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In a surprising vote, French legislators have defeated a bill that would monitor Internet communications and cut off from the Internet people accused of illegal downloading by the music and movie industries. The defeat resulted in cries of anguish from the industry spokespeople, and a promise from Sarkozy to bring it back after Easter, when more than a handful of legislators will actually be present to vote.

It’s surveillance, guys. If it’s legal to inspect everybody’s data packets because you are pretty sure somebody is sharing songs illegally, surely it should be legal to open everyone’s mail because we know that there are illegal acts carried out through the postal service. And to listen to everyone’s telephone calls because we know some people are doing bad things over the phone.

The French see these things differently, and the big fear is that ubiquitous Internet surveillance will establish a beachhead in Europe and then be transported stateside through international treaties. Watch this one closely.

Sarkozy, by the way, is fuming.

There is a move afoot in Massachusetts to — well, it’s hard to tell from the early reports what exactly the legislation would do. Perhaps to punish people who abuse the elderly and the disabled; perhaps to ban pornography involving the elderly and the disabled. Who knew? I certainly didn’t, but an accompanying sidebar in the Herald reports that 20% or more of Japanese porn involves the elderly, and says ‚Ķ well, I will just quote the headline: “‘Wheelchair vamp dwarf’ porn is big business online.”

The problem is the casualness with which the officials quoted — one District Attorney, one a state representative — are ready to lump these forms of pornography in with child pornography. “Kind of a no-brainer,” says the state rep. Maybe a law is needed here somewhere, but please DO try to use your brain. Child pornography has extremely serious penalties, and is illegal to possess, on the logic that a child can never be a willing participant in the creation of the pornographic material — something plainly not true for the elderly and the disabled. (If child pornography is purely synthetic, so no children were abused to produce it, it may actually be legal. Unless it’s obscene, the problem with child pornography is not with adults seeing it, it’s with what had to be done to produce it.) Frankly, I doubt that any more laws are warranted. Harvey Silverglate has it right:¬†‚ÄúIt seems to be the latest in a long effort to broaden the definition of obscenity. We‚Äôve already got (laws) against coercion. Why is that not adequate?‚Äù

Certainly the morals police are at work in Pennsylvania, where schools are seizing cell phones, looking for naughty photos on them, and then coercing the students depicted in those photos into re-education camps about sexual evils. Some students are fighting back:¬†Students Sue Prosector in Cellphone Photos Case. These students are taking some risks, because of the severity of child pornography laws; like defendants in copyright cases, there is an overwhelming incentive to accept whatever deal is offered rather than go to trial, even if — as this story claims — the photos are in some cases nothing worse than a couple of girls at a slumber party, shown from the waist up, wearing bras. (Ah, says the prosecutor, but he, at least, found the photos “provocative.”)

And do we really think it should be part of the schools’ job in “protecting” its students to go through everything on their cell phones? Of course, that is nothing less than any U. S. border guard could do, under orders issued by the Department of Homeland Security under the Bush administration. (How about repealing that one, Mr. Obama?) Is this the way of life we want our children to grow up accepting as normal — even as good?

We reported for the first time back in October on the case of RIAA v. Tenenbaum. The Recording Industries have taken one Joel Tenenbaum to task for downloading a few songs while he was a BU student, and Mr. Tenenbaum wants a trial. He is being defended by Prof. Charles Nesson of Harvard Law School. Prof. Nesson has challenged the very constitutionality of the Digital Millennium Copyright Act, on basis that the statutory penalties are so disproportionate to the actual damages that the law functions as a criminal statute even though it is a civil statute. That the DMCA is (for the most part) a civil statute has many consequences — the standard of proof is lower, and the defendant has no right to public defender, for example. The result is that defendants in copyright cases almost never contest; instead they settle up with the RIAA out of court.

