Jeers and Cheers for Prof. Duffy

by on July 28, 2008 · 6 comments

I’ve got two new articles on patent reform out today, and by sheer coincidence, both of them are related to the work of law professor John Duffy. First, over at Ars Technica, I analyze John Duffy’s article at Patently-O, where he argued that the US Patent Office has shown a growing hostility toward software patents over the last couple of years. He seems to be right that the Patent Office is becoming more skeptical about software patents, but of course we have a difference of opinion about whether this is a good thing:

Duffy seems to regard the end of software patents as a calamity for innovative companies, but his argument is awfully thin. Duffy focuses on Google’s PageRank patent, which he has long regarded as a poster child for software patenting. He describes it as “surely one of the most famous and valuable of all modern software patents,” and suggests that the invalidation of Google’s patents would be a calamity for the company. Curiously, however, he never explains how Google benefits from this or other patents in its portfolio.

Google derives little, if any, of its revenue from patent royalties and has managed to dominate the search engine marketplace without suing its major rivals for patent infringement. Indeed, it appears that the primary function of Google’s patent portfolio is as a defensive stockpile to be used if any competitors should sue it for patent infringement. If that’s true, then the only real effect of software patent abolition on Google would be that the company could lay off its patent lawyers.

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Can Congress tweet? Should bloggers care?

by on July 28, 2008 · 9 comments

Continuing my campaign to bring attention to congressional web use rules, I have an article up at Ars Technica today. Bottom line:

Although the partisan tensions have now subsided a bit, the greater problem persists. Culberson’s use of video-sharing and microblogging technology continues to violate House rules. So do Speaker Pelosi’s YouTube channel, Digg profile, Flickr page, and Facebook profile. The new rules proposed by Capuano and supported by Pelosi would not authorize these uses. In contrast, alternative rules (PDF) proposed by the Republican minority would allow members to use any service so long as they comply with existing content rules that prohibit political or commercial endorsements in official communications.

The reason I think this is so important right now is that both the House and the Senate are currently looking to change their rules, and its vital that they get them right. I know the blogosphere knows what the right call is here, they just need to make sure that Congress gets the message. That said,

Since the initial [reaction on the blogs], however, the blogosphere has been relatively silent on the issue, which one imagines should be near and dear to its geek heart. The silence has been especially deafening from bloggers on the political left who are best positioned to influence the House Democratic leadership’s position. Pelosi spoke at this year’s Netroots Nation conference (formerly YearlyKos) and participated in an “Ask the Speaker” session. Not one question, however, related to congressional web use restrictions.

I hope you’ll spread the message about this by blogging about it, Digging the story, and generally spreading the word. This is not a partisan issue, it’s an issue on which all bloggers and technophiles can agree, and it’s definitely an issue that we can win.

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Australian ISP-Level Content Filtering Report Released

by on July 28, 2008 · 26 comments

The Australian government has been running a trial of ISP-level filtering products to determine whether network-based filtering could be implemented by the government to censor certain forms of online content without a major degradation of overall network performance. The government’s report on the issue was released today: Closed-Environment Testing of ISP-Level Internet Content Filtering. It was produced by the Australian Communications & Media Authority (ACMA), which is the rough equivalent of the Federal Communications Commission here in the U.S., but with somewhat broader authority.

The Australian government has been investigating Internet filtering techniques for many years now and even gone so far to offered subsidized, government-approved PC-based filters through the Protecting Australian Families Online program. That experiment did not end well, however, as a 16-year old Australian youth cracked the filter within a half hour of its release. The Australian government next turned its attention to ISP-level filtering as a possible solution and began a test of 6 different network-based filters in Tasmania.

