Articles by Ryan Radia

Ryan is associate director of technology studies at the Competitive Enterprise Institute, where his work focuses on adapting law and policy to the unique challenges of the information age. His research areas include privacy, IP telecommunications, competition policy, and media regulation.


FCC’s DRM ban may derail distribution of new-release films on cable TV

by on August 5, 2008 · 44 comments

There’s been a lot of FUD floating around about the MPAA’s plan to offer new release films for cable subscribers to watch at home on pay-per-view channels. Currently, movies come out on DVD about four months after their theatrical release, and are typically available on pay-per-view a month or two thereafter. As box office receipts have waned, Hollywood has warmed to the idea of letting consumers watch movies at home just a few weeks after being released in theaters.

Due to piracy concerns, new movies would be subject to an extra layer of copy protection. The movie studios want to use a technology called Selectable Output Control (SOC) to prevent new release films from being viewed on analog outputs. SOC makes it possible to seal the “analog hole” by disabling all unprotected paths.

Consumers are willing to pay to watch new movies at home, and content producers are willing to transmit them, but government is standing in the way. FCC regulations forbid multi-channel video programming distributors from activating SOC, but firms may apply for a waiver from these rules if they can demonstrate that consumers stand to benefit. The MPAA has applied for a waiver, arguing that “These new Services are exactly the type of ‘new business models’ that the Commission contemplated when it adopted the encoding rules.”

Under Section 304 of the Telecommunications Act of 1996, the FCC is tasked with “assuring commercial consumer availability of equipment used to access services provided by multichannel video programming distributors.” FCC regulations, therefore, mandate that all video transmitted on cable TV must be viewable on all outputs, including legacy analog connectors like RCA and S-Video. In a 2003 Notice of Proposed Rulemaking, the FCC stated that, “we are concerned that selectable output control would harm those ‘early adopters’ whose DTV equipment only has component analog inputs for high definition display, placing these consumers at risk of being completely shut off from the high-definition content they expect to receive.”

But it’s expected that early adopters will sometimes encounter technical hurdles. Why should Selective Output Control be any different? Just as HD-DVD players are effectively obsolete, and K56flex modems are no longer supported by most dial-up ISPs, people who bought HDTVs several years ago prior to the adoption of HDCP might have to live without the ability to watch new release movies at home.

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Comcast resists pressure to drop Usenet access

by on July 21, 2008 · 10 comments

Facing threats of legal action from New York Attorney General Andrew Cuomo, many ISPs have curbed newsgroup access in the name of fighting child porn. Now, it looks like a big fish is holding out: Comcast.

Good for them. While it’s understandable that other ISPs elected to fold under intense pressure from an overzealous AG with a powerful bully pulpit, Comcast is entirely justified in standing its ground.

It’s not the responsibility of network providers to police their servers for potentially illegal files, as the Communications Decency Act makes clear. The only legal obligation of an ISP is to remove illegal content upon gaining knowledge of its existence on their network. But that hasn’t stopped Cuomo from sending a harsh letter to Comcast threatening to pursue “legal remedies to stop child pornography” if the cable giant doesn’t comply with his terms.

Cuomo wants ISPs to go far beyond merely removing illegal content as it’s discovered. The “voluntary agreement” that New York is pushing on ISPs has already resulted in many providers dropping newsgroup access completely, causing millions of subscribers to lose access to Usenet. Even among users who haven’t been completely cut off from newsgroups, the popular alt.* hierarchy has been disabled, making it nearly impossible to acquire anything larger than text files. The worst part is that the “bad guys” are unaffected by the crackdown on child porn—third-party Usenet servers with uncensored newsgroup access are a dime a dozen these days.

A legal battle with Cuomo might not be cheap, but it’d be worth fighting nevertheless. As I pointed out last month, suppressing speech through so-called “voluntary agreements” likely runs afoul of the First Amendment, and ISPs enjoy immunity under the Safe Harbor provisions of the Communications Decency Act.

Like his notorious predecessor, Andrew Cuomo seems bent on building his image as a crime-fighter through meaningless publicity stunts, even if it means extorting legitimate businesses to the detriment of consumers.

Let’s hope Comcast forces Cuomo to put his money where his mouth is—the future of free speech online may hang in the balance.

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Google vs. Google

by on July 8, 2008 · 10 comments

Google has found itself stuck between a rock and a hard place in its legal battle with Viacom over the question of whether IP addresses constitute “personally identifiable information,” as Jim pointed out yesterday. It’s worth noting, however, that EU regulators have left Google little choice but to stake out uncharted territory in order to defend its data collection practices.

Under the European Union’s strict privacy directive, websites are prohibited from retaining “personal data” for more than six months. What exactly constitutes personal data is up for debate. Google, which retains IP addresses for 18 months, has taken the position that IP addresses don’t constitute personal data and therefore are not subject to EU data retention limits.

