Since we last visited the cellphone unlocking question, three bills have been introduced in Congress that address the issue. My sources tell me that forthcoming shortly here on the TLF will be a Ryan Radia patented Radianalysis™ of the bills. While that’s still cooking, though, I wanted to give you my quick impressions.
The bills range from “meh” to crafty.
Marvin Ammori, a fellow at the New American Foundation and author of the new book On Internet Freedom explains his view of how the First Amendment applies the Internet through the lens of constitutional law and real world case studies.
According to Ammori, Internet freedom is a foundational issue for democracy, equivalent to the right to vote or freedom of speech. In fact, he says, the First Amendment can be used as a design principle for how we think about the challenges we face as Internet technology increasingly becomes a part of our lives.
Ammori’s belief in a positive right to speech—that everyone should have access to the most important speech tools in society and be able to speak with and listen to any other speaker without having to seek permission— translates to a belief that Internet should be made available for everybody, without restrictions aside from those placed on offlinet speech.
Ammori goes on to explain why he thinks SOPA threatened to infringe upon free speech while net neutrality protects it, suggesting that allowing ISPs to control bandwidth usage is tantamount to forcing internet users to become passive consumers of information, rather than creators and content-spreaders.
Mention the word “drone” to the average American today and the mental image it will conjure is likely to be of a flying robot weapon being wielded by a practically unaccountable executive. That’s why Sen. Rand Paul’s filibuster to draw attention to the administration opaque targeting process was important. I’m afraid, though, that Americans will end up seeing drones only in this negative light. In reality, the thousands of drones that will populate our skies before the end of the decade will be more like this one:
Over at Reason.com today I try to draw the distinction between killbots and TacoCopters, and I make the case we can’t let our legitimate fears of police surveillance and unaccountable assassinations keep us from the benefits of commercial drones.
Requiring that police get a warrant before engaging in surveillance is a no-brainer. But there is a danger that fear of governmental abuse of drones might result in the public demanding—or at least politicians hearing them ask for—precautionary restrictions on personal and commercial uses as well. For example, a bill being considered in New Hampshire would make all aerial photography illegal. And a bill recently introduced in the U.S. House of Representatives would make it a crime to use a private drone to photograph someone “in a manner that is highly offensive to a reasonable person … engaging in a personal or familial activity under circumstances in which the individual had a reasonable expectation of privacy”—a somewhat convoluted standard.
Restrictions on private drones may indeed be necessary some day, as the impending explosion of drone activity will no doubt disrupt our current social patterns. But before deciding on these restrictions, shouldn’t legislators and regulators wait until we have flying around more than a tiny fraction of the thousands of domestic drones the FAA estimates will be active this decade?
If officials don’t wait, they are bound to set the wrong rules since they will have no real data and only their imaginations to go on. It’s quite possible that existing privacy and liability laws will adequately handle most future conflicts. It’s also likely social norms will evolve and adapt to a world replete with robots.
You can read the whole article here.
In an opinion published in the Wall Street Journal last week, Federal Communications Commission Chairman Julius Genachowski admonished us to keep “discussions focused on solving problems, and on facts and data” when evaluating his spectrum policy proposals. That sounds reasonable, and it could be persuasive, if the FCC based its spectrum policy on consistently applied facts and data.
The FCC has instead chosen to selectively manipulate the facts and data to support its desired policy outcomes. Within a single quarter, the FCC has simultaneously concluded that:
Neither the laws of physics and economics nor the regulations governing the 2.5 GHz band changed the actual facts and data in the intervening period between these inconsistent conclusions. The only things that changed were the results the FCC wanted to reach and the “facts and data” the FCC decided to present to the public. Continue reading →
There are hundreds of applications for generic words in ICANN’s new top level domain program. They include .BOOK, .MUSIC, .CLOUD, .ACCOUNTANT, .ARAB and .ART. Some of the applicants for these domains have chosen to make direct use of the name space under the TLD for their own sites rather than offering them for broad general use. Amazon, for example, would probably make .BOOK an extension of its online bookstore rather than part of a large-scale domain name registration business; Google would probably make .CLOUD an extension of its own cloud computing enterprises.
