Over at Convergences I consider the writings of Polk Wagner, beginning thus:
Polk Wagner has written some worthwhile papers on law and technology. I heartily recommend those that support points on which we agree, such as T
he Perfect Storm: Intellectual Property and Public Values, 73 Fordham L. Rev. 1107. 2005. This paper notes how the de facto balance between copyright and fair use has shifted over the years, and that in key respects copyright has lost, not gained, ground, and also noting that fair use is far from being the only key conceptual or practical limit on copyright.
But his paper “On Software Regulation,” is a bit muddled. It may not be Professor Wagner’s fault, for the article was written following up on the “code is law” meme, which is at bottom a rather unhelpful observation. If “code is law” then so is everything else—the laws of physics, architecture, road design, engineering, biology, the laws of physics, religion, education, insect swarming patterns, families, and so on. All of these things affect human behavior and shape and regularize society. My complaint with “code is law” is not that is not true, in a sense—but that it is very unhelpful in understanding any real problem. Many institutions and systems affect human behavior, but they do so in different ways. It is understanding the differences that will be the key to resolving any serious human problems.
Consistent with this, Professor Wagner begins by noting that “code is law” tells us nothing about how code and law relate. But he restates the view that software code constitutes regulation. Software “regulates” in the sense that it makes human conduct more regular and affects the public. But is it really much like “regulation” enacted through a legal process by Congress or the FCC, or even like law described by courts? Certainly not. But the paper’s description of the differences is oddly incomplete.
For the remainder, visit Convergences here.
TechLawJournal
has a thorough analysis of Justice John Paul Stevens’ opinions in technology-related areas. I reproduce it here with permission. (Tim Lee’s shorter Cato@Liberty post about Justice Stevens’ legacy in tech is here.)
Justice John Paul Stevens, who has served on the Supreme Court since 1975, announced on April 9, 2010, that he will retire when the Court completes its current term this summer. This article reviews his contributions to technology related areas of law.
Outline of Article:
- Summary.
- Copyright Cases.
- State Immunity in IPR Cases.
- Patent Cases.
- Communications Cases.
- Internet Speech Cases.
- Privacy Cases.
- Other Cases.
1. Summary.
Justice Stevens wrote the majority opinion in the 1984 landmark Sony Betamax case. It was a 5-4 opinion. He joined in the unanimous 2005 opinion in MGM v. Grokster, regarding vicarious copyright infringement by the distributors of peer to peer systems. He wrote a long and vigorous dissent in Eldred, the 7-2 case regarding the Copyright Term Extension Act.
Justice Stevens led the fight against extending sovereign immunity to states for violation of, among other things, intellectual property laws. He dissented from the outset, and never considered the Court to be constrained by the doctrine of stare decisis. However, his concern was with the conservatives’ interpretation of states rights, not incenting the creation of intellectual property. Continue reading →
As I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about “Speech, Democratic Engagement, and the Open Internet.” It was a shockingly one-sided affair with the deck being stacked almost entirely in favor of advocates of Net neutrality regulation. Worse yet, those advocates shamelessly made up spooky stories about a future of “private censorship” that could only be remedied by using the First Amendment as a club to beat private players into submission. The token opposition at this Chicken Little circus was Robert Corn-Revere, a Partner at the law firm of Davis Wright Tremaine LLP in Washington, D.C. Bob set the record straight–both in terms of baseless accusations that were flying that day as well as the revisionist histories of the First Amendment that were being put forward. I’m happy to report that Bob allowed PFF to reprint his remarks as a new white paper entitled, “The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For.”
In his essay, Corn-Revere discusses the relationship between the First Amendment and regulatory policy, particularly the treatment of new communications technologies, and he warns that government regulation of broadband networks could “provide the vehicle for advancing new First Amendment theories for media regulation” and online speech and expression more generally. “It should not be forgotten,” he argues, “that the federal government’s initial impulse was to censor the Internet and to subject it to a far lower level of First Amendment protection. It pursued this agenda for more than a decade but was blocked by a series of First Amendment rulings.” The Communications Decency Act and the Child Online Protection Act are just two notable examples. Luckily, the courts determined that “the open Internet would be at great risk if the government is allowed to exercise such power,” he notes, and they struck down such laws.