What makes ISP-level (network-based) filtering an attractive approach for many policymakers is that, at least in theory, it could solve the problem the Australian government faced with PC-based (client-side) filters: ISP-level filters are more difficult, if not impossible, to circumvent. That is, if you can somehow filter content and communications at the source–or within the network–then you have a much greater probability of stopping that content from getting through. Here’s a chart from the ACMA’s new report that illustrates what they see as the advantage of ISP-level filters:

ACMA 1
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Nice to Be Wanted

by on July 28, 2008 · 6 comments

[I’ll spare you TLF-ers all my ruminations about whiling away the summer playing at open mikes; check out Agoraphilia if that interests you. But I thought that you might get hoot out of my most recent anti-regulation song, Nice to Be Wanted. The link offers chords and other tips on how to play the song.  To nail the song’s Country and Western style, you’ll also need to get your twang on. Here are the lyrics:]

Nice to Be Wanted
Verse 1:
You prob’ly think I live a boring life.
I pay my bills. I love my kids and wife.
But you can bet I’ve got an outlaw side.
Listen up! I’ll tell ya’ how I ride. 

Verse 2:
For example, just the other day,
I turned right on a red—without stoppin’ all the way!
Then I hit 38, drivin’ back home,
Through a 35 miles-per-hour zone!

Refrain:
It’s real nice to be wanted, by a purty little lady.
It’s real nice to be wanted, by your lovin’ ma and pa.
It’s real nice to be wanted, by the folks who sign your paycheck.
But it’s not nice to be wanted, when you’re wanted by the law.

Verse 3:
But you know, I’m not the only one.
Some folks smoke and drink, before 21!
‘N I heard tell, some guy in Oregon,
Pumped his own gas, at the fillin’ station.

Verse 4:
A charmin’ lady down New Orleans’ way,
Dared to sell an unlicensed bouquet.
Her local florists don’t like competi-shun.
They play monopoly–but not for fun!

Refrain

Verse 5:
We can’t help it if we break some rules.
Politicians, and their fools,
Have rolled out red tape by the ton,
So they can keep us on the run!

Refrain

Coda:

The doggonned law.
The confounded law.
The nit-pickin’, lousy, frickin, ‘noveau-Prussian, freedom-crushin’, law.

Fin.

As always, I’ve taken care to nail down the legal citations. The reference to Oregon concerns a statute (O.R.S. section 480.330) that forbids retail gasoline customers from pumping their own fuel. (New Jersey imposes a similar restriction, but does not admit the same easy rhyme.) The Louisiana florist’s sad tale also proves all too true, as the Institute for Justice, champions for the would-be florist’s rights, can tell you.

[Crossposted at Agoraphilia and Technology Liberation Front.]

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There’s Plenty of Competition in Search and Plenty of Interest

by on July 28, 2008

To wit.

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Telecom and Transportation Should Be Focus of Infrastructure Investments, Says Think Tank

by on July 28, 2008 · 5 comments

WASHINGTON, July 28 – By combining better public information, market mechanisms and smarter systems of subsidization, the government can play a positive role in funding infrastructure investments in telecommunications, according to three reports released Friday by the Brookings Institution.

The papers, released on Friday at an event that also featured an address by Virginia Gov. Tim Kaine, are part of a Brookings Institution initiative promoting investments in infrastructure – both physical, transportation investments, as well as new ways to spur improvements in the telecommunications infrastructure.

“No economy improves with a declining infrastructure,” said Kaine, a Democrat. “Unless you make that high-tech investment easy by telecom access, you won’t get” improvements in your state’s economic condition, he said.

Brookings, a liberal-leaning think tank, released the reports as part of an initiative dubbed the “Hamilton Project.” The project seeks to put forward policy ideas that “embrac[e] a role for effective government in making needed public investments,” according to the think tank.

Read the complete story at BroadbandCensus.com

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Skype Back Door?

by on July 26, 2008 · 12 comments

How credible are these rumors? It seems like it should be possible to confirm or deny them by either monitoring Skype network traffic (to see if it’s sending data to a third party) or by reverse-engineering the Skype binaries. It also seems like if the “back door” were made available to a significant fraction of the world’s governments, it would be a hard thing to keep secret.

On the other hand, the showdown I predicted has not yet occurred, so it’s conceivable that Skype reached some kind of accommodation with US and EU regulators and quietly pushed a back door out with new versions of the software.

