Intermediary Deputization & Section 230

Bitcoin: Imagine a net without intermediaries

by 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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YouTube Introduces “Copyright School” to Educate Infringing Users

by on April 15, 2011 · 7 comments

In the ongoing copyright debates, areas of common ground are seemingly few and far between. It’s easy to forget that not all approaches to combating copyright infringement are mired in controversy. One belief that unites many stakeholders across the spectrum is that more efforts are needed to educate Internet users about copyright. The Internet has spawned legions of amateur content creators, but not all of the content that’s being created is original. Indeed, a great deal of online copyright infringement owes to widespread ignorance of copyright law and its penalties.

For its part, Google yesterday unveiled “Copyright School” for YouTube users. As Justin Green explains on the official YouTube blog, users whose accounts have been suspended for allegedly uploading infringing content will be required to watch this video and then correctly answer questions about it before their account will be reinstated:

Of course, boiling down the basics of copyright into a four and a half minute video is not an easy task, to put it mildly. (The authoritative treatment of copyright law, Nimmer on Copyright, fills an 11-volume treatise.) Copyright geeks and fans of “remix culture” will appreciate that Google’s video touches on fair use and includes links to in-depth resources for users to learn more about copyright. It will be interesting to see how Google’s effort influences the behavior of YouTube users and the incidence of repeat infringement.

Continue reading →

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

by 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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    TLFers Attending Two Important Sec. 230 / Net Liability Events in CA This Week

    by on March 1, 2011 · 0 comments

    This week I will be attending two terrific conferences on Sec. 230 and Internet intermediary liability issues. On Thursday, the Stanford Technology Law Review hosts an all-day event on “Secondary and Intermediary Liability on the Internet” at the Stanford Law School. It includes 3 major panels on intermediary liability as it pertains to copyright, trademark, and privacy. On Friday, the amazing Eric Goldman and his colleagues at the Santa Clara Law School’s High Tech Law Institute host an all-star event on “47 U.S.C. § 230: a 15 Year Retrospective.”  Berin Szoka and Jim Harper will also be attending both events (Harper is speaking at Stanford event) and Larry Downes will be at the Santa Clara event.  So if you also plan to attend, come say ‘Hi’ to us.  We don’t bite! (We have, however, been known to snarl.)

    In the meantime, down below, I just thought I would post a few links to the many things we have said about Section 230 and online intermediary liability issues here on the TLF in the past as well as this graphic depicting some of the emerging threats to Sec. 230 from various proposals to “deputize the online middleman.”  As we’ve noted here many times before, Sec. 230 is the “cornerstone of Internet freedom” that has allowed a “utopia of utopias” to develop online.  It would be a shame if lawmakers rolled back its protections and opted for an onerous new legal/regulatory approach to handling online concerns. Generally speaking, education and empowerment should trump regulation and punishing liability.

    Deputization of the Middleman

    Continue reading →

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    “Preserving the Internet,” But Which One?: Reading the FCC’s Net Neutrality Order (Part IV)

    by on January 12, 2011 · 5 comments

    This is Part IV of a five-part commentary on the FCC’s Dec. 23, 2010 “Open Internet” Report and Order.

    Part I looked at the remarkably weak justification the majority gave for issuing the new rules.

    Part II explored the likely costs of the rules, particularly the undiscussed costs of enforcement that will be borne by the agency and accused broadband access providers, regardless of the merits.  (See Adam Thierer’s post on the first attenuated claim of violation, raised before the rules even take effect.)

    Part III compared the final text of the rules to earlier drafts and alternative proposals, tracing the Commission’s changing and sometimes contradictory reasoning over the last year.

    Part IV, (this part), looks at the many exceptions and carve-outs from the rules, and what,  taken together, they say about the majority’s dogged determination to see the Internet as it was and not as it is or will become.

    Part V will review the legal basis on which the majority rests its authority for the rules, likely to be challenged in court.

