Ars has a good article reminding us of an important fact about peer-to-peer tools like BitTorrent: while they certainly can be used for illegal and unethical purposes, they’re ultimately just tools. They also have indisputably legal and legitimate uses—in this case, rapidly deploying software updates on a campus network. One of the reasons that stopping piracy is only going to get harder over time is that as peer-to-peer tools mature, it will become more and more difficult to distinguish “good” and “bad” peer-to-peer tools. The tools will be increasingly ubiquitous and powerful, and there won’t be any easy way for the authorities to restrict their use to legal purposes.
I think this is one reason that the
Grokster decision (in which I reluctantly concluded that the plaintiffs had the better argument) is likely to be a pyrrhic victory for the copyright industry. The Supreme Court said that if there’s clear evidence that a company’s product is designed to facilitate file-sharing, then that company can be held liable for contributory infringement. But that test makes it pretty easy to avoid liability. BitTorrent appears to be navigating it successfully, and others will doubtless do the same.
Paul Davidson of the USA Today called me last week seeing comment for a story he said he was putting together on the legacy of Kevin Martin’s FCC. I spent roughly 30 minutes on the phone with Davidson and went through a litany of policy issues with him itemizing the “assets and liabilities,” if you will, of the Martin regime, as viewed from the perspective of someone who cares deeply about free markets and property rights. I did not hold back during the interview. I told Davidson in no uncertain terms that Chairman Martin had gone far off the free-market reservation on a great number policy issues.
Anyway, Davidson’s story appeared today and is entitled “FCC Chief Martin Hasn’t Lost Focus on Cable.” It mentions how Chairman Martin has managed to alienate a good portion of the the free-market movement by straying far off the reservation on a great many issues, but it never really gets into the details. To get the complete story, I encourage you to read this editorial that James Gattuso and I penned for National Review as well as an editorial by the magazine’s editorial board that appeared the following day entitled, “Pulling the Cable on Martin’s Crusade.”
And those essays just cover the economic policy failings of the current FCC. To see what has been proposed on the social / speech side of things, see my essay, “FCC Violence Report Concludes that Parenting Doesn’t Work” and “The FCC’s Indecency Bomb.”
Don’t let the facetious headline fool you: I welcome news stories like this New York Times piece (via Ars), which reports on the amount of data major online firms collect.
It gives us tech sophisticates some more information, but, more importantly, it starts to educate the lay public that they are part of an information economy whether they like it or not. This will stimulate them on the margin to make choices about where they surf, whether they accept cookies, and so on. Putting this information in the hands of the public pits these online firms against one another to seek trust with the public, such as by controlling their data collection, ensuring the public that the data won’t be misused, and so on.
The marketplace continues to lag in its provision of privacy, in part because of the technical difficulty of determining how things work, what data goes where, etc. With the press overwhelmed by the problem of figuring this stuff out, it hasn’t been able to put the public in a position to act. In a small way, this article starts to clear that fog. A welcome development indeed.
The head of the California Assembly’s Transportation Committee has introduced a resolution rejecting REAL ID. Wired’s Threat Level blog reports:
Howard Posner, a policy consultant to the Transportation Committee, said that last year the committee contemplated moving legislation to accept Real ID, but reconsidered after “looking at the cost, and the incredible inconvenience for driver’s license holder and the privacy issues.”
“We heard the feds had enacted this without any kind of review process or holding hearings,” Posner said. “We thought someone ought to step back and see if this is the most cost effective way to secure driver’s licenses.”
They teach you in law school to make all possible arguments in favor of your client’s position, no matter how far-fetched, since you never know which one will stick. The lawyers for Hawaiian Telcom evidently have taken that advice to heart in making the case that it should be eligible for subsidies from the FCC’s high-cost support mechanism under the Universal Service Fund. In January, the firm asked the FCC for a special waiver from the normal eligibility for payments from the fund, which subsidizes phone service costly areas. Under current rules, a telephone company’s eligibility for payments depends upon its statewide cost average. Hawaiian Telcom is asking that its eligibility be determined on a more specific, wire center by wire center, basis.
It may sound like a technical distinction, but – because many parts of Hawaii have costs far above the statewide average – it is significant, and could mean some $24 million per year in subsidies for the firm, which until a few years ago was owned by Verizon.
It’s not unusual for Hawaii to ask for special dispensation in such matters – in 2006, for instance, the Senate telecom reform bill had a provision creating special telecom subsidy rules for states “comprised entirely of islands.”
In this case, however, the lawyers for Hawaiian Telcom outdid themselves, arguing that the subsidies aren’t just a matter of getting cheaper phone service for Hawaiians, but that they are necessary to national defense. Hawaii, they say, is of “strategic importance” to the U.S., making a well-funded telecommunications system essential.
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Glen Whitman has a great post on the relationship between modularity and innovation. He’s exactly right that modularity (or what software types would call open standards) promotes progress by allowing people to build software from pre-existing components without worrying about exactly what’s inside any given component. One of the most important examples of modularity in the computer industry is the Internet’s end-to-end principle, which allows application developers to ignore the details of how to get packets from A to B, and instead focus on what to do with packets once they reach their destination.
