On the podcast this week, Annemarie Bridy, professor of law at the University of Idaho, and visiting associate professor of law at the University of Pittsburgh, discusses her new paper, “Is Online Copyright Enforcement Scalable?” In it she looks at the advent of peer-to-peer (P2P) file sharing and the copyright enforcement problem it has created through the lens of scalability. In solving difficult problems of scale in their effort to revolutionize the distribution of information goods, the designers of P2P networks created a problem of scale in the form of “massive infringement.” Bridy discusses how to to approach solving that new problem of scale–massive infringement. Bridy argues that the DMCA has proven to be remarkably scalable for enforcing copyrights in hosted content but has altogether failed to scale in the context of P2P file sharing, leading to the dysfunctional workaround of mass John Doe litigation. She discusses alternatives to mass litigation, including dispute resolution systems and “three strikes” proposals.
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The White House’s release of its “Open Government Action Plan” today is timely. I’ll be rolling out the product of several months’ work on government transparency Friday at a Cato Institute event called “Publication Practices for Transparent Government: Rating the Congress.”
The paper we’ll release commences as follows:
Government transparency is a widely agreed upon goal, but progress on achieving it has been very limited. Transparency promises from political leaders such as President Barack Obama and House Speaker John Boehner have not produced a burst of information that informs stronger public oversight of government.
The reason is not lack of planning documents, meetings, or websites, as reading the White House’s announcement today might suggest, but lack of specifically prescribed data publication practices that foster transparency. The government should publish data about its deliberations, management, and results in ways that make it amenable to all the varied uses of websites, researchers, reporters, and the public at large.
We’ll be grading the Congress on how well it’s doing with publication of data about formal legislative process. Congress is first because it’s low-hanging fruit. We’ll soon be turning to information the executive branch can make more transparent: budgets, appropriations, and spending.
The programs featured by the White House today—a new “We the People” petition platform, whistleblower protection, and an “Extractive Industries Transparency Initiative”—are fairly tangential. Fuller government transparency will be a product of specific good publication practices applied to data about the government’s deliberations, management, and results.
More information, and registration for Friday’s event, can be found here.
Yesterday, the Federal Trade Commission (FTC) released its long-awaited proposed revisions to the Children’s Online Privacy Protection rule (the “COPPA Rule”). Below I offer a few brief thoughts on the draft document. My remarks assume a basic level of knowledge about COPPA so that I don’t have to spend pages explaining the intricacies of this complex law and regulatory regime. If you need background on the COPPA law and rule, please check out this paper by Berin Szoka and me: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”
Dodging the COPA / Mandatory Age Verification Bullet
The most important takeaway from yesterday’s proposal involves something the FTC chose not to do: They agency very wisely decided to ignore some requests to extend the coverage of COPPA’s regulatory provisions from children under 13 all the way up to teens up to 18. An effort to expand COPPA’s “verifiable parental consent” requirements to all teens would have raised thorny First Amendment issues as well as a host of practical enforcement concerns. In essence, it would have required Internet-wide age verification of children and adults in order to ensure that everyone was exactly who they claimed to be online. We already had an epic decade-long legal battle over that issue when the constitutionality of the Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA, was tested many times over and always found to be in violation of the First Amendment.
Regardless, the FTC didn’t go there yesterday, so this concern is off the table for now. The agency deserves credit for avoiding this constitutional thicket. Continue reading →
A few days ago, Ars Technica asked me to comment on a class action lawsuit against Paxfire, a company that partners with Internet Service Providers for the purpose of “monetizing Address Bar Search and DNS Error traffic.” The second half of that basically means fixing URL typos, so when you accidentally tell your ISP you want the webpage for “catoo.org,” they figure out you probably mean Cato. The more controversial part is the first half: When users type certain trademarked terms into a unified address/search bar (but not a pure search bar, or a search engine’s own home page), Paxfire directs the user to the page of paying affiliates who hold the trademark. So, for instance, if I type “apple” into the address bar, Paxfire might take me straight to Apple’s home page, even though Firefox’s default behavior would be to treat it as a search for the term “apple” via whatever search engine I’ve selected as my default.
