statutes. It’s a fascinating story. Some of the convictions are standing up in Massachusetts—the Supreme Judicial Court ruled in a split decision that the wiretapping statutes apply, unless the recording was made in a public manner. So people hiding the microphone in their sleeve or the camera in their coat may well be in trouble. Chief Justice Margaret Marshall was in the minority, opining

Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording, secretly recording on occasion, an interaction between a citizen and a police officer.

I don’t envy the police their job. Hell, I wouldn’t be happy if people were video-recording my  every movement while I was doing my job. But what the police are doing while making an arrest seems to me a public act by definition. In other situations (all those traffic-stop videos we see) the police themselves make sure everything is recorded these days. Can’t see why recording the police arresting someone in the public square wouldn’t fall within citizens’ rights.

No, We Really Don’t Want This

Thursday, January 7th, 2010 by Harry Lewis

I am of libertarian leanings, and I always hate acknowledging that we sometimes need the government to save us from ourselves. I am of two minds about laws against cell phone use while driving — even after a near-death experience las week, when a driver coming down the street in the opposite direction skidded on the ice into my lane of traffic, stopping inches from the front of my car — and never took her cell phone from her ear. (Perhaps she was reasoning correctly that her car was much, much bigger than mine.)

But we really need some regulation on the bright idea of Internet access from our cars’ instrument panels. As the New York Times puts it, Despite Risks, Internet Creeps Onto Car Dashboards.

Not hard to figure how this happened. We should have seen it coming. The technology is getting cheaper. We love the gadgets in our cars, and will trade a perfectly good vehicle for one with a better navigation system, something we never knew we needed. So bingo, we have touch screens with handwriting recognition, so the driver can scribble the name of the band he’s going to hear and get some news flashes about it.

Car regulators, please, please save us from ourselves. Or rather, save the partially sane among us from the idiots who will think they can multitask infinitely with their hands and brains.

Not a Good Beginning to the Decade for Information Freedom

Monday, January 4th, 2010 by Harry Lewis

Let’s see.

1) A cartoonist in Denmark is nearly killed for drawing some pictures of a guy with a beard.

2) In Ireland, a law took effect banning blasphemy. A person can be found guilty if “he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion.” By that standard, the cartoonist would have been guilty, I imagine. Some atheists are challenging the law; other parties are taking it as a model to be urged upon the U.N. Actually, the UN Human Rights Council had already voted to condemn the “defamation of religions.”

3) In India, just as in China, Google is cooperating with the law by censoring politically objectionable content. In this secular democracy, the line between religious and political speech is thin, and the fears of mass riots are real.

“If you are doing business here, you should follow the local law, the sentiments of the people, the culture of the country,” says Gulshan Rai, an official in the Ministry of Communications and Information Technology, who is overseeing implementation of the new law. “If somebody starts abusing Lord Rama on a Web site, that could start riots,” he said.

Note the pattern here. The first case would be an easy call for many Westerners, but the other two plainly involve friendly democracies suppressing a wide variety of speech that most Americans would take for granted as constitutionally protected. I wonder if the U.S. is going to become an outlier state in this way also, or if the strong conservative religious forces in the U.S. will start persuading legislatures to chip away at free speech rights in the name, ironically, of respect for differences.

4) On the good-news side, not only does opposition video footage continue to get bootlegged out of Iran, but film-making culture continues to thrive through underground distribution networks.

Will digital control or digital liberty be the more powerful force in the next decade? I’m betting on liberty, but it sure isn’t going to be obvious.

The Full Body Scanning Debate

Wednesday, December 30th, 2009 by Harry Lewis

In the New York Times, travelers and privacy experts present their views on whether the millimeter-wave scanners I discussed yesterday are an unacceptable invasion of privacy. Quoting a Utah Republican who sponsored a bill (which passed the House but not yet the Senate) banning the use of the devices except as secondary screening technology, the story says

“I’m on an airplane every three or four days; I want that plane to be as safe and secure as possible,” Mr. Chaffetz said. However, he added, “I don’t think anybody needs to see my 8-year-old naked in order to secure that airplane.”

Which is to say what, that no terrorist would put a bomb on an eight-year-old? I wonder if there is a name for this rhetorical device, where one transforms a general proposition into a personal insult.