    What does an Open Internet mean?

    The idea of the “open Internet” is relatively simple:  consumers of broadband Internet access should have the ability to surf the web as they please and enjoy the content of their choice, without interference by access providers who may have financial or other anti-competitive reasons to shape or limit that access. Continue reading →

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    The Next Digital Decade Book Launch January 19 in DC

    by on January 7, 2011 · 7 comments

    Please join us on January 19, 2011 in Washington, DC for the launch of The Next Digital Decade: Essays on the Future of the Internet, a collection of 31 essays from 26 leading cyber thought leaders, including Tim Wu, Hal Varian, the Hon. Alex Kozinski, Stewart Baker, Jonathan Zittrain, Milton Mueller, Eric Goldman, and Yochai Benkler—as well as the TLF’s own Adam Thierer, Larry Downes and Geoff Manne.

    This event will feature panel discussions of several of the book’s organizing questions:

    • Internet Optimism, Pessimism & the Future of Online Culture
    • Internet Exceptionalism & Intermediary Deputization
    • Who Will Govern the Net in 2020?

    The January 19 event will run from 12:30pm to 5:30pm immediately following the State of the Net conference in the same location: the Columbia B room at the Hyatt Regency (400 New Jersey Ave NW, Washington DC). The event will begin with lunch and end with a cocktail reception between 5:30pm and 7:00pm. Admission is free but space is limited so RSVP now!

    Registered attendees will receive a free copy of the book, which can be read online or downloaded as a PDF, or purchased in hardcover. Free eBook versions are coming soon. To learn more about the book, check out the foreword and introduction, or the table of contents.

    Visit NextDigitalDecade.com for details or follow us on Twitter or Facebook for updates!

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    “Fake Neutrality” or Government Takeover?: Reading the FCC’s Net Neutrality Report (Part III)

    by on January 5, 2011 · 6 comments

    In Part I of this analysis of the FCC’s Report and Order on “Preserving the Open Internet,” I reviewed the Commission’s justification for regulating broadband providers.   In Part II, I looked at the likely costs of the order, in particular the hidden costs of enforcement.  In this part, I compare the text of the final rules with earlier versions.  Next, I’ll look at some of the exceptions and caveats to the rules—and what they say about the true purpose of the regulations

    In the end, the FCC voted to approve three new rules that apply to broadband Internet providers.  One (§8.3) requires broadband access providers to disclose their network management practices to consumers.  The second One (§8.4) prohibits blocking of content, applications, services, and non-harmful devices.  The third One (§8.5) forbids fixed broadband providers (cable and telephone, e.g.) from “unreasonable” discrimination in transmitting lawful network traffic to a consumer.

    There has of course been a great deal of commentary and criticism of the final rules, much of it reaching fevered pitch before the text was even made public.  At one extreme, advocates for stronger rules have rejected the new rules as meaningless, as “fake net neutrality,” “not neutrality,” or the latest evidence that the FCC has been captured by the industries it regulates.  On the other end, critics decry the new rules as a government takeover of the Internet, censorship, and a dangerous and unnecessary interference with a healthy digital economy.  (I agree with that last one.)

    One thing that has not been seriously discussed, however, is just how little the final text differs from the rules originally proposed by the FCC in October, 2009.  Indeed, many of those critical of the weakness of the final rules seem to forget their enthusiasm for the initial draft, which in key respects has not changed at all in the intervening year of comments, conferences, hearings, and litigation. Continue reading →

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    Chairman Genachowski and his Howling Commissioners: Reading the Net Neutrality Order (Part I)

    by on December 30, 2010 · 8 comments

    At the last possible moment before the Christmas holiday, the FCC published its Report and Order on “Preserving the Open Internet,” capping off years of largely content-free “debate” on the subject of whether or not the agency needed to step in to save the Internet.

