Articles by Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.


Don’t Look at that Patent!

by on August 20, 2007 · 4 comments

Alex Wexelblat wrote last week that company policies forbidding their employees from looking at patents is a result of incompetence by those companies lawyers, but Mike Masnick explains that companies actually have a very good reason:

What’s most likely happening is that the lawyers know that you get treble damages if you can prove willful infringement, and you do that by showing that the infringer knew of the patent. So, the way you avoid that is you don’t look at any patents. This is exactly the opposite of what the patent system is supposed to be about. In fact, many patent system defenders insist that “public disclosure” is the key benefit of the patent system — but that’s a complete myth. David Levine and Michele Boldrin have already shown why patents are unlikely to increase the disclosure of inventions (because the only people who will disclose are those who know their “invention” would become public no matter what, otherwise they’re better off keeping it secret), while other reports point out that patent attorneys are increasingly focused on filing vague patents that can cover lots of things, without actually disclosing anything useful. Now we can add this growing fear of willful infringement to the reasons that public disclosure isn’t what it’s cracked up to be — and, in fact, may be hurting innovation by forcing those knowledgeable in a space to ignore the state of the art to avoid the possibility of huge fines for willful infringement.

The fact that companies have these policies is one of the clearest bits of evidence that the patent system has become little more than an elaborate and expensive game of “gotcha.” If the patent system were working the way it’s supposed to, companies would be encouraging employees to keep tabs on the patents in their field to make sure they don’t infringe any of them. However, companies appear to believe that it’s virtually impossible to avoid infringing patents, probably because there are so many of them and they tend to be so vague. So instead, companies just assume they’re going to infringe and put in place policies that will minimize their legal exposure.

I’m at a loss to see how this system is benefitting anyone other than patent lawyers. The standard theory is that patents promote the spread of new inventions by giving inventors the confidence they can disclose their inventions without having them ripped off. But if companies are forbidding their employees from looking at the patents being disclosed, it’s awfully hard to see how that theory could be right.

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Civil Liberties: Surprisingly Strong?

by on August 20, 2007 · 10 comments

Geoffrey Stone offers some worthwhile perspective on the state of civil liberties today:

The fact is that fear-mongering has played a critical role in every major wartime episode in American history. In 1798, the Federalists used a largely trumped-up threat of French invasion to enact the Sedition Act of 1798, which made it a crime for any person to criticise the president, the Congress, or the government. During the civil war, President Lincoln suspended the writ of habeas corpus on eight separate occasions and Congress rushed headlong to approved his actions.

During the first world war, President Wilson stampeded Congress into enacting the Sedition Act of1918, which made it a crime for any person to criticise the war, the draft, the military, the flag, the uniform, or the government. During the second world war, Congress blithely ratified President Roosevelt’s internment of almost 120,000 individuals of Japanese descent, two-thirds of whom were American citizens. And at the height of the McCarthy era during the cold war, a frantic Congress hastily enacted the McCarran Act of 1950, one of the most grievous assaults on freedom of speech and association in American history.

So, we should consider recent events in context. The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the US, viewed in historical perspective, is surprisingly strong.

There’s certainly something to this, and Stone is certainly right to credit civil liberties groups for keeping public attention on these issues and discouraging elected officials from proposing truly egregious restrictions on civil liberties like those of past eras. However, I think there are a couple of crucial differences between the encroachments of civil liberties we see today and the problems we saw in past eras.

Continue reading →

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Thorough Fact-Checking and Verification

by on August 20, 2007 · 0 comments

Michael Skube, a professor of journalism, writes a column bewailing the low quality of reporting in the blogosphere:

Bloggers now are everywhere among us, and no one asks if we don’t need more full-throated advocacy on the Internet. The blogosphere is the loudest corner of the Internet, noisy with disputation, manifesto-like postings and an unbecoming hatred of enemies real and imagined.

