2011 — Page 6

Alisdair Gillespie on restricting access to the Internet

by Jerry Brito on November 1, 2011

On the podcast this week, Alisdair Gillespie, Professor of Criminal Law and Justice at De Montfort University in Leicester UK, discusses his new paper in the International Journal of Law and Information Technology, Restricting Access to the Internet by Sex Offenders. Gillespie discusses whether access to the Internet is a human right, and if so, when that right can be curtailed. He establishes that access to the Internet could be a negative right, then turns to how Internet access can be restricted in the case of sex offenders. Gillespie talks about different ways to prevent these offenders from using the Internet for ill, including complete restriction as well as technological tools similar to parental control software, and the difficulties that arise when trying to implement any one of these schemes.

Event: “A New Framework for Broadband and the FCC” (Nov. 9, 10:00am)

by Adam Thierer on November 1, 2011 · 5 comments

On Wednesday, November 9th, the Mercatus Center will be hosting an event on “A New Framework for Broadband and the FCC.” It will take place at the Reserve Officers Association from 10:00am – 11:30am. At the event, telecom experts Raymond Gifford, Jeffrey Eisenach, and Howard Shelanski that will examine if a new framework might be needed for broadband policy and the possibility of reforming the Federal Communications Commission. Both Eisenach and Gifford will be presenting new papers at the event and Shelanski will be offering commentary. RSVP here to hold a seat. Complete event summary follows. Continue reading →

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New Study on the Unintended Consequences of COPPA

by Adam Thierer on November 1, 2011 · 2 comments

I highly recommend this important new study on “Why Parents Help Their Children Lie to Facebook about Age: Unintended Consequences of the Children’s Online Privacy Protection Act” by danah boyd of New York University, Eszter Hargittai from Northwestern University, Jason Schultz from University of California, Berkeley, and John Palfrey from Harvard University. COPPA is a complicated and somewhat open-ended law and regulatory regime. COPPA requires that commercial operators of websites and services obtain “verifiable parental consent” before collecting, disclosing, or using “personal information” (name, contact information) of children under the age of 13 if either their website or service (or “portion thereof”) is “directed at children” or they have actual knowledge that they are collecting personal information from a child.

The new study, which surveyed over 1,000 parents of children between the ages of 10 and 14, reveals that, despite the best of intentions, COPPA is having many unintended costs and consequences:

Although many sites restrict access to children, our data show that many parents knowingly allow their children to lie about their age — in fact, often help them to do so — in order to gain access to age–restricted sites in violation of those sites’ ToS. This is especially true for general–audience social media sites and communication services such as Facebook, Gmail, and Skype, which allow children to connect with peers, classmates, and family members for educational, social, or familial reasons.

The authors conclude that “COPPA inadvertently undermines parents’ ability to make choices and protect their children’s data” and that their results “have significant implications for policy–makers, particularly in light of ongoing discussions surrounding COPPA and other age–based privacy laws.” Indeed, this paper could really shake up the debate over online kids’ privacy regulation. I will have more analysis of the paper in my weekly Forbes column this weekend.

Additional reading for COPPA background and current controversies: Berin Szoka & Adam Thierer, “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” (May 21, 2009); and Adam Thierer, “Kids, Privacy, Free Speech & the Internet: Finding the Right Balance,” (August 12, 2011).

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FCC Requires Online Public Inspection Files, But Misses Point of OpenGov: Data Accessibility

by Adam Marcus on October 31, 2011 · 1 comment

At last Thursday’s FCC Open Commission Meeting, the Commission proposed to require television stations to make their “public inspection file” available online. But availability is not accessibility.
If the FCC follows its usual practice of having filers submit PDFs
(many of which are often scanned from printed documents), this data may
be nearly useless to the small number of researchers who would really
benefit from having a large set of public inspection files available
online. Continue reading →

1 comment

Preliminary Thoughts on Stop Online Piracy Act (SOPA)

by Ryan Radia on October 26, 2011 · 18 comments

This afternoon the Stop Online Piracy Act (H.R. 3261) was introduced by Rep. Lamar Smith of the House Judiciary Committee. This bill is a companion to the PROTECT IP Act and S.978, both of which were reported by the Senate Judiciary Committee in May.

There’s ~~a lot~~ some to like about the bill, but I’m uneasy about ~~some~~ quite a few of its provisions. While I’ll have plenty to say about this bill in the future, for now, here are a few preliminary thoughts:

