June 28, 2007
Digging in to Illegal Wiretaps

The Senate Judiciary Committee has sent subpoenas to the White House to investigate the administration's warrantless wiretaps.

WASHINGTON (Wednesday, June 27) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), in consultation with Ranking Member Arlen Specter (R-Pa.), issued subpoenas Wednesday for documents relating to the authorization and legal justification for the Administration's warrantless wiretapping program.

Chairman Leahy issued subpoenas to the Department of Justice, the Office of the White House, the Office of the Vice President and the National Security Council for documents relating to the Committee’s inquiry into the warrantless electronic surveillance program. The subpoenas seek documents related to authorization and reauthorization of the program or programs; the legal analysis or opinions about the surveillance; orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC) concerning the surveillance; agreements between the Executive Branch and telecommunications or other companies regarding liability for assisting with or participating in the surveillance; and documents concerning the shutting down of an investigation of the Department of Justice’s Office of Professional Responsibility (OPR) relating to the surveillance.

More via the NYT. I hope they'll do a vigorous investigation, including debate on the public record to blow down the "state secrets" screen that's been thrown up against private lawsuits against the spying.

Posted by Wendy at 10:16 AM
June 25, 2007
ICANN: Keep the Core Neutral, Stupid

ICANN's travelling circus meets in San Juan, Puerto Rico this week. One of the main subjects of discussion has been the introduction of new generic Top-Level Domains (gTLDs), after a GNSO Report proposed 19 "Recommendations" for criteria these new domain strings should meet -- including morality tests and "infringement" oppositions.

I spoke at a workshop on free expression. (another report) It's important to keep ICANN from being a censor, or from straying beyond its narrow technical mandate. The thick process described in the GNSO report would be expensive, open to "hecklers' vetos," and deeply political.

Instead, I recommended that, along the lines of David Isenberg's Stupid Network, ICANN should aim for a "stupid core": approve strings after a minimal test for direct or visual collision. Just as we couldn't predict what applications or content would be successful on the Internet, but benefit from the ease with which innovators can experiment with a wide range, we'll benefit if entrepreneurs can experiment with new TLDs without a lot of central pre-screening. Rather than supporting a race to the bottom to adopt restrictions on the lines of the most restrictive government views of permissible expression (no human rights, sexuality, or "hate"), we must leave it to the governments to apply those restrictions at the edges too, in their own jurisdictions if they insist, but not at the center on all.

Of course I do not support government censorship even at the local level, but between local control, which can itself be a source of experimentation, and central control, which becomes ossified and restrictive at the lowest level, I think local law poses less threat to global free expression. If you agree that ICANN should keep moral judgments out of the DNS root, sign the petition to Keep the Core Neutral.

Posted by Wendy at 05:59 PM
June 23, 2007
PerezHilton.com Feeling the Chill?

The Houston Chronicle reports that celebrity gossip site PerezHilton.com has battled ISP takedown over claimed copyright infringement. The problem is, site-owner Mario Lavanderia is already disputing those claims in federal court, where a judge refused to grant an injunction. Instead, as the judicial process properly works, Lavanderia must be proven a likely infringer before his speech is silenced.

The DMCA, however, offers copyright claimants an easy route around the niceties of judicial process -- make it too much of a nuisance for an ISP to deal with an accused infringer as a client, and get his site removed. And this underscores the precarious nature of our reliance on private infrastructure. Even though the DMCA insulates ISPs from liability once they've received counter-notification, copyright claimants can still shower them with complaints, and ISPs are still free to bow to risk aversion and refuse to do business with challenging customers -- including those who challenge powerful copyright interests.

Los Angeles photo agency X17 Inc. sued Lavandeira in federal court last year, asking for $7.6 million in damages. The suit claimed Hilton used 51 photographs without permission, payment or credit, including images of a pregnant Katie Holmes, Kevin Federline pumping gas and Britney Spears.

A federal judge denied the company's motion for an injunction against the site, although the lawsuit continues, as does another filed on behalf of several other photo agencies. A lawsuit filed by Universal Studios claiming the site posted a stolen photo of Jennifer Aniston from the film "The Break-Up" is also pending.

X17 co-owner Brandy Navarre said the company has sent more than a dozen notices to the Australian Web hosting company Crucial Paradigm in the past two weeks, demanding that copies of copyrighted photos on the Perezhilton.com site be removed. "They quickly realized it wasn't worth taking on this liability just to host this one client who was a repeat infringer," Navarre said Thursday.