And to think most bloggers are doing all this on the side. “No man but a blockhead,” the stubbornly sensible Samuel Johnson said, “ever wrote but for money.” Yet here are people, whole brigades of them, happy to write for free. And not just write. Many of the most active bloggers — Andrew Sullivan, Matthew Yglesias, Joshua Micah Marshall and the contributors to the Huffington Post — are insistent partisans in political debate. Some reject the label “journalist,” associating it with what they contemptuously call MSM (mainstream media); just as many, if not more, consider themselves a new kind of “citizen journalist” dedicated to broader democratization.

Marshall, who’s got a whole site devoted to investigative reporting, emailed Skube and learned that Skube doesn’t actually read Marshall’s blog. Apparently, an editor suggesting added Marshall’s name, and Skube agreed without bothering to learn much of anything about Marshall or his site. And Matt points out that neither he nor Sullivan are blogging “for free.”

Which makes this awfully rich:

Such a story demanded time, thorough fact-checking and verification and, most of all, perseverance. It’s not something one does as a hobby. The more important the story, the more incidental our opinions become. Something larger is needed: the patient sifting of fact, the acknowledgment that assertion is not evidence and, as the best writers understand, the depiction of real life.

We could definitely use some of that. I’m looking forward to the LA Times op-ed about how the mainstream bloviating business is inadequate because it can’t match the blogosphere’s rigorous peer-review process.

Hat tip: Yglesias

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Mendacity

by on August 17, 2007 · 0 comments

Julian explains just how unhinged (or mendacious) you have to be to believe that the FISA bill was “nothing more than the preservation of the original effect of FISA.”

As Julian points out, not only is that false, but it’s so obviously false that the guy who wrote it is either an idiot or a liar. Before the bill passed, the Bush administration was required to get a warrant that named the specific individuals or facilities that would be monitored. Now, the administration only needs to submit an after-the-fact report describing the general contours of its monitoring program, but not naming specific targets. If that’s not a complete abandonment of the principles behind FISA, it’s hard to imagine what would be.

Julian has more on the lies people are telling in defense of this legislation.

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State Secrets Are Whatever We Say They Are

by on August 16, 2007 · 2 comments

Wired‘s excellent Threat Level blog has a blow-by-blow description of the proceedings in the EFF/AT&T spying case (which was heard in conjunction with the Al-Haramain case). It sounds like the judges are at least sympathetic to allowing the cases go forward.

The government and AT&T’s argument strikes me as proving a little bit too much:

AT&T attorney Michael Kellogg (right, entering the courthouse) has taken the podium, and, not surprisingly, insists the case has to be dismissed. He says AT&T customers have no actual proof or direct knowledge that their communications were forwarded to the government without warrants.

“The government has said that whatever AT&T is doing with the government is a state secret,” Kellogg says. He adds, “As a consequence, no evidence can come in whether the individuals’ communications were ever accepted or whether we played any role in it.” (Back at Wired, THREAT LEVEL’s head just exploded –klp)

So if I’m understanding this correctly, a judge is obligated to dismiss a case as soon as the government asserts a state secrets privilege, because any inquiry into whether the information in question is actually a state secret could itself reveal state secrets. Which, in practice, would mean that “state secret” is a magic incantation that allows the government to do whatever it wants with no court scrutiny whatsoever. Somehow, I don’t think that’s what the founders had in mind when they wrote the Fourth Amendment.

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TPW 25: Felten on E-Voting

by on August 16, 2007 · 0 comments


Earlier this month, in the wake of a University of California study revealing serious security weaknesses in touch-screen voting machines, California’s secretary of state decertified the state’s electronic voting machines, and then re-certified them with added security restrictions. And last month, Florida released a security analysis of Diebold voting software and found that the company had still failed to fix security problems identified in earlier analyses of the systems.

In this week’s podcast, Adam and I are joined by one of the most prolific and insightful scholars in tech policy today: Ed Felten, computer science professor at Princeton. He discusses his research on the security of e-voting systems, the Holt bill now making its way through Congress, and the future of secure elections.

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Reverse Network Discrimination

by on August 16, 2007 · 0 comments

A TLF reader points me to this interesting story of a network neutrality violation in reverse:

Recently, several people have been writing about ESPN360: a website that attempts to block subscribers arriving from an ISP who is not a subscriber. Essentially, they are trying to replicate the cable subscription model (get your ISP to pony up money so that you can see this stuff) only on the web.