The bill’s definition of “foreign infringing sites” at p. 10 borrows heavily from 18 U.S.C. § 2323, covering any site that commits or facilitates the commission of criminal copyright infringement and would be subject to civil forfeiture if it were U.S.-based. Unfortunately, the outer bounds of 18 U.S.C. § 2323 are quite unclear. The statute, which was enacted only a few years ago, encompasses “any property used, or intended to be used, in any manner or part to commit or facilitate” criminal copyright infringement. While I’m all for shutting down websites operated by criminal enterprises, not all websites used to facilitate crimes are guilty of wrongdoing. Imagine a user commits criminal copyright infringement using a foreign video sharing site similar to YouTube, but the site is unaware of the infringement. Since the site is “facilitating” criminal copyright infringement, albeit unknowingly, is it subject to the Stop Online Piracy Act?
Section 103 of the bill, which creates a DMCA-like notification/counter-notification regime, appears to lack any provision encouraging ad networks and payment processors to restore service to a site allegedly “dedicated to theft of U.S. property” upon receipt of a valid counter-notification and when no civil action has been brought. The DMCA contains a safe harbor protecting service providers who take reasonable steps to take down content from liability, but the safe harbor only applies if service providers promptly restore allegedly infringing content upon receipt of a counter notification and when the rights holder does not initiate a civil action. Why doesn’t H.R. 3261 include a similar provision?
The bill’s private right of action closely resembles that found in the PROTECT IP Act. Affording rights holders a legal avenue to take action against rogue websites makes sense, but I’m uneasy about creating a private right of action that allows courts to issue such broad preliminary injunctions against allegedly infringing sites. I’m also concerned about the lack of a “loser pays” provision.
Section 104 of the bill, which provides immunity for entities that take voluntary actions against infringing sites, now excludes from its safe harbor actions that are not “consistent with the entity’s terms of service or other contractual rights.” This is a welcome change and alleviates concerns I expressed about the PROTECT IP Act essentially rendering certain private contracts unenforceable.
Section 201 of the bill makes certain public performances via electronic means a felony. The section contains a rule of construction at p. 60 that clarifies that intentional copying is not “willful” if it’s based on a good faith belief with a reasonable basis in law that the copying is lawful. Could this provision cause courts to revisit the willfulness standard discussed in United States v. Moran, in which a federal court found that a defendant charged with criminal copyright infringement was not guilty because he (incorrectly) thought his conduct was permitted by the Copyright act?

18 comments

Adam Thierer on Internet sales tax

by Jerry Brito on October 25, 2011

On the podcast this week, Adam Thierer, a Senior Research Fellow with the Technology Policy Program at the Mercatus Center, discusses his new paper, co-authored with Veronique de Rugy, The Internet, Sales Tax, and Tax Competition. With several states in the midst of budget crunches, states and localities struggle to find a way to generate revenue, which, according to Thierer, leads to an aggressive attempt to collect online sales tax. He discusses some of these attempts, like the multi-state compact, that seeks taxation of remote online vendors. Thierer believes this creates incentives for large online companies like Amazon to cut deals with certain states, where jobs will be created in exchange for tax relief. This, according to Thierer, creates unfairness for smaller online companies as well as for brick and mortar shops who have to pay taxes to the state where they have a physical presence. He proposes an origin-based tax, which imposes the tax where the purchase is made instead of tracing the transaction to its consumption destination. This proposal, he submits, will level the playing field between brick and mortar companies and online companies, and promote tax competition.

Web Pro News Interview on Net Tax Debate [video]

by Adam Thierer on October 22, 2011 · 7 comments

Web Pro News invited me on the show this week to chat about the ongoing Internet sales tax debate. Video embedded below. Here’s the new Mercatus paper that Veronique de Rugy and I wrote on the issue, which is referenced during the discussion.

More WebProNews Videos

7 comments

Time to Regulate These Tech Titans

by Adam Thierer on October 22, 2011 · 9 comments

Ladies and gentlemen, it is time for decisive action. Cyberlaw scholars have been warning us for years that tech titans dominate the digital landscape. Our leaders must act immediately to ensure that these 4 Internet gatekeepers don’t lock us in their walled gardens and turn us into their cyber-slaves. The future of Internet freedom is at stake. It’s market failure! There is no possibility of escaping their evil clutches. And there’s certainly no possibility markets will evolve to give us better choices. Only decisive regulatory action can give us a more competitive, innovative future.

[click for larger version]

9 comments

TechFreedom Joins Call to Action to Reform ECPA on Its 25th Anniversary

by Berin Szoka on October 21, 2011 · 0 comments

TechFreedom is calling on all Americans to stand up for their digital Fourth Amendment rights. The Constitution delicately balances privacy with the needs of law enforcement by making judges responsible for determining whether law enforcement has established ‘probable cause.’ This judicial warrant requirement has always been the crown jewel of our civil rights. Our Founding Fathers would be appalled to learn that this fundamental principle does not extend to our electronic communications and location. After all, they fought–and won–a revolution to prevent similar abuses by British authorities.

TechFreedom has joined with a philosophically diverse coalition of public interest groups in supporting the “Not Without a Warrant” grass-roots petition, which reads as follows:

The government should be required to go to a judge and get a warrant before it can read our email, access private photographs and documents we store online, or track our location using our mobile phones. Please support legislation that would update the Electronic Communications Privacy Act of 1986 (ECPA) to require warrants for this sensitive information and to require the government to report publicly on the use of its surveillance powers.

Today marks the 25th anniversary of ECPA’s passage. Anyone can sign the petition at NotWithoutAWarrant.com or show their support by liking the Facebook version.

TechFreedom Senior Adjunct Fellow Charlie Kennedy spoke at a Cato Institute event on Wednesday about modernizing ECPA. The video is archived here.

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What Does It Mean to Declare Broadband a “Human Right,” and What Are the Costs?

by Adam Thierer on October 18, 2011 · 4 comments

Freelance journalist Laurence Cruz was kind enough to call me recently looking for comment on whether broadband should be considered a human right. Well, actually, he probably didn’t have many options. If you do a quick search on the topic, you’ll find an endless stream of essays in favor of the proposition. Then, somewhere in the mix, you’ll find a few dissenting rants I’ve penned here in the past. So I’m getting used to playing the baddie in this drama.

Cruz’s essay is now up over at “The Network,” which is Cisco’s technology news site. Here’s what I had to say in opposition to the proposition:

Continue reading →

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