The latest attack on anonymous online speech comes from Kentucky Representative Tim Couch, who proposed legislation last week that would ban posting anonymous messages online. The bill requires users to register their true name and address before contributing to any discussion forum, with the stated goal of cutting down on “online bullying.”
The right to speak anonymously is protected by the First Amendment, and the Kentucky proposal raises serious Constitutional questions. In Talley v. California, the U.S. Supreme Court overturned a Los Angeles ban on the distribution of anonymous handbills on First Amendment grounds. However, the Court has yet to directly address the question of anonymous speech on the Internet, as few existing laws target online anonymity.
The Kentucky bill comes on the heels of controversy over the growing popularity of JuicyCampus.com, a “Web 2.0 website focusing on gossip” where college students post lurid—and often fabricated—tales of fellow students’ sexual encounters. The website bills itself as a home for “anonymous free speech on college campuses,” and uses anonymous IP cloaking techniques to shield users’ identities. Backlash against the site has emerged, with Pepperdine’s student government recently voting to ban the site on campus.
Under current law, websites like Juicy Campus cannot be sued for user-posted messages. As Adam Thierer mentions in a recent post, Daniel J. Solove of George Washington Law School has offered some insightful analysis on anonymity in the digital age. Solove points out that under the Safe Harbor provision found in Section 230 of the Communications Decency Act, providers are immunized from liability if they unknowingly distribute libelous messages so long as they remove libelous postings upon receiving a takedown request. This issue was further clarified in 2006 in Barrett v. Rosenthal, in which the Court found that website operators are immune from liability when distributing defamatory communications.
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Well I think many of us here can appreciate Lawrence Lessig’s call to “blow up the FCC,” as he suggested in an interview with National Review this week. But I wonder, who, then, would be left to enforce his beloved net neutrality mandates and the media ownership rules he favors? He’s advocated regulation on both those fronts, but it ain’t gunna happen without some bureaucrats around to fill out the details and enforce all the red tape.
Regardless, I whole-hearted endorse his call for sweeping change. Here’s what he told
National Review:
One of the biggest targets of reform that we should be thinking about is how to blow up the FCC. The FCC was set up to protect business and to protect the dominant industries of communication at the time, and its history has been a history of protectionism — protecting the dominant industry against new forms of competition—and it continues to have that effect today. It becomes a sort of short circuit for lobbyists; you only have to convince a small number of commissioners, as opposed to convincing all of Congress. So I think there are a lot of places we have to think about radically changing the scope and footprint of government.
Amen, brother. If he’s serious about this call, then I encourage Prof. Lessig to check out the “Digital Age Communications Act” project that over 50 respected, bipartisan economists and legal scholars penned together to start moving us down this path.
I used to be better about posting short reviews of the books I was reading, but I’ve gotten lazy and stopped doing so. I’m going to try to get back in that habit. For now, I’ll just post a few links for some interesting books I’ve read recently, or just started digging into:
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The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, by Daniel J. Solove. As a rabid free speech advocate, I found Solove’s book quite challenging because he points out the occasional downsides of uninhibited speech when it comes to reputation. I generally subscribe to the “your-privacy-is-over, get-over-it” camp, but Solove makes a powerful case regarding the dangers of that position when innocent people get caught up in an online war of words and have their reputations ruined for years, or perhaps even life. Jim Harper posted a review of Solove’s book last October and pointed out that these occasions are probably more rare than Solove suggests, but they still do exist. The question is: How much of a role should the law play in countering or correcting those “wrongs”? Solove has some interesting answers. [Note: You can read the book online here.]
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Access Denied: The Practice and Policy of Global Internet Filtering, edited by Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain. This is essential reading for anyone studying the methods governments are using to stifle online expression. The contributors provide a regional and country-by-country overview of the global state of online speech controls and discuss the long-term ramifications of increasing government filtering of online networks. Even if you don’t read the whole thing, this is a must-have title for your bookshelf since there is no other resource out there like this. [Note: It also contains a very helpful chapter on the mechanics of Net filtering.]
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Convergence Culture: Where Old and New Media Collide Convergence Culture: Where Old and New Media Collide, by Henry Jenkins. I finished this one several months ago but thought I would plug it here anyway. Jenkins is one of my favorite writers, and in many ways he follows in the footsteps of Marshall McLuhan and Ithiel de Sola Pool, who wrote my favorite technology policy book of all time, Technologies of Freedom. I really like Henry’s definition of convergence: “the flow of content across multiple media platforms, the cooperation between multiple media industries, and the migratory behavior of media audiences who will go almost anywhere in search of the kinds of entertainment experiences they want.” He goes on to argue that, “In the world of media convergence, every important story gets told, every brand gets sold, and every consumer gets courted across multiple media platforms.”
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Most of us think of watch-listing as a fool’s errand in the air travel context. Well, here’s a story of how it can wreak havoc (more accurately, deny free speech and due process) in the context of Web domains.
The U.S. Treasury Department’s OFAC list (for Office of Foreign Asset Control) is a list of people and entities that U.S. entities can’t do business with. Because doing business with them would be support for the terrorists.
Oh, and support for travel agents specializing in getting Europeans to Cuba.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.