Regulatory Firewall

by on July 14, 2006 · 6 comments

Bill Herman has another long and thoughtful rejoinder to my critique of Herman’s original response to Felten’s paper, as well as the responses of Ed Felten and Brad Templeton. I’m honored to be lumped into the same category with those guys!

Herman does a thorough and fair-minded job of summarizing my concerns, so I don’t have a whole lot to add. As he says, I think the dangers of regulation outweigh the dangers of possible discrimination. He thinks the reverse. So let me just comment on the issue that I think is the crux of the matter:

If (a) telcos and cable cos are impossible to regulate, or (b) the FCC is fundamentally corrupt and/or incompetent, then we have bigger problems on our hands the net neutrality, and we certainly should not passively accept this state of affairs. But if this is the case, then there’s nothing we can do, but there’s nothing we can do to make it worse.

Oh, but we can make it worse. The important point is that right now, the FCC has absolutely no authority over the vast majority of the Internet. It has no authority over the backbone. It has no authority over the high-speed pipes that Google and Microsoft use to get on the Internet. It has no authority over high-speed dedicated lines used by medium-sized businesses. It has no authority over the WiFi connections in hotel rooms and coffee shops. Most importantly, if a serious competitor to the Bells and the cable companies come along, the FCC would have no authority over it.

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Software Patent of the Week: High Tech Bouncer

by on July 14, 2006 · 2 comments

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week I’m going to look at this patent, “System and method for protecting a computer and a network from hostile downloadables,” which I believe forms the basis for this lawsuit against Secure Computing.

In a nutshell, what Finjan patented was the digital equivalent of a bouncer. A bouncer stands at the entrance to a club, examines each prospective patron, checks his name and ID against a list of names (either the guest list of people to let in or a blacklist) and then admit the ones who meet the requirements. Replace “bouncer” with “server” and replace “patron” with “downloadable program,” and you’ve pretty much summed up Finjan’s patent. Finjan describes a system that allows a systems administrator to establish rules describing what kinds of executable programs are allowed on client computers, and Finjan’s software enforces the policy.

There’s literally nothing more to this patent. Don’t believe me? Take a look at the patent itself. Tell me the “Summary of the Invention” isn’t a jargon-laden description of what a bar bouncer does. Even by the low standards of your typical software patent, this is a bad patent.

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The DMCA vs. Video Jukeboxes

by on July 14, 2006

I sure wish I’d noticed the Kaleidescape lawsuit when I was writing my DMCA paper. Although not technically a DMCA case (they have a license from the DVD CCA, who is claiming its terms were violated), it’s clearly illustrates how the DVD cartel is wielding the power given to it by the DMCA. The dispute has nothing to do with piracy and everything to do with control: the DVD CCA wants to dictate what features DVD players are allowed to have, and Kaleidescape had the gall to include features that weren’t on the cartel’s list of approved features.

One of the weaknesses of the case against the DMCA is that there’s a limited number of concrete examples of innovations that have been chilled. I think that’s because most of them never got off the ground: their perspective inventors didn’t bother creating because they knew their inventions would be illegal. Of course, that’s sheer speculation on my part. But here’s a concrete example of a category of device that probably would exist right now if not for the DMCA: video jukeboxes. It does for DVDs what MP3 players did for CDs. If the iPod is 1000 songs in your pocket, a Kaleidescape is 1000 DVDs in your living room.

I think it’s almost certain that in the absence of the DMCA, there would today be a thriving market in home media devices that allow you to rip your DVDs and then stream them to your TV. Instead, there’s only one such device, it costs $25,000-$100,000, and the DVD CCA is doing its best to force it off the market.

I haven’t been able to find any news reports on the case in the last year. Does anyone know what became of the lawsuit? Kaleidescape appears to still be selling their product.