That argument has placed Google in a double-bind in its legal proceedings with Viacom. In his recent ruling, Judge Stanton specifically referenced Google’s recent blog post which argued that IP addresses should not be considered personally identifiable information. If IP addresses aren’t private, Stanton reasoned, then what’s the harm in Google handing them over to Viacom?

Whether an IP address can identify an individual is a matter of context. Google stated recently, “Based on our own analysis, we believe that whether or not an IP address is personal data depends on how the data is being used.” That makes sense; an IP address alone is generally not enough information to identify an individual, absent a court order.

Yet while IP addresses are not capable of overtly identifying individuals in the same way as phone numbers and addresses, IP addresses combined with other details often make it possible to positively identify individuals with a high degree of accuracy. Anybody can run a reverse DNS lookup on an IP address, which usually reveals the city and state in which the user of that IP address is located, along with the service provider. The YouTube logs that Google has been ordered to produce include not just IP addresses but also usernames and specific viewing times, so it’s all but guaranteed that quite a few individuals could be personally identified given enough man-hours of data mining.

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Rigid federal mandates hinder privacy technologies

by on June 16, 2008 · 6 comments

Privacy laws threaten e-commerce innovation, as Wayne Crews and I argue in an op-ed in yesterday’s San Jose Mercury News:

Politicians have long used corporations as convenient whipping boys, and the technology industry is no exception. Today, tech companies face political attacks over their online privacy policies. Rep. Joe Barton, R-Texas, for instance, recently demanded that Google provide a detailed explanation of how it stores user search queries.

The federal government, so eager to safeguard privacy, is itself the worst offender, unwilling to abide by the same stringent opt-in standards that regulations would impose on private firms. The post-Sept. 11 push for compulsory national ID cards, warrantless wiretapping and escalating data retention mandates reveal a government inclined toward violating privacy, not protecting it.

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New York AG pressures ISPs to cut off Usenet access

by on June 11, 2008 · 24 comments

Time Warner, Verizon, and Sprint will restrict access to tens of thousands of Newsgroups in order to stem illegal child pornography as part of an agreement with New York State Attorney General Andrew Cuomo announced yesterday. Although ISPs have no obligation to provide newsgroup access, and there are plenty of alternative methods for users to browse Usenet discussion groups, the agreement raises serious Constitutional questions.

The agreement is supposedly “voluntary,” but this doesn’t necessarily resolve all First Amendment concerns. Hans Bader, CEI’s Counsel for Special Projects, posted a good overview on the Constitutional implications of the New York announcement over at OpenMarket.org:

“In truth, the settlement blocking access to newsgroups is not really “voluntary.”  It’s the coercive result of threats of litigation from the New York Attorney General’s office.  Supposedly “voluntary” settlements can constitute government regulation that violates the constitution.   The Supreme Court has said that even a State’s “contractual condition” is subject to constitutional scrutiny (See South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984)), and federal appeals courts have observed that the fact that a state official and a business “have entered into an agreement does not necessarily insulate it from scrutiny under” the Constitution.  (See Automated Salvage Transport, Inc. v. Wheelabrator Ent’l Sys. Inc., 155 F.3d 59, 78 (2d Cir. 1998)).  And a “voluntary agreement” incorporated into a consent decree can constitute state regulation that is preempted by federal law, as the Supreme Court observed in 1981.  (Ridgway v. Ridgway, 454 U.S. 46, 47, 53 (1981)).

This isn’t the first time Andrew Cuomo has pressured firms to engage in online censorship. Back in October 2007, I discussed how Facebook “voluntarily” agreed to censor user content to reduce the chances that minors would encounter obscene images.

Mr. Cuomo seems awfully effective at persuading providers to curtail user speech–perhaps he made an offer the ISPs couldn’t refuse.

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FCC targets long-term service plans

by on June 9, 2008 · 8 comments

Are you a mobile phone user, FiOS TV subscriber, or DirecTV customer who’s happy with your service and bound by a long-term contract? If so, then brace for higher prices thanks to a multifaceted regulatory assault on voluntary contracts.

On June 12, the FCC will hold a hearing to consider imposing regulations on early termination fees, which are the charges that customers who’ve entered into long-term service agreements must pay if they choose to end service prior to the culmination of their contract term.

The FCC isn’t alone in its push to regulate early termination fees. Bills that would limit wireless contract terms have been drafted in both the Senate (by Sens. Klobuchar and Rockefeller) and in the House (by Rep. Markey). And Verizon, among other carriers, faces a $1 billion class-action lawsuit arguing its early termination fees are illegal.

