May 2008

Melissa Ngo has hung out her shingle as a privacy and information policy consultant, and she’ll be blogging about various privacy and civil liberties issues at

In her prior role as senior counsel and director of the Identification and Surveillance Project at the Electronic Privacy Information Center, Melissa was a real credit to that organization. I especially appreciated her work on identification policy, national ID issues, and the REAL ID Act. She is as fluent in this field as anyone. (Now, we don’t agree on everything, of course, but wouldn’t that be boring?)

I’m glad she chose “Privacy Lives” for the name of her site, where she intends to “chronicle and analyze . . . attacks [on privacy] and various defenses against them to show that privacy lives on.” That’s an upbeat outlook, and it’s one I share. (Endlessly lamenting the privacy apocalypse must be so enervating! . . .)

Again, check out Good luck, Melissa!

Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.

He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.

He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.

I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.

It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!

The basic gist of the article is that the third-party doctrine is better than most people think, for two reasons. First, it’s technologically neutral. It prevents criminals from making opportunistic use of technology to circumvent the basic balance between security and privacy struck by the Fourth Amendment. Second, it’s easier to administer than alternatives. The arguments against the third-party doctrine are weaker than most people believe, Kerr says.
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“[T]here are two policy goals on which we need to make real progress,” the FCC’s Michael Copps told Congress last year, “minority and female ownership is one, localism is the other.”   Indeed, the two goals have long been sandwiched together like ham and cheese by media reformers on the left.  

 But it turns out the two may not mix so well after all.   According to the Minority Media and Telecommunications Council and the Independent Spanish Broadcasters Association,  many of the FCC’s proposals to advance localism will actually harm minority broadcasters.  Because of their “relatively small size and limited access to capital,” David Honig and Jocelyn James of MMTC say in two recent filings at the FCC, the proposals would have a “negative impact on minority broadcasters.”

 Among the proposed new requirements cited by MMTC and ISBA:  mandating permanent advisory boards, requiring a physical presence in broadcast facilities, prohibiting voice-tracking and adopting localism programming guidelines.

 The two groups took particular aim at what is known as the “main studio rule.”   Repealed in the 1980s and now being considered for resurrection, the rule required broadcasters to maintain a “main” studio in their community of license.  The problem, MMTC and ISBA point out, is that quite a few minority-owned stations – being late entrants into the broadcast industry (in part, it is argued, because of past discrimination by the FCC itself) – don’t have a central community of license.   Instead of having a powerful signal licensed from a single, central location, a disproportionate number of minority-owned broadcasters use clusters of small signals, each licensed to a separate, suburban community.  Thus, rather than maintaining a single “main” studio, the rule would require them to maintain multiple – and costly – studios.

 Because of this discriminatory effect, MMTC and ISBA say  — rather bluntly — the rule would operate as a “tax on Blackness and Brown-ness.”



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It’s worth noting that the Viacom lawsuit against YouTube makes little sense in light of the DMCA. For the few TechLiberation readers unfamiliar with the DMCA, that’s because the law grants YouTube, and other sites with unedited user-generated content “safe harbor.” So long as YouTube honors requests to take-down material that is claimed to be protected under copyright, it isn’t liable for that material being posted in the first place.

Google is following the DMCA and even going beyond its legal obligations to protect copyright.

In fact, YouTube suspended CEI’s account—wiping out all of our videos—based on a disputed 7 seconds of footage used in one of our videos. This was a very severe punishment and thankfully our account was reinstated after we were able to argue against the merits of the take-down. For those who do violate copyright, permanent suspension is a harsh punishment—so long as the account in questions isn’t a throw-away. Google is going well beyond the required take-down in this instance.

Yet, one of the complaints Viacom has about YouTube is that it hasn’t implemented software that would automatically weed out some copyrighted material produced by the entertainment industry—something that, again, would be above and beyond their legal obligations. YouTube planned to implement this software last year, but has failed to roll it out to the site. Viacom can complain about this delay, but not in the legal sense. Viacom simply has no grounds for a legal complaint unless they can somehow argue that the safe harbor provision of the DMCA is somehow invalid. A copyright lawyer might be able to suggest to us how such a thing could be done, if possible.

If Viacom means to show that the DMCA is in conflict with other copyright law and therefore the DMCA should be abandon or at least rewritten, it makes one wonder what a new system would look like. The current system of free posting and honoring take-downs seems to work well. It allows users to upload 10 hours of content per minute to YouTube—most of it seems to be kittens doing amusing things, not pre-lease episodes of 24—while still honoring copyright through take down. This has created a whole new medium for self-expression, expanding the media market in ways we are still trying to understand.

