Articles by Jim Harper

Jim HarperJim is the Director of Information Policy Studies at The Cato Institute, the Editor of Web-based privacy think-tank Privacilla.org, and the Webmaster of WashingtonWatch.com. Prior to becoming a policy analyst, Jim served as counsel to committees in both the House and Senate.


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.

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.

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 →

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

Secrecy breeds suspicion, and little in the intellectual property area has garnered more suspicion than ACTA, the Anti-Counterfeiting Trade Agreement.

ACTA is a multilateral trade agreement that has been under negotiation since 2007. But the negotiations haven’t been public, and access to key documents has only been provided to people willing to sign a non-disclosure agreement.

It is inconsistent with the U.S. public’s expectations to have government officials negotiate public policies without providing public access to the deliberations and the documents. There are some limitations and exceptions to this principle. Generic diplomatic relations probably develop best in an environment where candor can prevail. Issues related to national security may require secret negotiations. But intellectual property issues affect all Americans’ communications, commerce, entertainment, expression, access to knowledge, medical care, privacy, and more.

The good news is that a text of the current draft agreement has now been released. According to James Love of Knowledge Ecology International, ACTA “goes way beyond counterfeiting and copyright piracy, into several categories of intellectual property rights, including patents, semi conductor chip designs, pharmaceutical test data and other topics.”

Public debate on ACTA can now begin, but it begins with doubts surrounding it, doubts that were sown by the non-public process in which ACTA has developed so far.

PC World Headline Fail

by on April 20, 2010 · 3 comments

Stephen Lawson reports here on BitTorrent CEO Eric Klinker’s comments about net neutrality regulation at the eComm conference yesterday. Klinker used the word “regulation” to mean a couple different things in his remarks, but nothing he said justifies the headline PC World gave the story.

Here’s Lawson reporting Klinker’s comments:

“There is no ambiguity. There is not going to be, at least in the near term, a strong regulator for broadband,” Klinker told the eComm conference in Burlingame, California.

Instead, it is the public that will pass judgment on how service and application providers behave, Klinker said. “The public is our regulator.”

“The public is our regulator.” But PC World ran the story under this headline:

“Broadband Has No Regulator, BitTorrent CEO Says.”

It will not be a government regulator; it will be the public. Perhaps Klinker regards the public as a weak regulator, but PC World takes the public to be no regulator at all. Stupendous.

Even the strongest skeptic of markets believes that the public has some influence on businesses’ decisions and actions. With inaccurate headlines like this, PC World could stand to learn what market regulation is like when readers stop reading and advertisers stop advertising.

It’s worth noting that Klinker almost certainly helped incite and organize public reaction to the Comcast Kerfuffle, enjoying a PR coup that is still paying his company dividends. Klinker knows a little bit about how markets regulate.

It’s intended as a cute line, but the opener of Stephanie Clifford’s New York Times story about custom coupons is packed with ideological assumptions: “For decades, shoppers have taken advantage of coupons. Now, the coupons are taking advantage of the shoppers.”

Meta-data in printed coupons can reveal much about the people using them.

Here’s a shocker, people: Free money might come with strings attached.

It would be wrong to dismiss the privacy problems that custom coupons might contain. They’re similar to the privacy problems that lots of other new technologies and business processes have. But the starting point if you worry about them is that you don’t have to use them.

I don’t—and it’s not even because of privacy worries. I just don’t.

But Clifford quotes two advocates of government regulation in her article—zero advocates of freedom, market experimentation, or innovation. Ed Mierzwinski, consumer program director for the United States Public Interest Research Group, says, “There really have been no rules set up for this ecosystem.”

Rules, rules. Anything new has to be draped in rules.

I would have opened the article saying, “For decades, shoppers have taken advantage of coupons. Now, the deal is going to be a little more fair.” Where does the story go from there?

Years ago, when I worked on Capitol Hill, a colleague invited me to attend a meeting with some university professors who had a new idea for regulation of the telecommunications sector.

“Bits,” they said. “All regulation should center on bits.”

With convergence on IP-based communications, the regulatory silos dominating telecommunications would soon be more than anachronistic. Indeed, they would be a burden on the telecom sector. Bits were the fundamental unit of measure for the coming telecommunications era, and regulation should be formed around that reality.

My colleague and I looked at each other, amused. Continue reading →

TechLawJournal has a thorough analysis of Justice John Paul Stevens’ opinions in technology-related areas. I reproduce it here with permission. (Tim Lee’s shorter Cato@Liberty post about Justice Stevens’ legacy in tech is here.)

Justice John Paul Stevens, who has served on the Supreme Court since 1975, announced on April 9, 2010, that he will retire when the Court completes its current term this summer. This article reviews his contributions to technology related areas of law.

Outline of Article:
1. Summary.
2. Copyright Cases.
3. State Immunity in IPR Cases.
4. Patent Cases.
5. Communications Cases.
6. Internet Speech Cases.
7. Privacy Cases.
8. Other Cases.

1. Summary.

Justice Stevens wrote the majority opinion in the 1984 landmark Sony Betamax case. It was a 5-4 opinion. He joined in the unanimous 2005 opinion in MGM v. Grokster, regarding vicarious copyright infringement by the distributors of peer to peer systems. He wrote a long and vigorous dissent in Eldred, the 7-2 case regarding the Copyright Term Extension Act.

Justice Stevens led the fight against extending sovereign immunity to states for violation of, among other things, intellectual property laws. He dissented from the outset, and never considered the Court to be constrained by the doctrine of stare decisis. However, his concern was with the conservatives’ interpretation of states rights, not incenting the creation of intellectual property. Continue reading →