Keeping politicians' hands off the Net & everything else related to technology
I earlier described why the Unlawful Internet Gambling Enforcement Act of 2006 (the “UnInGEn-ious Act”) will put the domestic financial services industry at the disadvantage of overseas competitors capable of escaping U.S. regulations. How will Mastercard, Visa, and their ilk react to the resulting loss of business? More likely than not, by seeking shelter in one of the UnInGEn-ious Act’s safe harbors. The result: legal Internet gambling will increase in the U.S.
Jim is apparently too modest to whore his posts out to multiple blogs, but his comments on terrorist watch lists are very good, so I’m going to do it for him:
In the U.S., people who have done something wrong are supposed to be arrested, taken to court and charged, then permitted to contest the accusation. If they are found guilty, they pay money or serve time in jail.
Watch-listing follows no similarly familiar pattern. Law enforcement or national security personnel place a person on a list and then, wherever that list is used, treat the person (and other people with the same name) differently, stopping them, interrogating them, searching them, or whatever the case may be. This unilateral process is alien to our legal system.
Rather than watch-listing, people who are genuinely suspected of being criminals or terrorists should be sought, captured, charged, tried, and, if convicted, sentenced. Watch-listing allows law enforcement to be very active and intrusive without actually doing what it takes to protect against crime and terrorist acts. In Identity Crisis, I wrote that “watch listing and identification checking [are] like posting a most-wanted list at a post office and then waiting for criminals to come to the post office.”
At the national border, watch-listing must be used–deftly–because we cannot reach wrongdoers worldwide. Those watch-lists allow us to be vigilant against bad people who may arrive on our shores. Domestically, though–in our free country–the practice should end.
Quite so.
Probably most people woke up last Saturday morning to the shock that a Member of Congress had resigned over some filthy instant message exchanges with an underage page. I wasn’t so shocked. Well, it’s about time, was my first thought.
No, I don’t have any inside dirt on former Rep. Foley’s peccadillos or those of any other Member. But I have done a lot of research into how the legal system treats instant message evidence and recently put forward the first real set of guidelines as to how it ought to. (Find my full analysis here.) One thing I learned: there are a lot of sickos on the Internet. (This is news?) And so it boggles the mind that this is the first high-profile instant messaging case.
Another thing I learned: plenty of the instant message evidence that makes it into courts is obviously forged junk. That doesn’t stop it from being incredibly persuasive, especially to juries.
A few bare text files–easily falsified by a ticked-off youngster–have proved enough to wreck Foley in the public’s eye (er, well, outside of his district, anyway) and send him into rehab and “crystalized recognition” and confession even if not quite accepting “full responsibility.” But now that the FBI’s on the case, Foley’s got to be wondering whether this evidence will stand up in court. There’s no easy answer.
And the answer isn’t foreordained, either. Instant message logs are about the least reliable evidence that a prosecutor can bring into a criminal court, and in this age of AIM, MySpace, and the like, they may be the most convincing to the jury, especially when the “crimes” committed took place solely online–an increasingly frequent occurrence. Defendants have a great incentive to try to keep this stuff out of the courtroom, and they’ve got ample legal tools to make that happen. But few have even tried because getting into the technology of IM can be daunting, and understanding the technology is necessary to make the argument that IM logs should be kept far, far away from the jury. There’s little persuasive judicial precedent, then, on what courts should do about IM evidence. Still, a lawyer who’s prepared to make the argument that IM evidence is junk may stand a good chance of getting the judge to agree.
It looks like the Foley camp is already planting the seed for a vigorous defense. Foley’s lawyer has been “requested by me to fully and completely cooperate regarding any inquiries that may arise,” but stories about the genesis and purpose of the now-famous IM logs are already rife. Certainly Foley and his team have done nothing to quell the rumors that the conversations were somehow part of a prank or game–in other words, that there’s some larger story going on that the IM chat logs, as now available, don’t reveal for one reason or another. Tampering? Could be.
Then again, his post-revelation behavior makes Foley look guilty, guilty, guilty, which in the current caselaw is more important than whether the proffered evidence is like completely bogus.
(And if you want to Digg this, please do.)
With the Unlawful Internet Gambling Enforcement Act of 2006, Congress took aim at Internet gambling, pulled the trigger, and shot the domestic financial services industry. The regulatory bloodshed might temporarily put off American consumers of Internet gambling services. Very quickly, though, foreign financial services will step into the breach. More likely than not, Internet gambling will continue unabated. Federal lawmakers will have done little more than won a sound-bite for the upcoming elections and encouraged the widespread use of Internet-based financial systems capable of wholly escaping U.S. control. Hence my moniker for the new law: The UnInGEn-ious Act.
Steve Kroft of 60 Minutes has obtained a copy of the no-fly list the TSA uses to decide who among the flying public should be subject to extra scrutiny or denied the right to fly altogether. It is, not surprisingly, shockingly inadequate. It includes the “names of people not likely to cause terror, including the president of Bolivia, people who are dead and names so common, they are shared by thousands of innocent fliers.”
We’ve been told since the beginning of the program that we couldn’t release the list because it might tip off the terrorists. This has never made much sense–future terrorists can find out if they’re on the list by doing a test flight and seeing if they get extra scrutiny. The more plausible explanation for the TSA’s reluctance to release the list was due to their fears that it would be subject to harsh criticism. Luckily, the press has done its job here, and the list is now being subject to the scrutiny it deserves. Hopefully that will lead to improvements in our security procedures.
