Legislation to whitewash President Bush’s spying programs has moved another step closer to passage, as three of the Republican holdouts accepted a “compromise” that EFF’s Derek Slater says will still undermine civil liberties.
The most objectionable thing about the Specter bill, from my perspective, was the fact that it would have made FISA review optional for spying programs. So even if the Bush administration promises to get a warrant for this program, that still would have set a bad precedent for future administrations, who may opt not to get a warrant with Congress’s imprimatur. The Post article suggests that that language has been strengthened a little bit, but not very much:
According to the lawmakers, a second major change would clarify that a decision by the secret Foreign Intelligence Surveillance Court upholding the warrantless surveillance program’s legality would not give blanket authorization for the president to pursue wiretaps without court approval.
It’s not clear to me what this means, but it certainly doesn’t sound like what’s needed–a clear statement from Congress that surveillance of Americans without a court order is illegal. And given the sorry track record of recent moderate Republican “compromises” over civil liberties issues, color me skeptical that this one is any better.
Techdirt notes that peer-to-peer network Limewire is returning fire in its battle with the RIAA:
Last month, the RIAA sued Limewire after Limewire wouldn’t agree to simply roll over and pretend the RIAA’s interpretation of the Supreme Court decision in the Grokster case was actually what the Supreme Court said. The court actually said that services could be found liable, if they were shown to actively induce infringement. The RIAA and the MPAA pretended this meant that any file sharing network that had unauthorized content was flat-out illegal. Of course, that’s a bit of a stretch. So, it already seemed like it would be an interesting case, but now Limewire has hit back even harder with counterclaims accusing the RIAA of antitrust violations, consumer fraud and other misconduct. Specifically, they seem to be making the case that the RIAA only wants to shut down Limewire because it is a competitive distribution mechanism that they cannot control, which helps compete with their monopolistic control on traditional distribution. It’s an interesting claim that does make some sense, though the RIAA will simply try to paint Limewire as a tool for “thieves.” As with many of these types of cases, there’s probably a decent chance that the sides will settle before any decision is made, but in this case, it would be very interesting to see the actual outcome of any lawsuit–both on the issue of whether or not simply running a file sharing network is inducement and on whether or not there really is an antitrust claim here. If the case does go forward and the RIAA loses on the antitrust issue, it could have a big impact on the traditional labels, and could actually be a catalyst towards forcing them to accept the changing nature of the market. This is becoming a case well worth watching.
Limewire’s point about the Grokster is an important one. The Supreme Court did not rule that peer-to-peer file sharing is illegal per se. What they said was that there was ample evidence (from advertisements, internal company emails, etc) that Grokster intended to make a business of copyright infringement, and so the courts didn’t have to reach the question of whether running a peer-to-peer network, as such, constitutes secondary copyright infringement. Frankly, I think Limewire probably still deserves to lose, but they should at least have the opportunity to persuade the judge that unlike Grokster they legitimately expect to make money through more legitimate channels.
I don’t find the antitrust angle very compelling. There are lots of alternative music distribution services that aren’t being sued. eMusic and MySpace come to mind. Those services have been making a good-faith effort not to facilitate piracy, and as a result the RIAA has left them alone. If Limewire is guilty of secondary copyright infringement, then it certainly shouldn’t trigger antitrust scrutiny for the RIAA to enforce its members’ rights under the law.
Quick update… Last week I discussed our government’s ongoing lost laptop follies after the House Committee on Government Reform reported that more than 1,100 laptop computers had vanished from the Department of Commerce since 2001, including nearly 250 from the Census Bureau containing such personal information as names, incomes and Social Security numbers. And the Committee is still collecting information about lost computers and compromised personal information from other federal agencies including: the departments of Agriculture, Defense, Education, Energy, Health and Human Services and Transportation and the Federal Trade Commission.
This week, in response to these findings, Rep. Tom Davis (R-VA), the Chairman of the committee, has introduced H.R. 6163, the “Federal Agency Data Breach Protection Act.” The bill would establish “policies, procedures, and standards for agencies to follow in the event of a breach of data security involving the disclosure of sensitive personal information and for which harm to an individual could reasonably be expected to result.” In other words, federal agencies would have to do a better job informing the public when personal data had been lost or compromised. Of course, it might be easier if they just stopped losing so many laptops!
