Archives for August 2006
NSA Spying and Bright Lines
I’ve got a new article in the Hearland Institute’s IT&T News about the NSA’s spying programs:
An even bigger issue with mass surveillance by software is the way it would transform the principle of judicial oversight. Under current law, law enforcement officials must request a warrant from a judge for each suspect they wish to monitor. The judge examines the evidence for each suspect individually, and grants a warrant only if he or she finds probable cause that the suspect is guilty.
Automated surveillance, however, would involve a computer program monitoring tens of millions of individuals with no judicial oversight at all. Even more troubling, after the software had produced its list of suspects, the judge would be asked to approve human surveillance of the list the software produced, even though many of those on the list are probably innocent.
Constitutional rights depend on bright lines, so judges are not forced to make arbitrary judgment calls about when someone’s rights have been violated. But such bright lines would be extremely difficult to draw once the traditional “probable cause” standard has been abandoned.
This is a recurring pattern I’m noticing a lot in my public policy research. You can also see it the abuse of the “blight” loophole for eminent domain abuse. Because there’s no clear definition of the term, over time the exception has swallowed the rule. As a result, we get monstrosities like these. Secure rights require bright lines. And bright lines are impossible when surveillance decisions are made by computer programs with thousands of lines of code.
Ed Felten, Pirate?
Check out this ad I saw earlier today on Freedom to Tinker:
Do the doctrines of contributory and vicarious liability apply to the DMCA’s anti-circumvention provisions? If so, I bet the RIAA and MPAA’s lawyers are drafting up the lawsuit as we speak!
On Hance Haney and the Discovery Institute
I have to admit that my reaction to the idea of inviting a scholar from the Discovery Institute to participate on TLF was pretty similar to those of the majority of our readers. The Discovery Institute’s intelligent design shop has a well-deserved reputation for peddling pernicious nonsense. See here for an excellent summary by Daniel Dennett of why intelligent design is a cynical shell game (scroll down a bit). More importantly, from my perspective, the intelligent design crowd at Discovery has repeatedly misrepresented and misquoted their opponents, refused to acknowledge errors in their work, made hypocritical charges, and generally presented their case in bad faith. See here, here, here, here, here, here, and here for a few of the many examples.
However, I don’t think we can immediately jump to the conclusion, as some commenters have, that anyone who works for DI should be automatically shut out of public policy fora such as this blog. My former colleagues Adam and Jim, whose judgment I trust on this sort of thing, have known Haney for years. They tell me that he’s a smart and intellectually honest guy with worthwhile things to say about technology policy. He was invited to participate on the basis of their personal knowledge of his work, not because of any particular love for the Discovery Institute.
We at TLF blog as individuals, not as representatives of our respective organizations. You’ll all have the opportunity to get to know Haney and his writing and form your own judgment about his credibility. This blog is read by a lot of smart and technically savvy people. If he plays fast and loose with the facts, I have every confidence that you guys will catch it and call him to task. So will I.
Julian worries that bringing Haney on board will “lend their crackpot ideology some sort of legitimacy by association.” But I think the point has been made: Haney has been put on notice that a large number of our readers don’t like his employer and will view his work with suspicion. Haney will have to work hard to earn your trust. If he succeeds, it will be despite his institutional affiliation, not because of it.
So I say welcome aboard, Mr. Haney. Jim and Adam speak highly of your work, and I’m looking forward to reading more of it.
Prediction Markets Whup on Copyrights and Patents
Want to read about a market-based institution that can improve on copyrights and patents? Check out my paper, “Prediction Markets for Promoting the Progress of Sciences and the Useful Arts,” 14 George Mason Law Review __ (2006) (forthcoming). You can download a copy here. The abstract:
Copyrights and patents promote only superficial progress in the sciences and useful arts. Copyright law primarily encourages entertaining works, whereas patent law mainly inspires marginal improvements in mature technologies. Neither form of intellectual property does much to encourage basic research and development. Essential progress suffers.
Prediction markets offer another way to promote the sciences and useful arts. . .
Is Verizon’s Chocolate Sweet?
I realize this is not a gadget blog, and that I probably should not be using it to seek out personal advice but…
I’m about to upgrade my cell phone and to get one with better multi-media capabilities, especially so I can avoid carrying around both a cell phone and my MP3 player everywhere I go. I’ve been looking at this new Verizon “Chocolate” phone made by LG.
