April 2010

The potential of streaming video from the House of Representatives is so great that my first impression of the House’s new video offering, HouseLive.gov, has been disappointment. There is much room to improve HouseLive.gov, and I hope it will improve.

At first, I couldn’t find any video that was actually live. (That would inject a bit of irony into the name, eh?) But there is live video: On the homepage, scroll down to the top of the “Most Recent Sessions” chart. If the top of the list has an item called “In Progress,” the House is in session. Clicking the video link will get you live video from the House floor.

(Don’t be fooled by the “Subscribe to Live Feeds” box. Those are RSS feeds, which are “live”—as in regularly updated. They’re not live video or audio.)

Most people will probably access this from the House clerk’s familiar “Floor Summary” page, which has near-real-time updates about House activity. But that page says “Streaming video is not available for this session.” That’s a hiccup that should be easy to fix.

Selecting a past day, one can watch the video of that day, but in my early tests, you had to watch the video from the beginning. I don’t think many people are going to watch 10 hours of video to pick up their representative’s remarks on the bill to congratulate Camp Dudley of Westport, New York, on its 125th anniversary.

I’ve been testing in Firefox. In Internet Explorer, I got some links that do things. It appears you will be able to navigate around a day’s video based on the activity of the House. That is, you can jump to where the House began debate on the Camp Dudley bill.

Hopefully, the system will work in standards-compliant browsers, not only Microsoft’s. I note that the video currently plays only in Windows Media Player or Microsoft’s Silverlight. I’ll leave it to friends better versed in video to critique the selection of formats, but I have doubts about these two as being the best, and most open, available.

Beyond junctures in House debate, there should be more tagging to make the video useful. Not only should you be able to navigate via House activity, you should be able to navigate by bill number, and by member of Congress.

When you do navigate around, I don’t see that the “share” link changes. This needs fixing so that people can direct friends and colleagues to key portions of debates. In fact, you should be able to link to any point in the video. Ideally, there should be an embed function that allows defined segments of video to go into blog posts and such. That latter one is a big ask, but Congress is a big, important institution.

It’s early yet. Maybe these things are in the works or on the drawing board. Rolling HouseLive.go out in “beta,” getting feedback, and fixing it is A-OK. But sometimes government agencies set a course and have a hard time changing after that. The Thomas legislative system, brilliant as it was for 1995, still isn’t publishing bill data in good formats, and a private provider has had to take up the slack.

HouseLive.gov is better than nothing. It can be much, much better than it is.

Low-income states have a much higher degree of facilities-based competition than wealthier ones, according to a new report from ID Insight, a consulting firm that provides authentication, verification and fraud prevention solutions to financial services companies, credit issuers, retailers, online merchants and broadband providers.

The results, which surprised even its two authors, Adam Eliot and municipal broadband advocate Craig Settles, turns on its head the notions that only consumers wealthy markets are seeing the benefits of broadband competition and that Internet service providers have abandoned low-income rural areas as too costly to serve. One policy consequence already, the report says, is that most of the $7.2 billion broadband stimulus awarded so far has been directed to states and regions where there is robust competition and no shortage of service.

Continue reading →

The Supreme Court announced today that it will review a California law regulating the sale of violently-themed video games to minors. The case is Schwarzenegger v. Entertainment Merchants and I have written about it here before. This will be the first major First Amendment case regarding video game speech rights heard by our nation’s highest court. This afternoon, I issued the following press statement about the case and its importance:

“I hope the Supreme Court is taking this case to affirm the free speech rights of game creators and users, and not to overturn ten years of solid, sensible lower court decisions granting video games the same First Amendment protections as books, film, music and other forms of entertainment. Government regulation of game content is unnecessary because parents have been empowered with sophisticated video game parental controls and a highly descriptive ratings system that is widely recognized and easy to use. Lawmakers should focus their efforts on making sure parents are better aware of existing tools and ratings instead of trying to censor game content in such a plainly unconstitutional fashion. Let’s hope the Supreme Court affirms that educational approach and Ninth Circuit’s decision at the same time.”

Several reporters have already asked me if its a bad sign that the Court took the case at all and wondered if this meant that there are 5 votes for overturning the lower court decision.  It’s impossible to read the tea leaves on things like this, but I would generally agree that it’s not a good sign.  But I just don’t understand how the Supreme Court could uphold a law like this in light of all their recent Internet jurisprudence (CDA, COPA, etc) which held against the government when various “harm to minors” statutes were tested and found to be unconstitutional.  If the Supreme Court goes the opposite direction here, it will mean that our “First Amendment jurisprudential Twilight Zone” will become even more confusing and contorted. Let’s hope that’s not the case.

