Blown To Bits

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

Senate Moves to Give President Control Over the Internet

Friday, August 28th, 2009 by Harry Lewis

Senator Jay Rockefeller of West Virginia has introduced legislation that would give the President the authority to declare a “cybersecurity emergency” and take control of certain private, non-governmental networks during such an emergency. The bill is full of vague language and describes powers that can be exercised without any judicial or other review, if necessary for U.S. “national defense and security.”

There are all kinds of problems here, as the Declan McCullagh report enumerates. First, the government has shown itself not be be very good at cybersecurity. For another, the Obama administration invoked national security as the reason not to share a draft intellectual property treaty with the public. (See Say It Ain’t So, Barak, March 14, 2009.) By that standard, the government could take over the Internet on a whim or a scare.

This legislation is seriously flawed.

“A Case that Cried Out for Someone to Do Something”

Friday, July 3rd, 2009 by Harry Lewis

The conviction of Lori Drew, the mother whose ¬†Myspace impersonation of a 13-year-old boy was followed by the suicide of Megan Meier, has been set aside by the judge in the case. ¬†There being no anti-cyberbullying statute ore anything else under which she could be charged in Missouri, where she and Meier lived only a few blocks apart, a federal prosecutor in California (where MySpace is located) charged her under a federal law meant to criminalize hacking into bank accounts and credit card sites. The prosecutor reasoned that lying to MySpace on its registration form was sort of the same thing. By that standard, as we noted on this blog, everybody would be a federal criminal — especially as most social networking sites reserve the right to change their terms of service without telling you. And that is exactly the reasoning Judge Wu used in dismissing the case, even though a jury had returned a guilty verdict. You can’t throw someone in jail under an interpretation of a statute so broad that pretty much everyone would be eligible for incarceration. It’s unconstitutional.

There are legal questions here that I am sure are going to be analyzed. Would jury nullification have been a possibility here, had some juror spoken up to say that the statute was ridiculous if this is what it implied? If not that, what should the jury have done?

But the scary part is the prosecutor’s explanation for what he acknowledges was a “risky’ strategy. He heard a cry “for someone to do something,” and he responded. In other words, he thinks there are parallel universes, the universe of law and the universe of justice. His job is to figure out what’s just and to find a law that can be stretched to fit the facts. That is a really scary attitude on the part ¬†of a federal prosecutor. Lori Drew perhaps should fry in hell, but that is not the business of the temporal sphere. Missouri should perhaps rewrite its laws to make it easier to prosecute the next cyberbully, and the legislature has in fact done that. But if it were the job of the state’s attorneys to decide what is right and wrong independent of the laws, we wouldn’t need the laws at all, we could just rely on their judgment of good and evil. ¬†That’s not how democracies work.

DOJ Questions the Google Books Settlement

Friday, July 3rd, 2009 by Harry Lewis

The Department of Justice has now confirmed rumors that it was taking an interest in the draft settlement between Google and the Authors and Publishers, now before federal judge Denny Chin (who just sentenced Bernie Madoff to 150 years). Presumably the question for the DOJ is whether the proposed settlement is anti-competitive; Google responds “It‚Äôs important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S.‚Äù Which is true, but may well not be sufficient to avoid anti-trust issues.¬†¬†See the Digital Daily post here, which includes a link to the actual correspondence between the government and Judge Chin. Judge Chin notes that he is still planning to hold a Fairness hearing on October 7, and if the government wants its views known in writing, it has to submit something by September 18.

French Three Strikes Law Unconstitutional

Wednesday, June 10th, 2009 by Harry Lewis

The French anit-piracy law, adopted in France on the basis of strong support from President Sarkozy, has been¬†declared unconstitutional The logic is elegantly simple and equally applicable in the UDS. ‚Ķ “Internet est une composante de la libert?© d’expression et de consommation‚Ķ¬†en droit fran?ßais c’est la pr?©somption d’innocence qui prime” ¬†– “The Internet is a coomponent of the freedom of experssion and of consumpton ‚Ķ In French law it’s the presumption of innocence that prevails.” (Well, OK. So there is no “freedom of consumption” in the US Constitution, as far as I know!)