It’s getting mixed reviews, but it has a lot of nice features including expandable memory up to 2 GB, which is important because I want as much room for my music playlists as possible. (I wish cell phones could carry even more memory than that. I’ve already maxed out my 20GB Creative Zen player and looking to upgrade it too).
Anyway, here’s the one question I have not been able to get anyone else to answer for me about the Chocolate phone: Any idea if there is any screwy, ham-handed DRM issues to deal with on this phone? Are there any sites that look into this aspect of cell phone music players? I store most of my music in WMA but have some files in MP3. I just want an easy plug-play-and-transfer experience.
Any advice from TLF readers would be appreciated.
UK Censors Tom & Jerry Cartoons
Oh brother, I have heard some pretty silly censorship tales in my time, but this one is a real doozy. Last week, U.K. telecom and media regulator Ofcom announced that, in the wake of an investigation prompted by the anonymous viewer’s complaint, it had pressured the children’s cable TV channel Boomerang to edit out scenes in two “Tom & Jerry” cartoons that were deemed to glamorize or condone smoking. “We note that, in ‘Tom and Jerry’, smoking usually appears in a stylised manner and is frequently not condoned,” reported Ofcom.
The complaint focused on two episodes–”Texas Tom” and “Tennis Chumps.” I seem to remember them from childhood, but my memory is a little fuzzy, so here’s a description from The Guardian: “In Texas Tom, Tom tries to impress a female cat by making a rollup cigarette while Tennis Chumps sees Tom’s opponent in a match smoking a large cigar.”
Entertaining Net Neutrality Debate
There were many excellent keynote speeches and panel discussions during last week’s annual PFF Aspen Summit, and the videos for most of them can now be found online here. But I thought that TLF readers might be particularly interested in the very entertaining net neutrality debate that took place there. It featured the following cast of characters:
* Tod Cohen, Deputy General Counsel and Vice President, Government Relations, eBay
* David Drummond, General Counsel and Senior Vice President for Corporate Development, Google, Inc.
* Carolyn Brandon, Vice President, Policy, CTIA – The Wireless Association
* James Cicconi, Senior Executive Vice President, External and Legislative Affairs, AT&T
* Lawson Hunter, Executive Vice President and Chief Corporate Officer, Bell Canada and Bell Canada Enterprises, Inc.
… and it was moderated by Michael Gallagher a Partner at the law firm of Perkins Coie, LLP, and also an Adjunct Fellow with the Progress & Freedom Foundation. The discussion lasts about 1 hour and 20 minutes and it gets really entertaining toward the end when Mike Gallagher lets the panelists ask each other questions.
Again, just go to the following link and scroll down to the Tuesday 10:30am panel discussion and click on the title:
http://www.tvworldwide.com/events/pff/060822/archives.cfm
FCC Comm. Adelstein on Indecency
In case you didn’t hear, Democratic FCC Commissioner Jonathan Adelstein made some provocative remarks last week at PFF’s annual Aspen Summit, especially on the subject of broadcast indecency enforcement. In his speech, Adelstein had some very interesting things to say about the debates over a la carte regulation and multi-cast must carry mandates (both of which he vehemently opposes) and media ownership regulation (which he strongly supports). But when he got the sensitive subject of indecency regulation, none of us there could have guessed what was coming.
Commissioner Adelstein took FCC Chairman Martin and the rest of the agency to task for their over-zealous enforcement of indecency regulations: “I don’t believe the Commission has provided broadcasters a coherent and principled framework that is rooted in commonsense and sound constitutional grounds,” argued Adelstein. “While we often spend most of our time taking about economic freedom, freedom from governmental intrusion into speech is just as important.” Adelstein then detailed some of the problems with the agency’s recent indecency rulings and concluded that “the Commission’s last batch of decisions dangerously expands the scope of indecency and profanity law.”
Importantly, however, Adelstein noted that he is still a believer in some underlying authority for the agency in terms of broadcast speech regulation. He didn’t bother justifying that outside of using the usual tagline about “protecting the children.” And he didn’t bother explaining why these unique speech constraints should only be imposed on broadcasters while all the kids are bolting to new media outlets.