Incidentally, why are government agencies allowing so much sensitive personal information to be kept on laptops, anyway? It doesn’t seem to make much sense to me in light of how easy it is for laptops to be taken out of a government building. Why not follow these two simple rules instead: (1) Keep the really sensitive stuff on desktop computers that are bolted to desks and make sure they don’t have any external inputs for personal storage devices. (2) If a government employee still finds a way to take that information home and then loses it, fire them immediately (and perhaps consider other penalties). After all, we’re talking about personal information about American citizens here. This stuff should not be taken lightly.
A couple of weeks ago, Luis Villa had an excellent comment about the merits of open source voting. I had expressed the opinion that open source voting machines would be preferable to the status quo, but that the ideal outcome would be not to use computers in voting machines at all. Louis responded:
I think you’re discounting how corruptible the current system is, and focusing only on what the current generation of e-voting machines do or don’t do, security-wise. Well done e-voting (particularly including the printing of a reliable paper trail) could be much more reliable than the current mishmash of paper technologies, which as any resident of Florida, Ohio, or Chicago will tell you is deeply insecure already.
This is a good point. Paper ballots clearly aren’t perfect, and so when we’re evaluating the merits of computerized voting, it’s important not to hold them to a standard of perfection that’s not attainable with any technology. But I still think we’d be better off dispensing with computers entirely, as I’ll explain below the fold.
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I was pleasantly surprised to see sanity slowly creeping back into airport security rules, as the TSA allows liquids on airplanes:
The new rules, which will go into effect Tuesday, allow travelers to carry liquids, gels or aerosols in containers of 3 ounces or less, as long as they all fit into a clear 1-quart plastic bag that can be screened at the security checkpoint. Drinks and other items purchased in the secure part of the airport, beyond the checkpoint, will also be allowed onto planes.
The new regulations will apply to all domestic and international flights departing from United States airports, the agency said.
It’s good to know that travelers will face the minor inconvenience of placing their liquids in a zip-lock bag, rather than the major inconvenience of having to check their luggage. I fear, however, that this is as far as the TSA will go in the direction of sanity. The TSA appears to have singled out shoes and liquids for extra scrunity solely because a terrorist happened to try to use those items in terrorist plots in the past. But as they say in the investment business, past performance is no guarantee of future results. Chances are, the next terrorist will use a different approach. It’s a little silly to automatically place an item on the heightened scrutiny list–forever–every time a terrorist even attempts to blow up an airplane with it.
So bravo to the TSA for relaxing a silly rule. Let’s hope that it’s the first of many such decisions. I’m not going to hold my breath, though.
Scholars at RAND Europe recently released a comprehensive analysis of the European Union’s controversial Audiovisual Media Services Directive (AVMS), more commonly known as the “Television without Frontiers Directive.” This effort, which is being coordinated by EU Commissioner Viviane Reding, aims to bring some rationality to inconsistent EU media regulations. The problem is, in an effort to make the rules more rational, Reding has essentially proposed a significant expansion of government regulation for new media outlets and operators, including the Internet. (See these three papers by my PFF colleague Patrick Ross for a detailed explanation of the dangers of Reding’s efforts to expand content regulation).
Thus far, most of the criticism of the AVMS has been based on social / content-related concerns. Rightly so. There is little doubt that the directive will threaten freedom of speech and expression on the Internet and over other new media outlets / services. But the new RAND study takes a different approach to the issue by focusing on the potential economic impact of the AVMS directive on European companies and the EU’s competitive standing in the new media world more generally. [An executive summary of the report and the full report can be found on the Ofcom website here].
RAND’s conclusions are not encouraging… unless you happen to be an American or Asian company rooting for your European competitors to be handicapped by excessive government regulation!
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Ars has an interesting story about three California colleges that have decided to ban Skype from its campus. The school administrators have what strikes me as a puzzling attitude toward the service, describing it as a “potentially illegal waste of resources,” without explaining what might be illegal about it. Perhaps they’ve somehow gotten the erroneous impression that there’s something inherently illicit about “grid-computing-like” network applications.
Aside from legal concerns, the other issue seems to be bandwidth:
according to the Office of Information Technology, the chief problem comes when a Skype client acts as a “supernode” and makes itself available to relay calls made by other users. Having numerous supernodes on a school network increases bandwidth consumption and has a detrimental impact on connectivity, according to the memo. Anecdotal reports from individual Skype users reveal that bandwidth consumption can increase by as much as an entire gigabyte per month for a single Skype client when it acts as a supernode.