There has been some suspense over whether the Obama administration’s Justice Department would enter into this controversy. On the one hand, the new administration prides itself on being the friend of the little guy. On the other hand, both the Vice President and several senior members of the Justice Department have reputations as friends of the copyright industry.

Today we have our answer: the Justice Department has indeed entered the argument, and sides unequivocally with the Recording Industries. The DOJ brief (pdf, 31 pages) urges the judge not to deal with the constitutional question if she can avoid it, and then dismisses every constitutional argument put forward by the defense. According to this summary by Recording Industry vs. the People, the Justice Department memo makes no response to the arguments put forward by the¬†Free Software Foundation in support of Tenenbaum’s case — citing various cases and authorities to the effect that the statutory damages set by the DMCA are unconscionably high.

It’s a disappointment — the DMCA is bad law, as we detail in Chapter 6, and we might have hoped for better from the new administration. But previous Justice Departments had sided with the Recording Industries, so perhaps this should have come as no surprise — even with the enlightened Elena Kagan as the government’s top lawyer.

Slashdot has a good precis, and almost 500 comments as of this writing.

The Obama administration is invoking “national security” to prevent the American people from knowing what is in the intellectual property protection treaty it is negotiating with foreign governments. (That page has a wonderful morph of Bush to Obama. Other coverage of this story is aggregated by Jamie Love here.) That’s right — the administration has turned down flat a Freedom of Information Act request for the details of the “Anti-Counterfeiting Trade Agreement” (ACTA), which has nothing to do with making phony money, but instead deals with peer-to-peer file-sharing and other forms of digital copying. With a straight face, the government is claiming that our national security would be endangered if American citizens were to know what deal is being cut with other industrialized countries about monitoring music and movie downloads. Yes — we actually do know a bit about what is in the draft treaty, because of a leaked document, which appears on Wikileaks. You can download it there — it’s a summary sent by a US ambassador to interested industry folks, but not to the public interest groups who generally are vigilant about the downside of high IP protection barriers. According to the Wikileaks digest,

The document reveals a proposal for a multi-lateral trade agreement of strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods hiding behind the issue of false trademarks. If adopted, a treaty of this form would impose a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers, including perfunctionary disclosure of customer information. The proposal also bans “anti-circumvention” measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.

For shame, Mr. President. This is government of the people, by the people, for the people? Tell us what is up.

Some teenagers are being charged under child pornography laws — extremely serious charges — because they passed around a cell-phone nude photo of another teenager. (Quite the rage, apparently.) What if Mom and Dad bought the perpetrator the phone? Are they in trouble too?

No one can say for sure, of course, but in civil court you can sue for anything and see if any money shakes out. Here’s an interesting discussion of the possibilities.

As an academic exercise this is a wonderful example of the dilemmas that come from giving everyone a free printing press, capable of producing a million copies at no cost. And, of course, the weird fluctuations in the meaning of “privacy” in the digital age. Parents need to talk to their children about cell phones — but that is not easy if they can’t talk to their kids about anything else!

There has been a lot of anxiety about the ease with with web sites can invite vicious, defamatory comments, and allow the people making the comments to remain completely anonymous. If the speaker is the person who controls the site, he or she can be sued. But what about the anonymous contributors? Do their free speech rights trump the rights of the maligned parties to seek compensation for the damage these comments do to them? Should the site operators be required to disclose the IP addresses from which the comments were posted, or other identifying information the operators may possess?

A decision by the Maryland Court of Appeals sets a very high bar for breaking through the anonymity and compelling the site to disclose the identity of the commenters. It’s a standard that could be reached, but it is going to be awfully hard. Here is what the plaintiff has to do:

1. Notify the anonymous poster that the poster is the object of a subpoena (by, for example, posting a message on the same site).
2. Identify to the court the exact statements made by the anonymous poster
3. Show in what way each statement caused damage to the plaintiff.
4. Provide specific information to support each claim.

At that point, the judges need not order the disclosure. First they need balance the damage done to the plaintiff by the anonymous speech against the anonymous defendant’s First Amendment rights.