The question at the heart of the suit is: Does this constitute illegal wiretapping? A free tip if you ever want to pose as an online privacy expert: For basically any question about how the Electronic Communications Privacy Act applies to the Internet, the correct answer is “It’s complicated, and the law is unclear.” Still, being a little fuzzy on the technical details of how Paxfire and the ISP accomplished this, I thought about what the end result of this was without focusing too much on how the result was arrived at. The upshot is that Paxfire (if we take their description of their practices at their word) only ends up logging a small subset of terms submitted via address bars, which are at least plausibly regarded as user attempts to specify addressing information, not communications content. In other words, I basically treated the network as a black box and thought about the question in terms of user intent: If someone who punches “apple” into their search bar is almost always trying to tell their ISP to take them to Apple’s website, that’s addressing information, which ISPs have a good deal of latitude to share with anyone but the government under federal law. And it can’t be wiretapping to route the communication through Paxfire, because that’s how the Internet works: Your ISP sends your packets through a series of intermediary networks owned by other companies and entities, and their computers obviously need to look at the addressing information on those packets in order to deliver them to the right address. So on a first pass, it sounded like they were probably clear legally.
Now I think that’s likely wrong. My mistake was in not thinking clearly enough about the mechanics. Because, of course, neither your ISP nor Paxfire see what you type into your address bar; they see specific packets transmitted to them by your browser. And it turns out that the way they pull out the terms you’ve entered in a search bar is, in effect, by opening a lot of envelopes addressed to somebody else.
Continue reading →
Come hear the other side of the privacy debate! Rep. Marsha Blackburn (R-TN) will lead a discussion among policy experts united by a desire to address demonstrated dangers of data abuse without giving up the value created by data as the vital currency of the digital economy. The Roundtable is Wednesday, September 14, 8-9:30 am in Congressional Visitors Center Meeting Room North, CVC 268:
The roundtable discussion will cover online privacy issues in anticipation of the final reports to be released this fall by the Department of Commerce and the Federal Trade Commission. Invited participants will consider questions and policy issues related to the value of data, where government should or shouldn’t be involved in regulating online privacy, and alternatives to government regulation.
Congressman Blackburn, a member of the House Energy and Commerce Subcommittee on Telecommunications and vice chair of the Subcommittee on Commerce, Manufacturing, and Trade, pledged to conduct a national series of tech industry roundtables in a speech to the Telecommunications Industry Association earlier this year. Her first roundtable was held in late June at the Interactive Advertising Bureau’s new online advertising community center in New York City. Congressman Blackburn also recently wrote an op-ed titled “The FTC’s Internet Kill Switch” that addresses why any proposed privacy regulation must consider the costs of diminished competition and innovation.
I shared my thoughts on Rep. Blackburn’s healthy skepticism of regulation in a CNET editorial in June: On Online Privacy and Avoiding overregulation. The TLF’s Ryan Radia (Competitive Enterprise Institute), Jim Harper (Cato), Larry Downes and I (both TechFreedom) will be there. Joining us will be Howard Beales (George Washington University School of Business), Daniel Castro (Information Technology and Innovation Foundation), Harold Furchgott-Roth (Hudson’s Center for Economics of the Internet), Tom Lenard (Technology Policy Institute) and Randy May (Free State Foundation)/
- Identify the harm or market failure that requires government intervention.
- Prove that there is no less restrictive alternative to regulation.
- Explain how the benefits of regulation outweigh its costs Continue reading →
On the podcast this week, Timothy B. Lee, adjunct scholar with the Cato Institute, a contributor to Ars Technica, and blogger at Forbes.com, discusses the recent patent wars and the prospects for reform. Over the last two decades, large software companies like Microsoft and Apple began acquiring a significant number of patents, gaining the power to shut down or demand payment from any software company that might inadvertently infringe those patents. Lee talks about Google’s entry into the patent game, particularly with the acquisition of Motorola. He also discusses the theory behind these patent wars and how the use of patents have been altered from incentives for innovation to a litigation shield. Finally, Lee talks about different proposals for patent reform, including a first to file scheme that is part of the America Invents Act.
