Archive for the ‘Cyberlaw’ Category
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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Symposium Next Week on “A Legal Theory for Autonomous Artificial Agents”
posted by Frank Pasquale
On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat. Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm, Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden. Chopra will be reading their posts and responding here, too. I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it. (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)
There is an introduction to the book below the fold. (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN). We look forward to hosting the discussion!
February 8, 2012 at 10:43 am
Posted in: Contract Law & Beyond, Criminal Law, Current Events, Cyberlaw, Social Network Websites, Symposium (Autonomous Artificial Agents), Technology, Tort Law
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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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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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SOPA and the Fight for Control of Online Content
posted by Frank Pasquale
I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:
SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.
For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.
January 18, 2012 at 2:10 pm
Posted in: Criminal Law, Current Events, Cyberlaw, Intellectual Property, Technology
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Supporting the Stop Online Piracy Act Protest Day
posted by Danielle Citron
As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.
January 18, 2012 at 10:11 am
Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0
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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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Positive Rights
posted by Frank Pasquale
I’ve always been a big fan of Charles Taylor’s essay “What’s Wrong with Negative Liberty,” but I haven’t done much to advance the idea of economic, social and cultural rights. Here are two efforts to rectify the situation:
1) An opinion piece in the Bergen Record, A Constitutional Right to Health Care.
2) A post at Madisonian, Internet Access as a Human Right.
I don’t think I have much to add to the already well-developed philosophical literature on positive rights, but I’d like to do more to bring this concept to an American audience.
January 16, 2012 at 2:00 pm
Posted in: Constitutional Law, Cyberlaw, Health Law, Technology
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Stanford Law Review Online: Don’t Break the Internet
posted by Stanford Law Review
The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”
They write:
These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.
Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.
Note: Corrected typo in first paragraph.
December 19, 2011 at 3:14 am
Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web
Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites
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When Worlds Collide: Russia, the Internet, and Nothing to Hide (or, Интернет в России)
posted by Jeffrey Kahn
Danielle Citron and Daniel Solove – whose guest I am here at CO – always offer great insights into the brave new world of cyber law. I find their work fascinating and worth a careful read. But readers tend to bring a bit of themselves to whatever they read, and I’m no exception. That part of my scholarship that focuses on Russian law sometimes makes it hard for me to avoid thinking about the original model for Big Brother that George Orwell had in mind when I read about the latest anxieties about the state’s relationship to cyberspace.
So today I was not entirely surprised to learn that the recent mass protests in Russia have a cyber-angle to them beyond the emphasis in news reports on how protesters have used Facebook and flash mobs. Two angles, actually, that readers might miss and that I thought worth sharing. The protests, as many know, were catalyzed by elections to the lower house of the Russian parliament, the State Duma, which were held Sunday, December 4.
The first one was reported yesterday by Mark Franchetti in Moscow for the The Sunday Times (UK):
The dirtiest election in the country’s post-Soviet era began with a cyber attack, unprecedented both in its scale and its efficacy, on several websites critical of the Kremlin.
It was launched 90 minutes before polling stations opened and ended 90 minutes after they closed. Half a dozen sites were shut down completely.
According to security experts employed by one of those affected, the onslaught came from 200,000 hacked computers across the world. Unbeknown to their users, they requested simultaneous access to the sites, which crashed under the weight of demand.
“This was a concerted, well-organized attack which was very expensive to sustain. It’s not some lone hacker causing trouble – rather something far more sinister, almost certainly linked to the security services,” said one web security exeprt.
United Russia, the country’s largest party, led by Putin, denied any involvement but suspicion fell on the state — especially the FSB, the former KGB. The only common link between the targeted sites was that all had posted an interactive map detailing alleged pre-election violations reported by ordinary citizens.
The map, which listed 6,000 alleged violations, was created by Golos, Russia’s only independent election monitoring group, whose site was among those disabled.
The offices of Golos, which is funded partly by the United States and European Union, waere raided by prosecutors in the run-up to the polling. The Kremlin claimed that the West was meddling and Putin, who served in the KGB for 16 years, compared Russian recipients of foreign money to Judas.
The second report comes from ITAR-TASS, a Russian state-owned news service. A report on its wire service suggested that someone (and probably a lot more than one) in the Russian Interior Ministry really ought to read some of Solove’s and Citron’s work. According to ITAR-TASS:
Alexei Moshkov, head of the bureau of special technical activities under the Interior Ministry, suggested on Thursday the taking of measures against anonymity in the Internet. In his opinion, “today social networks not only have some advantages, but also create a potential threat to the fundamentals of society.” Some mass media organs linked his proposal with the growth of protest activity of Russians after the parliamentary elections, in which the Internet is playing an important role.