This is really no different from Barnes and Noble registering BOOK.COM and using it only for its bookstore, Scripps registering FOOD.COM and controlling the content of the site, or CNET registering NEWS.COM and making exclusive use of the site for its own news and advertising. Nor is it terribly different from the .MUSEUM top level domain.
Yet these proposals have generated a loud chorus of objections from competing businesses. They have dubbed these applications ‘closed generics’ and shouted so loud that ICANN is once again considering changing its policies in mid-implementation. ICANN staff has called for public comment and asked specifically whether it should change its rules to determine what is a ‘generic term’ and whether ICANN should enlarge even further its role as as a top-down regulator and dictate whether certain business models can be associated with certain domain names.
A group of Noncommercial Stakeholders Group (NCSG) members have weighed in with some badly-needed disinterested public comment. It isn’t about ‘open’ or ‘closed,’ they maintain, it is about the freedom to innovate.
As NCSG stakeholders, our position is driven neither by paying clients nor by an interest in the success of specific applications. It is based on a principled commitment to the ‘permissionless innovation’ that has made the Internet a source of creativity and growth. Our aim is to maximize the options available to DNS users and to minimize top-down controls. We support the freedom of individuals and organizations to register domains and use them legally in any way they see fit. We support experimentation with new ideas about what a TLD can do. We see no reason to impose ex ante restrictions on specific business models or methods of managing the name space under a TLD.
The group warns ICANN of the danger of giving itself the power to decide what qualifies as a ‘generic word’ and rejects any attempt to retroactively create new policies that would dictate business models for TLD applicants. Hopefully ICANN’s board will be able to look past the self-interested cries of businesses that want to eliminate competitors and consider the public interest in Internet freedom. The comments and list of supporters are available at this link.
In our 2011 law review article, Tate Watkins and I warned: “[A] cyber-industrial complex is emerging, much like the military-industrial complex of the Cold War. This complex may serve not only to supply cybersecurity solutions to the federal government, but to drum up demand for those solutions as well.”
In The Hill today, Kevin Bogardus writes under the headline “K St. ready for cybersercurity cash grab”:
The cybersecurity push has drummed up work for influence shops downtown. There have been more than a dozen lobbying registrations for clients that mention “cybersecurity” since Election Day, according to lobbying disclosure records.
Robert Efrus, a long-time Washington hand, is one of many lobbyists working the issue.
“It is a growing niche on K Street,” Efrus said. “I think there are a lot of new players that are seeing action with the executive order and legislation being on worked in Congress, not forgetting the funding opportunities. A lot of tech lobbyists have upped their involvement in cyber for sure.” …
“From a lobbying perspective, with everything else going south, this is one of the few positive developments in the whole federal policy arena,” said Efrus[.] …
Lobbyists note that cybersecurity is one of the few areas where budget-conscious lawmakers are looking to spend.
Cybersecurity is officially government’s growth sector.
Last week, Pandora CEO Tim Westergren was at the Heritage Foundation, “trying to rally the conservative troops,” according to Politico. The company is pushing the Internet Radio Fairness Act, which would let government bureaucrats set the rates for the music it uses one way. Arguing for another (more expensive) way on Wednesday, was RIAA president Cary Sherman who, again according to Politico, was “ranting against the Internet Radio Fairness Act and condemning Pandora for its efforts to change the standard royalty rate.”
Essentially, they are negotiating through Congress; each side wanting to use the government to gore the other’s ox. In a new article at Reason.com, I make the case that the principled free market approach would be to get rid of compulsory licenses and allow the two sides to negotiate with each other. As I point out, this is yet another opportunity for the G.O.P. to take on copyright cronyism:
If a federal policy strips owners of their rights to dispose of their property as they see fit, institutes price-fixing by unelected bureaucrats, and in the process picks an industry’s winners and losers, you’d expect Republicans in Congress to be against it. But when it comes to copyright, all bets are off. …
If Republicans really care about copyright as a property right, they should treat it as property and allow copyright holders to decide to whom they will license their music. That would mean prices negotiated in a free market, not fixed by apparatchiks, and an end to politically determined winners and losers.