It would be hard to overstate just how foolish (and wrongheaded) this is. But the entire escapade makes some very important points in the debate about net neutrality. That debate was never about some mythically “neutral” network, but was rather about the ever-shifting balance of power between content and eyeballs. Content providers (Google, Yahoo, BBC, and evidently ESPN) believe that users want their content more than their content wants the users. And so, a new battle is begun. Who has move leverage: the pretty pictures or the glassy eyeballs?

Now, I’d be willing to bet money that ESPN’s scheme will fail. ESPN’s ability to charge money for its old cable channel was largely driven by the paucity of cable sports channels on the market, which in turn was driven by the high costs of producing and delivering the channel. Technological change is undermining that situation in two ways: by driving down the costs of producing and distributing video content, and by making it possible for users to reach a lot of news sources that they weren’t able to reach in the old days. That will put substantial downward pressure on the prices ESPN is able to charge for access to its content, and may make it infeasible for ESPN to charge at all.

Still, it does raise an important point: the standoff between content companies and residential broadband ISPs is in many ways a symmetrical one. An Internet connection isn’t very useful without access to content, and a website isn’t very useful if users can’t reach it. So in a negotiation between, say, Google and AT&T, each side has some leverage. It’s not immediately obvious why AT&T would be able to charge Google for access to its customers, rather than Google charging AT&T for access to its search engine. And it’s perfectly plausible that the most stable equilibrium is the one we’ve got now, in which neither residential ISPs or website operators pay the other for access to their networks or content.

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AT&T Spying Case Today

by on August 15, 2007 · 7 comments

Today EFF argues its important case against AT&T for its participation in the NSA wiretapping program before the Ninth Circuit:

As we all learned in school, Congress is also supposed to keep the Executive in line. But so far it has utterly failed to do its job; just two weeks ago, Congress surrendered to the President’s outrageous demands and passed horrible legislation authorizing warrantless eavesdropping on Americans’ international communications with virtually no oversight. Congress has also failed to engage in any serious investigation about the warrantless wiretapping to date. With your support, we’ll be reminding them of their duty in the coming weeks and hopefully will convince them to restore your rights.

We won’t just wait for Congress to come to its senses, though — Americans deserve their day in court right now. Backed by overwhelming evidence, including whistleblower testimony from a former AT&T employee, our lawsuit alleges an unprecedented program of dragnet domestic surveillance. AT&T has given the NSA unchecked backdoor access to its communications network and its record databases, violating the rights of its millions of customers. While we certainly oppose Congress’ recent dramatic expansion of spying powers, even the new law does not authorize such far-reaching, illegal, and unconstitutional dragnet surveillance, and it doesn’t change AT&T’s culpability for helping the government in its illegal activities over the last six years.

But Congress’ capitulation does make our case even more critical. All three branches of government have a duty to protect your rights. If the Administration succeeds in using “state secrets” claims to shut down our litigation after scaring Congress away, we may never be able to hold AT&T and the White House responsible for violating millions of Americans’ constitutional rights. And, more importantly, we may not be able to stop it.

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Dude, What if This is All, Like, An Illusion?

by on August 15, 2007 · 6 comments

I normally love John Tierney’s work, but boy is this silly. “Man, what if, like, we’re not real, man. What if we’re just a computer simulation like on the Matrix?” Beyond the dorm-room-bull-session character of the whole premise, the argument doesn’t make any sense:

Dr. Bostrom assumes that technological advances could produce a computer with more processing power than all the brains in the world, and that advanced humans, or “posthumans,” could run “ancestor simulations” of their evolutionary history by creating virtual worlds inhabited by virtual people with fully developed virtual nervous systems.

Some computer experts have projected, based on trends in processing power, that we will have such a computer by the middle of this century, but it doesn’t matter for Dr. Bostrom’s argument whether it takes 50 years or 5 million years. If civilization survived long enough to reach that stage, and if the posthumans were to run lots of simulations for research purposes or entertainment, then the number of virtual ancestors they created would be vastly greater than the number of real ancestors.