Tuesday, Crucial Paradigm sent a strongly worded letter to the company that represents Lavandeira, saying it had received numerous complaints of copyright violations and warning that one more complaint would result in the site being taken offline.

"Please note that with any other provider this would have been done a long time ago, and moving your site to another provider will not solve this issue," the letter read. "Continued abuse is leaving us more liable each day, which we can't afford."

PerezHilton.com appears to have found a new host in short order, but other critics with fewer resources often find themselves chilled well short of any judicial decision on the merits of their defenses.

Posted by Wendy at 04:04 PM
June 22, 2007
WIPO Broadcast Treaty Gets the Boot?

According to observers and civil society NGO participants, the WIPO Standing Committee on Copyright and Related Rights will not recommend a Diplomatic Conference on the proposed WIPO Broadcasting Treaty. In non-WIPO-ese, that means broadcasters won't get the unjustified grant of copyright-plus rights they've been asking for. Instead, they'll still have copyright protection for their programs, while the public will get its fair use without an extra layer of exclusion.

From Intellectual Property Watch » WIPO Broadcasting Treaty Talks Break Down:

World Intellectual Property Organization negotiations for a treaty on rights for broadcasters broke down at the eleventh hour, according to participating government officials. A high-level final treaty negotiation scheduled for November will not take place, they said.

The SCCR, which does its work through "non-papers" and meetings in Geneva, has been pushing for a broadcasting treaty for nearly a decade. It was nearing its conclusion, sending the draft on to a Diplomatic Conference to be adopted as an international treaty, when delegates apparently finally recognized they could not reach consensus. The latest draft would have added DRM-protection, anti-circumvention, and new exclusive rights to broadcasts, threatening innovations like TiVo and SlingBox. While the United States was at most stages willing to sell out its innovators, even pushing at times for grant of new "webcasting" exclusive rights, Brazil, India, and the Africa Group took the lead in rejecting a new treaty if it lacked public rights and exceptions to balance those granted to broadcasters.

EFF and KEI, among others, have been keeping this process under scrutiny for a long time. Amazing how similar the debates look to what I first helped live-blog in 2004.

Update: Not dead yet? Jamie Love reports the "surreal" draft conclusions of the Chair, that a Diplomatic Conference should be held in 2008.

Posted by Wendy at 06:36 AM
June 21, 2007
ORG Report: E-Voting Is Broken in the UK

"Slow. Expensive. Unreliable. Unverifiable." Those don't sound like the specs you'd put in a procurement document for a system undergirding electoral democracy, but they're the words Jason Kitcat used repeatedly to describe what Open Rights Group found when it observed the use of e-voting in England and Scotland's pilot trial of the technologies in May 2007.

Speaking at the release of ORG's election report, Kitcat described failures that ORG's volunteer observers saw or had reported to them. In Rushmoor, a candidate reported that the online ballot mis-identified his opponent's party affiliation. In Breckland, a manual recount of non-electronic ballots initially counted by computer turned up more than 50% more votes than the e-count. At least Breckland had a non-electronic ballot to fall back upon. In fully electronic systems being adopted in other districts, a "recount" can only repeat the same tally of bits, with no certain way to detect improper recording or tampering.

ORG concludes that, given the problems observed and the questions remaining unanswered, it cannot express confidence in the results declared in areas observed. Given these findings, ORG remains opposed to the introduction of e-voting and e-counting in the United Kingdom.

Unfortunately, but unsurprisingly, ORG's findings mirror those of EFF and others regarding United States deployment of e-voting. In a process led by vendors, veiled in proprietary trade secrecy, with inadequate attention to the security and verification required for confidence in democratic elections, e-voting and non-transparent e-counting do not serve the American or British citizenry. ORG is taking great steps to expose the flaws and push for more accountable voting.

Posted by Wendy at 02:31 AM
June 15, 2007
From the iSummit: Wrecking a Film

"We knew we were a real film when we had pirates." Samuli Torssonen, Star Wreck Studios, on the appearance and sale in Russia and China of copies of the free, CC'd online film "Star Wreck: In the Pirkinning." The film was first posted online, for free, and downloaded 5 million times, before winning a commercial contract for DVD sale.