Were another balance to be struck, one that place the burden of policing content on YouTube, we would see this explosion of user-generated content fizzle out…or at least, like I said in my previous post, on YouTube.

Another balancing of the concerns of video sites and content owners—this one more heavily favoring content owners—would create significant barriers to video sharing and drive many from the market. Even so, user-generated video won’t be going away and infringement will continue in different forms. So again I’m forced to ask, “What is Viacom getting out of this?”

As the Viacom’s lawsuit against YouTube and its parent company Google rolls forward, it’s worth asking if any outcome of the suit will change the situation for Viacom. In fact, were the impossible to happen, like a judge shutting down YouTube altogether, Viacom may be worse off.

CNET’s coverage of the piece sites an anonymous source from Viacom who notes that “The company basically is paying for an entire new department to watch YouTube.”

But imagine how difficult it will be to police amateur video without YouTube or other video sharing sites around—it’d be impossible. That’s because even if huge repositories of video are made illegal, web-based video won’t just disappear, it’ll move.

Our favorite cute kitten videos could end up on the same foreign servers that are serving up online poker and other forms of gambling to Americans each day, despite that activity being made illegal by the last Congress. (That was a Repubican Congress, the guys who stay out of your lives.) Just like Sierra Leone lent its flag to pirate broadcasters in the 1960s, it may rent its servers to pirate video broadcasters of the web variety.

On the other hand, videos could move to smaller websites domestically, even individual blogs and web pages. But the location doesn’t really matter, either scenario would be bad for content creators. Balkanizing videos and making them harder to find makes them harder to police. Similarly, moving video from larger sites run by legitimate, domestic businesses manes take-down notices might not be honored.

It’s possible that YouTube could function similarly as an index, just as Google does for web content. But the Torrent Spy case suggests that even “contributory” copyright infringement—making the copyright-infringing material easier to find—is just as illegal as hosting it in the first place. This means that even video search could be off the table if the principles of the DMCA aren’t upheld.

Ultimately, I just don’t see what Viacom thinks it’s getting out of this lawsuit, other than the obvious benefit that comes with $1 billion in cold hard cash. To think this move will suddenly make the realities of web-based video go away is foolish at best. It might be hard for some to accept, but we just can’t make it 2004 again.

Google co-founder Larry Page came to Washington last week to take on the National Association of Broadcasters (NAB), the lobbying group that represents over-the-air television stations. It’s a whole new adversary for the beleaguered broadcasters, who have been fighting cable and satellite television for years.

The Federal Communications Commission is currently considering a proposal, by Google and other tech players. It would allow tech companies to build electronic devices that transmit wireless internet signals over the “white spaces,” or the vacant holes in the broadcast television band.

“We have an ambitious goal called pervasive connectivity through ubiquitous broadband networks,” said Page, who is currently co-president of Web search giant Google, and the world’s 43rd richest man, according to Forbes. “To realize that vision, we need to change the way we allocate and manage the nation’s airwaves.”

Basically, Google wants the right to broadcast where the broadcasters aren’t doing so right now. And there are a lot of vacant channels to take advantage of, potentially offering a boon to the broadband-hungry technology industry.
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weitzner-sm I’ve long known and liked Danny Weitzner, going way back to the CDA wars of the mid-1990s. Danny co-founded the Center for Democracy & Technology, which is were I first met him, and he currently serves as Co-Director of MIT’s Decentralized Information Group, which is part of the computer science department up there. Apparently he is also now serving as technology adviser to the Barack Obama campaign. In it is that capacity he made some remarks recently on a panel at the Computers, Freedom, and Privacy conference that caught my eye. Specifically, according to this Ars article:

“Openness is more important than bandwidth,” said Weitzner, referring to the argument that “tiered” networks providing faster access to content providers who can pay could spur investment in fatter pipes. “I’d rather have a more open Internet at lower speeds than a faster Internet that has all sorts of discrimination built in. We’ve lived with tiny narrow little pipes and done extraordinary things with them.”