It might be true that at some point we’ll have the computing power to run precise, molecule-by-molecule simulations of the human brain. But that doesn’t really get you where Bostrom wants to take us. What he wants is a molecule-by-molecule simulation of the entire universe, or at the very least of the entire surface of Planet Earth. Human brains don’t exist in isolation. Their development is intimately shaped by their interaction with the real world. To develop a realistic simulation of the brain, you need a realistic simulation of the world the brain interacts with.

And accurately simulating any given system requires a computer system at least as complex as the system being simulated. We’re only able to simulate things like the weather and car crashes because we make assumptions that radically simplify our models. But that, of course, makes the details of their predictions wrong, especially over long time frames. That’s why weather predictions further out than 10 days are worthless. If you’re trying to simulate a long-term process like the evolution of human society, such radical simplifications wouldn’t be acceptable. If virtual Milikan performs his oil-drop experiment, the simulation had better be detailed enough to keep track of individual electrons, or the physicists of your virtual world will be very confused, and the “science” of our virtual world will evolve in a very different direction.

So an accurate simulation of the world would have to be roughly as complex as the world itself. And since any given computer will presumably only be a small part of the world, the maximum complexity of the worlds it can simulate will necessarily be far simpler than the real world the computer occupies. So while I suppose it’s possible we’re being simulated by a computer in a mind-bogglingly more complex universe, the more plausible explanation is that we’re in the “real” world, whatever that means.

Did the New York Times really just print that?

Update: Tom Lee had almost exactly the same reaction. Although he’s obviously cooler than me, as his college students had a dime bag in addition to their copy of The Matrix.

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First Gift Doctrine

by on August 15, 2007 · 0 comments

Over at Ars, I’ve got a write-up of EFF’s new case defending the First Sale Doctrine. Universal Music has been suing people who sell promotional CDs on eBay. EFF says (and I’m inclined to agree) that under the First Sale Doctrine, those CDs are the property of whoever the labels give them to, and the new owners are entitled to do what they wish with them. The case could have broader implications for the software industry:

Attempts to circumvent the first sale principle using license agreements is not unique to UMG. The practice is especially common among software firms, which routinely distribute their products with a shrinkwrap license. Such end-user license agreements typically state that the software has not been sold to users but has only been licensed for the customer’s personal use, subject to a variety of conditions spelled out in the EULA. Software firms contend that because their software is merely licensed to users rather than sold, the First Sale Doctrine does not apply.

Such shrinkwrap licenses have generated considerable controversy, and some courts have rejected them outright. For example, in a 2001 case, a California judge ruled that Adobe’s EULA did not apply to a California businessman who bought bundled Adobe software and resold the individual components. In that case, the judge held that despite Adobe’s contention that it merely licensed its software, “the circumstances surrounding the transaction strongly suggest that the transaction is in fact a sale rather than a license.”

UMG’s lawsuit against Augustino will test the boundaries of the First Sale Doctrine. UMG may argue that the First Sale Doctrine only applies to sales of copyrighted materials and not to CDs it gives away. But EFF attorney Fred von Lohmann tells Ars that the courts have applied the First Sale Doctrine to gifts in the past. For example, he points to a 1984 case in which Disney tried to prevent the auction of film cells that had been given to a former employee. The court found that the First Sale Doctrine applied and allowed the auction to go forward.

I think there are good reasons to be skeptical of the notion that these kinds of “shrinkwrap licenses” are validly enacted contracts at all, given that they are often presented to the customer only after he has completed his purchase and returned home. One party to a transaction can’t just unilaterally add new conditions after the transaction is complete. If UMG really believes it’s only licensing its promo CDs, it should require recipients to sign an explicit license agreement before giving them the CD, and it should demand the return of the CD after it’s been reviewed. But if they simply ship these CDs out to people unsolicited, it’s a little silly for them to then turn around and claim they weren’t really gifts. If it looks like a gift and quacks like a gift, the court should treat it like a gift, no matter what might fine print might be stamped on the CD itself.

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