Author Archive for derek-bambauer
Pakistan Scrubs the Net
posted by Derek Bambauer
Pakistan, which has long censored the Internet, has decided to upgrade its cybersieves. And, like all good bureaucracies, the government has put the initiative out for bid. According to the New York Times, Pakistan wants to spend $10 million on a system that can block up to 50 million URLs concurrently, with minimal effect on network speed. (That’s a lot of Web pages.) Internet censorship is on the march worldwide (and the U.S. is no exception). There are at least three interesting things about Pakistan’s move:
First, the country’s openness about its censorial goals is admirable. Pakistan is informing its citizens, along with the rest of us, that it wants to bowdlerize the Net. And, it is attempting to do so in a way that is more uniform than under its current system, where filtering varies by ISP. I don’t necessarily agree with Pakistan’s choice, but I do like that the country is straightforward with its citizens, who have begun to respond.
Second, the California-based filtering company Websense announced that it will not bid on the contract. That’s fascinating – a tech firm has decided that the public relations damage from helping Pakistan censor the Net is greater than the $10M in revenue it could gain. (Websense argues, of course, that its decision is a principled one. If you believe that, you are probably a member of the Ryan Braun Clean Competition fan club.)
Finally, the state is somewhat vague about what it will censor: it points to pornography, blasphemy, and material that affects national security. The last part is particularly worrisome: the national security trump card is a potent force after 9/11 and its concomitant fallout in Pakistan’s neighborhood, and censorship based on it tends to be secret. There is also real risk that national security interests = interests of the current government. America has an unpleasant history of censoring political dissent based on security worries, and Pakistan is no different.
I’ll be fascinated to see which companies take up Pakistan’s offer to propose…
Cross-posted at Info/Law.
March 8, 2012 at 3:03 pm
Posted in: Architecture, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Intellectual Property, Politics, Privacy (National Security), Social Network Websites, Technology, Web 2.0
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Santorum: Please Don’t Google
posted by Derek Bambauer
If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)
This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.
Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!
Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!
Cross-posted at Info/Law.
February 29, 2012 at 5:54 pm
Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0
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Ubiquitous Infringement
posted by Derek Bambauer
Lifehacker‘s Adam Dachis has a great article on how users can deal with a world in which they infringe copyright constantly, both deliberately and inadvertently. (Disclaimer alert: I talked with Adam about the piece.) It’s a practical guide to a strict liability regime – no intent / knowledge requirement for direct infringement – that operates not as a coherent body of law, but as a series of reified bargains among stakeholders. And props to Adam for the Downfall reference! I couldn’t get by without the mockery of the iPhone or SOPA that it makes possible…
Cross-posted to Info/Law.
February 27, 2012 at 2:14 pm
Posted in: Anonymity, Architecture, Culture, Current Events, Cyberlaw, DRM, Education, Google and Search Engines, Innovation, Intellectual Property, Interviews, Media Law, Movies & Television, Politics, Social Network Websites, Technology, Web 2.0
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Stealing the Throne
posted by Derek Bambauer
Ever-brilliant Web comic The Oatmeal has a great piece about piracy and its alternatives. (The language at the end is a bit much, but it is the character’s evil Jiminy Cricket talking.) It mirrors my opinion about Major League Baseball’s unwillingness to offer any Internet access to the postseason, which is hard on those of us who don’t own TVs (or subscribe to cable). Even if you don’t agree with my moral claims, it’s obvious that as the price of lawful access diverges from the price of unlawful access (which is either zero, or the expected present value of a copyright suit, which is darn near zero), infringement goes up.
So, if you want to see Game of Thrones (and I do), your options are: subscribe to cable plus HBO, or pirate. I think the series rocks, but I’m not paying $100 a month for it. If HBO expects me to do so, it weakens their moral claim against piracy.
Unconvinced? Imagine instead that HBO offers to let you watch Game of Thrones for free – but the only place on Earth you can view the series is in the Kodak Theater in Hollywood. You’re located in rural Iowa? Well, you’ve no cause for complaint! Fly to LA! I suspect that translating costs into physical costs makes the argument clearer: HBO charges not only for the content, but bundles it with one particular delivery medium. If that medium is unavailable to you, or unaffordable, you’re out of luck.
Unless, of course, you have broadband, and can BitTorrent.