While the bills pending in Congress focus solely on early termination fees for mobile service, the Washington Post reports that the FCC’s upcoming hearing will encompass early termination fees offered by all kinds of consumer telecom services. In addition to wireless companies, many broadband and video providers including DirecTV, Verizon, RCN, and Comcast also offer long-term service plans with cancellation charges levied on customers who end service early.

In late 2007, when the early termination fee debate began heating up, many providers changed their policies to address complaints against wireless contract provisions. Now, AT&T Mobility, Verizon Wireless, and Sprint all prorate early termination fees for wireless subscribers, so users who cancel service in the middle of the contract term don’t have to pay the full $175 early termination fee. The three carriers have also begun allowing customers to change calling plans without affecting their contract end date.

Despite intensifying opposition to early termination fees, these fees are really nothing new. Outside of high-tech services, consumers have long had the choice of signing long-term contracts that involve early cancellation charges. Renters typically sign 12-month apartment leases, and are usually required to pay a breakage fee if they back out of their lease early. Similar contract clauses are often found in fitness center memberships and automobile leases. Are all these incarnations of early termination fees fair game for government regulation, too?

Dictating the terms of telecommunications service contracts runs the risk of depressing investment in network modernization, ultimately harming consumers. At a time when Sprint is building a high-speed wireless network from the ground up, Verizon is laying fiber to millions of homes across the nation, and DirecTV is expanding its fleet of geosynchronous orbital satellites, government-imposed revenue volatility would delay next-generation telecom services that promise faster broadband speeds and more high-def programming.

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Tunneling your way around ISP traffic manipulation

by on May 22, 2008 · 40 comments

Stuck with limited ISP choices, broadband users are increasingly angry with the growing number of providers that poke around in their customers’ traffic. From resetting Bittorrent sessions to sniffing packets for URLs, more and more providers are wielding their power as the “man in the middle” to monitor and manipulate traffic in unpopular and possibly illegal ways. While these practices can be beneficial, tech-savvy consumers are understandably agitated. Congress is now considering legislation that would outlaw these ISP practices.

Instead of urging lawmakers to enact sweeping new laws that would often do more harm than good, broadband users should look to the recent emergence of commercial secure tunneling services. These services remind us that the marketplace is perfectly capable of resolving skirmishes without government getting involved.

Numerous companies have begun to offer encrypted tunnels using Virtual Private Networks (VPNs). These networks have long been used for a variety of reasons, and are popular with network security experts because of how well they protect data from outside snooping. By tunneling traffic through secure links, broadband users can break free from the constraints imposed by ISPs on certain types of traffic. Routing peer to peer applications through these tunnels makes them almost entirely indistinguishable from other types of traffic—even to stateful packet inspection tools like Sandvine that are undeterred by header encryption.

Tunneling traffic via encrypted, remote servers is also one of the toughest targets for ISPs. Many corporate users and university students connect to VPNs for necessary reasons, and there’s no easy way for an ISP to distinguish “legitimate” VPN traffic from the other kind. And with new secure tunneling firms popping up all the time, simply blocking the IP-address ranges of known tunnels is no solution. Absent a VPN Whitelist—highly infeasible given the growing number of VPNs in the wild—ISPs will soon realize that, no matter how much they invest in packet inspection tools like Sandvine and Phorm, informed users will always find a way to stay a step ahead.

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Selling out Online Advertising

by on May 13, 2008 · 35 comments

Reports have surfaced that Charter Communications, a mid-sized U.S. cable ISP, is monitoring its customers in partnership with NebuAd to deliver targeted advertisements. Luckily, Wayne Crews and I have a brand new C:Spin digesting the privacy implications of advertisers tracking our Web browsing:

Online ads can be annoying. From pop-ups to flash screens, it’s hard to surf the Web for long without encountering a sales pitch for an unwanted product. A world without these ads might be pleasant, of course, but then who would pay for all the original content websites make available?  Advertising explains why we can browse the Internet without pulling out our credit cards at every turn. But New York lawmakers are now considering a bill that would make this scenario a reality, spelling doom for the advertising models that could fuel the Internet’s future. 

Irked by pervasive advertising, some consumers see the Wild Wild Web as a realm warranting legislative assurances that all information stays private, hidden beyond the reach of marketers without explicit consent. They prefer that we opt-in, rather than opt-out.  

But an alternative interpretation of the nature of the cyberspace is that any advertiser may legitimately assemble information that has been transmitted on what is clearly a very public network.  

Even Wikipedia, long funded entirely by private donations, may soon have to place ads on its popular encyclopedic entries. All the server farms and fiber optic cables that power today’s Internet are not cheap, and somebody has to pay. Ad revenues indirectly fund many of the network upgrades needed to prepare for the ever-increasing stream of global Web traffic. And since advertisers are expected to tighten their belts as the global economy slows down, effective advertising models are more important than ever. If the Internet is to realize its full potential, firms must be free to develop experimental new methods of delivering ads. 

