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

A Cabinet-Level Intellectual Property Protection Czar

Tuesday, October 14th, 2008 by Harry Lewis
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President Bush has signed a law creating a high-level position to centralize intellectual property protection efforts. As we explain in Chapters 6 and 8 of Blown to Bits, the entertainment industries have enormous influence in Washington, far greater than the forces of information freedom. This is truly over the top — it is a position to do what the attacks on innocent teenagers has failed to do. Story here (with a good cartoon) and here (with clearer reporting).

A dark day for those of us who were hoping for a more enlightened view of the balance between society’s interest in information liberty and creators’ interest in making a profit. Still, a lot depends on who appoints the new czar, and apparently it won’t be Bush.

The Palin Email Indictment

Thursday, October 9th, 2008 by Harry Lewis

An interesting discussion is happening on the Volokh Conspiracy blog. The indictment against the college student who broke into Sarah Palin’s email charges him with a felony. The prosecutor, in order to get the charges up to the felony level, must claim that the break-in occurred in furtherance of some other tortuous or criminal act. Perhaps they mean that he posted the new password so others could also view Palin’s emails — that he was enabling other violations of the same statute. It isn’t at all clear, and some of the lawyers who are commenting wonder if the argument isn’t circular and the indictment flawed. That would go with the view I mentioned earlier that the crime was a misdemeanor at worst.

You can download the indictment here. It is easy to read, if not to interpret.

China and the U.N. Propose to End Internet Anonymity

Monday, September 15th, 2008 by Harry Lewis

CNet’s Declan McCullagh reports a very important story:

A United Nations agency is quietly drafting technical standards, proposed by the Chinese government, to define methods of tracing the original source of Internet communications and potentially curbing the ability of users to remain anonymous.

The “IP Traceback” drafting group would alter the underlying Internet protocols so that the origin of communications could be identified. Leaked documents from the group cite suppression of political opposition as one of the uses of the technological innovation.

Formal requirement of such technologies in the U.S. would presumably be illegal under the Constitution, but the U.S. National Security Agency is participating in the talks. There are ways other than blanket legal requirements to make such surveillance technologies the accepted norm in practice.

The economic power of China gives it new power. This could be a critical first case in which the world shifts its practices away from openness and toward government control in deference to the economic power of China.

Bits and the Presidential Campaign

Monday, September 15th, 2008 by Harry Lewis

Hal, Ken, and I wrote an opinion piece called Campaigning for Our Digital Future, raising some “bits” issues that the next president should think about. It was published recently in the Providence Journal.

United Airlines and the Communications Decency Act

Friday, September 12th, 2008 by Harry Lewis

United Airlines is the company whose stock lost most of its value — a billion dollars, give or take a few — when Bloomberg News posted a headline of an old article stating that UAL had declared bankruptcy. UAL had indeed declared bankruptcy, but that was six years ago. The misleading headline triggered a sell-off that nearly wiped out the entire value of the company’s stock in a few minutes. Hal blogged this a few days ago.

People lost a lot of money because of this mistake. Who’s responsible, and is anyone liable?

Google returned the old article in response to a query for “bankruptcy 2008.” Not clear why that happened, but I’ve been noticing some old articles turning up in response to Google Alerts the past few days. Maybe they are doing some re-indexing. Whatever — it’s hard to hold Google responsible for what happened later, and you certainly couldn’t consider them liable. They make no promises about their search results. Bloomberg and the service that fed the article to Bloomberg misused the information that came back from Google.

It feels like Bloomberg should be on the hook. They posted the headline without checking its accuracy, as would have been trivially easy to do. But they aren’t liable, because of the provisions of Section 230 of the Communications Decency Act, the Good Samaritan Clause. As we explain in detail in Chapter 7, this clause says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This law was meant to encourage Web site operators to make their sites child-friendly without running the risks a print publisher would incur if they missed something obscene or slanderous. But it’s a blanket get-out-of-jail-free card for businesses like Bloomberg, which post things others have reported.