The decision matches a standard set in 2002 by a New Jersey court, and seems to be part of a pattern in which courts are giving great deference to the right to anonymous speech on the Web.

The abominably misnamed “Fairness Doctrine” seems to be gathering steam for reinstatement. I have no political axe to grind here; I’m an information free-marketeer. Can you imagine any court going along with the proposition that by government regulation, editorial opinions in newspapers have to be politically balanced? Given the First Amendment, it is hard to think of anything more un-American.

The argument goes that the airwaves are different; they are public property and there are only so many to go around. As a national resource, they should be distributed “fairly,” so that a range of views can be heard.

There are so many things wrong with this argument from a purely philosophical point of view that it’s hard to know where to begin. Should truth and falsehood be equally represented, and if not, who is to decide whether someone’s claimed truth is actually false? Do Darwin and Usher get equal time to express their views on the age of the earth?

But the fundamental problem here is that spectrum scarcity, which is the premise for its nationalization and government control, is artificial. Chapter 8 explains the reasons, but my evidence could not be simpler. Hundreds of thousands, maybe millions, of broadcast radio stations coexist around you right now. They are called cell phones. Modern radio technology is much more efficient than that of the 1930s when the present schemes for allocating broadcast licenses were legislated.

The case for the government to dictate content of radio broadcasts is very week philosophically, but without its technological foundation, it collapses completely.

The Supreme Court has let stand a lower court’s ruling that the Child Online Protection Act is unconstitutional. This act was passed hastily in 1998 after the display provisions of the Communications Decency Act were overturned. On p. 248 of Blown to Bits we rather prematurely declared COPA dead after the lower court ruling, but the government appealed to the Supreme Court. In refusing to take up the case, the Supreme Court finally killed COPA. The main problem is that COPA required age verification, effectively requiring adults to register in order to see content they have every right to see.

Unrelated bonus post: Barak Obama re-took the oath of office in the White House today, thus eliminating any risk of a challenge to his legitimacy on the basis that he never said the words that Article II of the Constitution says he must.

Having threatened to ban Google Earth because it was allegedly used by the Mumbai terrorists to plan their attacks, India is now considering banning unsecured WiFi routers. This would be very sad — letting others use your wireless is a bit like letting them have a glass of water. Sure, you may be helping a terrorist, but it is far more likely you are just helping some innocent person. And how hard would it be for terrorists to send their messages from Internet cafes instead? Another example of too much regulation for too little good purpose.

Because the Internet is like so many different technologies in different ways, it incites a variety of anxieties, and a corresponding variety of responses. Governments’ responses are often poorly thought out over-reactions — poorly thought out and little discussed. The past week’s news gives two astounding examples.

In India, a law innocuously called the Information Technology (Amendment) Bill 2006″ allows the government to intercept any form of electronic communications — email, text messages, or cell phone conversations — in order to investigate “any offence.” This is a post-Mumbai anti-terrorism measure, but like the USA PATRIOT Act, it is utterly lacking in provisions that would restrain the abuse of government authority. It was passed quietly, after little debate. Here is a blogger’s account of the bill (India sleepwalks to total surveillance”), and here is an editorial from the Times of India that backs up the blogger’s horrified reaction (“License to Snoop,” which begins, “Big Brother could¬†really¬†be watching”).

Meanwhile, the Times of London reports:

THE Home Office has quietly adopted a new plan to allow police across Britain routinely to hack into people’s personal computers without a warrant.

Now it’s not clear what that actually means (are the police going start sending malware via email, just like the bad guys do to steal your account information and passwords?). But the trend is unmistakable: Even in major democracies, law enforcement so fears what people are saying over the Internet that it wants complete access to all of them, with only the cops deciding whether the surveillance and searches are justified.

The price is too high for such measures to be adopted without public discussion. In the U.S., let’s hope for better.