THanks to Carolinna Rossini for the pointer.

Is Regulation of Broadcast Speech an Anachronism?

Friday, May 1st, 2009 by Harry Lewis

We make that argument (which we learned from a paper by Larry Lessig and Yochai Benkler) in Chapter 8 of Blown to Bits. The outcome of the Supreme Court case of Fox v. FCC, decided this week, suggests that the line of reasoning we outline has some traction on the Court.

The case, stimulated by Cher’s use of the F-word and Nicole Richie’s use of the S-word, was decided 5-4 in favor of the FCC, which would at first blush make it look like a loss for free-speech libertarians. But the case was decided on narrow administrative grounds; the only question on which the court took a position was whether the FCC had properly promulgated a reasonable regulation (its higher standard prohibiting even fleeting use of expletives at times when children were likely to hear them). The constitutional question of whether that regulation of free speech is in violation of the First Amendment the court let stand.

But the four in the minority seem not to support the restriction of broadcast speech at all. And one of the majority seems inclined in the same direction. That would be Justice Thomas. Although we might have expected him to have the least patience with foul speech on television, he takes the opportunity of writing his own opinion, concurring with the majority in its vote on the administrative question, but making plain that technological changes have shaken the court’s prior reasoning on the constitutional question.

The case has been sent back to the lower court, which will have to take up the constitutional question. Whatever it decides, if the decision is appealed, the Supreme Court may have an opportunity to come down once and for all on the federal government’s right to censor broadcast television.

A few passages from Justice Thomas’s opinion (full opinions here):

even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. …

Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services.… Broadcast and other video programming is also widely available over the Internet. …  And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. …

These dramatic changes in factual circumstance swell support a departure from precedent ….

A Wild Sexting Story

Sunday, April 19th, 2009 by Harry Lewis

A teacher and school administrator in Virginia tells a frightening story of having to defend himself against child abuse and child pornography charges because he transferred a photo of a half-naked girl to his cell phone and his office computer in the course of investigating a student sexting complaint.

My Students. My Cellphone. My Ordeal.

The moral here is that with every student a photographer and a publisher, every schoolteacher can become a detective in an area of crime where the consequences are extremely serious. Adolescent experimentation has tripped legal standards that were put in place to cover an entirely different behavior, and the technology, the law, and student behavior have not progressed in a coordinated way.

South Korea’s Crackdown on the Web

Friday, April 17th, 2009 by Harry Lewis

South Korea has implemented a three-strikes law ostensibly designed to combat music piracy. Three violations of copyright and you lose your Internet connection. Similar laws are being considered in France and elsewhere, but have been slowed by concerns about limiting citizens’ rights to private communication. The Koreans have just charged ahead. ArsTechnica summary here, and fuller Korea Times article here.

This law goes way beyond what even the most ambitious recording and movie industry lawyers could have hoped for, as any web site could be shut down for posting a few photos — or allowing others to post a few articles — that are supposedly copyrighted. A blogger quoted in the Korea Times says,

The law could have the government shutting down not only major Web portals, but online message boards of smaller companies and even `meta sites’ that compile blog posts. And the member blogs of the meta sites could be interpreted as online message boards, too.¬†The law draws a dreadful picture of the future, as Internet users will be required to submit their real names to post on individual blogs and not even imagine using the online message boards of Web portals or meta sites due to the worries of having his or her Internet cut off.

The powers granted to the government are so sweeping that there is suspicion that restraining copyright infringement is not the real or only agenda. As the Korea Times reports,

Critics question whether the new copyright law could eventually be used to suppress certain sites, such as Agora, a discussion board operated by Daum (, which was a seedbed for anti-government criticism during the controversy over the beef issue.