Continue reading →
by Adam Thierer & Berin Szoka — (Ver. 1.0 — Summer 2009)
We are attempting to articulate the core principles of cyber-libertarianism to provide the public and policymakers with a better understanding of this alternative vision for ordering the affairs of cyberspace. We invite comments and suggestions regarding how we should refine and build-out this outline. We hope this outline serves as the foundation of a book we eventually want to pen defending what we regard as “Real Internet Freedom.” [Note: Here’s a printer-friendly version, which we also have embedded down below as a Scribd document.]
I. What is Cyber-Libertarianism?
Cyber-libertarianism refers to the belief that individuals—acting in whatever capacity they choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their own tastes and interests online.
Generally speaking, the cyber-libertarian’s motto is “Live & Let Live” and “Hands Off the Internet!” The cyber-libertarian aims to minimize the scope of state coercion in solving social and economic problems and looks instead to voluntary solutions and mutual consent-based arrangements.
Cyber-libertarians believe true “Internet freedom” is freedom
from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.
Continue reading →
What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]
by Adam Thierer & Berin Szoka
The Progress & Freedom Foundation,
Progress on Point No. 16.19
Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:
- People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
- All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.
While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as
Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.
That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families. Continue reading →
Over at Twitter, our TLF blogging colleague Jerry Brito asks a smart question about the Federal Communications Commission’s recently-opened investigation of the Apple-Google spat over Apple’s recent decision to reject the Google Voice app from the iPhone App Store. Jerry asks: “Maybe I should know this, but what authority does the FCC have to demand that Apple explain anything?” Good question, Jerry! But no, I don’t think there’s anything you’re missing. We might consider this merely the latest chapter of the agency’s rogue operator history: If you can’t find the authority to do something, just assert it anyway and go for broke! The idea of living within the confines of the law and paying attention to statutory authority seems like an alien concept to the FCC. As my PFF colleagues Barbara Esbin and Adam Marcus have pointed out in their amazing recent law review article, “The Law Is Whatever the Nobles Do: Undue Process at the FCC,” when all else fails, the agency just asserts “ancillary jurisdiction” and claims that the whole world is their oyster. They argue:
The FCC’s means of asserting regulatory authority over broadband Internet service providers’ (“ISP”) network management practices is unprecedented, sweeping in its breadth, and seemingly unbounded by conventional rules of interpretation and procedure. We should all be concerned, for apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers.
Of course, even if we ignore the agency’s cavalier attitude about the law and statutory authority, there are other reasons to be concerned about FCC interference in this matter.
Continue reading →
Lori Drew was convicted late last year on charges related to her role in a cruel hoax that led to the tragic suicide of thirteen-year old Megan Meier in Missouri in 2006. But today, at her sentencing, the judge threw out her convictions. Millions around the world were horrified by Megan’s fate, and many will probably be upset that Drew might go unpunished. But we need to separate three questions in this case:
- Should the federal anti-hacking law under which she was convicted really be applied in such cases?
- What, precisely, was Drew’s involvement?
- The key question: What should be done about the general problems of cyberbullying and cyberharassment?
Misuse of the Anti-Hacking Statute
Judge Wu has yet to issue his written opinion but seems to have agreed with the various experts on Internet law who argued that, however tragic the Meier case was, the Computer Fraud & Abuse Act (CFAA) should not have been applied to Drew. Most notably, the Electronic Frontier Foundation filed an Amicus Brief in support of Drew’s motion to dismiss the charges against her—summarized by Groklaw and the Harvard Journal of Law & Technology. Orin Kerr, a leading Internet law professor, felt so strongly about the consequences of using the CFAA to criminalize violations of privately written terms of service that he joined Drew’s defense team. Kerr demonstrated the problems of essentially allowing private parties to create the grounds for criminal offenses (if violated by users) by suggesting obviously ridiculous new terms of service for the Volokh Conspiracy, the group blog he writes on.
Hard as it may be for those who want to “see justice done” in this case, the CFAA just isn’t the right law to apply—which raises the question of whether new laws are needed, discussed below.