Last week, the Electronic Privacy Information Center released a petition from a group it spearheaded, asking the Department of Homeland Security to suspend deployment of whole-body imaging (aka “strip-search machines”) at airports.

The petition is a thorough attack on the utility of the machines, the process (or lack of process) by which DHS has moved forward on deployment, and the suitability of the privacy protections the agency has claimed for the machines and computers that display denuded images of air travelers.

The petition sets up a variety of legal challenges to the use of the machines and the process DHS has used in deploying them.

Whole-body imaging was in retreat in the latter part of last year when an amendment to severely limit their use passed the House of Representatives. The December 25 terror attempt, in which a quantity of explosives was smuggled aboard a U.S.-bound airplane in a passenger’s underpants, gave the upper hand to the strip-search machines. But the DHS has moved forward precipitously with detection technology before, wasting millions of dollars. It may be doing so again.

My current assessment remains that strip-search machines provide a small margin of security at a very high risk to privacy. TSA efforts to control privacy risks have been welcome, though they may not be enough. The public may rationally judge that the security gained is not worth the privacy lost.

Wouldn’t it be nice if decisions about security were handled in a voluntary rather than a coercive environment? With airlines providing choice to consumers about security and privacy trade-offs? As it is, with government-run airline security, all will have to abide by the choices of the group that “wins” the debate.

Wired‘s Ryan Singel has given a read to Cyberwar, the new cybersecurity book by Richard Clarke and Robert Knake. (I picked out a potential example of actual cyberwarfare in a Glenn Reynolds review of the book last week.)

Singel—a journalist who has been a sophisticated reporter of computer security issues for years now—is not impressed with the book or the reviews it has gotten. In his review, Richard Clarke’s Cyberwar: File Under Fiction, he writes:

So much of Clarke’s evidence is either easily debunked with a Google search, or so defies common sense, that you’d think reviewers of the book would dismiss it outright. Instead, they seem content to quote the book liberally and accept his premise that cyberwar could flatten the United States, and no one in power cares at all. Of course, the debunking would be easier if the book had footnotes or endnotes, but neither are included — Revelation doesn’t need sources.

It’s brief enough, and refreshing enough. I say read the whole thing.

Sober assessments of computer, network, and data security are far less interesting than the thrillers that would drive Washington policymakers to overreact. This report in Government Computer News, for example, relates the findings of a recent Symantec report on threats to government systems and gives reason to settle down about cyberthreats from China.

China was the top country of origin for attacks against the government sector in 2009, accounting for 14 percent of the total, but too much should not be read into that statistic. The apparent country of origin says little about who actually is behind an attack, said Dean Turner, director of Symantec’s Global Intelligence Network.

China’s ranking is due primarily to the large number of computers in the country, Turner said. Less than a quarter of attacks originating in China were directed at government targets, while more than 48 percent of attacks from Brazil — No. 3 on the hit list — were directed at government. This makes it unlikely that China is specifically targeting government systems.

Compromised computers that are the apparent source of attacks often are controlled from elsewhere, and an attack apparently emanating from China does not necessarily mean that the Chinese government, or even anyone in China, is behind it. Attribution of attacks is notoriously difficult, and statistics do not necessarily indicate that the United States is under cyberattack by China. In fact, the United States ranked second in origin of government attacks in 2009, accounting for 11 percent.

(Symantec is a vendor to governments, so naturally prone to threat inflation itself. GCN reporter William Jackson deserves credit for the sobriety of the story.)

Cybersecurity-related fearmongering could drive unnecessary dischord between the United States and China, leading to actual conflict where none is warranted. Singel again:

[A]rtists of exaggeration . . . seem to think spinning tall tales is the only way to make bureaucracies move in the right direction. But yelling ‘Cyberwar’ in a crowded internet is not without consequence. Not only does it promote unnecessary fear, it feeds the forces of parochial nationalism and militarism — undermining a communications system that has arguably done more to connect the world’s citizens than the last 50 years of diplomacy.

Just a reminder that PFF is hosting a panel discussion on “Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?” this Tuesday (April 27th) from 10:00-11:45 a.m at Hogan & Hartson LLP (555 13th Street NW, Washington, DC). To hold a seat, please RSVP for the event here.