EPIC, which had previously filed suit for more information about these devices, seems to me to have it right.

Marc Rotenberg, head of the Electronic Privacy Information Center, said his group had not objected to the use of the devices, as long as they were designed not to store and record images.

Keep the screens in a separate room (as is done). Disable the recording capability (as is done). Make sure the operator doesn’t have a cell phone camera if you wish (though it is hard to imagine much titillation coming from these images, compared to what is readily available). But yes, check the passengers the way you check their luggage, and the wheel bearings for that matter. And yes, that is a role for government, or government-controlled entities. I don’t think we want a free market here, allowing airlines to trade off security for ticket price and allowing consumers to decide for themselves how much risk they are willing to accept.

Bruce Schneier is a very astute security expert, but I am not sure I follow his logic here:

Bruce Schneier, a security expert who has been critical of the technology, said the latest incident had not changed his mind.

“If there are a hundred tactics and I protect against two of them, I’m not making you safer,” he said. “If we use full-body scanning, they’re going to do something else.”

The millions of dollars being spent on new equipment, he said, would be better invested in investigation and intelligence work to detect bombers before they get to any airport.

The last part is surely true. Figuring out the line determining when someone goes on a no-fly list is tricky business. You don’t want any father with a grudge against his son to be able to ground the son by making a call to the Embassy. But it sounds like there were enough other dots to connect in this case to have set off appropriate alerts. I take Schneier’s point to be that the security perimeter at the airport is not the only place, nor even the best place, to keep terrorists off the plane, and the threat model that puts all the energy at stopping them there will be ineffective in practice. That sounds right, but isn’t really an argument against the use of the millimeter-wave technology.

Millimeter wave scans = privacy infringement?

Tuesday, December 29th, 2009 by Harry Lewis

The recent attempt by a Nigerian man to blow up a plane flying into Detroit has brought the subject of millimeter wave scans back into public discussion. These scans use very short-wave radio signals to peek through people’s clothing and see what they may have underneath. Some privacy advocates resist the use of these devices, because they show genitalia, as well as revealing breast implants and so on.

Maybe I am missing something, but I can’t get excited about the fact that a security screener might get a glimpse of an X-ray like image of my private parts in the course of verifying that I wasn’t hiding some explosives there (as the alleged terrorist apparently was). It may not be useful or effective to screen everyone–maybe you’d do some obvious profiling (bought the ticket with cash, etc.) to reduce the workload on the screeners and keep them sharper. But if the image isn’t stored, I don’t see any privacy problem in principle here. In enlightened societies at least, we have mostly gotten past prudery in medical care–not many hospital patients would today insist on having their bedpans emptied only by same-sex attendants. If you want to use the technology of air travel, you need to accept the technology of security (provided, once again, that it really is security-enhancing and not just in place to create a phony sense of security).

By the way, the TSA hasn’t yet fixed the huge security hole, pointed out by Chris Soghoian several years ago, that they check the boarding pass against your ID at the security perimeter and the boarding pass against the electronic ticket record at the gate, but never verify that the ticket matches your ID, unless you check a bag. If you are not checking luggage, the two boarding passes could be different.

Privacy bonus: Canada’s Daily Post has an article about privacy loss, which quotes Blown to Bits and ends with a Christmas-spirit thought that sprung into my head when I was interviewed last week:

Harry Lewis, a professor of computer science at Harvard and co-author of Blown to Bits, said the book was written to get people thinking about how much of their personal information they surrender every day. He worries that the less privacy we enjoy, the more it will discourage social advances.

“The loss of privacy is a socially conforming force,” he said in an interview. “So many social experiments over the course of human history — religious innovations, political dissent — started among small groups of mutually trusted friends who gradually gained acceptance for their beliefs and their behaviours.”

If Jesus’s early followers had a Facebook group, he joked, “they would have been stamped out very quickly.”

Search Engine Neutrality?

Monday, December 28th, 2009 by Harry Lewis

Adam Raff, a founder of Foundem, an Internet technology firm, makes the case in today’s New York Times for “Search Engine Neutrality,” which is kind of like network neutrality except that the nondiscrimination policy would apply to the way search engines return their results. As Raff states it, search neutrality means that “search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance.” He objects, for example, to Google favoring its own map service over competing map services. And he objects to the way Google down-ranked his company’s product comparison service, which, he says, severely impacted its business.