Control the Internet, control the people. The same infectious ubiquity that caused Domino’s Pizza such instant ¬†misery — which Domino’s is fighting using the Internet itself — can be used against the government. This bears watching. If it’s implemented and works in South Korea, other governments will take the lesson.

Should Using a Proxy Make a Crime Worse?

Wednesday, April 15th, 2009 by Harry Lewis

Federal sentencing guidelines are being modified to provide that using an Internet “proxy” to commit a crime should be taken as evidence that you are a particularly evil and devious sort of criminal and should get a stiffer sentence.

Proxies are simply machines that sit between your computer and the Internet for the purpose of making you appear to be elsewhere. People in oppressive regimes use proxies such as Tor to surf the Web while hiding their IP addresses. Corporations use proxies so their employees can work from home but have the access privileges that ordinarily come from being on-site. Proxies are used everywhere to enhance the privacy of Internet communications.

And that’s a problem, apparently, according to the folks revising the sentencing guidelines, because of course criminals can use proxies to hide their footprints. How do you handle a technology that can be used for both good and ill? Short of banning it, you can say that IF you use it to commit a crime, the crime is worse than if you didn’t use it. Says¬†John Morris, general counsel for the Center for Democracy and Technology, “This is the government saying, ‘If you take normal steps to protect your privacy, we’re going to view you as a more sophisticated criminal.'”

What’s the point? Criminals are unlikely to cooperate by making their criminal acts more traceable so as to reduce their sentences if they get caught. Instead, proxies will get a bad reputation, as things that are risky or anti-social to use. In fact we should be encouraging proxies, and encryption, and other privacy-protecting technologies.

But it is a tricky argument to make, because this clause in the sentencing guidelines is irrelevant to anyone who hasn’t committed a crime — except that it is part of a general push to force all Internet activities more out in the open where the government can watch it. And us.

Here is the regulation itself (PDF, see pages 5-15). Thanks to Slashdot for the pointer.

In Which We Seek to Intervene in the Google Books Settlement

Monday, April 13th, 2009 by Harry Lewis

I previously blogged about the peculiar state of orphaned works under the proposed Google Books settlement. I have now joined with Lewis Hyde and the Open Access Trust (see below for an explanation) in asking the judge who must rule on the proposed settlement to allow our concerns to be heard. The letter speaks for itself so I simply include it below. Stay tuned.


The Honorable Denny Chin

United States District Judge

U.S. Courthouse, 300 Pearl Street

New York, NY  10007–1312

RE: Case No. 05-cv-8136-DC, The Authors Guild Inc. et al. v. Google Inc.

Dear Judge Chin:

Pursuant to your Individual Practice 2(A), we write to request a pre-motion conference in  Authors Guild v. Google.  We seek to file a motion for leave to intervene on behalf of Lewis  Hyde, Harry Lewis, and Open Access Trust Inc., a Massachusetts nonprofit corporation  dedicated to promoting access to knowledge, worldwide.

We also seek to file motions for our counsel, K.A.D. Camara of Camara & Sibley LLP  and Charles Nesson of Harvard Law School to appear pro hac vice in association with Nathan Z.  Dershowitz, a member of the bar of this Court.

Lewis Hyde, Harry Lewis, and the Open Access Trust represent the community of  readers, scholars, and teachers who use orphaned works.  Orphaned works are works under  copyright, but with a copyright holder who has died, cannot be found, or otherwise has  abandoned his work.  In the status quo, users like us and commercial users like Google can and  do use orphaned works, although we do so against a backdrop of potential legal liability should  the owner of an orphaned work later emerge.

The parties in this case propose to change this status quo by clarifying that the use of  orphaned works is, indeed, actionable copyright infringement; vesting in Google a monopoly in  the lawful use of orphaned works; and dividing between themselves the proceeds of this  monopoly.  The Authors and Publishers, with Google’s consent, purport to represent a class of  copyright holders that includes the owners of orphaned works, even though neither the Authors  nor the Publishers are such owners.  Having turned the Authors and Publishers into legal  representatives of the owners of orphaned works, Google will buy from these representatives a  global license.

