Keeping politicians' hands off the Net & everything else related to technology
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.
Mike from TechDirt has done a thorough write-up of last week’s copyright conference at the Cato Institute. It’s a fair assessment of things, but naturally skewing toward his perspective, which was a welcome contribution to the event. One can’t help but suspect that the length of his assessment is due to the fact that he had a whole bunch of time on a plane returning to California, when he could have been networking.
Wednesday’s Cato conference Copyright Controversies: Freedom, Property, Content Creation, and the DMCA has been posted on the Web in various formats for your viewing and listening pleasure. Interesting ideas and moments abound.
As expected, last night’s TLF happy hour was a tremendous success. Dubbed Alcohol Liberation Front, it saw the largest convergence of TLF bloggers ever in a single location. Not only that, but the event saw a record number of TLF readers attending to join in convivial, spirited conversation – not to mention a teeming crowd of TLF-oblivious revelers. Needless to say, there was plenty of noise and plenty of jostling to get to the almost-packed bar.
And it’s no wonder. What an opportunity! – to gather and talk about all the stuff that we usually write about!
I, for one, am still dizzy from the excitement generated by the event, or perhaps that’s “queasy.” No matter. I’m looking forward with intense trepidation to the next Alcohol Liberation Front event. Hearty thanks to Tim Lee for organizing and for coming up with the zinger quote of the night: “Another gin and tonic for my analog hole.”
(WTF?)
The New Hampshire Senate Committee on Pubic and Municipal Affairs unanimously approved legislation to refuse the state’s participation in the REAL ID Act today. The bill passed the House with a large favorable vote and is scheduled for a full Senate vote within two weeks.
Both the Manchester Union Leader and the Concord Monitor editorialized in favor of the bill, which would prevent New Hampshire from participating in a national ID program. ADDED: The Nashua Telegraph also favors the bill. ADDED: Video of a rally in favor of the bill to kill REAL ID in New Hampshire.
This is a very exciting opportunity for a small state to topple a big-government program – and, oh, might I add, protect all of our privacy and liberties by forcing a debate on national ID in the U.S. Congress. More to come on this in the future and in my forthcoming book, Identity Crisis: How Identification is Overused and Misunderstood
Very exciting things are happening in New Hampshire, where the House has passed a bill to refuse participation in the federal REAL ID Act. REAL ID is a bill that attempts to coerce states into issuing nationally standardized drivers’ licenses and identification cards. It also would have states enter information about citizens and residents into a national database.
I went to New Hampshire Monday to testify to the State Senate Committee on Public and Municipal Affairs, which is considering passing HB 1582 . . . or . . . perhaps it will accept a $3 million grant to comply with REAL ID, which would commit the state to spending ten times that amount in compliance costs.
The reason this is so important is that a national ID will help advance unified record-keeping, particularly by governments, rendering people more susceptible to surveillance and control. A national ID would be a major shift in power from individuals to institutions.
I deal with all these issues in my forthcoming book Identity Crisis: How Identification is Overused and Misunderstood
And, yes, I will be plugging my book here on TLF for the next couple of months. It seems shameless, but I’m doing it for you. You need to read this book and learn about the magical, everyday process of identification!
Yesterday, the Cato Institute issued Tim Lee’s paper, Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act. Reaction has been swift and favorable.
These, and other examples, show that Tim’s paper, especially coming as it does from the Cato Institute, is enjoying enthusiastic appreciation. It’s a needed addition to the discussion of copyright law, protection, and business in the digital age.
I’m taking bets on when the paper is blogged on IPCentral . . . !
Michael Geist notes the recent decision in Bunt v. Tilley, a case in the High Court of Justice, Queen’s Bench Division. The plaintiffs in the case argued for holding ISPs liable when their services are used in defamation. Happily, they lost.
There is an argument that ISPs represent the most efficient source at which to control all kinds of bad acts, including gambling, defamation, copyright violation, propagation of viruses, and so on. As I argued in my Regulation paper “Against ISP Liability,” though, efficiency is not the highest goal of legal rules.
Supposedly efficient ISP liability would be devastating to the Internet. I quote me:
Consider the Internet access market and the viability of the network effect if ISPs were liable for copyright violation, obscenity, and defamatory statements put out by their clients. Looking at potentially massive payouts, ISPs would screen content thoroughly, charging clients substantially higher sums for the service. They would restrict their clientele to established media companies and sophisticated, wealthy parties who could
indemnify them.Under such a regime, the Internet might be about where digital cable systems are, with lots of downstream content and very little opportunity for interactivity, much less individual publishing. The robust, democratized, one-to-all medium we have today . . . was not a foregone conclusion in its early years.