Update: One Slashdot commenter points to This report from Black Hat on efforts to reverse-engineer Skype. Looks like they’ve gone out of their way to thwart both tactics. Everything’s encrypted, and the peer-to-peer architecture means that the client sometimes randomly transmits data when you’re not making calls.

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Our First Net Neutrality Law: Congrats to our Big Gov’t Opponents

by on July 26, 2008 · 35 comments

It is a difficult thing for me to say, but I am man enough to do it: I must congratulate our intellectual opponents on their amazing victory in the battle to impose Net neutrality regulations on the Internet. With the Wall Street Journal reporting last night that the FCC is on the verge of acting against Comcast based on the agency’s amorphous Net neutrality principles, it is now clear that the folks at the Free Press, Public Knowledge, and the many other advocates of comprehensive Internet regulation have succeeded in convincing a Republican-led FCC to get on the books what is, in essence, the nation’s first Net Neutrality law. It is quite an accomplishment when you think about it.

Even though, as Jerry Brito has noted, “the FCC has no authority to enforce a non-binding policy statement,” it is clear that is not about to stop the activist-minded FCC Chairman Kevin Martin or his allies on the Left from advancing the cause of arbitrary, bureaucratic governance of the Internet. And that means the “Hands Off the Net” era will gradually start giving way to the “Hands All Over the Net” era. As I told Bob Fernandez of the Philadelphia Inquirer when he called to interview me for a story about these developments:

“This is the foot in the door for big government to regulate the Internet,” […] “This is the beginning of a serious regulatory regime. For the first time, the FCC is making law around net neutrality.”

And now that they have that foot in the door, I fully expect that it will be exploited for everything it’s worth to grow the scope of the FCC’s coercive bureaucratic authority over all things digital. The Left is salivating at the prospect of imposing their top-down vision of forced egalitarianism on the the Net, while the Right is figuring out how quickly they can exploit this to impose speech controls on anything they don’t want the public to see or hear.

It is a historic moment in the history of communications and media regulation, and freedom has lost—miserably. The tentacles of the regulatory Leviathan have grown infinitely longer and a little bit more of the Net’s freedom died today. And, again, what’s most amazing about this is that we have a Republican FCC to thank for that. So much for the GOP being for smaller government.

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RIP Randy Pausch

by on July 25, 2008 · 9 comments

Randy Pausch, a computer science professor who was diagnosed with pancreatic cancer in 2006, died today. You can watch his amazing and now-famous “last lecture,” delivered in September, here:

You can also buy a copy of his book here.

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“Reforming Fourth Amendment Privacy Doctrine”

by on July 25, 2008 · 0 comments

Frankly, I don’t expect the scholars, lawyers, and judges who have been steeping in traditional Fourth Amendment doctrine their entire careers to get the thesis of my recent American University Law Review article. But you can! And, eventually, if I do enough work, they will.

Here are some highlights from the introduction to “Reforming Fourth Amendment Privacy Doctrine“:

Since 1967, the Supreme Court and lower courts have relied too heavily on an unreliable test that arose from the leading Fourth Amendment case, Katz v. United States. Distracted by Justice Harlan’s concurrence in the case and befuddled by the concept of “privacy,” courts have ignored the simple rule of the actual holding in Katz and conditioned Fourth Amendment rights on surmises about privacy “expectations.”

Privacy is a real thing that need not be a matter of conjecture. The Katz Court held that personal information was protected by the Fourth Amendment because, as a factual matter, the defendant had kept it private. Installing a wiretap to overcome Katz’s use of law and physics to conceal information was unreasonable without a warrant. The Court did not base its holding on open-ended “expectations” or “reasonableness,” as Justice Harlan’s concurrence suggested, but on the affirmative steps Katz took to conceal that information.
. . .
If an individual has secured the privacy of particular information, the Fourth Amendment focuses on the reasonableness of the government’s actions in undoing that privacy, not on the reasonableness of the individual’s expectations.

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