The proposed settlement will make Google the only company in the world with a license  to use orphaned works.  No other company will be able to buy a similar license because, outside  the context of the proposed class-action settlement in this case, there is no one from whom to buy  such a license.  The Authors and Publishers join in this scheme because Google proposes to  divide with them, pursuant to the proposed settlement agreement, the revenue that the orphaned  works will generate.  The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works — to defend the public  domain’s claim to free, fair use.  The purpose of copyright is to promote authorship and learning.   Copyright does this by giving authors exclusive rights for limited times so that authors can profit  from their writing by selling licenses to others.  This mechanism breaks down in the case of  orphaned works because, with respect to these works, there is no one from whom to buy a  license.  The public can buy no license; the author can reap no reward.  Because exclusive rights  in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim.  It is inconsistent with the settlement they propose.  If the use of orphaned works is free and fair, then there is no exclusive license to give Google and no claim on the part of Google, the Authors, and the Publishers to the proceeds of that exclusive license.  We must press our claim in this case because it is only in this case that there is a party that purports to represent the owners of orphaned works with whom we, like Google, can negotiate.  Our interest in orphaned works, put in jeopardy by the proposed settlement and adverse to the interests of the settling parties, gives us the right to intervene under Rule 24.

Our request to intervene is timely.  It comes shortly after the terms of the proposed settlement became public and made our interest concrete.  And it comes well before the June 11, 2009, fairness hearing on approval of the settlement.  The settling parties claim that class notice was mailed on January 5, although many authors did not receive notice until much later.  Lewis Hyde, for example, received notice by mail dated February 20.  Our intervention comes, at most, three months after notice.

We believe that the proposed settlement worked out by Google, the Authors, and the Publishers is a landmark achievement and an historic event.  But the settlement currently proposed cannot be approved because it does not respect the interest of the public domain in the free, fair use of orphaned works or the revenue that these works will generate — nor was it arrived at through a process in which that interest was represented.  We think that this case and the constitutional issues of national moment that it presents will be better resolved if the public domain has a seat at the table.

Lewis Hyde is Richard L. Thomas Professor of Creative Writing at Kenyon College and was formerly director of the creative-writing program at Harvard University.  Harry Lewis is Gordon McKay Professor of Computer Science at Harvard University and was formerly Dean of Harvard College.  Open Access Trust Inc. is a Massachusetts charitable corporation dedicated to the creation, encouragement, and maintenance of institutions that serve the goal of open access to knowledge, worldwide.

We respectfully request leave to file our motion to intervene and motions for leave for our counsel, K.A.D. Camara and Charles R. Nesson, to appear pro hac vice, in association with Nathan Z. Dershowitz, a member of the bar of this Court.

Respectfully submitted,


K.A.D. Camara

Camara & Sibley LLP

Charles R. Nesson

Nathan Z. Dershowitz

Dershowitz, Eiger & Adelson PC

US Technology and Immigration

Sunday, April 12th, 2009 by Harry Lewis

I strongly recommend the front page story in the NYT today about how US immigration policy is making it next to impossible for US technology companies to hire the top technical talent from abroad. The poster child is Sanjay Mavinkurve, a Harvard grad in CS who has already demonstrated himself to be a top engineer at the age of 28. He works for Google — out of Canada, since he can’t get a green card and so his wife can’t work here.

I have had many, many students from abroad who just want to be Americans. They have contributed far more jobs to the US economy than they have consumed themselves. The counter-argument — that there are unemployed US engineers who should be hired instead — is absurd. Of course an average US engineer should be hired over an average foreign engineer, but we are talking about the people who will drive the US economy in the future. America has the potential to keep doing just what it has always done, bring in the top talent from abroad and make them its own. Without them, we will stagnate in our jingoistic righteousness and wind up with a second-rate economy.

I know Lou Dobbs doesn’t agree ‚Ķ