Major General Moshkov believes that stability of the fundamentals of society may be ensured by banning the publication of anonymous reports, The Novye Izvestia [a Moscow newspaper -- ed.] writes. “One may get registered under his real name, may report his address and after that communicate with others. An honest and law-abiding person does not have to hide. Let me remind you that there is no censorship in the Internet. The “K” Department will not search for anybody or arrest anybody for criticism,” he stated point-blank.
Not everybody in Russia seems to agree with the general. His boss, for example, Rashid Nurgaliyev, the Minister of the Interior. Another ITAR-TASS post (which I’ve only been able to find in Russian) states:
Head of the MVD [the Interior Ministry -- ed.] Rashid Nurgaliyev expressed his negative attitude toward required registration of the names and surnames of Internet users. He declared this in answering a question of news agency journalists concerning “face-control” on the network.
“This is stupidity and no one is planning to introduce this,” said Nurgaliyev.
Well, maybe there’s a reader out there after all!
December 12, 2011 at 8:43 pm
Posted in: Cyberlaw, Privacy (Electronic Surveillance), Uncategorized
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More on Security but with an IP Twist
posted by Deven Desai
Many IP profs watch legislation, and we write about the way proposed laws are good or bad or wise or imprudent. I think the way the IP and online space are going will require more on the technology side. For example, the recent debates on the PROTECT IP Bill and SOPA had some interesting comments and observations about the security side of the way the bills would work. Stephen Cobb’s post captures the issue well.
He noted that on the one hand, the FBI had shut down a DNS changer fueled operation that “redirect[ed] infected computers to rogue websites.” As he explained, “The sheer scale of this DNSChanger scam is likely to increase the momentum for technology that makes it harder to subvert DNS for illegal purposes namely DNSSEC, short for DNS Security Extensions. The goal of DNSSEC is to protect the Internet from certain attacks, such as DNS cache poisoning, man-the-middle attacks, and the kind of DNS changing the FBI has so dramatically brought to light.”
On the other hand the proposed bills use the same technique to achieve their goals. “These bills would require DNS server operators in the US to replace the correct IP address for a website with an alternate address provided by the Attorney General’s office, if the website was “infringing.”
Mr Cobb captures a view that I think reflects what many in security believe. Finding solutions to online IP issues is not a bad idea. But the model on the table right now “is fundamentally incompatible with DNSSEC, a technology that will, if it is allowed to proceed, make many parts of the Internet more resistant to abuse, and expand the possibilities for lawful and profitable business in cyberspace. While the FBI and other law enforcement are working hard to stop the bad guys making millions by infecting our computers and subverting DNS it seems unwise to give private companies the ability to go ahead and change DNS armed only with court orders.”
And for those who want to get a bit more deep on the tech, Mr. Cobb offers “the whitepaper by Paul Vixie and other Internet lunimaries “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill” (pdf file).
November 22, 2011 at 5:46 pm
Posted in: Cyberlaw, Technology
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Bigoted Harassment, Alive and Well Online
posted by Danielle Citron
With the help of law and changing norms, invidious discrimination has become less prevalent in arenas like schools, workplaces, hotels, and public transportation. Due to our social environments, anti-discrimination law is fairly easy to enforce. Because leaders usually can figure out those responsible for discriminatory conduct and ignore such behavior at their peril, bigotry raises a real risk of social sanction. So too hate discourse in the public sphere is more muted. A hundred years ago, Southern newspapers and leaders explicitly endorsed mob violence against blacks. As late as 1940, a newspaper editor in Durham, North Carolina could state that: “A Negro is different from other people in that he’s an unfortunate branch of the human family who hasn’t been able to make out of himself all he is capable of” due to his “background of the jungle.” In the post-Civil Rights era, the public expression of bigoted epithets and slurs occurs infrequently. One rarely hears racist, sexist, or homophobic speech in mainstream media outlets. Some interpret this state of affairs optimistically, as a sign that we are moving beyond race, gender, and arguably even sexual orientation. The election of the first black President provoked proclamations of our entry into a “post-racial” era. Many contend that we no longer need feminism anymore. Prime time television is filled with images of female power, from Brenda Leigh Johnson’s chief on The Closer to Dr. Miranda Bailey’s “take no prisoners” surgeon on Grey’s Anatomy. Who needs feminism anymore as its goals have been achieved?