If my math is right, 1 gigabyte per month is roughly 3 kilobits per second, a trivial amount of bandwidth on a modern campus network. Even if the bandwidth is concentrated in shorter bursts–say, if the whole gigabyte is transmitted in a single hour–that’s still a rate of only 2.2 megabits per second–roughly the bandwidth of a typical DSL line. This is not a particularly abusive use of the network.
Rich Gordon emailed to point out this multimedia report about government surveillance. Of particular interest is this interactive feature on the government’s many existing surveillance programs. There are dozens and dozens of them, touching virtually every aspect of our lives.
Most of them seem pretty innocuous individually. For example, government surveillance of large currency transactions probably strikes most people as harmless. But as you go down the list, it becomes obvious that the whole has the potential to be a lot more than the sum of its parts. If the government tracks you every time you visit your bank, every time you get on an airline, every time you apply for financial aid, every time you apply for a driver’s license, every time you apply for a credit card, and on and on, pretty soon the government has a bit of data about almost every facet of your life.
Moreover, those are just the programs the government admits to. The press has uncovered two secret programs that engage in surveillance via the telephone network. And there are doubtless others that have not yet been uncovered.
The sheer complexity of these widely varied programs makes it especially difficult for grassroots action to deal with. If there were a single Big Brother program, the ACLU or EFF might be able to organize a grassroots backlash against it. But developing backlashes against Big Uncle, Big Cousin, Big Sister, and dozens of other piecemeal intrusions on our privacy is much more difficult. You kill one head of the hydra, and three more sprout up in its place.
By sheer coincidence, I’m currently (re-)reading Hayek’s The Constitution of Liberty, which I recommended to Luis in a recent post. I thought this passage was interesting:
The importance of our being free to do a particular thing has nothing to do with the question of whether we or the majority are ever likely to make use of that particular possibility. To grant no more freedom than all can exercise would be to misconceive its function completely. The freedom that will be used by only one man in a million may be more important to society and more beneficial to the majority than any freedom that we all use.
It might even be said that the less likely the opportunity to make use of freedom to do a particular thing, the more precious it will be for society as a whole. The less likely the opportunity, the more serious will it be to miss it when it arises, for the experience that it offers will be nearly unique. It is also probably true that the majority are not directly interested in most of the important things that any one person should de free to do. It is because we do not know how individuals will use their freedom that it is so important. If it were otherwise, the results of of freedom could also be achieved by the majority’s deciding what should be done by the individuals. But the majority action is, of necessity, confined to the already tried and ascertained, to issues on which agreement has already been reached in that process of discussion that must be preceded by different experiences and actions on the part of different individuals.
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Via Mike Linksvayer, I see that Nick Gillespie has a new interview with Chris Anderson. Anderson “laments that national politics has yet to become part of the Long Tail,” to which Mike responds:
The real long tail of politics isn’t about elections at all. Even if I can vote for my ideal candidate, or vote directly on every issue, at the end of the day I will still get policies approximating those of George W. Bush and John Kerry. That’s like being able to order any of millions of books at Amazon but always getting the current #1 best seller delivered regardless of your order.
The real long tail of politics is decentralization and arbitrage. Lots of people say “Bush isn’t my president.” Why can’t that be true? Declare yourself Venezuelan, Hugo Chavez is your president. It should be (almost) that easy. If that seems extreme and disruptive, at least executive power should be curtailed, for surely it is the antithesis of long tail politics. And being able to live and work in any jurisdiction should be a given.
Now, I don’t think this would work exactly as he describes it. If Mike declares himself Venezuelan and steals my hubcaps, I still want the American police to arrest him, rather than waiting for Venezuelan police to fly up and deal with it. But this is an interesting way to think about federalism. One of the great virtues of the American political system is that left-wingers can move to San Francisco or Boston and get policies they generally like, while right-wingers move to Salt Lake City or Birmingham to get the kind of government they want. To some extent, federalism allows us to have the same kind of diversity in government that we’re used to getting from the market. We don’t all listen to the same music or eat the same food. Why shouldn’t we have the same kind of choice in politics?
Of course, no matter where we Americans live, we all have to put up with the decisions of the bozo in the White House. Which is why I think it’s so important to move as much power as possible away from Washington, DC. That way, I might not be able to get the entire country to adopt my preferred political views, but I at least have the option of moving to a state or city where the majority shares my values.
In any event, Anderson’s interview is definitely worth reading.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.