First Amendment & Free Speech

Congress takes another stab at combating Rogue Websites with the PROTECT IP Act

by Ryan Radia on May 12, 2011 · 23 comments

Last November, I penned an essay on these pages about the COICA legislation that had recently been approved unanimously by the U.S. Senate Judiciary Committee. While I praised Congress’s efforts to tackle the problem of “rogue websites” — sites dedicated to trafficking in counterfeit goods and/or distributing copyright infringing content — I warned that the bill lacked crucial safeguards to protect free speech and due process, as several dozen law professors had also cautioned. Thus, I suggested several changes to the legislation that would have limited its scope to truly bad actors while reducing the probability of burdening protected expression through “false positives.” Thanks in part to the efforts of Sen. Ron Wyden (D-Ore.), COICA never made it a floor vote last session.

Today, three U.S. Senators introduced a similar bill, entitled the PROTECT IP Act (bill text), which, like COICA, establishes new mechanisms for combating Internet sites that are “dedicated to infringing activities.” I’m glad to see that lawmakers adopted several of my suggestions, making the PROTECT IP Act a major improvement over its predecessor. While the new bill still contains some potentially serious problems, on net, it represents a more balanced approach to fighting online copyright and trademark infringement while recognizing fundamental civil liberties.

Continue reading →

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Event Video: What Should Lawmakers Do About Rogue Websites?

by Ryan Radia on May 10, 2011 · 7 comments

POLITICO reports that a bill aimed at combating so-called “rogue websites” will soon be introduced in the U.S. Senate by Sen. Patrick Leahy. The legislation, entitled the PROTECT IP Act, will substantially resemble COICA (PDF), a bill that was reported unanimously out of the Senate Judiciary Committee late last year but did not reach a floor vote. As more details about the new bill emerge, we’ll likely have much more to say about it here on TLF.

I discussed my concerns about and suggested changes to the COICA legislation here last November; the PROTECT IP Act reportedly contains several new provisions aimed at mitigating concerns about the statute’s breadth and procedural protections. However, as Mike Masnick points out on Techdirt, the new bill — unlike COICA — contains a private right of action, although that right may not permit rights holders to disable infringing domain names. Also unlike COICA, the PROTECT IP Act would apparently require search engines to cease linking to domain names that a court has deemed to be “dedicated to infringing activities.”

For a more in-depth look at this contentious and complex issue, check out the panel discussion that the Competitive Enterprise Institute and TechFreedom hosted last month. Our April 7 event explored the need for, and concerns about, legislative proposals to combat websites that facilitate and engage in unlawful counterfeiting and copyright infringement. The event was moderated by Juliana Gruenwald of National Journal. The panelists included me, Danny McPherson of VeriSign, Tom Sydnor of the Association for Competitive Technology, Dan Castro of the Information Technology & Innovation Foundation, David Sohn of the Center for Democracy & Technology, and Larry Downes of TechFreedom.

CEI-TechFreedom Event: What Should Lawmakers Do About Rogue Websites? from CEI Video on Vimeo.

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Initial Thoughts about the Markey-Barton ‘Do Not Track Kids’ Bill

by Adam Thierer on May 6, 2011 · 2 comments

Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas) have released a discussion draft of their forthcoming “Do Not Track Kids Act of 2011.” I’ve only had a chance to give it a quick read, but the bill, which is intended to help safeguard kids’ privacy online, has two major regulatory provisions of interest:

(1) New regulations aimed at limiting data collection about children and teens, including (a) expansion of the Children’s Online Privacy Protection Act (COPPA) of 1998, which would build upon COPPA’s “verifiable parental consent” model; and (b) a new “Digital Marketing Bill of Rights for Teens;” and (c) limits on collection of geolocation information about both children and teens.

(2) An Internet “Eraser Button” for Kids to help kids wipe out embarrassing facts they have place online but later come to regret. Specifically, the bill would require online operators “to the extent technologically feasible, to implement mechanisms that permit users of the website, service, or application of the operator to erase or otherwise eliminate content that is publicly available through the website, service, or application and contains or displays personal information of children or minors.” This is loosely modeled on a similar idea currently being considered in the European Union, a so-called “right to be forgotten” online.