Marc Ambinder has some phenomenal reporting in Foreign Policy today about how the NSA assists companies that are the victims of (usually Chinese) cyberespionage. It is a must read.
One thing we learn: “Cyber-warfare directed against American companies is reducing the gross domestic product by as much as $100 billion per year, according to a recent National Intelligence Estimate.”
That is just slightly more than half a percent of GDP, which puts the scope of the threat in perspective.
The most interesting thing, though, is this:
In the coming weeks, the NSA, working with a Department of Homeland Security joint task force and the FBI, will release to select American telecommunication companies a wealth of information about China’s cyber-espionage program, according to a U.S. intelligence official and two government consultants who work on cyber projects. Included: sophisticated tools that China uses, countermeasures developed by the NSA, and unique signature-detection software that previously had been used only to protect government networks.
Press reports have indicated that the Obama administration plans to give certain companies a list of domain names China is known to use for network exploitation. But the coming effort is of an entirely different scope. These are American state secrets.
Very little that China does escapes the notice of the NSA, and virtually every technique it uses has been tracked and reverse-engineered. For years, and in secret, the NSA has also used the cover of some American companies – with their permission – to poke and prod at the hackers, leading them to respond in ways that reveal patterns and allow the United States to figure out, or “attribute,” the precise origin of attacks. The NSA has even designed creative ways to allow subsequent attacks but prevent them from doing any damage. Watching these provoked exploits in real time lets the agency learn how China works.
Will you look at that? Information sharing between the government and the private sector without liability protection. Even more than information sharing, it seems some businesses are allowing the NSA to monitor their systems.
As I’ve said before, there is nothing preventing the government from sharing information about cyberattacks with the private sector. Legislation isn’t required to allow that. As for businesses sharing information with government, they too are free to do so. The only question is whether they should get a free pass for violating contracts or breaking the law when they share in the name of security. I think that would be a mistake.
As Ambiner points out, “the NSA’s reputation has been tarnished by its participation in warrantless surveillance[.]” People don’t trust the NSA with good reason. Security is important, but so are civil liberties. Removing the possibility of liability would also remove any incentive companies might have to be a check on what information the NSA collects. Ambinder writes that given their experience with the warrantless wiretapping program, today “telecoms are wary of cooperating with the NSA beyond the scope of the law.” That’s as it should be. Do we really want to give companies cover to cooperate with the NSA beyond the scope of the law?
According to Ambinder, the NIE suggests “that the NSA will have to perform deep packet inspection on private networks at some point.” (This is the so-called EINSTEIN 3 system This doesn’t sound like a good idea, but if it is to happen, it should be debated in public. Liability protection might allow businesses to allow the NSA to employ the system in secret.
In remarks delivered at the Hudson Institute today, Federal Communications Commissioner Ajit Pai outlined two paths for the Internet Protocol (or IP) transition: One that clings to a legacy of heavily-regulated, monopoly communications networks and another that embraces the future being wrought by the competitive nature of IP communications. He noted that, while the FCC has thus far refused to choose one path or the other, consumers have overwhelming chosen the lightly regulated, competitive IP technologies of the future over the preference for monopoly the government chose in the past. Commissioner Pai has chosen to side with consumers by choosing the future – the path that protects consumers while making it clear that 20th Century economic regulation will not be imported into the IP-world. Continue reading →
In a recent blog post Scott Cleland endorses the Administration’s stance that the DMCA should be reformed to accommodate, as he puts it, “pro-competitive exceptions that consumers who have fully paid for the phone and fulfilled their legal and contractual obligations, of course should be able to use it with other carriers.” As he deftly explains,
In a nutshell, if one has honored one’s legal obligations to others, one should be free to unlock their phone/property because they indeed own the lock and the key. However if one has not honored one’s full-payment and legal obligations to others, one may have the phone in one’s possession, but one does not legally own the key to unlocking all the commercial value in the mobile device. Most everyone understands legally and morally that there is a huge difference between legally acquiring the key to unlock something of value and breaking into property without permission. The core cleave of this cellphone issue is just that simple.
I couldn’t have put it better myself. There is a key distinction to be drawn between two very different conceptions of “cellphone unlocking.”
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