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Identification, Authentication, and Authorization

by on July 13, 2006

Something I forgot to mention in my post last week, about Jim Harper’s book is that it’s a quick and engaging read. Chapters are short, and each starts with a quirky, irreverant story designed to illustrate an important concept introduced in the chapter. Now, as promised, my niptick:

Three of the central concepts in the book are identification, authentication, and authorization. Harper presents identification and authentication as essentially synonyms (with the suggestion that authentication connotes a more robust form of identification), while authorization as an alternative to identification in which the identity of the person isn’t disclosed. He gives the example of an ATM card: to withdraw money from an ATM, you don’t have to demonstrate your identity, you just have to have the card and know the pin. You could be the card holder’s spouse, child, or trained monkey, for all the ATM machine knows.

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The Markle Foundation: Font of Evil II

by on July 13, 2006

Waaaaaay back in October 2004, I blogged about the Markle Task Force and the aid it has given to the architects of the surveillance state.

I have complained directly to the members of the Task Force that I know, but I have a persistent sense that most members are unaware, in denial, or indifferent to the role of the group in promoting such things as the U.S. national ID card.

In my opinion, the Markle Task Force dropped the ball completely on privacy and civil liberties. It angers me to hear them pay lip service to these values. They should choke on the words.

This morning, Markle issued its final report. I’ve only skimmed it so far. It’s a lot of gobbledegook, but I know some of it is meant to minimize information sharing among agencies, which is good. The report urges the national security bureaucracy to rationalize information sharing. Well and good.

I’m glad this is their final report. (No link because I don’t want to enhance its search-engine stature – you can find it.) But now it is not just likely – it is guaranteed – that they will abandon their product to the wolves. As before, Markle work will be used to justify what the surveillance-industrial complex wants to do, disregarding countervailing national interests like privacy and civil liberties. On those, we’ll get none of the good stuff and all of the bad.

This morning, I went over to the event at Brookings where members of the Markle Task Force introduced today’s report. I handed out a one-pager that documents the responsibility of the Task Force for our national ID.

I gave one to Jim Barksdale of Netscape fame, a co-chair of the Task Force. He seemed pleased to get something interesting to read. I hope he’s unpleased to read what I think of his little tea-dance with government power.

I hate it when people who are successful in business or singing or acting think they can do public policy. They come to Yosemite and they feed the bears and they think it’s real cute. Then, when the bears are ripping the tops off of cars, they wonder why. I hear Jim Barksdale is a good guy. He should be embarassed.

Annnnyway, my Markle handout (after the jump).

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Backlash

by on July 13, 2006 · 6 comments

An extremely smart blogger at Without Bound points out another problem with Bill Herman’s critique of Ed Felten’s paper:

Yes, as Herman says, the issue is currently in the public eye. But why? A few ill-advised comments from a telecom CEO and a bunch of wild speculation and exaggeration. It doesn’t appear that there have actually been any serious violations of network neutrality yet. (One dinky ISP in North Carolina blocked rival VoIP services, but the FCC stopped that with current regulations.)

So if the issue is this hot based only on a theoretical threat, I can only imagine that if ISPs actually started violating network neutrality principles, the grass roots would be even more outraged. There would be plenty of political will to enact regulations at that point, if necessary.

This is especially true because (as Jim Gattuso has documented) the pro-regulatory coalition is hardly getting by on a shoestring budget. AT&T, Verizon, Comcast, and company are currently swearing up and down that they won’t discriminate against Internet content or services. If they break their word, I bet Microsoft and Google would be happy to pony up a few million dollars for a nationwide media campaign highlighting their hypocrisy.

And remember the public outcry over the FCC’s minor tweaks to media ownership rules? It’s just not that difficult to generate a populist backlash against the abuses of media companies.