But a new era is not upon us. In some arenas, hate’s explicit form has repackaged itself in subtlety. In public discourse, crude biological views of group inferiority are often replaced with a kinder, gentler “color-blind racism,” as sociologist Eduardo Bonilla-Silva calls it. The face of modern racism is, in journalist Touré’s estimation, “invisible or hard to discern, lurking in the shadows or hidden.” The media has also better disguised sexism with its anxiety about female achievement, renewed and amplified objectification of young women’s bodies and faces, and the dual exploitation and punishment of female sexuality, as media scholar Susan Douglas explains.
Offline public discourse may now be on more neutral ground but its online counterpart is not. While virulent bigotry continues behind closed doors, it increasingly appears in online spaces that blend public and private discourse. Although televised sports commentary rarely features anti-gay rhetoric, online sports message boards are awash in in-your-face homophobic speech. Racial epithets and slurs are common online, whether in Facebook profiles, Twitter posts, blog comments, or YouTube videos. College students encounter more sexually inappropriate speech in online interactions than in face-to-face ones.
Matters have not improved since I started talking and writing about it since 2007, when we woke up, for a brief second, and paid attention to sexualized, misogynistic attacks on Kathy Sierra on her blog and two others and the targeting of female law students on AutoAdmit. Then, technologist Tim O’Reilly and Wikipedia co-founder Jimmy Wales called for a Blogger’s Code of Conduct. That effort failed to gain traction, and ever since the bigoted online abuse continues, silencing victims, ruining their online reputations, costing them jobs, and interfering with their ability to engage with others online and offline. Newsweek’s always insightful Jessica Bennett has published important new piece on online misogyny and the Guardian’s Vanessa Thorpe and Richard Rogers similarly explore the rape threats and abuse of female bloggers. I will be blogging about bigoted online harassment, as I am amidst writing a book about it and serving on the Inter-Parliamentary Task Force on Online Hate, which recently held a hearing at the House of Commons. This all has to stop, and now.
November 7, 2011 at 10:56 am
Posted in: Cyber Civil Rights, Cyberlaw, Feminism and Gender, Privacy, Privacy (Gossip & Shaming), Web 2.0
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Analog Return: Vinyl, Zines and Motivation for Creation
posted by Deven Desai
Analog: The Resurrection is coming to a store near you. At least it looks that way. The Times reports that vinyl is making a comeback. I happen to have a fair amount of vinyl from when I saved up to buy LPs as a kid. But now companies like Goota Groove are among about 20 places that press vinyl and that together make up “the fastest-growing segment of the beleaguered music industry.” I have to note that the “beleaguered” view may have some challengers. TechCrunch reported that per SoundScan music sales have started to inch up. Plus according the to Times:
Last year, 2.8 million vinyl records were sold in the United States, according to the Nielsen Company, which tracks music sales through its SoundScan system. This year’s numbers are about 40 percent higher, and the real figures are higher still. Most vinyl now is sold in independent record shops, at rock clubs and through homemade Web sites. “SoundScan only gets about 15 percent,” Slusarz told [the reporter], smiling. “The majority of the stuff we press, it doesn’t even have a bar code.”
Furthermore this paper The Creative Destruction of Copyright – Innovation in the Record Industry and Digital Copying found
Eight years into a severe recession and a surge in unauthorised copying, the number of new titles published each year continues to expand at roughly the same rate of growth during the recession period as it did during the preceding boom period.
This result is counter-intuitive regarding the severity and duration of the recession. It challenges a fundamental assumption in much of the economic literature on the impact of unauthorised, digital copying, which has focused on the impact of unauthorised copying on industry revenues. According to the observations presented above, this literature will not support strong conclusions concerning copyright policy. That is because the manipulated variable in copyright policy is not suppliers’ revenues but ‘innovation and creativity’ as means to secure a diverse supply of cultural products that is responsive to societal change. The empirical findings also deflate the case for public investments in greater copyright protection, for penal procedures against so-called copyright ‘pirates’, and for setting high compensatory payments in civil cases brought by rights holders against infringers.
In short, there’s much more going on in the music market than mainstream methods of measurement capture. Indeed, small run print may be making a comeback too at least in the form of zines.
All of these points remind that creativity is not always about incentives, “MOST zines are labors of love, done as side projects and hobbies. The goal isn’t to turn a profit, but rather to capture a cultural moment, which in turn, offers the creators the freedom to explore and experiment.” In addition, the problem of capturing what is going returns here. “It’s hard to track exactly how many zines are in circulation at any time. Some are handwritten sheets that are photocopied a few dozen times, stapled and distributed by hand. Others, more upscale, are printed professionally in runs of several hundred and may be sold online.”