Both of these proposals were originally floated by the child safety group Common Sense Media (CSM) in a report released last December. It’s understandable why some policymakers and child safety advocates like CSM would favor such steps. They fear that there is simply too much information about kids online today or that kids are voluntarily placing far too much personal information online that could come back to haunt them in the future. These are valid concerns, but there are both practical and principled reasons to be worried about the regulatory approach embodied in the Markey-Barton “Do Not Track Kids Act”: Continue reading →

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Mad About Bogus Takedowns? Blame Congress, Not Online Intermediaries

by Ryan Radia on April 29, 2011 · 2 comments

User-driven websites — also known as online intermediaries — frequently come under fire for disabling user content due to bogus or illegitimate takedown notices. Facebook is at the center of the latest controversy involving a bogus takedown notice. On Thursday morning, the social networking site disabled Ars Technica’s page after receiving a DMCA takedown notice alleging the page contained copyright infringing material. While details about the claim remain unclear, given that Facebook restored Ars’s page yesterday evening, it’s a safe bet that the takedown notice was without merit.

Understandably, Ars Technica wasn’t exactly pleased that its Facebook page — one of its top sources of incoming traffic — was shut down for seemingly no good reason. Ars was particularly disappointed by how Facebook handled the situation. In an article posted yesterday (and updated throughout the day), Ars co-founder Ken Fisher and senior editor Jacqui Cheng chronicled their struggle in getting Facebook to simply discuss the situation with them and allow Ars to respond to the takedown notice.

Facebook took hours to respond to Ars’s initial inquiry, and didn’t provide a copy of takedown notice until the following day. Several other major tech websites, including ReadWriteWeb and TheNextWeb, also covered the issue, noting that Ars Technica is the latest in a series of websites to have suffered from their Facebook page being wrongly disabled. In a follow-up article posted today, Ars elaborated on what happened and offered some tips to Facebook on how it could have better handled the situation.

It’s totally fair to criticize how Facebook deals with content takedown requests. Ars is right that the company could certainly do a much better job of handling the process, and Facebook will hopefully re-evaluate its procedures in light of this widely publicized snafu. In calling out Facebook’s flawed approach to dealing with takedown requests, however, Ars Technica doesn’t do justice to the larger, more fundamental problem of bogus takedown notices.

Continue reading →

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When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed

by Adam Thierer on April 29, 2011 · 8 comments

When it comes to information control, everybody has a pet issue and everyone will be disappointed when law can’t resolve it. I was reminded of this truism while reading a provocative blog post yesterday by computer scientist Ben Adida entitled “(Your) Information Wants to be Free.” Adida’s essay touches upon an issue I have been writing about here a lot lately: the complexity of information control — especially in the context of individual privacy. [See my essays on “Privacy as an Information Control Regime: The Challenges Ahead,” “And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars,” and this recent FTC filing.]

In his essay, Adida observes that:

In 1984, Stewart Brand famously said that information wants to be free. John Perry Barlow reiterated it in the early 90s, and added “Information Replicates into the Cracks of Possibility.” When this idea was applied to online music sharing, it was cool in a “fight the man!” kind of way. Unfortunately, information replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard.

Quite right. We’ve been debating the complexities of information control in the Internet policy arena for the last 20 years and I think we can all now safely conclude that information control is hugely challenging regardless of the sort of information in question. As I’ll note below, that doesn’t mean control is impossible, but the relative difficulty of slowing or stopping information flows of all varieties has increased exponentially in recent years.

But Adida’s more interesting point is the one about the selective morality at play in debates over information control. That is, people generally expect or favor information freedom in some arenas, but then get pretty upset when they can’t crack down on information flows elsewhere. Indeed, some people can get downright religious about the whole “information-wants-to-be-free” thing in some cases and then, without missing a beat, turn around and talk like information totalitarians in the next breath. Continue reading →

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An Internet Eraser Button to Protect Privacy? Unwise & Probably Impossible

by Adam Thierer on April 19, 2011 · 1 comment

In my latest “Technologies of Freedom” column for Forbes, I take a closer look at the idea of an “Internet eraser button” as one method of protecting privacy or safeguarding reputation online. The child safety group Common Sense Media has suggested it is needed to help kids and others wipe out embarrassing facts we’ve place online but later come to regret. The Eraser Button idea is similar to “the right to be forgotten” proposal currently being hotly debated in Europe.