Many of the points Raff makes are versions of thoughts in Chapter 4 of Blown to Bits, where we discuss the distorting lens phenomenon and an extreme case of search oblivion at the hands of Google’s ranking. (We also make the point, as Raff notes, that some of Google’s keyword auction technology was the invention not of Google but of Overture.)

But can search “impartiality” and “relevance” really be defined statutorily? I doubt it, or rather, I doubt we would want the hash that Congress or a regulatory bureaucracy would make of an attempt to regulate the semantics of the entire English language (and not just English). And lots of things affect Google’s rankings –see the Webmaster Help page, which includes advice such as not creating pages with little or no original content. I don’t think we want a legal entity judging whether pages were downranked for these or other reasons, or whether Google’s Safe Search filter has improperly omitted someone’s web page entirely.

In the presence of competition, none of this would be a worry. People would choose a search engine based on whether they liked the results it delivered, or perhaps on the basis of quality ratings by an organization such as Consumers Report. They could move if the search company changed their policy. The same is true with net neutrality, actually — the demand would not be so compelling if the number of choices of Internet services were not limited to one or two in so many places.

Monopolies are always dangerous, and this op-ed drives home that point. Not sure I am persuaded about the remedy, though.

Note: Any account written by an agent of a company unhappy about where its name turns up in Google searches should be regarded skeptically. There are lots of possible reasons for Google to downrank a site that have nothing to do with Google trying to gain an advantage in a new business sector, and Foundem’s web page design certainly doesn’t dazzle. Would love to know the full facts here, but I don’t.

Using Copyright to Censor Parody

Friday, October 23rd, 2009 by Harry Lewis

The Digital Millennium Copyright Act is the gift that keeps on giving. It is the Swiss Army Knife of laws. Every time you think you’ve seen a pattern in the ways it is misused, somebody comes up with a new idea. It was once subtitled “An Act for the Encouragement of Learning.” The encouragement was provided by a temporary monopoly on intellectual works, to give the creator an incentive to create them. Now it is, among other things, a handy tool for censoring those who make fun of you.

Today’s complainant is the U.S. Chamber of Commerce. On Monday a group of prankster environmental activists managed to stage a fake press conference, right in the Press Cub in Washington DC. A few members of the actual press were joined¬†for effect¬†by some hoax journalists. The hoax Chamber of Commerce announced that it had decided that climate change was, after all, a problem that could not be solved by cap and trade legislation and a carbon tax was the way to go–a position opposite to that espoused by the real Chamber of Commerce–which broke into the meeting, causing some shouting and mayhem.

Having regained its composure, the Chamber of Commerce now moves against the fakers, known as the Yes Men. The Chamber wants the Yes Men’s web site shut down for copyright violation—it is, to be sure, a pretty good look-alike of the real site. But that is what parody is—it’s a fake for humorous or critical purposes. Parody is legally protected.

Unfortunately, the takedown provision of the DMCA protects the ISP from liability only if it pulls the allegedly infringing material while the parties sort out their dispute. The Yes Men have the same gripe that John McCain had when a TV network demanded that YouTube pull an ad because it contained a short clip of an evening news anchor. The anchor was complaining that the press were mean to Hillary Clinton; McCain wanted in a sarcastic way to make the same point about the press treatment of Sarah Palin. Perfectly reasonable, but YouTube took the video down to protect itself.

In this case, the fake web site quickly got reducplicated–mirrored–in a way that made the censorship effort moot. And the Electronic Frontier Foundation is stepping in to help. But that is just in this case. Minor players, whom the Chamber of Commerce is actually supposed to help, might not have the same opportunities.