So the folks who lost that billion dollars can’t collect from Bloomberg. Ironically, Hal described what happened in slightly incorrect language, saying that the selloff happened because of “Bloomberg News Wire printing a one-line note.” Not printing actually, but posting online. If Bloomberg had actually printed it on paper, CDA Section 230 would not apply, and Bloomberg might be in big, big trouble!

Thanks to a poster from the Volokh Conspiracy for pointing this out.

Comcast Challenges the FCC’s Authority

Friday, September 5th, 2008 by Harry Lewis

As previously discussed here, the FCC recently chided Comcast for interfering with the flow of data packets to its customers based on the content of those packets — a violation of the principle of “network neutrality.” Net neutrality is an important value, but it isn’t the law. In fact, while it’s easy to give some examples of violations of the principle — delivering email from the RNC more efficiently than email from the DNC, let’s say — it’s actually hard to give a detailed, operationally useful definition, one that is clear about all possible service proposals Internet Service Providers might propose. Nonetheless, the FCC declared, on a split vote, that what Comcast was doing was plainly wrong.

Comcast has now filed a challenge to the FCC’s ruling. Part of its argument is on the details, but part of it is on the law: Comcast claims that Congress never gave the FCC authority to regulate the Internet.

Much as I applaud the FCC ruling, Comcast may actually be right about the FCC’s lack of authority. The laws may just be too old to have anticipated the importance of Internet communication and to embrace this technology in its definitions. If so, this case could be a 21st century reprise of Herbert Hoover’s struggles with radio broadcasters, the courts, and Congress in the 1920s, to gain control over the radio waves (a story we tell in Chapter 8).

Rather than explaining what’s at stake in my own words, I’ll just close by quoting a blog post from law professor Susan Crawford from a couple of weeks ago.

The network access providers [would] like to be able to charge what the market will bear for each Internet transmission, watching carefully what people are doing and choosing how to treat particular traffic.  The FCC’s action last Friday, while a noble and necessary first step, won’t make that kind of behavior illegal.  We need structural change to the law that will allow Americans’ instincts about the importance of basic nondiscriminatory transport to shape legal reality.

It looks as if public concerns about private discrimination have once again mounted towards the place that drove this country to adopt the original paradigm of regulation in the telecommunications field: administrative oversight of an industry providing nondiscriminatory services.  That paradigm disappeared in a rush of deregulatory fervor over the last twenty years or so, leaving all general-purpose communications services private and free to discriminate.  Traditional phone services (which aren’t allowed to discriminate) are disappearing, as people drop their home phone subscriptions and companies rip out regulated copper wires.

Over the same period of time, there has been tremendous consolidation in the network access provider market.  Most Americans have very few choices when it comes to buying highspeed Internet access.

The battle over nondiscriminatory Internet access is far from over.  But the outcome of this initial skirmish is the right one for our shared future.

The PATRIOT Act Drives Internet Traffic Offshore

Saturday, August 30th, 2008 by Harry Lewis

We explain in Blown to Bits that bits crossing entering the U.S. are, under U.S. law, subject to inspection by federal authorities. No matter whether they are in a laptop (see earlier post about new border procedures) or in a fiber optic cable. So the U.S. government claims the right to read the email your daughter sends you while she is in Toronto and you are in Detroit.

According to John Markoff of the New York Times, this law is one of the reasons that Internet traffic is increasingly bypassing the U.S. entirely. Since this is where the Internet started, the U.S. network used to be a kind of hub for the rest of the world; no longer.

It’s not the only reason — there are more Chinese Internet users than American now, so of course it makes sense for other countries to build up their communications infrastructure for purely economic reasons. But this may be an early example of the U.S. driving business away by its incursions into what we used to think of as private information.

I expect that sooner or later some business executive from a friendly foreign country will have his laptop seized and searched at the U.S. border, along with documents of great sensitive value to the business and of no significance to the war on terror. The incident will cause a stink that will lead international executives to suggest that their American counterparts come visit them abroad next time, rather than expecting foreigners to subject themselves to data disclosure by visiting U.S. soil.

