[This essay builds on Friday’s blog entry on “Social Networking and Child Protection.”]
At last week’s National Center for Missing and Exploited Children conference entitled “A Dialog on Social Networking Web Sites,” several law enforcement officials argued that expanded data retention mandates were needed to adequately police online networks and websites for potentially criminal activity. (In this case, child pornography or child predators were the concern, but data retention has also been proposed as a way to police online networks for terrorist activities among other things).
This push for expanded data retention was hardly surprising. In recent months, members of Congress and the Department of Justice have floated new proposals to require Internet Service Providers (ISP) and others (including search engines and social networking sites) to retain data on their customers and traffic flows for long periods (typically between 6 months and two years). These proposals mimic data retention laws that are being implemented in the European Union.
Let’s step back and consider this issue from two very different perspectives.
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Ed Felten wraps up his excellent series on high-tech wiretapping by considering the risks of abuse created by the existence of pervasive wiretapping infrastructure:
The best argument against content-triggered wiretaps is the risk of abuse. By “abuse” I mean the use of wiretaps, or information gleaned from wiretaps, illegally or for the wrong reasons. Any wiretapping regime is subject to some kind of abuse–even if we ban all wiretapping by the authorities, they could still wiretap illegally. So the risk of abuse is not a new problem in the high-tech world.
But it is a worse problem than it was before. The reason is that to carry out content-triggered wiretaps, we have to build an infrastructure that makes all communications available to devices managed by the authorities. This infrastructure enables new kinds of abuse, for example the use of content-based triggers to detect political dissent or, given enough storage space, the recording of every communication for later (mis)use.
Such serious abuses are not likely, but given the harm they could do, even a tiny chance that they could occur must be taken seriously. The infrastructure of content-triggered wiretaps is the infrastructure of a police state. We don’t live in a police state, but we should worry about building police state infrastructure. To make matters worse, I don’t see any technological way to limit such a system to justified uses. Our only real protections would be oversight and the threat of legal sanctions against abusers.
I think this is a good point, but I think it’s actually much worse than that. Here’s the problem: the ultimate safeguard of our freedom is the possibility of public backlash. When Richard Nixon was caught abusing the power of the presidency, the resulting public backlash forced him out of office. In my opinion, President Bush has also been caught abusing the powers of his office, but so far there’s been no comparable public outrage.
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As Congress draws closer to passing significant telecommunications reforms, it’s clear that a larger issue serves as a backdrop to the hot topics of net neutrality, cable franchise reform, and municipal WiFi. That is, will the Internet be treated like telecommunications, or the other way around?
New technologies have caused a convergence in the communications sector so that the phone company can also be the cable company and vice versa. Indeed, an Internet company can also provide cable and phone services. EBay bought Skype, an Internet phone company that offers free calling, Microsoft is moving into the IPTV space, and Google offers voice services integrated with features like instant messaging.
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Yesterday I spoke at a National Center for Missing and Exploited Children conference entitled “A Dialog on Social Networking Web Sites.” It featured dozens of industry, technology, law enforcement and government experts discussing how to protect children on social networking sites. I spoke on the final panel of the day on “The Public Policy Challenges of Social Networking” and was up against two state AGs: Connecticut Attorney General Richard Blumenthal and North Carolina Attorney General Roy Cooper. They both favored various regulatory measures to address concerns about online safety, including a complete ban on anyone under the age of 16 on social networking websites.
My response follows.
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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’s software patent was highlighted by last week’s ruling that Microsoft had to pay its holder $6.1 million.
This is the relevant patent. None of the news stories I could find said which patent it was, probably because the inventor’s name is listed as Carlos Amada in the patent while, the news stories all give it as Carlos Amado. The patent is extremely long, weighing in at more than 20,000 words. It describes, in great detail, the features of a graphical database program that Mr. Armado apparently developed in the early 1990s. From the description, it sounds like it may have been an impressive piece of software, with many useful features integrated in a user-friendly manner.
Is this patent obvious? And did granting it likely promote innovation? I’ll explore those questions below the fold…
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Reading Jim Gattuso’s post about Google and network neutrality, it occurred to me that Eric Schmidt’s argument here only makes sense if we assume that the broadband companies are run by morons:
Today the Internet is an information highway where anybody–no matter how large or small, how traditional or unconventional–has equal access. But the phone and cable monopolies, who control almost all Internet access, want the power to choose who gets access to high-speed lanes and whose content gets seen first and fastest. They want to build a two-tiered system and block the on-ramps for those who can’t pay.
I think it’s safe to say that Verizon, Comcast, et al want to make as much money as possible. So her’s my question: If you were a telco executive trying to maximize revenue from your shiny new fiber network, how would you set your prices?
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IPI has a new article up arguing that the DMCA shouldn’t be repealed because it would violate our treaty obligations. This doesn’t strike me as a particularly persuasive argument, given the amount of weight the United States carries in the international arena, and given that the anti-circumvention provisions of WIPO were inserted largely at the urging of the Clinton administration. If American policymakers thought that the DMCA was bad policy, I doubt they’d have too much difficulty getting the relevant provisions of WIPO changed.