A Step Forward for Net Neutrality

Friday, October 23rd, 2009 by Harry Lewis

The Federal Communications Commission voted yesterday issued a Notice of Proposed Rulemaking (press release) to guarantee that the Internet would remain open, predictable, and transparent, as its architects intended it. The Commission had previously endorsed four Internet principles:

  • To encourage broadband deployment and preserve and promote the open and interconnected¬†nature of the public Internet, consumers are entitled to access the lawful Internet content of¬†their choice.
  • To encourage broadband deployment and preserve and promote the open and interconnected¬†nature of the public Internet, consumers are entitled to run applications and use services of¬†their choice, subject to the needs of law enforcement.
  • To encourage broadband deployment and preserve and promote the open and interconnected¬†nature of the public Internet, consumers are entitled to connect their choice of legal devices¬†that do not harm the network.
  • To encourage broadband deployment and preserve and promote the open and interconnected¬†nature of the public Internet, consumers are entitled to competition among network providers,¬†application and service providers, and content providers.

These principles get at a lot of what has made the Internet succeed, but fail to address the problems that arise when the carriers enter the content industry. The conflicted interests became most apparent when Comcast began to introduce fraudulent packets to slow down the Internet delivery of movies–raising the suspicion that it might be doing so to encourage its Internet subscribers to buy movies from its pay per view cable service instead. We blogged this several times (here for example). Exactly the same situation arose more than a century ago when Western Union cut an exclusive deal with one “wire service,” which to the profit of both would have ended the delivery over Western Union’s telegraph wires of news from alternative sources. That is what started the government’s interest in regulation of telecommunications.

The FCC decided to adopt a fifth principle:

  • Subject to reasonable network management, a provider of broadband Internet access¬†service must treat lawful content, applications, and services in a nondiscriminatory¬†manner.

Of course, that “reasonable” leaves a great deal to the imagination, and that is why this is a policy, not a rule. The rules remain yet to be written, though the Notice gives plenty of information about what to expect.

Because this, like everything, is political, the vote split along party lines, and carried because the FCC is majority Democratic. All five commissioners issued individual statements. The major telecomms, such as Verizon, and stoutly opposed. The Drudge report dramatically screamed, “JULIUS AT FCC WANTS TO ‘REGULATE’ INTERNET,” combining fear-mongering and condescension. Yes, this is an area that needs regulation. You don’t want Verizon to have the legal right to refuse service–either telephone or Internet–to the headquarters of one political party, say, just because it might prefer the policies of the other party.

All the FCC documents are available via the home page,¬† You need to scroll down to the heading “Commission Seeks Public Input on Draft Rules to Preserve the Free and Open Internet.”

As for whether it’s bad for business, I am always astonished that the Republicans so easily forget that the big businesses they so love to protect from regulation were all once small businesses that got started because they saw an opportunity in an open space. Google got started because it could count on how the Internet worked. So did tens of thousands of other businesses, some of which failed, and some of which, like Napster, were closed down as illegal. That’s the way the system should work. The Internet is a fertile place, and in a world where, sadly, most American households have zero, one, or two choices for Internet service, regulation of Internet monopolies and duopolies is needed to help new business ideas can take root.

I also recommend the¬†Berkman Center’s exhaustive study of broadband access around the world, plainly establishing that all the supposed benefits of open and unregulated competition among private entities have left the US, which invented the Internet, a middle of the road country as far as access and speed. The FCC is soliciting comments both¬†on the Net Neutrality proposed rule-making and¬†on the broadband study.

The FTC Decides to Regulate Bloggers

Tuesday, October 6th, 2009 by Harry Lewis

We have a very well-intentioned initiative from the Federal Trade Commission to require people who blog about a product reveal if they have a financial interest in the product’s success. No phony “product reviews,” for example, written by people who are being paid by the manufacturer.

This is a classic case of that with which the road to hell is paved. The FTC is attempting to translate conventions used in TV and print into a very different medium. There are so many edge cases to consider. What about a 14 year old blogger raving about a skateboard her daddy brought home from the company where he works? What about a book reviewer who reviews a book he was given to review (as reviewers invariably are)? What about just mentioning that you are drinking a Coke when your brother-in-law works for the Coca-Cola company? What about tweets–do you have to include your disclosure in the 140 word limit (the FTC commissioner apparently thinks that might be possible).

And the big question: Is this really a role we want for government?

Many good blog posts on this. I recommend Dan Gillmor’s, and those to which he points. Dan proposes that the FTC just doesn’t understand the Web.