Regardless, Adelstein pointed out that the FCC’s recent actions threaten to undermine the basic foundations of the FCC’s regulatory regime:
“the Commission’s careless approach endanger[s] the very authority we so delicately retained to enforce broadcast decency rules. . . if the Commission’s zeal leads it to overstep its statutory authority, the Commission could find its authority circumscribed by the courts. We may forever lose the ability to prevent the airing of indecent material, barring an unlikely constitutional amendment setting limits on the First Amendment.”
Of course, some of us are hoping (and predicting) that that’s exactly what will happen!
Cato Unbound – Migrating Toward National ID?
The current Cato Unbound, Mexicans in America, is the usual provocative and wide-ranging fare. There’s no lack of issues – or passion – in the debate about immigration.
One item in the current discussion that piques my interest – indeed, concerns me - is the formative consensus that “internal enforcement” of the immigration laws is a good idea.
University of Texas at Austin economics professor Stephen Trejo writes:
Given that most illegal immigrants come to the United States to work, why don’t we get serious about workplace enforcement? Retail stores are able to verify in a matter of seconds consumer credit cards used to make purchases. Why couldn’t a similar system be put in place to verify the Social Security numbers of employees before they are hired? . . . I suspect that we could do much more to control illegal immigration by directing technology and other enforcement resources toward the workplace rather than toward our porous southern border.
Doug Massey, co-director of the Mexican Migration Project at the Office of Population Research, Princeton University, has interesting information and ideas for reform to which he would adjoin ”a simple employment verification program required of all employers to confirm the right to work.”
It does sound simple – until you step back and realize that the simple idea they’re talking about is giving the federal government the power to approve or disapprove every Americans’ job application. Does anyone think that this power, once adopted – and the technology put in place to administer it - will be limited to immigration law enforcement?
To do this, all people - not just immigrants, all people - would have to be able to prove their identity to federal standards, likely using some kind of bullet-proof identity document (even more secure than current law requires). That will soon be in place thanks to the REAL ID Act. Once we’re all carrying a bullet-proof identity document, do you think that its use will be limited to proof of identity for new employees?
It’s easy to see how facile acceptance of internal immigration law enforcement adds weight to arguments for expanded government control and tracking of all citizens. There are plenty of reasons to be concerned with internal enforcement, and the national ID almost certainly required to make that possible. Many of them are discussed in my book, Identity Crisis: How Identification is Overused and Misunderstood.
Note to TLF Readers: This Blog Has Nothing to Do With the Intelligent Design Debate
I’ve been sick as a dog and stuck in bed for several days now and just now had the energy to get back in front of my computer and catch up with the blog. And I must say, what I’m reading here in response to Hance Haney’s arrival at the TLF makes me sick in a different way because is so remarkably venomous and unfair.
Let’s start with some obvious facts. As I made abundantly clear in the very first “Welcome to the TLF” post on this blog two years ago, the TLF is a “technology policy blog” that focuses on “[the] dangerous trend of over-regulation of the Internet, communications, media and high-technology in general.” That’s it. Our focus is narrow and our intent is clear: Advancing the cause of liberty as it pertains to this very narrow set of public policy issues.
We have brought together a diverse collection of minds to advance that cause, and it is a group that most assuredly would not agree on several other policy issues out there. For example, not everyone here necessarily agrees with the Heritage Foundation’s position(s) on national security issues, or Cato’s on drug legalization, or PFF’s on certain copyright issues, but we invite technology policy scholars from those institutions into the fold because they have something thoughtful to say about tech issues from a shared, liberty-loving perspective.
So it should really be no different for Hance Haney. Hance has nothing to do with the intelligent design debate at Discovery and he will certainly not be saying anything about the issue on this blog. Hance is blogging with us because he has solid credentials in the field of technology / telecommunications policy and has been a long-time friend to many of the other TLF bloggers. (Moreover, I am sure that if Hance ever dared to even mention the term intelligent design on this site, many of you would respond with all the formidable intellectual weight you bring to every discussion here and have a damn good time doing so!)
Welcome Hance Haney!
By now, you’ve seen some of his contributions. On behalf of the gang [though it's too late],* I thought I would introduce the newest TLFer, Hance Haney.