The event features an all-star cast representing all sides (cable, broadcast and programming) of the fight over the FCC’s must-carry rules, which require cable television systems to dedicate some of their channels to local broadcast television stations. The Supreme Court narrowly upheld these “must-carry” rules in the mid-1990s. But last year’s DC Circuit decision striking down the FCC’s 30% cap on cable ownership lead Cablevision to challenge the must-carry rules. The Supreme Court will soon announce whether it will review the Second Circuit’s decision last June upholding the rules. Speakers at our event include:

  • Dan Brenner, Partner, Hogan & Hartson LLP; former director of regulatory and legal affairs at the National Cable & Telecommunications Association (NCTA)
  • Matt Brill, Partner, Latham & Watkins LLP; counsel for Discovery Communications, amicus in Cablevision case; former Senior Legal Advisor to FCC Commissioner Kathleen Abernathy
  • Jack Goodman, Counsel, WilmerHale; former general counsel of the National Association of Broadcasters (NAB)
  • Howard Symons, Member, Mintz Levin; counsel for Cablevision; former Senior Counsel to House Subcommittee on Telecommunications

Berin Szoka and I will co-moderate the session. Hope to see you Tuesday. Register for the event here.

The “Cyber Privacy Act”? No it ain’t!

Michigan Representative Thaddeus McCotter (R) has introduced a bill to create a take-down regime for personal information akin to the widely abused DMCA process. The Digital Millennium Copyright Act established a system where copyright holders could as a practical matter force content off the Internet simply by requesting it.

McCotter’s proposal would similarly regulate every Internet site that has a comment section. He thinks it’s going to protect privacy, but he’s sorely mistaken. Its passage would undermine privacy and limit free speech.

I’ll take you through how McCotter’s gotten it wrong.

The operative language of H.R. 5108 is:

Any Internet website that makes available to the public personal information of individuals shall–

(1) provide, in a clear and conspicuous location on the Internet website, a means for individuals whose personal information it contains to request the removal of such information; and

(2) promptly remove the personal information of any individual who requests its removal.

The Federal Trade Commission would enforce the failure to abide by requests as it does unfair and deceptive trade practices. (Meaning: penalties.)

So if someone posts his or her name in a comment section and later regrets it, the operator of that web site would have to take it down. Sounds nice—and that is the right thing for webmasters to do when the circumstances warrant. But what about when they don’t? Continue reading →

We at The Progress & Freedom Foundation announced a series of eight upcoming policy events today, taking the place of our previously scheduled Sundance Summit. Beginning this month, the events will run through the summer in the nation’s capital. By moving these events closer to home in this manner, PFF will be better positioned to speak to legislators, policymakers, and tech policy press before Washington turns its attention to the midterm elections.

The series of events (which you can add to your calendar here) will include several breakfast and luncheon panel presentations and two half-day conferences. Covering such areas as communications and competition policy, digital property, digital media freedom and Internet freedom, the events will include:

  • Tuesday, April 27: Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?” — A panel of experts will debate the future of “must carry” rules in the wake of a new challenge to their constitutionality by Cablevision, and what this decision could mean for other media. (RSVP here)
  • Friday, May 7: What Should the Next Communications Act Look Like?” — A discussion with key industry stakeholders about the future of the Telecom Act in the wake of the Comcast v. FCC decision and the looming battle over Title II reclassification of broadband. (RSVP here)
  • Thursday, May 20: Can Government Help Save the Press?” — This conference will discuss the FCC’s new “Future of Media” proceeding and debate what role government should play in subsidizing the press or bailing out failing media enterprises. (RSVP here)
  • Monday, June 7: “The Future of Speech on the Borderless Internet” — A panel of leading cyberlawyers will discuss trans-national regulation and litigation of defamation, hate speech, indecency and political dissent. (RSVP here)
  • Monday, June 21: Sports Programming & the Challenges of Digital Piracy— A discussion of the challenges that digital piracy, including unauthorized streaming, poses to professional and collegiate sports that have traditionally earned revenues from telecasts of games, bouts, etc. Continue reading →

In this week’s episode of the Surprisingly Free Podcast, I talk to Bruce Yandle, Dean Emeritus at Clemson College of Business and Behavioral Sciences. We talk about a public choice puzzle: how do you explain the explosion of social regulation in the 1970s at the same time we saw an explosion in economic deregulation? Yandle thinks it might have to do with the advent of national television networks. National networks allowed national brands to develop. Firms behind national brands had an interest in deregulated transportation and telecommunications networks, but at the same time had an interest in seeing uniform federal safety and environmental regulations. We also talk about the decline of common law and the growth of code law, and the death (and return) of good beer in America.

Do check out the interview, and consider subscribing to the show on iTunes. Past guests have included James Grimmelman on online harassment and the Google Books case, Michael Geist on ACTA, and Tom Hazlett on spectrum reform.

MP3 File: Yandle on the rise of national TV and the spread of social regulation

Check out the Volokh post and the clip to which it links. The post is titled “Anything You Can Do I Can Do Meta.”