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[Cross-posted at Reason.org]
In the wake of the Department of Justice’s lawsuit to stop the merger of AT&T and T-Mobile USA, there has been some discussion about where T-Mobile would end up if the government effort proved successful.
While debate continues whether a merged AT&T-T-Mobile would harm consumers, there is no disputing that T-Mobile itself is mired in business problems. For all the DoJ’s concern that T-Mobile remain in the market as a low-priced alternative for consumers, the company is short of the cash necessary to expand infrastructure at a pace to remain technologically competitive. Blocking the AT&T deal would not necessarily keep Deutsche Telekom, T-Mobile’s German parent, from seeking other buyers. Last week, Dave Goldman of CNN Money summed the situation up in “Without AT&T, T-Mobile is a White Elephant.” The facts he lays out are among the reasons the merger makes sense.
Yet let’s assume for a minute that the DoJ is successful in stopping the merger. A number of pundits both from both the business and the policy side have suggested other potential buyers could rescue T-Mobile. Sascha Segan at PC Magazine provided a good summary here.
Segan was just one of many analysts who pointed to Google, Apple and Comcast (or a cable company consortium) as potential T-Mobile buyers. There are numerous reasons as to why these companies might or might not make a bid. Yet what I find interesting the way several critics of the AT&T deal are almost giddy with the idea that one of these companies might jump at T-Mobile, noting that the entry of a deep-pocketed non-carrier might be a good development for the consolidating wireless industry.
Continue reading →
If you’re in DC this week, join Kevin Bankston from EFF, myself, fellow TLFers Berin Szoka, Geoff Manne, and Larry Downes, starting at 5:30pm at Johnny’s Half Shell, 400 North Capitol St NW. This event is being co-hosted by TLF and the Electronic Frontier Foundation (EFF). Please RSVP on Facebook so we have an idea how many people are attending. Attendees must be 21 or older. Space is limited.
And ALF 15 is already in the works. We’re planning to do it in conjunction with Digital Capital Week on November 8th. Stay tuned for more details!
I’ve reviewed many tech policy books here over the years, but have only found myself in agreement with a couple of titles. One of my favorites is “The Laws of Disruption” by fellow TLF co-blogger Larry Downes. [My short review is here] Larry does a terrific job documenting the technological forces (or “laws” as he calls them) that our reshaping the modern economy.
The fundamental law of disruption he identifies is: “Technology changes exponentially, but social, economic, and legal systems change incrementally.” Downes says this law is “a simple but unavoidable principle of modern life” and that it will have profound implications for the way businesses, government, and culture evolve going forward. “As the gap between the old world and the new gets wider,” he argues, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.” He’s exactly right and I’ll be elaborating on that “law” in more detail in a new paper with Jerry Brito as well as in my next book, which I’m finishing up currently.
Anyway, with Larry’s “law” in mind, I couldn’t help but laugh out loud when I was reading this Reuter‘s summary of a recent editorial from the People’s Daily, the main newspaper of China’s ruling Communist Party. The commentary lambasted the Internet, social networking technologies, and online culture. It contained this gem of quote that proves the Chinese government has a firm grasp of the Law of Disruption: “We have failed to take into sufficient account just how much the Internet is a double-edged sword, and have a problem of allowing technology to advance while administration and regulation lag.” Continue reading →
For CNET this morning, I have a long article reviewing the sad recent history of how local governments determine the quality of mobile services.
As it turns out, the correlation is deeply negative. In places with the highest level of user complaints (San Francisco, Washington, D.C.), it turns out that endless delays or outright denials for applications to add towers and other sites as well as new and upgraded equipment is also high. Who’d have thought?
Despite a late 2009 ruling by the FCC that put a modest “shot clock” on local governments to approve or deny applications, data from CTIA and PCIA included in recent comments on the FCC’s Broadband Acceleration NOI suggests the clock has had little to no effect. This is in part because the few courts that have been asked to enforce it have demurred or refused.
Much of the dithering by local zoning boards is unprincipled and pointless, a sign not so much of legitimate concerns over safety and aesthetics but of incompetence, corruption, and the insidious influence of outside “consultants” whose fees are often levied against the applicant, adding insult to injury. Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.