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Sohn: The Video Flag is Bad Too

by on July 13, 2006

While I disagree with Public Knowledge about neutrality regulations, they’ve fighting an important and lonely battle against DRM mandates. PK president Gigi Sohn has a great post debunking the notion that the video flag is a kinder, gentler technology mandate. Here’s her response to the claim that the video flag, unlike the audio flag, protects the right to personal copying

It is true that if you have the right equipment you should still be able to make personal copies with the video flag. (Remember, some old devices may not work with flag-compliant devices, and once you buy one brand of flag-compliant device, you must buy the same brand for all downstream devices). However, regardless of what the FCC claims that the broadcast flag scheme prohibits, all but one of the broadcast flag technologies approved by the FCC prohibit all Internet redistribution, not just “mass, indiscriminate” redistribution. So if I want to email a copy of my appearance on the local news to my mother, the flag prohibits me from doing so. Essentially, the video flag permits me to retain my fair use rights circa 1992. Not a significant improvement over the audio flag, if you ask me.

She addresses several other arguments commonly used in defense of the video broadcast flag, so please read the whole thing. The bottom is that Washington shouldn’t be in the business of telling private companies how to design their products.

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Speaking of Iron Triangles…

by on July 13, 2006

Radley at the Cato blog notes that Majority Leader Frist is making sure that the telecom Christmas tree has a present for the RIAA under it:

Majority Leader Bill Frist (R-Tenn.) quietly has gone to bat for the Recording Industry Association of America and other groups to make sure that a key industry priority was included in the massive overhaul of telecommunications laws that the panel approved just before the July Fourth recess, several Senate Commerce, Science and Transportation Committee aides confirmed.

The provision Frist helped place prevents satellite radio listeners from being able to record, store and rearrange music they receive from popular subscription services such as XM and Sirius. Music industry officials say that such copying would cheat labels and artists out of fees that consumers otherwise would pay when buying music on CDs or from online music services.

But the push by the record labels is rankling radio, electronics and consumer groups, who argue that listeners should be able to store songs for personal use as long as they are not selling or passing them along.

Several Commerce Committee aides confirmed that Frist had made it clear that he would allow the telecom bill to come to the floor only if it included the measure, which is commonly called the “audio flag” provision.

[:]

Beyond what appears to be a home-state interest in the issue, aides and lobbyists close to the debate noted that former Frist Chief of Staff Mitch Bainwol now heads the record labels’ lobby, the RIAA.

The more I hear about the telecom bill, the more I root for gridlock.

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FEMA does texting: omfg!!11 :-@

by on July 13, 2006 · 2 comments

According to the AP, FEMA yesterday unveiled an upgrade to the Emergency Alert System that will eventually allow the feds to text-message every single cell phone in the country in the event of an emergency. (What would these messages say? “N.Korean Missl coming Ur way. Duck!” or “Grab Ur duct tape now”?) It looks like the $5.5 million system will initially be targeted at public safety officials, but Homeland Security Department spokesman Aaron Walker said yesterday, “Anything that can receive a text message will receive the alert. We find that the new digital system is more secure, it’s faster, and it enables us to reach a wide array of citizens and alert them to pending disasters.”

Now, apart from the obvious problem of network overloading that could occur not only by sending millions of text messages at once, and, as a result, by prompting everyone in the country to call their loved ones to see if they’re OK, there is the larger question of whether text alerts are necessary at all. The original Emergency Alert System was never activated–not even on 9/11. With at least three television networks, dozens of cable news channels and radio networks, and the internet, can anyone possibly escape being alerted of an emergency? Is there any reason to believe that the networks won’t pass on instructions from the government to citizens (or even give government airtime)? What value could text messages possibly add?

John Lawson, president of the Association of Public Television Stations (which, by the way, has the biggest interest here since public TV stations are the ones getting paid to use their DTV spectrum to broadcast the messages), explains why text messages are useful: “[W]e’re hoping that your cell phone will go off saying something bad is happening, and you need to get to a TV or radio to find out what’s going on.” Exactly.

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Keeping the Internet’s Tubes Clear

by on July 13, 2006

Techdirt points out this hilarious Jon Stewart clip on Ted Stevens’s tubes and Internet gambling.

Also, a commenter helpfully suggested that we should give credit where due: the Ted Stevens clip we featured last week was originally discovered by Public Knowledge and publicized in this blog post.

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