It seems that new creativity, old mediums, and the desire for a differently crafted artifact are driving some interesting areas of business. For those researchers, note writers, innovation junkies, and cultural theorists out there, I’d say there is some research to be done about how these businesses are doing, the size of the vinyl and/or zine market, what technology may have allowed these endeavors to take off, the non-economic motivations in place here as well as the economic ones. There may be more, but those leap to mind.
October 27, 2011 at 12:12 pm
Posted in: Cyberlaw, DRM, Economic Analysis of Law, Intellectual Property, Technology
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Censoring the Internet
posted by Timothy Zick
There are reports that WikiLeaks may have to shut down owing to financial difficulties. That will please many, like Vice President Biden, who think Julian Assange is nothing more than a high-tech terrorist. If Assange’s explanation is to be credited (and I recognize this is a big “if” for some), the website’s financial difficulties stem from a concerted effort by U.S. officials to pressure financial intermediaries (i.e., PayPal, Master Card, Visa) not to permit donors to utilize their sites to make donations. Some may recall that when WikiLeaks first began publishing confidential information about U.S. war operations and diplomacy, some government officials publicly called on these intermediaries to block donations. This, in turn, led to denial-of-service reprisals by hackers against the cooperating intermediaries.
In a very interesting recent article entitled Orwell’s Armchair, Derek Bambauer (Brooklyn Law) argues that governments have turned to persuasion of intermediaries and other indirect forms of “soft censorship” to control Internet content. Bambauer argues that through these indirect methods, government officials are engaging in a form of Internet censorship that is often as or more effective than “hard” forms of legal censorship. Focusing on issues of transparency, breadth, and accountability, Bambauer argues that, in general, soft censorship is less legitimate than hard censorship. He urges, perhaps counter-intuitively, that the government ought to proceed by way of statute if it intends to censor or regulate content on the Internet.
My point here is not to assess the merits of Bambauer’s proposal. I’m more interested in his descriptive claim — namely, that despite all the talk in the U.S. of a free and unfettered Internet, the U.S. government is indeed “censoring” content in this space. I think the WikiLeaks case highlights one of the most pressing concerns in what I refer to in a forthcoming article as the “emerging global theater.” Faced with diminished power to control the flow of information on the Internet, officials in the U.S. are naturally seeking other means by which to regulate certain types of harmful content (i.e., IP infringement, terrorist advocacy, disclosure of government secrets). Many of these means are, as Bambauer claims, less transparent than legislation or administrative regulation. We can debate whether certain forms of “soft” censorship constitute state action, or even “censorship.” However, there is little question that what Bambauer refers to as the government’s “toolkit” for influencing the content Americans and others have access to on the Internet contains a set of “soft” components; these will become increasingly important in terms of online content control in the years to come. Methods of “soft censorship” will not likely result in absolute suppression of content. One of the things the government is learning is that content does not simply disappear from the Internet, even when the speaker is jailed or executed. However, both soft and hard forms of regulation can still have a signficant effect on the free flow of online information. Bambauer’s article is important insofar as it nudges us to think more carefully about different forms of content control in cyberspace.
October 26, 2011 at 12:37 pm
Posted in: Current Events, Cyberlaw, First Amendment, Technology
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Two Crises, One Response
posted by Frank Pasquale
The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.
After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information “fusion centers” and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:
In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.
September 12, 2011 at 2:59 pm
Posted in: Current Events, Cyberlaw, Philosophy of Social Science, Politics, Privacy, Privacy (Law Enforcement), Privacy (National Security), Sociology of Law
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Hacktivism, Anonymity, and Privacy
posted by Olivier Sylvain
On Friday evening, within hours of posting U.S. Marshal Service mugshots of alleged members of Internet “hacktivist” group Anonymous, TalkingPointsMemo.com became the target of a relentless “distributed denial of service” or DDoS attack. According to a statement released by TPM founder and publisher Josh Marshall on TPM’s Facebook page, visitors could not access the site a little after 5 p.m. eastern time. While no one knows for sure, TPM has inferred that Anonymous or people affiliated with the group are probably responsible for the attack. (That TPM turned to Facebook to publish a statement is ironic because Anonymous has vowed to shutdown the social networking site later this fall.) The TPM site remains down as of this posting.