Stephen Lee adds to the community story. The film itself had more than 300 participants in the credits; it has been fan-subtitled in 30 languages, including Klingon.Posted by Wendy at 04:34 AM

June 13, 2007
The Chokepoints Will Choke Us Yet: AT&T to Filter Net Traffic

"AT&T Inc. has joined Hollywood studios and recording companies in trying to keep pirated films, music and other content off its network — the first major carrier of Internet traffic to do so," the LA Times reports. So customers will pay in added overhead and false positives, while filesharers adapt to evade the filtering (for both infringing and non-infringing traffic). Who wins? The sellers of filtering snake-oil tech, perhaps.

Posted by Wendy at 03:26 AM
NCAA Calls Foul on Reporter's Blogging

It's not just the pros who want control. Over the weekend the NCAA ejected a Louisville Courier-Journal reporter from a college baseball championship for live-blogging the game. Brian Bennet reports that he had been posting updates throughout the game on his Courier-Journal blog, until, at the bottom of the fifth inning, "an NCAA representative came to my seat on press row and asked for my credential and asked me to leave. I complied."

Apparently, according to a memo NCAA circulated, the college athletic association believes that live-blogging interferes with its revenue streams from broadcast licenses:

The College World Series Media Coordination staff along with the NCAA Broadcasting group needs to remind all media coordinators that any statistical or other live representation of the Super Regional games falls under the exclusive broadcasting and Internet rights granted to the NCAA's official rights holders and therefore is not allowed by any other entity. Since blogs are considered a live representation of the game, any blog that has action photos or game reports, including play-by-play, scores or any in-game updates, is specifically prohibited. In essence, no blog entries are permitted between the first pitch and the final out of each game.

Now there are legal and policy questions here: First off, this wasn't a copyright or misappropriation claim. If the reporter had watched or listened to a broadcast and blogged details from there, the NCAA would have no claim against him (see NBA v. Motorola, where the basketball association lost just such a claim). It can't claim ownership of the facts, even if it currently makes money from selling privileged access to the facts.

Instead, the NCAA was clamping down on the data through a claimed right to control physical access to the game, at least to the press box. Was the NCAA within its legal rights to revoke a press credential? Probably. The NCAA has no obligation to issue press credentials, and apart from anti-discrimination law, can condition them on whatever arbitrary terms it likes. But David Price points out another twist: The University of Louisville, where the game was played, is a public institution, subject to First Amendment limitations on the speech-limiting rules it can impose. Can it ban speech or allow others to do so on its space based on claimed disruption to a business deal? Does it depend whether a baseball stadium is a "public forum"? (Under current law, it's probably not.)

Finally, there's the policy. Even if banning bloggers is legally permissible, it;s silly. Silly of the NCAA to think it can keep up this kind of control, silly of licensees to see blogs as a substitute to what they're licensing, and silly of schools to endorse and accept such policies for their student athletes' games. Exclusivity of facts is unlikely to last long in practice, as the Courier-Journal reports: "The Oregonian newspaper in Portland decided to work around the rules by blogging Oregon State's game against Michigan on Sunday off a radio broadcast in its newsroom, said its executive editor, Peter Bhatia. He said the newspaper heard no objections from the NCAA and planned to do the same yesterday."

Posted by Wendy at 02:29 AM
June 11, 2007
MeinProf.de: A- for German decision on website liability

My OII colleague Tobias Escher reports on a German decision on website operator liability for user-posted content. A professor unhappy with his reviews on Meinprof.de, such as comments calling him a "psychopath," sued. The site had removed the comments on his complaint, but he nonetheless demanded that the site pay a fine and be enjoined from allowing similar comments to be re-posted. The appeals court sensibly rejected that injunction. According to Tobias:

The court has decided that a general “cease and desist” for unacceptable comments is against the law. As a professor one has to face public criticism that cannot be prohibited ex ante.
In general this is a positive outcome for web sites that leverage the wisdom of the crowds as it offers some protection for the often not-for-profit operators of these sites. However, this does not justify defamatory comments on those sites and the court has emphasized the operators’ duty to remove those entries as soon as they are recognized. Last but not least, the subject under public scrutiny does matters as professors might well be made to face personal criticism in their role as public figures while teachers and nurses might have to be treated differently.

German law lacks a CDA Section 230, which immunizes U.S. service providers from defamation liability for user-contributed comments. So RateMyTeachers.com can ignore claims of defamation, leaving U.S. teachers to fight back with words, leaving their own comments or questioning the reliability of the site.