Hance is Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute in Washington, D.C. As you’ve already seen, he’s mighty well versed in telecom issues. He’ll bring another dimension to our current discussions of net neutrality, and much more in the future.
I bumped into Hance on the street today and encouraged him to engage with our commenters whose disagreements with us are welcome – indeed, essential to making TLF a worthwhile endeavor.
And hopefully Hance will help counterbalance the prolific Tim Lee so his DRM obsession doesn’t make TLF “all DMCA all the time”! ;-P
*[I was just about done writing this when Adam's post went up, so I'm posting it anyway. I don't want to have wasted my time - but I will waste yours, reader.]
Welcoming Hancy Haney to the TLF
I wanted to take a moment to welcome Hance Haney to the Tech Liberation Front blog and introduce TLF readers to our newest contributor. Hance is the director of the Discovery Institute’s “Technology & Democracy” project and a frequent blogger on Discovery’s excellent “Disco-Tech” blog. He’ll be cross-posting many of his Disco-Tech essays here on the TLF now.
I first met Hance over 10 years ago when he was a staffer for Rep. Bob Packwood in the years leading up to the passage of the Telecom Act of 1996. For those who might not remember, Bob Packwood was about as principled as they come on communications, media and First Amendment issues when he was in Congress. Hance and I used to enjoy coming up with radical pieces of legislation that would gut heavy-handed telecom regs and cut the FCC down to size… and, amazingly, his boss would introduce every one of them! (Needless to say, Sen. Packwood and Hance didn’t make a lot of friends with the Big Government crowd in the Senate in those days!)
After leaving his Senate position, Hance worked with the U.S. Telecom Assoc. and Qwest Communications before finally landing at Discovery. As you can see from some of the blog entries he’s already posted here, Hance does solid research on the issues we care about and will make a fine contributor to the TLF.
Welcome aboard Hance!
Piracy Theater
Ed Felten points to a Boing Boing post giving details about Microsoft’s decision to drop HD video support from the 32-bit version of Vista. An anonymous Microsoft employee says:
Media Player won’t play HD-DVD and Blu-Ray, but you’ll still be able to play them (on XP, even) with third-party programs like WinDVD and PowerDVD, in full HD.
Why? Because the media companies are willing to certify WinDVD and PowerDVD, but they won’t certify Windows, basically for the reasons described. The other problem is indemnity – Microsoft has much deeper pockets and the risks of someone hacking Windows and getting the Microsoft keys is too high; Microsoft’s payouts to the studios would be enormous. The DRM contracts essentially say that you forfeit all money lost to the studios if your key is hacked. The money “lost” to the studios is of course calculated using the estimate most favorable to the studios – i.e. every copy downloaded off LimeWire is a full-price loss. Intervideo (WinDVD) and Cyberlink (PowerDVD) are small companies and figure they’re not the largest targets, or they’ll just go bankrupt and start again as a new company. Cyberlink is based in Asia, and suing them would be pricey.
The screwball thing about all this is that essentially the same risks of hacked drivers and whatnot exist with PowerDVD and WinDVD; there’s no good reason for the studios to certify them if they really are worried about people using the PC to copy movies.
This guy and Felten both speculate on why the policy is so confused, but I don’t actually think it’s that mysterious. What we’re seeing here is a case study in what happens when you create a large bureaucracy and charge it with performing an impossible task. In this case, Hollywood executives are trying to accomplish two fundamentally incompatible goals: (1) Make their products widely available and (2) make sure no illicit copies get release to peer-to-peer networks. When you charge a bureaucracy with performing an impossible task, it’s inevitable that the resulting policy will be incoherent. The best the bureaucracy can do is make various token decisions in the directions of accomplishing the stated goal–some of which will inevitably be inconsistent or flatly contradictory to others.
FTC Enters Net Neutrality Debate
The Chairman of the Federal Trade Commission made a significant contribution to understanding the proper role of government in ensuring net neutrality. Speaking at the Progress & Freedom Foundation’s Aspen Summit this week, Deborah Platt Majoras cited the principle that, absent clear and specific evidence of market failure or consumer harm, policymakers should not enact blanket prohibitions of particular business models or conduct.