This point can be generalized: systems are made more, not less, secure when they’re open to scrutiny. This is the majority view among computer security experts, who tend to trust open, time-tested encryption algorithms over new-fangled proprietary ones, because it’s less likely that someone will discover a serious flaw in the system. We’ve seen the same phenomenon with computerized voting machines, where closed, proprietary machines have consistently been found to have serious security flaws. And the same is almost certainly true of physical security: opening up our airport security system to greater scrutiny will give security experts and the general public the opportunity to spot problems and pressure the authorities to remedy them. Security through obscurity doesn’t work in the high-tech world, and it’s not likely to work in airport security either.
Hat Tip: Jim Lippard
I’m at the State Policy Network’s education reform summit learning about school choice, probably the most important civil rights issue of our generation. I’ve learned a lot, but as a consequence, I haven’t had much time to blog. Luckily for me, this week’s software patent is so incredibly obvious that I don’t think I’ll have to write very much about it. The patent is held by a Pittsburgh bond-trading firm that won a ruling against a rival that had the audacity to offer competing bond-trading software. The patent in question is Patent #6,161,099, “Process and apparatus for conducting auctions over electronic networks.” Here’s the executive summary:
An apparatus and process for conducting auctions, specifically municipal bond auctions, over electronic networks, particularly the Internet, is disclosed. The auctioneer maintains a web site from which information about bonds to be auctioned can be obtained. A user participates in the auction by accessing the web site via a conventional Internet browser and is led through a sequence of screens that perform the functions of verifying the user’s identity, assisting the user in preparing a bid, verifying that the bid conforms to the rules of the auction, displaying to the user during the course of the auction selected bid information regarding bids received and informing the bidder how much time remains in the auction. The user may be given the option of confirming the accuracy of his bid before submitting the bid. The auctioneer is able to review bidding history, determine the winner and notify the winner over the network, and display selected auction results to bidders and observers over the network.
So it’s eBay for bonds. For those keeping score at home, eBay was founded in 1995, three years before the 1998 filing of this patent. So even if the idea of an online auction were a patent-worthy invention, it seems like the existence of eBay (and other auction sites that sprung up around the same time) would serve as prior art. But I guess the patent office felt differently.
Really, there’s not that much else to say. You would think that getting a patent would require something more innovative than simply offering online auctions for a particular products, but you’d be wrong. This is simply a patent on the idea of selling bonds via the Internet. How granting such a patent promotes “the progress of science of the useful arts” in the software or financial services industries is a mystery to me.
I have nothing to back this up at this time, but I have been hearing rumors on Capitol Hill this week (and from others) that, in the wake of the Foley scandal, Congress might be considering regulating instant messaging. Specifically, someone might introduce a bill that would seek to limit access to IM services by minors.
When I first heard this rumor I thought it seemed outlandish, but upon further relection, I can see how some lawmakers might view it as a logical extension of their efforts to regulate social networks or to age-verify all minors before they get onto those networks. IM is a much more complicated thing to take on, however, and if Congress is going to regulate it, what are they going to do about e-mails? Hell, better stop the kids from talking on phones too!
Wouldn’t it just be easier to punish that freak Mark Foley and be done with it? Regulating the Internet or IM isn’t going to solve the problem posed by perverted congressman or any other perverts for that matter.
Again, I have nothing to back this up at this time but if I hear more about this effort to turn IM into the boogeyman du jour I will let everyone know.
Update: My friend Leslie Harris talks more about this issue over at CDT’s PolicyBeta blog.
Posting on Verizon’s newly-launched blog, VP for Internet and Technology Link Hoewing makes the case that the U.S. isn’t doing as badly on broadband deployment as advertised. Says Hoewing:
Lots of attention has been paid recently to announcements that a French company is planning to test a fiber network soon that will supposedly run at speeds far surpassing virtually anything in the U. S. The implication some are drawing? Yet more evidence that America is falling farther behind in the race to build better broadband networks.
But the violins are not playing yet and Rome is not burning. The reality is that fiber to the home networks are growing faster in the U. S. than any place else in the world.
An interesting, and encouraging perspective. And a good start to Verizon’s new blog, which promises to be more than your typical corporate mouthpiece. Don’t expect Bell lobbyists to start working from home in their pajamas anytime soon. But with contributions from folks from Hoewing–who I’ve known for over 20 years as an insightful and candid observer of technology trends–it promises to be a valuable contribution to the blogosphere.
In a previous essay I asked:
“why is it that so few people talk about the role of strong intellectual property rights in the electronic gaming sector? After all, this sector is quite vocal about enforcing their copyrights. And they’re even big supporters of the DMCA. But they never get ridiculed as much as the movie or music guys. Could it be because many IP skeptics love their video games and are willing to give them a free pass while going after Hollywood on copyright issues?”
I find myself wondering the same thing this week in the wake of reports that the eagerly anticipated role-playing game “Final Fantasy XII” has been leaked and is now being distributed across the Internet illegally.
What I find so interesting about this incident is the extent to which many people on news boards like this, this, and this are almost unanimously denouncing those who would distribute or download the game illegally.
I see that the California Initiative For Internet Privacy (CIFIP) is turning up the heat on Google and other search engine provides with threats of legislative campaigns or a push for a ballot initiative regulating data collection.
When it comes to the contentious issue of data retention, search companies are basically damned if they do and damned if they don’t. That is, if they DO collect / retain search terms and records, the privacy zealots go crazy and run to Rep. Ed Markey (or, in this case, California legislators) and ask for new laws strictly limiting what can be collected / retained.
On the other hand, if they DO NOT collect / retain any of this info, then the “law and order” / “we must protect the children” crowd in Congress and state AG offices start breathing fire down their necks and demand *mandatory* data preservation / retention, potentially for lengthy periods of time (and for quite a bit of information).
How in the world is Google (or any other search provider or even ISP) supposed to balance those conflicting policy goals? I have no idea, but there is no doubt that this will be one of the top technology policy issues over the coming year. (For our perspectives on the data retention debate, see these TLF essays by Jim, Hance and me.)
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