German sites, by contrast, can be held liable for their users' false assertions. If such liability were automatic, triggered immediately upon the posting of a defamatory comment, sites that permitted users to post content might as well paint lawsuit targets on their homepages: anyone could claim to have been defamed there; anyone unhappy with postings could get a heckler's veto against not just individual posts but the site itself. Sensibly, then, the MeinProf.de court limits the potentially unbounded liability in a manner similar to the U.S. caution against prior restraints of speech. The site can't be held liable until it has been given an opportunity to defend or remove the post; those who want to make libel claims against hosts should start by giving the host notice.

My U.S.-centric view is still that posters and their subjects should battle over online defamation between themselves, leaving their online hosts out of the picture. As we all depend on intermediaries to speak online, our speech gets less free with each new burden and risk-sensitivity we put on the intermediaries. Those who feel victimized have access to the same speech technologies to respond -- putting them on a more level playing field than arises when one calls in the law and an intermediary is chilled. In the German context and legal tradition, however, this decision seems to get close.

Posted by Wendy at 06:02 AM
Kudos for Bloomberg

I hope there's political reward for refusing to prey on misguided fears, because Michael Bloomberg certainly seems more sensible than his predecessor in that regard. He's earned points with me, at least, with this response to alleged JFK terror threats.

"There are a lot of threats to you in the world," Mr. Bloomberg said, listing a few, like heart attacks and lightning strikes. "You can’t sit there and worry about everything. Get a life."


Posted by Wendy at 05:17 AM
June 03, 2007
Bus Blogging

You don't have to work at Google to ride a wifi bus. The Oxford Tube, the confusingly-named coach between London and Oxford) offers power outlets and free wifi. Seems a nice incentive to choose the slower, cheaper bus over the train. Heading back to Osford on a Sunday evening, I don't see anyone else with a laptop open, though.

Posted by Wendy at 03:41 PM
June 01, 2007
is2k7: Weinberger on Knowledge, Metadata, Authority

"It's too early for us to be realistic," David Weinberger says in closing is2k7. Where reality is binary, forcing us to categorize each piece of information, digital networked storage lets us add metadata along multiple axes. We shouldn't rush to cram it all back into real boxes. Instead, we can build new structures, sometimes adding metadata to digital contents, sometimes using the "contents" as metadata with regard to another question we're asking.

That lack of hierarchy sounds threatening to some, perhaps including universities, who are accustomed to being the authorities. Online, we find new sources of authority, though we also have to learn and re-learn when not to trust both online and offline sources. The university's challenge, and all of ours, is to engage with these new sources of information and meta-information. The answer to "too much information" is likely not to shut off the spigot but to hand out better filters and filter-building toolkits (aggregators, search engines, databases, social network tools, and mashups).

I'm headed to Everything Is Miscellaneous for more.

Posted by Wendy at 05:24 PM
AACS Cracked Again, Keys Circulate Again

After the widely-heralded circulation and revocation of one AACS key, Ed Felten ran a satirical integer sale on his Freedom-to-Tinker blog. Now it seems one of the commenters decided to hide another processor key there, BoingBoing reports.

Of course, the odds are basically zero if the number was chosen at random. You have a better chance of winning the Powerball jackpot four days in a row. So, for more than a week, everyone who read the comment assumed that it was just another joke. But one thing about it was different: the cryptic hint to arnezami, a "uv" number, a pointer to a specific key within the AACS keyspace.

You can probably guess the rest of the story. Eventually someone tipped off arnezami about the strange comment, and he tried using the 45 5F … number to decrypt the new discs. It worked! It really is the new processing key. As a result, all HD-DVDs are open to the public again, at least until new titles can be updated once more.

Should blog-owners start to worry that their comment forums will earn them takedowns? I don't think so, but the law is remarkably unclear, as I wrote in a piece, Anticircumvention Takedowns, LinuxWorld just published, describing the last round of AACS-key purges:

Note that this claimed contribution to circumvention is a degree further removed from underlying copyright harm than a contributory infringement. The claim is not that hosts assisted in unlawful copying, but that they assisted in distribution of a component of a tool with which others might circumvent technological measures and thereby access copyrighted works or infringe copyright. That's a lot of layers of indirection, and courts have never yet adopted a “contributory circumvention” claim.

Posted by Wendy at 05:07 PM