So I approve of the result in Bunt v. Tilley, though there are flaws. Geist points out a suggestion in the case that notice to an ISP of defamatory content might be enough to create liability. But I hope that future cases will dispel that notion.
I like to think that what is happening here is what would have happened in the U.S. in the absence of the Communications Decency Act, which preemptively did away with ISP liability. Me I quote approvingly again:
Had common law processes been left to determine ISPs’ liability, a variety of courts would have weighed the competing interests through strings of real-world decisions over several years. As likely as not, they would have concluded that ISPs have no duty to protect the world from their clients.
In an earlier post, I made a normative criticism of the fact that the Rambo franchise transferred more than a billion dollars from consumers to producers. (And I will now kill myself for using the pretentiously scholarly word “normative.”)
My opinion is that creation of that character and associated entertainment was not worth a billion dollars. And I think it’s OK to have this opinion because the Constitution’s copyright/patent clause calls for policy judgments about the extent and scope of intellectual property protection.
I came across some discussion today about how much money the Mozilla foundation makes off the Firefox browser. The gossip is that they made $72 million dollars. It may be more; it’s probably less. And it’s interesting that Mozilla folks come across as defensive about making money. (That’s consistent with the IPCentral theme that open source and free culture people are anti-capitalist. OK. So what? Free to be wrong.)
So, while trying to avoid one, the Mozilla folks have stumbled into a new(ish) content business model, advertising-supported software. The difficulty with this business model is that a LOT of people have to like your product, and you don’t get paid Microsoftnormous amounts of money when they use it. Sounds suspiciously like life in a . . . competitive market.
Because Mozilla is not relying on copyright, I think they’re entitled to earn based on marginal value. But I see the income from the Firefox browser as potential evidence (among much more that is needed, and not itself definitive) going to where the copyright balance should be struck when we make that policy judgment.
Yesterday, the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee approved a report called the “Framework for Privacy Analysis of Programs, Technologies, and Applications.” It is a step-by-step checklist for reviewing security programs in light of their consequences for privacy and related values.
I’m a member of the Committee and worked hard on writing the document and moving it through the Committee. This renders the Privacilla press release about it bizarrely self-congratulatory. But, in it, I’ve said:
“Privacy” is a word used to describe many interests, including confidentiality, anonymity, seclusion, fairness, transparency, accountability, and liberty. These are things that all Americans believe in, want, and enjoy. As privacy advocates, we are asking for good government and pursuing values that most Americans hold dear. The DHS Privacy Committee’s Framework document helps make this clearer.
(With this ‘blog post, you can add bizarrely self-referential to bizarrely self-congratulatory.)
Along with the privacy discussion, the document calls for risk-based explanation of homeland security programs. The things DHS does should directly and logically address genuine risks to national security. It’s time to end the do-anything, do-everything stance that homeland security efforts have taken since 9/11.
Now that the DHS Privacy Committee’s Framework document is out, smart, focused national security can begin! Privacy and civil liberties can be restored! Birds can sing again!
Several months ago, I outraged several people by wondering aloud whether video voyeurism should really be illegal. Sure, it’s perverted and wrong, but I’m skeptical of making perverted acts illegal in the absence of harm to an identified person. Non-harmful perversion is probably better left to moral opprobrium. After all, if everyone got to express their moral outrage through law, where would we be?
Perhaps Virginia.
Legislators there are working on a law to ban ‘upskirting’ And ‘downblousing.’ Taking surreptitious pictures of people’s private areas could subject Virginians to a year in jail or a $2,500 fine.
Clearly, this is a response to the advance of technology and the development of miniaturized cameras. But why should technology get the blame? Why aren’t scantily clad people regarded as causing all the problem? I don’t think there’s much to distinguish ‘upskirters’ and ‘downblousers’ from ‘exhibitionists.’ It’s just that, in this case, the exhibitionists were there first.
Amusingly, the story about the Virginia law is accompanied by a picture of a young woman’s mid-section, as if they were half-way to diagramming how ‘upskirting’ is done.
That reminded me of an article I read this morning deriding Fox News for interviewing moralist right-wingers and also doing a disproportionate number of stories about babes and their babeishness. I was amused (and kept interested) by all the screen captures in the Fox-critical piece. I think the tut-tutters were taking a page from the Fox media playbook.
I wonder how many Virginia legislators are looking at upskirt snaps on the Internet ‘for research.’
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