As a minimum, I plan not to support any SOPA-like legislation until the content industries begin to offer viable Internet-based delivery mechanisms that at least begin to compete with piracy…
Cross-posted at Info/Law.
February 22, 2012 at 12:21 pm
Posted in: Architecture, Culture, Current Events, Cyber Civil Rights, Cyberlaw, DRM, Innovation, Intellectual Property, Legal Ethics, Media Law, Movies & Television, Politics, Technology, Web 2.0
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Cyberbullying and the Cheese-Eating Surrender Monkeys
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
Introduction
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm
Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0
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Ben Stein and the ABA’s Facepalm
posted by Derek Bambauer
The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?
This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.
Hat tip: health law expert Margo Kaplan.
Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!
Cross-posted at Info/Law.
February 20, 2012 at 11:27 am
Posted in: Blogging, Bright Ideas, Conferences, Culture, Current Events, Cyberlaw, Education, Humor, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Science Fiction, Technology
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The Memory Hole
posted by Derek Bambauer
On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.
Cross-posted at Info/Law.
February 17, 2012 at 12:01 pm
Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0
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Cary Sherman and the Lost Generation
posted by Derek Bambauer
The RIAA’s Cary Sherman had a screed about the Stop Online Piracy and PROTECT IP Acts in the New York Times recently. Techdirt’s Mike Masnick brilliantly gutted it, and I’m not going to pile on – a tour de force requires no augmentation. What I want to suggest is that the recording industry – or, at least, its trade group – is dangerously out of touch.
Contrast this with at least part of the movie industry, as represented by Paramount Pictures. I received a letter from Al Perry, Paramount’s Vice President Worldwide Content Protection & Outreach. He proposed coming here to Brooklyn Law School to
exchange ideas about content theft, its challenges and possible ways to address it. We think about these issues on a daily basis. But, as these last few weeks [the SOPA and PROTECT IP debates] made painfully clear, we still have much to learn. We would love to come to campus and do exactly that.
Jason Mazzone, Jonathan Askin, and I are eagerly working to have Perry come to campus, both to present Paramount’s perspective and to discuss it with him. We’ll have input from students, faculty, and staff, and I expect there to be some pointed debate. We’re not naive – the goal here is to try to win support for Paramount’s position on dealing with IP infringement – but I’m impressed that Perry is willing to listen, and to enter the lion’s den (of a sort).
And that’s the key difference: Perry, and Paramount, recognize that Hollywood has lost a generation. For the last decade or so, students have grown up in a world where content is readily available via the Internet, through both licit and illicit means; where the content industries are the people who sue your friends and force you to watch anti-piracy warnings at the start of the movies you paid for; and where one aspires to be Larry Lessig, not Harvey Weinstein. Those of us who teach IP or Internet law have seen it up close. In another ten years, these young lawyers are going to be key Congressional staffers, think tank analysts, entrepreneurs, and law firm partners. And they think Hollywood is the enemy. I don’t share that view – I think the content industries are amoral profit maximizers, just like any other corporation – but I understand it.
And that’s where Sherman is wrong and Perry is right. The old moves no longer work. Buying Congresspeople to pass legislation drafted behind closed doors doesn’t really work (although maybe we’ll find out when we debate the Copyright Term Extension Act of 2018). Calling it “theft” when someone downloads a song they’d never otherwise pay for doesn’t work (even Perry is still on about this one).
One more thing about Sherman: his op-ed reminded me of Detective John Munch in Homicide, who breaks down and shouts at a suspect, “Don’t you ever lie to me like I’m Montel Williams. I am not Montel Williams.” Sherman lies to our faces and expects us not to notice. He writes, “the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents.” Yes, it was carefully devised – by content industries. SOPA was introduced at the end of October, and the single hearing that was held on it was stacked with proponents of the bill. “Carefully devised?” Key proponents didn’t even know how its DNS filtering provisions worked. He argues, “Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal?” Because censorship is when the government blocks you from accessing speech before a trial. “A thorough review of evidence” is a flat lie: SOPA enabled an injunction filtering a site based on an ex parte application by the government, in contravention of a hundred years of First Amendment precedent. And finally, he notes the massive opposition to SOPA and PROTECT IP, but then asks, “many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation?” This is a McCarthyite tactic: associating the remarkable democratic opposition to the bills – in stark contrast to the smoke-filled rooms in which Sherman worked to push this legislation – with Anonymous and other miscreants.