Uncertainty About Drew’s Role
The judge may also have been influenced by uncertainty as to Drew’s actual role in the case. Initial coverage of the story suggested that Drew created the fake MySpace persona of a teen boy (“Josh Evans”), then used that profile to woo Meier, a classmate of Drew’s daughter, only to deliberately—and cruelly—break her heart. After Missouri prosecutors and the FBI declined to press charges against Drew, federal prosecutors in California decided to do so, but Drew consistently maintained that it was not her idea to create the account. Continue reading →
By Berin Szoka & Adam Thierer
We’ve just released a new PFF white paper (PDF) entitled, “Cyberbullying Legislation: Why Education is Preferable to Regulation.” In this 24-page study we note that, compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests the cyberbullying is on the rise and that it can have profoundly damaging consequences for children.
Unsurprisingly, in the wake of a handful of high-profile cyberbullying incidents that resulted in teen/tween suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal crime to punish cyberbullying, which would include fines and jail time for violators. In April 2008, Rep. Linda Sánchez (D-CA) introduced H.R. 1966 (originally H.R. 6123), the “Megan Meier Cyberbullying Prevention Act,” a bill that would create a new federal felony:
“Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.”
The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities. In mid-May, the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047) was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that will be administered by the Department of Justice, in concurrence with the Department of Education, and the Department of Health & Human Services. These agencies will also work in consultation with education, Internet safety, and other relevant experts to administer a five-year grant program, under which each grant will be awarded for a two-year period.
Continue reading →
Internet policy Shame Artist extraordinaire Chris Soghoian has struck again! Chris recently shamed the online advertising industry into improving their privacy practices with his Targeted Advertising Cookie Opt-Out (TACO) plug-in for Firefox. Now Chris has set his sight on the security practices of cloud service providers.
A letter released this morning, signed by 37 leading online security experts (and organized by Chris), calls on Google to offer persistent SSL (HTTPS) encryption by default for all Google services—or at the very least, to make more visible the option currently given to users to opt-in to use SSL for all communications. Google, in its response, indicated that it was already “looking into whether it would make sense to turn on HTTPS as the default for all Gmail users.”
While Google’s response identifies some clear problems with implementing persistent SSL for all users (esp. connection speed), few would deny that it makes sense for webmail providers to encrypt all traffic using SSL, rather than sending email data “in the clear,” which risks interception by hackers. We at PFF hold no brief for Google, in fact we have found ourselves disagreeing with them on many other occasions on a range of issues (most notably net neutrality mandates). Nonetheless, on this front, Google has long been a leader, having offered SSL since Gmail launched and having begun providing the persistent HTTPS option last summer while most of their competitors still use SSL only for the initial authentication that occurs when a user first signs in. While the letter focuses on Google and webmail in particular, this issue has far broader implications for all online cloud service providers.
No Free Lunch: The Costs of Encryption
Gmail, Yahoo! Mail, Hotmail, etc. are, of course, “free” (
i.e., ad-supported). Google in particular has lead the way in increasing the functionality offered in Gmail, not just constantly increasing the total storage space provided to every user (now over 7GB), but regularly adding innovative new features—at no charge to users. Continue reading →
I’m reading a couple of interesting books right now [see my Shelfari list here] including Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy by Lawrence Friedman of the Stanford School of Law. The book examines the legal and social norms governing privacy, reputation, sex, and morals over the past two centuries. It’s worth putting on your reading list. [Here’s a detailed review by Neil Richards.] I might pen a full review later but for now I thought I would just snip this passage from the concluding chapter:
In an important sense, privacy is a modern invention. Medieval people had no concept of privacy. They also had no actual privacy. Nobody was ever alone. No ordinary person had private space. Houses were tiny and crowded. Everyone was embedded in a face-to-face community. Privacy, as idea and reality, is the creation of a modern bourgeois society. Above all, it is a creation of the nineteenth century. In the twentieth century it became even more of a reality. [p. 258]
In a time when amorphous “rights” to privacy seem to be multiplying like wildflowers, this is an important insight from Friedman. In my opinion, many of the creative privacy theories being concocted today are often based on false nostalgia about some forgotten time in the past when we supposedly all had our own little quiet spaces that were completely free from privacy intrusions. But as Friedman makes clear, this is largely a myth. It’s not to say that there aren’t legitimate issues out there today. But it’s important that we place modern privacy issues in a larger historical context and understand how many of today’s concerns pale in comparison to the problems of the past.
[Note: If you’re interested in this topic, you’ll also want to read Daniel Solove’s The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. Also, here’s Jim Harper’s review of it.]
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.