In my column, I argue that “it is unlikely that such a mechanism could be implemented, and even if it could, it would have troubling ramifications for freedom of speech, digital commerce, and Internet governance more generally.” I dwell a bit on the free speech issues and note that “What we are talking about here is the destruction of history, otherwise known as censorship. Few would have suggested that burning books was a smart way to protect privacy in the past. Is burning binary bits of information any wiser?” But the point seems moot in light of the significant enforcement challenges the notion faces, including the question: Who actually owns the data collected by online sites and services?

Anyway, read the rest of the essay over at Forbes. And here are a few other pieces we’ve run here at the TLF on the issue: 1, 2, 3.

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Bitcoin: Imagine a net without intermediaries

by Jerry Brito on April 16, 2011 · 43 comments

Yesterday the FBI effectively [shut down](http://thehill.com/blogs/hillicon-valley/technology/156429-fbi-shuts-down-online-poker-sites) three of the largest gambling sites online and indicted their executives. From a tech policy perspective, these events highlight how central intermediary control is to the regulation of the internet.

Department of Justice lawyers were able to take down the sites using the same tools we’ve [seen DHS use](http://techland.time.com/2011/02/17/operation-protect-our-children-accidentally-shutters-84000-sites/) against alleged pirate and child porn sites: they seize the domain names. Because the sites are hosted overseas (where online gambling is legal), the feds can’t physically shut down the servers, so they do the next best thing. They get a seizure warrant for the domain names that point to the servers and [force the domain name registrars](http://pokerati.com/2011/04/15/poker-panic-11-update-on-domain-name-seizures/) to point them instead to a government IP address, such as [50.17.223.71](http://50.17.223.71). The most popular TLDs, including .com, .net, .org, and .info, have registrars that are American companies within U.S. jurisdiction.

Another intermediary point of control for the federal government are payment processors. The indictments revealed yesterday relate to violations of the [Unlawful Internet Gambling Enforcement Act](http://www.firstamendment.com/site-articles/UIEGA/), which makes it illegal for banks and processors like Visa, MasterCard and PayPal to let consenting adults use their money to gamble online. According to the DOJ, in order to let them bet, the poker sites “arranged for the money received from U.S. gamblers to be disguised as payments to hundreds of non-existent online merchants purporting to sell merchandise such as jewelry and golf balls.” ([PDF](http://www.wired.com/images_blogs/threatlevel/2011/04/scheinbergetalindictmentpr.pdf))

Now, imagine if there were no intermediaries.

[In my TIME.com Techland column today, I write about Bitcoin](http://techland.time.com/2011/04/16/online-cash-bitcoin-could-challenge-governments/), a completely decentralized and anonymous virtual currency that I think will be revolutionary.

>Because Bitcoin is an open-source project, and because the database exists only in the distributed peer-to-peer network created by its users, there is no Bitcoin company to raid, subpoena or shut down. Even if the Bitcoin.org site were taken offline and the Sourceforge project removed, the currency would be unaffected. Like BitTorrent, taking down any of the individual computers that make up the peer-to-peer system would have little effect on the rest of the network. And because the currency is truly anonymous, there are no identities to trace.

And if a P2P currency can make it so that there is no fiscal intermediary to regulate, how about a distributed DNS system so that there are no registrars to coerce? This is something Peter Sunde of Pirate Bay fame [has been working on](http://www.wired.co.uk/news/archive/2010-12/02/peter-sunde-p2p-dns). These ideas may sound radical and far-fetched, but if we truly want to see an online regime of “[denationalized liberalism](http://techliberation.com/2010/11/28/mueller%E2%80%99s-networks-and-states-classical-liberalism-for-the-information-age/),” as Milton Mueller puts it, then getting rid of the intermediaries in the net’s infrastructure might be the best path forward.

