Hit and Run has the story of a patent that should never have been granted.
Articles by Jim Harper 
Jim 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.
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A friend has forwarded me the apology that Clear apparently sent out to all its members today. A laptop with information about new enrollees went missing for a while. It’s a minor security breach, but these things tend to get overblown, so there’s no alternative but to address it forthrightly. Er, no good alternative . . . .
My reason for not using Clear, by the way, is not the risk of breaches like this. It’s registering with the government (through Clear) for preferential treatment when traveling. Other than that, Clear is a very cool privately issued credentialing system whose virtues I regularly tout.
Clear’s apology, after the break:
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An ex parte letter submitted to the FCC in the Comcast Kerfuffle – subject of strong criticism by TLF-friend and friendly sparring partner Harold Feld – got me thinking on another level about the FCC’s recent action against Comcast.
Among the accusations against Comcast is that it throttled a P2P conduit for movies because it’s also in the busines of delivering movies. The letter points out that colleges and universities, which have no similar interests, do the same things or take far blunter actions against P2P. It’s not a bad point, and it helps dispell the idea that Comcast was doing anything other than trying to provide good Internet service to the bulk of its customers.
Now, given that the letter summarizes the practices of many top universities, it throws in a provocative line: “If there is to be regulation, therefore, it must apply equally to all providers.” This suggests that the same regulation must apply to universities, which got Harold, Ars Technica, and a few others foaming.
The point of the letter was that network managers who don’t sell video services also degrade P2P. Point made. And from what I’ve seen of the reaction: point conceded. Comcast’s network management wasn’t motivated by an anti-competitive impulse.
But still, Feld seemed to argue, Comcast doesn’t get to do that because . . . it’s Comcast. Or something. It’s this blindness to a real legal justification or a real distinction between Comcast and other Internet service providers that I think has him walking hand-in-hand with the FCC into the NCTA’s trap.
The paragraph prior to the provocative line suggesting regulation of universities contains this sentence: “Allowing some Internet service providers to manage P2P traffic – much less to engage in complete blocking of P2P traffic – while prohibiting others from doing so would be arbitrary and capricious.” This is an administrative-law term of art – “arbitrary and capricious.” The use of it tells us that NCTA or Comcast will challenge the FCC’s decision to regulate only one provider of Internet access without regulating all similarly situated.
But Comcast is under a different regulatory regime!, says Harold and the others. Not in an enforcement of this “broad policy statement” thing-y. The FCC is claming free rein to regulate – not authority based firmly in statute – and if it can throw that rein over cable ISPs, it can throw that rein over universities, over Starbucks, and over the open wi-fi node in Harold’s house.
Now, given the free rein that the FCC is asserting, there is a darn good argument that it’s arbitrary (and “capricious”) to regulate only cable ISPs or commercial ISPs in this way. The FCC has to regulate the whole damn Internet this way if it’s going to regulate Comcast.
Is it the best argument ever? Nope. But it’s good enough for what FCC Chairman Kevin Martin wants to do.
Wait. What Kevin Martin wants to do? No, Jim, it’s the NCTA that’s setting the trap.
Au contraire, my inner voice. It’s Kevin Martin. He’s crafty.
By instituting this weird, weak, and barely legal regulation, Kevin Martin will get ‘net neutrality regulation bottled up in the courts for – what – the next five years? By that time, there’s a decent chance of there being more competition among ISPs. Projects like Broadband Census and NNSquad may have changed the product and market landscape. The political landscape will have shifted in exciting new ways. And when the FCC loses in the D.C. Circuit (yet again), the issue returns to a Congress where advocates of Internet regulation have moved to new issues and gotten rusty on net neutrality regulation. It’ll be another three or four years after the FCC loses before their net neutrality regulation efforts can get a head of steam.
So, has Kevin Martin deftly disposed of the ‘net neutrality issue for the next decade? My theory is plausible, though I know some would dispute it. Adam Thierer would undoubtedly call it “absurd” – but he puts that adjective on just about everything.
Net neutrality regulation wasn’t even close to getting through Congress, Adam argued to me recently, and Martin is motivated by his hatred of Comcast and the cable industry, along with his political aspirations. The former point is the strongest, but it’s a matter of perception. What I know of Chairman Martin is not a wild-eyed zealot or a hater, but a planner and careful thinker. Regulating Comcast doesn’t really redound to his political benefit in any meaningful way, and his political aspirations are doomed if he thinks it does.
So that’s my theory, and I’m stickin’ to it: Kevin Martin has set back net neutrality regulaton by a decade – by letting the camel’s nose under the tent.
The strange bedfellows in the Accountability Now PAC are organizing a money bomb for August 8th, and are asking bloggers to post things like this:
If you were outraged by the FISA “compromise” that immunized law-breaking on the part of telecommunications companies – and if your outrage lasts – you might want to join in the fun.
This interesting post on The 463 reminds us that the opening of society in China may not lead to a blossoming of freedom and tolerance, but to a nationalist frenzy like we saw in the Balkans after the fall of communism there.
I don’t know whether the Chinese people have separate ethnic identities that would lead them to fight each other, or whether China as a whole would turn against the world (and especially the United States) in a fit of nationalist anger. Anyone?
If it’s not already happening, I can certainly see Chinese party officials whipping up nationalism seeking to hold power on the cheap.
Something to think about when you go to decide whether tech companies should engage with China. I still think they should, but soberly, and not so much like a neocon expecting to be met with flowers in Iraq.
Before leaving for its August recess last week, Congress saw the introduction of its 10,000th bill. Meanwhile, not a single one of the twelve annual bills that direct the government’s spending priorities in 2009 has passed the Senate and only one has passed the House. Congress is neglecting its basic responsibility to manage the federal government, and is instead churning out new legislation about everything under the sun.
What does Congress occupy itself with? A commemorative postage stamp on the subject of inflammatory bowel disease. Improbable claims of health care for all Americans. And, of course, bringing home pork. Read about it on the WashingtonWatch.com blog.
First, an excerpt:
[W]hen you search with Cuil, we do not collect any personally identifiable information, period. We have no idea who sends queries: not by name, not by IP address, and not by cookies (more on this later). Your search history is your business, not ours.
Next, the obligatory read the whole thing.
Because you can. It’s just a little over 500 words.
Though Adam has already declared the end of the world (and himself “man enough” to admit it – let’s let others judge that, hmm, Adam?), FCC Commissioner Robert McDowell sounds a less dire, but still very cautionary note in this WaPo Op-Ed.
A taste:
If we choose regulation over collaboration, we will be setting a precedent by thrusting politicians and bureaucrats into engineering decisions. Another concern is that as an institution, the FCC is incapable of deciding any issue in the nanoseconds that make up Internet time. And asking government to make these decisions could mean that every few years the ground rules would change based on election results. The Internet might grind to a halt in such a climate. It would certainly die of clogged arteries if network owners had to seek government permission before serving their customers by managing surges of information flow.
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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