According to Marshall, TPM filed a Freedom of Information Act request for the mugshots earlier this summer, and posted them as soon as they obtained them. For the past six years, according to Marshall, the news site has routinely “published mugshots of numerous people accused or convicted of various crimes” that are the subject of its reporting. I’ve clicked through the photos of hypocrites and hucksters in elective office as well as random mugshots of mobsters and celebrities to satiate an admittedly morbid curiosity. TPM, as with many other major news organizations, knows this. The questions for TPM are ethical and legal: what is it about these admittedly alluring photos of the smirks, glares, and shock typical of mugshots that adds to the story, and justifies the ostensible invasion of privacy?
September 10, 2011 at 1:26 am
Posted in: Anonymity, Current Events, Cyberlaw, Privacy, Privacy (Law Enforcement), Technology, Uncategorized
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Comic-Con and Social Networks
posted by Ari Waldman
Comic-Con is many things: awesome, hilarious, tragic, fun, hilarious, expensive and hilarious. Every July, San Diego becomes the homeof more than just balmy temperatures and the alt-rock tones of Jason Mraz; it hosts Comic-Con, an extraordinary pop culture event that brings together Trekkies and Chris Evans (the 2011 Captain America), Jedis and Ryan Kwanten (of True Blood) and more than a few people who have never picked up a comic book. I’ve joined the crowds the past two years because, well, it’s what you do in San Diego this weekend.
I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.
Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are giving Mark Zuckerberg a run for his anti-anonymity money. To be sure, online games like World of Warcraft (WoW) allow you to create fantastic identities and personae for yourself, but I had a feeling they have become so much more than that. I did not know from experience: I enjoy Sci Fi and have my share of SyFy shows waiting on my DVR, but I’ve never played WoW. I was never a big gamer, even when “Where in the World is Carmen Sandiego” actually came on those large black floppy discs. So, I did what any nerd would do: I went to Comic-Con to test a theory.
I looked for groups where members were of similar ages (thus excluding families), but did not restrict myself to any particular age, race, gender or costume. I spoke to about 100 people. I wanted to know where they met their friends: online or in person? If online, on what platform? If not on a traditional social networking site like Facebook, where? Did they ever have pseudonyms or online identities that hid their real identities? If so, how and when did they come out of the closet to meet each other? In other words, I was trying to understand the role of online anonymity in social interaction among people at Comic-Con, many of whom are highly wired.
Of 107 people, 67 met the friends they were with at the time online. Notably, that is not the same as saying that nearly 2/3 of respondents came to Comic-Con with people they met online, but still, that is a staggering number! In any event, all of them eventually ”met” or “found” each other on Facebook, but some initially linked up through sci-fi themed groups. But, since it all happened through Facebook, no one was anonymous.
Not all relationships started on Facebook’s science fiction corner. A few knew each other as frequent commenters on Gateworld.net, an all-things-Stargate fan website; some were WoW buddies who “never kept [themselves]hidden. He sounded cool, so whatever. It’s all on Facebook or MySpace anyway.” Another young man met his Jedi-clad friend “playing a few different online games. In the chat rooms, he mentioned he was from China and I thought that was so cool, especially since I live in Georgia.” He meant the country, not the state. The two struck up a friendship, became MySpace “friends,” then Facebook “friends” and then decided that they both should meet each others’ friends at Comic-Con. I also met a few young women who lamented that I wasn’t in costume and said that they too bonded online as three of the precious few females to comment about the show Warehouse 13 with any frequency. “As soon as I saw another girl, I immediately asked who she was and where she was. She then friended me on Facebook and I had a friend in a place called Riverside, California. I live in Oklahoma.”
Comic-Con attendees bear the brunt of a lot of stereotypes, none more common than of the adolescent, nonathletic boy who projects the kind of person he wants to be into his WoW elf. But, my initial research suggests that these men and women are not hiding behind the perceived anonymity that their online games could provide. Instead, they see their digital selves as extensions of their physical selves and their online identities as ways to help them meet people in real life. It is difficult for all of us to meet new people, so while an elf-self may be a foot in the door, the man behind the elf wants nothing more than to drop his mask and allow his digital community to supplement his physical community.
Admittedly, my tiny sample set answered informal questions in an unscientific survey. But, this concept — who we really are online and what are we really doing — has implications for the kind of policies websites, intermediaries and users would want to adopt to make the Internet a safe community for all. If we don’t want to be anonymous and have less and less need for it, why should we put safety and certain rights at risk in the name of protecting absolute anonymity? If even elf-selves are eschewing anonymity because of the community-building possibilities of Facebook and Gateworld.net, perhaps anonymity is not part of the liberating potential of the Internet. Perhaps community-building is.
July 22, 2011 at 6:40 pm
Posted in: Culture, Cyberlaw, Web 2.0
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