Second, she reminds us that broadband Internet access services are within the FTC’s jurisdiction and that the agency’s powers are proven. The FTC has successfully targeted Internet service providers who have allegedly enganged in deceptive practices and it has also required a cable system to provide open access to Internet service providers. This track record makes it pretty clear the FTC not only has the power but it also has the inclination to preserve openness and other values associated with the Internet. The allegation is that the D-word (deregulation) is coming to broadband services. Aside from the FTC, the FCC and the Antitrust Division also have jurisdiction over broadband services. Contrary to what one might think from listening to the appeals of net neutrality advocates, there are three levels of government oversight of broadband services.
Third, Majoras acknowledged that important questions have been raised and more information is needed. She announced the formation of an Internet Access Task Force to examine issues related to net neutrality and other matters. Net neutrality has been a debate about hypotheticals, which is part of the reason it has seemed so unproductive. This task force will be made up of economists and attorneys from throughout the FTC who are competition and consumer protection experts. Unlike the FCC, which only does communications, the FTC has wide-ranging experience and expertise arising from their involvement in every sector of the economy. This makes the FTC, perhaps, less beholden to some of the passions and prejudices which animate the special interests that have a dog in this fight. The FTC’s involvement will probably contribute greatly to the debate. With this kind of comprehensive look at all the facts underway, I’ll bet many-to-most in Congress will prefer to review the findings before they cast a vote.
_______________
See: “The Federal Trade Commission in the Online World: Promoting Competition and Protecting Consumers,” Remarks by Deborah Platt Majoras, Chairman, Federal Trade Commission, Progress & Freedom Foundation’s Aspen Summit, August 21, 2006
See: “PREPARED STATEMENT OF THE FEDERAL TRADE COMMISSION before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE on FTC JURISDICTION OVER BROADBAND INTERNET ACCESS SERVICES,” by William E. Kovacic, Commissioner, Washington, D.C., June 14, 2006
Competition In Broadband Is Thriving
Critics claimed broadband access is a duopoly (a market in which there are only two providers) but this is technically inaccurate in much of the country so now the complaint is that 98 per cent of broadband customers receive their service from either the telephone company or the cable company. Even this criticism is irrelevant. Consumer harm occurs where prices are excessive or quality is deficient. In the case of broadband, competition is leading to lower prices and higher bandwidth.
Most economists agree it’s misleading to read too much into market shares, although I could point out that regional bell operating companies–the main targets of net neutrality regulation–report only 39.3% of total high-speed connections and that this is far less than a dominant position (other providers who are not telephone companies are lumped together in the FCC’s broadband status report). More important is whether consumers could vote with their feet if an incumbent provider abuses its customer relationships. They could if there are alternate providers or new providers could enter the market. According to the FCC, satellite providers have at least some presence in 88% of the nation’s zip codes, ADSL in 82% and cable modem in 57%. These numbers suggest a lot of consumers have more competitive choices than the critics like to point to. Other technologies, such as fixed and mobile wireless (cellular, PCS and WiMAX) and power line, are growing fast and have enormous potential. They prove that new providers can enter the market.
Broadband is spreading rapidly, according to the FCC. High-speed lines increased by 18% during the second half of 2005 compared to a 12% increase during the first half of 2005. This wouldn’t be happening if broadband providers were gouging their customers or restricting their choices. In order to recoup their multi-billion dollar investments, the providers need to attract all the traffic they can.
The report also says that 99% of the nation’s zip codes have at least one provider who serves at least one customer, and that 99% of the nation’s population lives in those zip codes. Most would agree if only one household or business or a privileged handful have a choice of competitors, that’s a problem. The numbers are actually more positive and the methodology used to gather them more useful than it seems. Cable and telephone networks are never built to serve small groups of people. Networks are capital intensive with high fixed costs, so the cost of bringing on an additional user is always lower than it was for the most recent user. If you have a network you want to build it out as fast as you can, because every additional customer will generate a higher profit margin than the one before. Satellite and wireless providers are capable of serving small groups or even only one customer in an entire zip code, but the fact is they market their services widely and have no incentive to market in such a way as to manipulate the statistics that the FCC gathers in this report.
Duopoly is one of those frightening terms that can either be meaningful or meaningless. In the context of broadband access services, it is meaningless.
_______________
See: “High-Speed Services for Internet Access: Status as of December 31, 2005,” Report of the FCC’s Industry Analysis and Technology Division, Wireline Competition Bureau, July 2006