I’m a bit troubled by Danny’s statements. First, I think that many supporters of Net neutrality (NN) regulation have been crafting this sort of false choice between openness and bandwidth. I see no reason why we can’t have plenty of openness as bandwidth grows. After all, it is openness to new services and applications that will help spur greater demand for bandwidth. Of course, I don’t buy into the sort of conspiratorial theories set forth by some NN advocates who claim that broadband providers are going to engage in all sorts of blocking of online speech and applications. If you subscribe to certain ‘black helicopter’ theories of ISP manipulation of the Net, however, then I suppose you would be inclined to say we might somehow be better off with “tiny narrow little pipes” (a la dial-up connections) instead of high-speed pipes. But, again, I just don’t buy the argument that ISPs are out to quash “openness” in that sense. Assuming they could even succeed in such an endeavor, which is highly dubious, it’s just not good for business. It would create a huge consumer backlash, a PR hell, and ultimately not bring in any new revenue.
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Could you make it through an entire 5-day vacation without the Internet, blogs, e-mail and your other daily informational inputs? Well, I almost did it. Why would I do that? Two reasons. First, a few months ago I read a random blog post in which someone deep within the comments to the entry said he couldn’t live even 1 day without their daily info-fix. And so I wondered if I could for a few days. Second, my wife and kids have been begging me to stay off the computer when we go on vacations! So, I decided to give it a shot and not only stay off the Net, blogs and e-mail for 5 days, but also steer clear of even traditional information sources, namely newspapers and magazines.

Oh man, it hurt. I felt like a junkie going into detox. Withdrawal symptoms were immediate. I awoke with the nagging need to check my RSS feeds on Bloglines, check out the TLF, and flip through my e-mails. Even worse was the absence of my beloved Wall Street Journal. It was everything I could do not to pick one up each morning at a local Waffle House or Denny’s while I was on the road. But I denied myself these pleasures and stuck to the plan, with the exception of a few moments when I cheated and checked a few work e-mails on my cell phone.

Anyway, when I returned, it was like trying to figure out how to deal with an information overload apocalypse. Over on my Bloglines account, just under 400 new blog posts were waiting for me from the 75+ blogs I monitor daily. On my work e-mail, I had well over 500 messages, not including spam. My Yahoo e-mail account had another 100+. My GMail account had dozens more. There we also plenty of voice mails at work and home. And when I got back to my house, I had a stack of Wall Street Journals, Washington Posts and the Sunday New York Times waiting for me. And several magazines in the mail.

Where to even begin? How does one catch up? Well, I’m not sure I’m gunna. I’m thinking about just ignoring all of it and hitting the reset button. I’ve already thrown away all the newspapers. And I have been bulk deleting most of my e-mails on all 3 accounts. And I’m still not sure when and if I’ll be able to catch up with those RSS feeds, but I would really feel like I was missing something if I just ignored them all.

Sometimes life in an Age of Abundance is a bitch!


by on May 27, 2008 · 12 comments

I’ve doing several interviews this week. In a couple of hours I’m interviewing Patri Friedman about Seasteading. Then, tomorrow I’ll be talking to Jim Bessen of Patent Failure fame, and the president of the Encyclopedia Britannica. What should I ask them?

Pirate Radio

by on May 27, 2008 · 4 comments

I’m doing a piece on the Seasteading Institute, and I’m reading their fascinating summary of past efforts to achieve sovereignty via the oceans. My favorite case so far is the pirate radio wars of the 1960s:

In the 1960’s, a new form of offshore activity emerged. Commercial radio as known in the United States didn’t exist in Europe at the time. With few exceptions, all that was to be heard were staid government stations. Then a ship named Veronica dropped anchor just off the Dutch coast, with a transmitter beaming programing filled with the latest popular music. Advertisers eagerly bought up all the available time at premium rates, and imitators soon followed in the Scandinavian and British markets…At first, there was considerable violence between ships; however, the practice of maintaining 24-hour watches soon reduced that greatly…

The governments of Europe were outraged, and applied the pejorative term “pirates” to the broadcasters, a term with which they weren’t entirely unhappy – due to its romantic connotations. Attempts were made to jam the ships’ transmissions, but the public outcry was too great…International agreements were entered into to ban broadcasting from ships, but the African country of Sierra Leone chose to offer its flag as a flag of convenience rather than subscribe to the treaties…

The British finally knocked their offshore broadcasters off the air by banning advertising on them by firms doing business in the United Kingdom…then the coup de grace was delivered: the opening of popular music stations on land.

I had no idea. It’s a good story, but I also find it striking that European governments managed to prevent the broadcasting of popular music until the 1960s. For all the bitching and moaning about Clear Channel, at least America’s commercial radio model is reasonably responsive to public demand.