Senator Biden on Encryption

Monday, August 25th, 2008 by Harry Lewis

On page 190 of Blown to Bits, we tell the story of how government control of encryption became largely a moot issue. In 1991, Joe Biden, as chair of the Judiciary Committee, introduced two bills, the Comprehensive Counter-Terrorism Act and the Violent Crime Control Act. Both included language stating that the government should have the right to get the keys to all your encrypted communications:

It is the sense of Congress that providers of electronic communications services and manufacturers of electronic communications service equipment shall ensure that communications systems permit the government to obtain the plain text contents of voice, data, and other communications when appropriately authorized by law.

It was this language, as we explain, that cause Phil Zimmermann’s PGP encryption software to appear on several publicly accessible servers. The encryption genie has yet to be put back into the bottle.

Obama is generally presumed to be more sensitive to civil liberties than McCain. Not sure it really matters, but Biden has been among the staunchest friends of the FBI’s investigatory powers. It’s anything but clear that the two of them would agree on, say, the most important characteristics of Supreme Court nominees.

Declan McCullagh has a thorough analysis of Biden’s technology record here.

The FCC Rules Against Comcast

Wednesday, August 20th, 2008 by Harry Lewis

The Federal Communications Commission has issued its decision in the matter of Comcast’s violations of network neutrality, finding Comcast to have violated federal policy. The full opinion (and the opinions of individual commissioners) is posted on the FCC site (Microsoft Word document here). We cut and paste a few paragraphs below (omitting footnotes). Comcast’s response will apparently be just to slow down all traffic to its heaviest users during times of peak traffic — rather than peeking inside the packets to decide whom to delay or block.

The record leaves no doubt that Comcast’s network management practices discriminate among applications and protocols rather than treating all equally. To reiterate: Comcast has deployed equipment across its networks that monitors its customers’ TCP connections using deep packet inspection to determine how many connections are peer-to-peer uploads. When Comcast judges that there are too many peer-to-peer uploads in a given area, Comcast’s equipment terminates some of those connections by sending RST packets. In other words, Comcast determines how it will route some connections based not on their destinations but on their contents; in laymen’s terms, Comcast opens its customers’ mail because it wants to deliver mail not based on the address or type of stamp on the envelope but on the type of letter contained therein. Furthermore, Comcast’s interruption of customers’ uploads by definition interferes with Internet users’ downloads since “any end-point that is uploading has a corresponding end-point that is downloading.” Also, because Comcast’s method, sending RST packets to both sides of a TCP connection, is the same method computers connected via TCP use to communicate with each other, a customer has no way of knowing when Comcast (rather than its peer) terminates a connection.

but invasive and outright discriminatory. Comcast admits that it interferes with about ten percent of uploading peer-to-peer TCP connections, and independent evidence shows that Comcast’s interference may be even more prevalent. In a test of over a thousand networks over the course of more than a million machine-hours, Vuze found that the peer-to-peer TCP connections of Comcast customers were interrupted more consistently and more persistently than those of any other provider’s customers. Similarly, independent evidence suggests that Comcast may have interfered with forty if not seventy-five percent of all such connections in certain communities. Comcast also admits that even in its own tests, twenty percent of such terminated connections cannot successfully restart an uploading peer-to-peer connection within a minute. These statistics have real world consequences: We know, for example, that Comcast’s conduct disconnected Adam Lynn, who uses peer-to-peer applications to watch movie trailers. We know that Comcast’s conduct slowed Jeffrey Pearlman’s connection “to a crawl” when he was using peer-to-peer protocols to update his copy of the World of Warcraft game. We know that David Gerisch and Dean Fox had to wait hours if not days to download open-source software over their peer-to-peer clients. And we know that Comcast’s conduct entirely prevented Robert Topolski from distributing a “rare cache of Tin-Pan-Alley-era ‘Wax Cylinder’ recordings and other related musical memorabilia” over the Gnutella peer-to-peer network. These actual examples of interference confirm the observation that “[i]t is easy to imagine scenarios where content is unavailable for periods much longer than minutes.”