Again, check out [my piece in TIME](http://techland.time.com/2011/04/16/online-cash-bitcoin-could-challenge-governments/) for a thorough explanation of Bitcoin and its implications. I plan to be writing about it a lot more and devote some of my research time to it.

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Event 4/7: What Should Lawmakers Do About Rogue Websites?

by Ryan Radia on April 5, 2011 · 0 comments

The Competitive Enterprise Institute and TechFreedom are hosting a panel discussion this Thursday featuring intellectual property scholars and Internet governance experts. The event will explore the need for, and concerns about, recent legislative proposals to give law enforcement new tools to combat so-called “rogue websites” that facilitate and engage in unlawful counterfeiting and copyright infringement.

Video of the event will be posted here on TechLiberation.com.

What:	“What Should Lawmakers Do About Rogue Websites?” — A CEI/TechFreedom event
When:	Thursday, April 7 (12:00 – 2:00 p.m.)
Where:	The National Press Club (529 14th Street NW, Washington D.C.)
Who:	Juliana Gruenwald, National Journal (moderator) Daniel Castro, Information Technology & Innovation Foundation Larry Downes, TechFreedom Danny McPherson, VeriSign Ryan Radia, Competitive Enterprise Institute David Sohn, Center for Democracy & Technology Thomas Sydnor, Association for Competitive Technology

Space is very limited. To guarantee a seat, please register for the event by emailing nciandella@cei.org.

Juliana Gruenwald, National Journal (moderator)

Daniel Castro, Information Technology & Innovation Foundation

Larry Downes, TechFreedom

Danny McPherson, VeriSign

Ryan Radia, Competitive Enterprise Institute

David Sohn, Center for Democracy & Technology

Thomas Sydnor, Association for Competitive Technology

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The troubled history of the Global Network Initiative

by Larry Downes on March 30, 2011 · 7 comments

I’ve posted a long article on Forbes.com this morning on the Global Network Initiative. A non-profit group aimed at improving human rights though the agency of information technology companies, GNI has never really gotten off the ground.

Since its formal launch in 2008, following two years of negotiations among tech companies, human rights groups and academics, not a single company has agreed to join beyond the original members–Google, Yahoo and Microsoft.

This despite considerable pressure from supporters of GNI, including Senator Richard Durbin (D-IL), Chair of the Senate Judiciary’s Subcommittee on Human Rights. Indeed, in the wake of uprisings in Tunisia, Egypt, Libya and elsewhere and the seminal role played by social media and other IT, a full-court press has been launched against Facebook and Twitter in particular for failing to sign up. Continue reading →

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The Problem with Paul Ohm’s Suggestion to Regulate Inferences to Protect Privacy

by Adam Thierer on March 28, 2011 · 0 comments

Here’s an interesting SmartPlanet interview with Paul Ohm, associate professor of law at the University of Colorado Law School, in which he discusses his concerns about “reidentification” as it relates to privacy issues. “Reidentification” and “de-anonymization” fears have been set forth by Ohm and other computer scientists and privacy theorists, who suggest that because the slim possibility exists of some individuals in certain data sets being re-identified even after their data is anonymized, that fear should trump all other considerations and public policy should be adjusted accordingly (specifically, in the direction of stricter privacy regulation / tighter information controls).

I won’t spend any time here on that particular issue since I am still waiting for Ohm and other “reidentification” theorists to address the cogent critique offered up by Jane Yakowitz in an important new study that I discussed here last week. Once they do, I might have more to say on that point. Instead, I just wanted to make some brief comments on one particular passage from the Ohm interview in which he outlines a bold new standard for privacy regulation:

We have 100 years of regulating privacy by focusing on the information a particular person has. But real privacy harm will come not from the information they have but the inferences they can draw from the data they have. No law I have ever seen regulates inferences. So maybe in the future we may regulate inferences in a really different way; it seems strange to say you can have all this data but you can’t take this next step. But I think that’s what the law has to do.

This is a rather astonishing new legal standard and there are two simple reasons why, as Ohm suggests, “no law… regulates inferences” and why, in my opinion, no law should. Continue reading →