Sin on the ‘Net

New Publication Summarizing Latest COPA Case

by on November 23, 2008 · 11 comments

At Stanford Law School, I am a member of the Stanford Law and Technology Association and the Center for Internet and Society. I write for CIS’s publication, Packets. I just published a piece summarizing the recent Third Circuit case once again holding the Child Online Protection Act unconstitutional. When the decision was released back in July, Adam Thierer wrote a wonderful post here on it. Adam’s and my pieces are complementary. Though Adam gave a nice assessment of COPA’s future, my summary goes into a bit greater detail on the court’s legal reasoning. If you’re interested in the law or in the constitutional principles involved, you may want to check out this interview with my brother, who was a counsel on the case.

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CONTROVERSIES ROCK ALF 7 – ORGANIZERS PLEDGE TO CARRY ON

by on November 4, 2008 · 7 comments

WASHINGTON – November 4 /TLF News Service/ — The recently announced Alcohol Liberation Front event, Thursday, November 6 from 5:30pm on at Gazuza (1629 Connecticut Ave NW), has already roiled the social media world, but organizers pledge to carry on despite the ALF 7 controversies.

“I ain’t a quitter. People ask me to quit. ‘Stop Tweeting – it’s hurting my eyes,’ they say,” said someone other than Brooke Oberwetter, ALF 7 organizer. “But I ain’t a quitter. I’m keepin’ on keepin’ on. ‘Keepin’ on keepin’ on’? Did I just invent that! Better Tweet it!”

Trading on shares of privately-held Facebook remained suspended on the major markets today after it was revealed that the platform doesn’t permit the names of events to be changed. A typo rendering ALF 7 as ALF 6 on the Facebook event page threatens to bring down the social networking giant.

“Facebook won’t let me change the event name,” roared an enraged Berin Szoka on the Facebook page announcing the event. “I pledge to do everything in my power to destroy Facebook,” he didn’t say.

Meanwhile, one pageview of the Facebook event page displayed an ad that caught TLFer Jim Harper as an outrageous effront to the law of trademark. The image at right, displayed exclusively here on TLF and anywhere someone deems it appropriate, shows a screenshot of an ad that may violate Apple’s rights in the iPod trademark.

“It’s not outrageous. Don’t say that. I just think that calling a shaver the ‘iPod of shaving’ has the potential to cause consumer confusion as to the source of the shaver by suggesting that it’s an Apple product. There are so many mistaken allegations about trademark law – this could be a real trademark violation, and it’s worth pointing out.”

Asked if he would be an expert witness in any case brought by Apple, Harper replied, “You’re not funny, you know. You’re writing this yourself, by yourself, and not interviewing anybody. Oh yeah. You’re being ‘meta’ or something. Whatever. How stupid.”

“Sourpuss” Harper will be one of the attendees at the Alcohol Liberation Front event, Thursday, November 6 from 5:30pm on at Gazuza (1629 Connecticut Ave NW).

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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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Net gambling & online speech / commerce enforcement challenges in general

by on March 4, 2008 · 8 comments

I have long been intrigued with the effort to regulate online gaming activities because it represents the most sophisticated effort by our government yet to eradicate a specific class of online speech or commerce. (My TLF colleague Tom Bell has done seminal work in this field). In her weekly “The Regulators” column, The Washington Post’s outstanding regulatory columnist Cindy Skrzycki writes about the enforcement challenges at work here:

It’s not easy making rules for a U.S. law intended to deter illegal Internet gambling by choking off the flow of funds to offshore sites. That’s because no one seems to agree on what the law covers. Officials at the Treasury Department and the Federal Reserve found that out after sifting through more than 200 comments from banks, gamblers, church groups and members of Congress on recommendations for the Unlawful Internet Gambling Enforcement Act of 2006. The basic sentiment was that their Oct. 4 proposal, which depends on financial institution enforcement, won’t work.

The outcome will affect 23 million online gamblers, some 2,500 Internet sites and the growth of an industry with an estimated $15 billion in annual global revenue. The law bars financial institutions from processing payments involving Internet gambling — with the notable exceptions of Indian gaming, state gaming and horse racing. “If the federal agencies themselves cannot agree on the law, what hope is there that banks can resolve these confounding legal issues?” the American Bankers Association said in commenting on a conflict between the Treasury and Justice departments on the legality of betting on horses. The Washington trade group said the suggested rules are more likely to catch its members in a compliance trap than stop profits from illegal gambling from escaping offshore.

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PurePlay’s Patented Legal Hack

by on October 30, 2007 · 23 comments

Some months ago, I noted that Betzip.com (since rechristened “PurePlay.com”) employs an intriguing legal hack to avoid anti-gambling regulations. It charges its customers a flat monthly fee, which qualifies them to win large prizes for winning online poker games. Non-paying customers can play the same games for free, too—though without qualifying for the largest prizes.

Why adopt that business model? Presumably, because it allows PurePlay to argue that it does not offer a gambling service. Specifically, PurePlay could claim that, because the amount players win has no relation to how much they stake, it dodges the “consideration” element of the legal definition of gambling. Query whether that claim would survive the devoted attentions of a prosecutor and court. I set that question aside, though, and here focus on PurePlay’s claim that they have patented their business model.