I also didn’t think this paragraph was quite right:
The case commonly mentioned regarding the chilling effects on research of the DMCA anticircumvention provisions involved Princeton professor of computer science Edward Felten, who received a threatening letter from the Recording Industry Association of America (RIAA) regarding his proposed publication of results from a test of a new protection mechanism. (He was able to crack it.) Even after the RIAA backed off, Felten took the case to court to try to have the DMCA struck down, but was unsuccessful. His efforts were not “chilled” so much as he was seizing an opportunity to try to get the DMCA struck down in court.
This isn’t how I’ve generally heard the story told. According to news reports at the time, Felten’s goal was a declaratory judgment that publishing their paper would not be a violation of the DMCA. Although I suspect Prof. Felten would have jumped at an opportunity to get the DMCA struck down in court, I don’t think that was his goal in this case. He was simply seeking a ruling that the DMCA wasn’t applicable to his particular situation.
Update: I’ve looked up the original lawsuit. Felten and his colleagues sought “a Declaration from this Court that publication of the paper is lawful.” It then offered two specific arguments. First it argued that the plaintiffs did not violate the DMCA, and second it alleges that to the extent that the DMCA prevents the publication of security research, it’s in violation of the First Amendment.
So Hollaar’s interpretation has more merit than I initially gave him credit for. I’m still not sure I see how this proves that Felten’s speech wasn’t chilled, though. The RIAA did send Felten a letter stating that publishing the paper “could subject you and you research team to actions under the Digital Millennium Copyright Act.” That would certainly have a chilling effect on my speech if I were in Felten’s shoes. The fact that the RIAA “backed off” after their threat succeeded in preventing the publication of the paper at the Information Hiding Workshop hardly proves that Felten had nothing to worry about.
Could Google execs go to jail for bit discrimination? Theoretically, yes, according to a proposal by Sen. Jim DeMint (R-SC). Submitted as an amendment to the telecom bill now being marked up by the Senate Commerce Commitee, DeMint’s proposal would make it unlawful to “prioritize or give preferential or discriminatory treatment in the methodology used to determine Internet-search results based on an advertising or other commercial agreement with a third party.” Any person found in violation would face a maximum fine of $5 million or imprisonment for up to one year.
The plan seems targeted at Google’s sponsored links system, under which users get prominently placed, paid for, links with their search results. (The paid content is separate from the non-paid results, which are not influenced by payments).
For the record, this is a terrible idea. And, I’m willing to bet that Sen. DeMint thinks so too. Instead, the amendment seems intended to underscore Google’s uncomfortable position in the net neutrality debate. While the company has spearheaded the call for net neutrality for telephone and cable firms, its own practices–and power–mirrors that of those companies.
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Related to my recent post about reverse engineering and innovation, a friend points me to another dispute over one company reverse-engineering another company’s product without permission:
In a statement, Green Hills confirmed that Express Logic has demanded arbitration of its ThreadX reseller agreement with Green Hills, and has accused Green Hills of illegally copying the ThreadX API…
The statement argues that “it is well established that copyright does not protect a software product’s method of operation, which includes its API. It is legal to copy the publicly available API of a product to implement a competing product with the same or similar API.”
Green Hills makes tools for the development of embedded software, such as the computer chip that monitors the fuel injection in your car. Green Hills had licensed some software from Express Logic, but then subsequently decided to build their own version of the software instead. The API is the application programmers interface–it defines the interface between Green Hills’s operating system and the programs its customers will build on top of it. (this is analogous to a developer creating a Windows application: he uses APIs published by Mirosoft to make sure his software will work correctly)
This case is complicated by the fact that Green Hills was previously a licensee of Express Logic’s products, so there might be some contract terms that are relevant. But at least on the copyright aspects of the case, Green Hills seems to be on firm ground. Courts have repeatedly held that a software copyright doesn’t include the right to control who may interoperate with that software. Assuming Green Hills can demonstrate they didn’t use any of Express Logic’s actual code in developing its product, they should lose the copyright case.
And it seems to me that that’s a good thing. Green Hills has customers who rely on the API when they’re building their own software. If Green Hills were forced to change its API, that would, in turn, force Green Hills’s customers to re-write all of their software. That would be extremely disruptive, and in practice, the more likely outcome would be that Green Hills would simply be forced to continue working with Express Logic indefinitely. If Express Logic wasn’t doing a very good job of keeping its software up to date, there’s little Green Hills could do about it.
As with the examples I gave in my previous post, reverse engineering acts a valuable safety valve for cases when a company’s proprietary technologies cease to serve customers’ needs. It’s quite common in the computer industry, and I think it expanding copyright law via the DMCA to restrict such reverse engineering was a mistake. And I think it would be an even bigger mistake to extend copyright law further to allow platform creators to lock out competitors.
Ars reports on a new ad by the Consumer Electronics Association opposing technology mandates on satellite radio. It’s titled “We’ve heard this song before!” and features the following humorous quotes:
“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue–or rather by vice–of the multiplication of the various music-reproducing machines…” -John Philip Sousa on the Player Piano (1906)
“The public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials.” -Record Label Executive on FM Radio (1925)
“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.” -MPAA on the VCR (1982)
“When the manufacturers hand the public a license to record at home…not only will the songwriter tie a noose around his neck, not only will there be no more records to tape [but] the innocent public will be made an accessory to the destruction of four industries.” -ASCAP on the Cassette Tape (1982)
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