August 2006

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?

by on August 30, 2006 · 4 comments

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!

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.

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. . .

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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.
VZ Chocolate.jpg
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.

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.

Tom and Jerry.jpg

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.”

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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

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!

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.

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!)

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