Curious about the scope of PurePlay’s patent, I searched its website for details. It offered none. I wrote to PurePlay asking for the patent’s number. PurePlay refused to say. So I put my able research assistant, Mr. Sherwood Tung, on the case. He found PurePlay’s patent, and more.

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State Lotteries & Selective Morality about Gambling

by on August 26, 2007 · 4 comments

We’ve done a lot of writing about Internet gambling issues here at the TLF over the years. (Complete archives here). One of the things that always intrigues me about these debates is how passionate some policymakers can get about the supposed “evils” of private online gambling even though many of them support state-run lotteries.

What got me thinking about this again was an article in Sunday’s Washington Post entitled, “Officials Laud D.C. Lottery as Success.” The D.C. Lottery turns 25 this week and, in the article, one local lawmaker after another celebrates the fact that more than $1.4 billion has been generated by the lottery for the city treasury. “Every time you buy a lottery ticket, the city wins,” says the current DC Lottery director. And former DC mayor Marion Barry, who currently serves as a DC council member, argues that, “Nobody makes anybody play the lottery… It’s a voluntary contribution to the D.C. treasury. It was a great vision.”

OK, so what’s wrong with people playing for their own enjoyment? Nobody makes anyone play private games of chance either. But because the money goes to private interests instead of the State, apparently it’s immoral and “evil.” Stupid.

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A Second Look at Second Life Analogies

by on July 12, 2007 · 12 comments

My letter to the Washington Post regarding Michael Gerson’s “Where the Avatars Roam,” which appeared in the Post last week:

Michael Gerson’s July 6 piece “Where the Avatars Roam” shows that his understanding of libertarianism isn’t nearly as deep as his understanding of online games.

Mr. Gerson describes Second Life as “large-scale experiment in libertarianism,” citing the game’s lack of community structure and long-term consequences.  He describes this “libertarian” world as one in which there is not human nature, only human choices.

This doesn’t describe a libertarian world, but one of fantasy.  Libertarianism, as envisioned by the founding fathers or Friedrich Hayek, is predicated on an understanding of the world that’s very different from Second Life.  Common sense agrees with this libertarian understanding–the world is one of consequences, community institutions are vital to human life, and human beings have an innate nature that we should harness, not deny.

True, libertarians believe in the idea of spontaneous order, but Mr. Gerson treats this idea unfairly.  Libertarianism holds that society is not the product of uncoordinated human choice, but of human choice coordinated by the institutions of liberty.  Rule of law, private property, and a robust civil society together create rules within which markets operate to ensure the greatest possible outcomes, both for individuals and for society as a whole.

Denying human nature and basic economics is the forte of the modern left, not libertarians.  Perhaps Second Life would be a good testing ground for the left’s pet theories–they may work better there.  As for libertarians, we’ll stick to the real thing.

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Betcha.com’s Hack of Anti-Internet Gaming Laws

by on June 18, 2007 · 0 comments

Betcha.com recently began offering a U.S.-based, P2P, honor-based betting service. Its FAQ claims that Betcha.com avoids the reach of domestic state and federal anti-gambling laws because, “Unlike any other betting venue on the planet, Betcha bettors always retain the right to withdraw their bets . . . . Therefore, they are not ‘risking’ anything. No ‘risk;’ means no ‘gamble.'” Will Betcha’com’s hack of anti-internet gaming laws work?

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Radley Defends Internet Gambling Before Congress

by on June 15, 2007 · 5 comments

My friend and former colleague Radley Balko makes the case for the repeal of the online gambling ban:

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Net gambling: None of the government’s business

by on June 11, 2007 · 0 comments

poker Ever since the “Unlawful Internet Gambling Enforcement Act” passed during the last session of Congress, Rep. Barney Frank has been pushing to repeal it. Good for him. It’s a silly law for reasons Radley Balko of Reason magazine pointed out during testimony at a hearing Rep. Frank hosted last Friday. The hearing was held by the House Financial Services Committee, which Rep. Frank chairs, and it was entitled: “Can Internet Gambling Be Effectively Regulated to Protect Consumers and the Payments System?” In his testimony, Balko, a former colleague of mine at the Cato Institute, made the moral case against the law:

What Americans do in their own homes with their own money on their own time is none of the federal government’s business. Take online poker, by far the most popular form of online gambling. Poker has enjoyed a surge in popularity over the last several years. The game is about as mainstream and uniquely American as baseball. Poker evolved from similar card games in the early 1800s, then flourished in popularity on Mississippi’s riverboats, winning over such iconic American aficionados as Mark Twain.

Today, most daily newspapers have a poker column, including the New York Times. The game saturates cable television. Until recently, even several of the Supreme Court justices held a monthly poker game. Online poker is merely a new evolution of the game, similar to the way Civil War poker games introduced the straight, and gave us variations like draw and stud poker. The Internet merely removes the geographic barrier preventing those who love the game from finding opponents of similar skill who are willing to wager similar amounts of money.

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