    In the end, only FCC Chairman Julius Genachowski fully supported the final solution.  His two Democratic colleagues concurred in the vote (one approved in part and concurred in part), and issued separate opinions indicating their belief that stronger measures and a sounder legal foundation were required to withstand likely court challenges.  The two Republican Commissioners vigorously dissented, which is not the norm in this kind of regulatory action.  Independent regulatory agencies, like the U.S. Courts of Appeal, strive for and generally achieve consensus in their decisions. Continue reading →

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    Why Online Dating Criminal Background Checks Aren’t As Advertised

    by on December 21, 2010 · 6 comments

    Recent media attention has resurrected the notion that criminal background checks for online dating sites are helpful and should even be required by law. Sunday’s front page article in the New York Times described how companies selling background checks can “unmask Mr. or Ms. Wrong.” And today’s Good Morning America featured a segment called “Online Dating: Are you Flirting with a Felon?”

    I was interviewed by both the Times and Good Morning America to say that these background checks are superficial, create a false sense of security, and that government should never mandate these for online dating sites. First of all, I should say that I’m personally involved in this issue. I met my wife on Match.com. We didn’t screen each other, at least not for a criminal past. I remember doing a simple search on her screen name however, and for a while thinking she could be someone who she wasn’t, though.

    But for fun, I did a postmortem background check on myself, just to see what my now wife would have seen. First, I went to Intelius and spent $58 (warning: there’s a constant barrage of confusing upsells) to see criminal, civil judgment, property, name, telephone and social networking data. The result: nothing harmful thankfully! But also nothing particularly helpful, either. And the report included a family member that isn’t, and left out my brother that is. Then I went to MyMatchChecker and ordered the basic level screening (the two most expansive products–“Getting Serious” and “All About Me”–require social security numbers, which I doubt most people will not learn about the other until they actually get married). The site made it easy to not include all relevant info, and I didn’t, so there’s a delay on my check. But let’s assume it’s all good too (ahem).

    So would my wife have used the absence of a negative history to assume I was a good person? Well, she shouldn’t have. Although these criminal screenings can help in some situations, they still have some serious shortcomings. They result in false negatives when criminal records don’t appear or may not include felony arrests that were plead down to misdemeanors.

    And these sort of criminal screenings are not very inclusive–at all. Continue reading →

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    Celebrating the COPA Report Ten Years Later: A Charter for Sound Consumer Protection Online

    by on October 22, 2010 · 1 comment

    An important anniversary just passed with little more notice than an email newsletter about the report that played a pivotal role in causing the courts to strike down the 1998 Child Online Protection Act (COPA) as an unconstitutional restriction on the speech of adults and website operators. (COPA required all commercial distributors of “material harmful to minors” to restrict their sites from access by minors, such as by requiring a credit card for age verification.)

    The Congressional Internet Caucus Advisory Committee is pleased to report that even after 10 years of its release the COPA Commission’s final report to Congress is still being downloaded at an astounding rate – between 700 and 1,000 copies a month. Users from all over the world are downloading the report from the COPA Commission, a congressionally appointed panel mandated by the Child Online Protection Act. The primary purpose of the Commission was to “identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet.” The Commission released its final report to Congress on Friday, October 20, 2000.

    As a public service the Congressional Internet Caucus Advisory Committee agreed to virtually host the deliberations of the COPA Commission on the Web site COPACommission.org. The final posting to the site was the actual COPA Commission final report making it available for download. In the subsequent 10 years it is estimated that close to 150,000 copies of the report have been downloaded.

    The COPA Report played a critical role in fending off efforts to regulate the Internet in the name of “protecting our children,” and marked a shift towards focusing on what, in First Amendment caselaw is called “less restrictive” alternatives to regulation. This summary of the report’s recommendations bears repeating:

    After consideration of the record, the Commission concludes that the most effective current means of protecting children from content on the Internet harmful to minors include: aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies. Witness after witness testified that protection of children online requires more education, more technologies, heightened public awareness of existing technologies and better enforcement of existing laws. Continue reading →

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