Increasingly, today’s “dumb” online advertisements are yielding to “smart,” behavioral ads.  By cataloguing individualized information about a user’s browsing tendencies, behavioral advertisers like Phorm and NebuAd can guess what sort of ads might interest that person, and select which product to promote accordingly.  In this model, advertisers don’t even have to record specific web addresses; rather, browsing habits are stored only under broad subject categories, like automobiles or golf. Sensitive websites like WebMD aren’t logged whatsoever. All this data is tied not to our names but to anonymous identifiers like cookies or IP address, which typically cannot be traced back to a particular individual except by court order.

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Some people are never happy

by on May 12, 2008 · 15 comments

Broadband Reports ran an opinion piece by Karl last week discussing the rumors that Comcast will soon adopt a 250GB a month maximum with overage fees for excessive consumption.

As the piece points out, implementing overage fees runs the risk of giving FiOS (and, to a lesser extent, U-Verse) an even bigger edge on cable broadband. AT&T and Verizon, because of their last-mile network architectures, are less susceptible to congestion caused by heavy users than Comcast, with its shared cable network. AT&T and Verizon have gotten by without terminating heavy users or even charging them extra.

Yet right after Karl finishes explaining about how overage fees will change the competitive landscape, he starts ranting about the prospect of “investor pressure constantly forcing caps downward and overage fees upward.”

Competitive pressures make this scenario a remote possibility, especially as content portals serving massive files like Apple TV and Xbox Marketplace gain mainstream appeal. If Comcast wants to deflect criticism from other ISPs over bandwidth limits, any cap must be high enough to ensure very few customers even approach it. Arguably, 250GB a month is enough to satiate even power users, at least for a couple more years.

ISPs are competing fiercely to attract subscribers, so providers regularly make hay out of trivial product differences such as the “ugly cabinets” that AT&T sometimes installs when upgrading a neighborhood’s DSL speeds. Imagine the ads Verizon will run if Comcast starts charging customers for heavy use—“With Comcast, you never know when you’ll be hit with an enormous monthly bill if your kids go on a YouTube frenzy or your computer is overtaken by hackers. Here in FiOS land, rest assured there are no extra fees, no matter how much you download.” It’s not hard to see this message resonating with customers, especially those living in households with multiple Web-savvy residents.

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Grand Theft Auto: Masterpiece or Abomination?

by on April 27, 2008 · 11 comments

In less than 36 hours, one of the most anticipated—and most demonized—games in years will hit the shelves. Grand Theft Auto IV, the “true” successor to the groundbreaking Grant Theft Auto III, has been the focus of intense criticism ever since being announced. But while GTA IV will undoubtedly be filled with extreme violence, it may also be a masterpiece of human creativity.

On Friday, IGN reviewed GTA IV, giving it a highly elusive perfect score. Calling it “masterful” and an “American dream,” IGN says GTA IV is the greatest game in nearly a decade. Since the press embargo ended this morning, many other reviewers are reaching similar conclusions.

No real surprises there. What’s surprising, however, is that unlike its somewhat one-dimensional predecessors, GTA IV offers unprecedented character depth along with an “Oscar-caliber” storyline. And it also depicts the ugly downside of crime in the same vein as epic films like Goodfellas and Scarface, retelling the classic story of a struggling immigrant coming to America in search of fortune, haunted by the experiences of a past life.

Naturally, Grand Theft Auto’s release has re-ignited public debate over how games affect kids and whether new laws are needed to protect children from the gratuitous violence found in many video games. GTA has been a favorite target of politicians for the past eight years, and the usual suspects like Jack Thompson and Tim Winter have predictably spoken out against GTA IV. But parental controls are more robust than ever, as Adam has documented, and some have even suggested that kids should be playing Grand Theft Auto. Despite the recent explosion in hyper-realistic violent games, violent crime rates have been dropping across the board. Maybe games like GTA are just another harmless outlet for kids to express violent behavior, much like playing cops and robbers.

As game budgets have swelled and public interest in gaming has expanded, more games than ever transcend the stereotype of gaming as a juvenile pursuit with little artistic merit, reminding us that games can be artistic expressions on par with books, movies, or songs. Critics whose gaming experience consists of having played Pacman in an arcade may belittle gaming as a trivial pastime, but anybody who has played Bioshock or Gears of War or Oblivion knows better. Games can critique the harsh realities of modern society and offer insight into the nature of the human soul in ways that less interactive forms of media cannot. Likewise, games deserve both critical admiration and legal protection.

Of course, GTA IV is no Mona Lisa. But the way things are going, it’s entirely possible that the next timeless masterpiece of artistic expression will be created not with a brush or pen, but with lines of code.

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