43. On its face, Comcast’s interference with peer-to-peer protocols appears to contravene the federal policy of “promot[ing] the continued development of the Internet” because that interference impedes consumers from “run[ning] applications . . . of their choice,” rather than those favored by Comcast, and that interference limits consumers’ ability “to access the lawful Internet content of their choice,” including the video programming made available by vendors like Vuze. Comcast’s selective interference also appears to discourage the “development of technologies” — such as peer-to-peer technologies — that “maximize user control over what information is received by individuals . . . who use the Internet” because that interference (again) impedes consumers from “run[ning] applications . . . of their choice,” rather than those favored by Comcast. Thus, Free Press has made a prima facie case that Comcast’s practices do impede Internet content and applications, and Comcast must show that its network management practices are reasonable.

44. Comcast tries to avoid this result by arguing that it only delays peer-to-peer applications, and that the Internet Policy Statement, properly read, prohibits the blocking of user applications and content, but not mere delays. We do not agree with Comcast’s characterization and instead find that the company has engaged in blocking. As one expert explains: “It is never correct to say that Comcast has delayed P2P packets or P2P sessions, because the P2P traffic will never flow again unless the end system initiates a new session to the same device, even though it now believes that device is unable to continue a transfer. The argument that terminating a P2P session is only delaying because a device may attempt to initiate a new session some time later is absurd. By this incorrect argument, there is no such thing as call blocking; there is only delaying.” Indeed, under Comcast’s logic virtually any instance of blocking could be recharacterized as a form of delay. We are likewise unpersuaded by Comcast’s argument that terminating peer-to-peer connections does not equate to blocking access to content because Internet users may upload such content from other sources — whether or not blocking content was Comcast’s intent, Comcast’s actions certainly had that effect in some circumstances. In any event, the semantic dispute of “delaying vs. blocking” is not outcome determinative here. Regardless of what one calls it, the evidence reviewed above shows that Comcast selectively targeted and terminated the upload connections of its customers’ peer-to-peer applications and that this conduct significantly impeded consumers’ ability to access the content and use the applications of their choice. These facts are the relevant ones here, and we thus find Comcast’s verbal gymnastics both unpersuasive and beside the point.

…

54. Remedy.¬†‚Äî We finally turn to the issue of what action the Commission should take in this adjudicatory proceeding. Section 4(i) of the Act authorizes us to tailor a remedy to ‚Äúbest meet the particular factual situation before [us].” Our overriding aim here is to end Comcast‚Äôs use of unreasonable network management practices, and our remedy sends the unmistakable message that Comcast‚Äôs conduct must stop. We note that Comcast has committed in this proceeding to end such practices by the end of this year and instead to institute a protocol-agnostic network management technique. We also recognize the need for a reasonable transition period. In light of Comcast‚Äôs past conduct, however, we believe that the Commission must take action to ensure that Comcast lives up to its promise and will therefore institute a remedy consistent with President Reagan‚Äôs famous maxim ‚Äútrust but verify.‚Äù Specifically, in order to allow the Commission to monitor Comcast‚Äôs compliance with its pledge, the company must within 30 days of the release of this Order: (1)¬†disclose to the Commission the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed; (2)¬†submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and (3)¬†disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers‚Äô access to bandwidth. These disclosures will provide the Commission with the information necessary to ensure that Comcast lives up to the commitment it has made in this proceeding.

UN Attacks UK Libel Laws

Friday, August 15th, 2008 by Harry Lewis

As widely reported in the British press (Guardian story, Telegraph story), a UN report considers British libel laws an infringement on basic human rights — the right of free expression. The problem is libel tourism, where a wealthy celebrity can sue for defamation in Britain on the basis of something published elsewhere. The laws in Britain place a much heavier burden on the defense in libel cases. This is a bits problem — any time someone in the UK views a web page, it’s considered “publication” in the UK, wherever the web server or actual content source may be. In Blown to Bits, we talk about this (and in particular the case of Australian businessman Joseph Gutnick, a resident of Australia, where the laws follow the British standard.

Unless checked, libel tourism is going to make U.S. publishers self-censor, trumping First Amendment guarantees. So far down the list of international issues for this political campaign it won’t even be noticed, but a potentially serious issue for the future.