But the risk for Sherman – and Paramount, and Sony, and other content industries – is not that we’ll be angry, or they’ll be opposed. It’s that they’ll be irrelevant. And if Hollywood takes the Sherman approach, rather than the Perry one, deservedly so.
Cross-posted at Info/Law.
February 14, 2012 at 7:40 pm
Posted in: Architecture, Culture, Cyber Civil Rights, Cyberlaw, DRM, First Amendment, Google & Search Engines, Innovation, Intellectual Property, Media Law, Political Economy, Politics, Technology, Web 2.0
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Tempest in Tempe: First Amendment in the Desert
posted by Derek Bambauer
In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):
- It was a technical mistake;
- Change.org was spamming ASU; and
- ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”
#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.
For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.
For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.
This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.
As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…
Cross-posted at Info/Law.
February 10, 2012 at 5:10 pm
Posted in: Architecture, Civil Rights, Constitutional Law, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Politics, Social Network Websites, Technology, Web 2.0
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The Hardest Thing to Predict Is the Future
posted by Derek Bambauer
SOPA and PROTECT IP are dead… for now. (They’ll be back. COICA is like a wraith inhabiting PROTECT IP.) Until then, Michelle Schusterman has a terrific graphic about the movie industry’s predictions of doom with each new technological revolution. (Ditto the music industry: the player piano, radio, CDs, the MP3 player, etc., etc.) One reason for this is that it’s difficult to predict the effects of a new communications technology. People thought we’d use the telephone to listen to concerts from afar. But another reason is that content industries see advances not as an opportunity but as a threat – a threat that they deploy IP law to combat, or at least control. And in a policy space where lawmakers don’t demand actual data on threats before acting, trumped-up assertions of job loss and revenue loss can carry the day. This puts the lie to the theory that IP owners will move to exploit new communications media, if only they are protected against infringement. We didn’t get viable Internet-based music sales until iTunes in 2003, and Spotify is the first serious streaming app (the “celestial jukebox“). Think about prior efforts like Pressplay and MusicNow, and how terrible they were. Letting the content industry design delivery models is like letting Matt Millen draft your football team.
This is why piracy is a helpful pointer: it tells us what channels consumers want to use to access content. Sometimes this is just displacement of lawful consumption, as when college students with copious disposable income download songs via BitTorrent, but sometimes it indicates an unaddressed market niche (as with me and the baseball playoffs). To paraphrase Thomas Jefferson, I think a little bit of infringement now and again is a good thing. It is only when there is a viable threat in a new medium that existing players innovate – or cut deals with those who do. In that regard, even if SOPA and PROTECT IP are effective at reducing infringement, we might not want them.
Cross-posted at Info/Law.
January 31, 2012 at 6:58 pm
Posted in: Architecture, Culture, Cyberlaw, DRM, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0
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The E.U. Data Protection Directive and Robot Chicken
posted by Derek Bambauer
The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…
January 25, 2012 at 4:32 pm
Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0
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Cybersecurity Puzzles
posted by Derek Bambauer
Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:
Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.
Conundrum, 96 Minn. L. Rev. 584 (2011).
Cross-posted at Info/Law.
January 24, 2012 at 4:13 pm
Posted in: Anonymity, Architecture, Articles and Books, Current Events, Cyberlaw, Innovation, Intellectual Property, Law Rev (Minnesota), Military Law, Politics, Privacy (National Security), Technology, Web 2.0
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Why Scalia is Right in Jones: Magic Places and One-Way Ratchets
posted by Derek Bambauer
The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »
January 24, 2012 at 12:05 pm
Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology
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Goldilocks and Cybersecurity
posted by Derek Bambauer
It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.
I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)
The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:
increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.
But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.
(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)
Cross-posted at Info/Law.
January 21, 2012 at 7:38 pm
Posted in: Architecture, Cyberlaw, Government Secrecy, Innovation, Intellectual Property, Technology, Web 2.0
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Censorship on the March
posted by Derek Bambauer
Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.
Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.
Cross-posted at Info/Law.
January 18, 2012 at 5:31 pm
Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki
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The Fight For Internet Censorship
posted by Derek Bambauer
Thanks to Danielle and the CoOp crew for having me! I’m excited.
Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.
Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.
I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.
Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)
Cross-posted at Info/Law.
January 16, 2012 at 7:28 pm
Posted in: Architecture, Civil Procedure, Constitutional Law, Culture, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0
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