Cyberlaw Central

Google’s recent announcement that it will comply with China’s demand for Google’s search results to be censored for users within China was only the beginning. Now, Wikipdedia is blocking edits to its pages from the entire range of IP addresses that belong to the U.S. Congress.

Wikipedia editing has been in the news lately, ever since the entry for the John F. Kennedy assassination was edited to falsely accuse John Seigenthaler, former administrative assistant to Kennedy, as a suspect in the assassination. Another lesser known incident (outside of the podcasting community, that is) was when the editing of the entry on podcasting was traced back to Adam Curry. Adam gives his side of the story, plus his history of podcasting, in this edition of the Daily Source Code. Now, it has come to Wikipedia’s attention that wanton editing without regard to its normal editing policies has been coming from Congress. Bios of both Senators and Representatives have been massively edited both by their own staffers and by opponents for political gain. As a result, Wikipedia is blocking anyone from using a computer with an IP address in the range of those assigned to Congress from doing any editing.

Wikipedia wants to be considered an authority, but at the same time it allows anyone to edit. Their recent response to the Kennedy debacle was to require users to register before creating a new entry, but still anyone can edit.

Section 230 of the Common Carrier communications regulations is entitled “Protection for private blocking and screening of offensive material.” The intent of Section 230 is to provide immunity for most causes of action for the provider of an “interactive computer service” in which the provider is acting as a “publisher” or “speaker.” Section 230(e)(2) specifically exempts IP law from the effects of this section. Primarily, this section covers torts where the accused is the publisher, like defamation, libel, and slander. Section 230 provides protection for Wikipedia and other internet service providers from liability for what is posted on the site provided it complies with the terms of the section. However, I argue that the authors of Section 230 never intended the law to apply to an entity like Wikipedia that acts like an ISP by claiming its users are the authors and Wikipedia merely hosts, but yet at the same time acts as a publisher by claiming the whole site, the aggregation of all the entries, is reliable enough to be considered an authoritative source of information. It’s got to be one or the other in my opinion, but the law as written allows Wikipedia to claim both.

Perhaps Wikipedia’s blocking action will cause Congress now to revisit the law Wikipedia relies on…

EDITED TO ADD: Funny, Wonkette is calling for Congressional staffers to send the juicy tidbits to them instead of trying to edit a wiki. Cute.

The Hitchhiker’s Guide to the Blawgosphere

Welcome to Blawg Review #42, the answer to life, the universe and everything! In his memory, the theme for Blawg Review #42 revolves around the most famous work of the sorely missed Douglas Adams. [1952-2001].

About Douglas
Douglas Adams loved computers. He once said that they completely changed the way he wrote — he went from avoiding writing by finding food to eat, to avoiding writing by reconfiguring his Macintosh’s operating system. Hitchhiker’s has been many things, from a radio serial, a series of books [a trilogy in five books], a TV series, now a movie, but it was also a wildly successful computer game back in the text adventure days. As a kid, I spent many hours figuring out how to hold “Tea” and “No Tea” at the same time. In addition to his science fiction humor writing, Douglas was an outstanding naturalist. His book Last Chance to See is about our disappearing endangered species. In his memory, contributions can still be made to the Dian Fossey Gorilla Fund and Save the Rhino.

About the Guide
The Hitchhikers Guide to the Galaxy is a small electronic book that contains the authoritative reference material on the galaxy. I’m not going to give away the entire plot of the books, but essentially an Englishman named Arthur Dent discovers that his best friend, Ford Prefect, is really a space alien from Betelgeuse. Ford’s been sent to Earth to edit the Guide’s entry for Earth. Arthur is disturbed to discover that it merely reads “Harmless.” Ford advises him that space in the guide is at a premium, but he did manage to get his editor to change the listing in the next version. It now reads as “Mostly Harmless.” Arthur discovers this while the Earth is being destroyed by the Vogon Constructor Fleet to make way for an interstellar bypass. Arthur’s adventures have only just begun…

Arthur Dent
The hero, Arthur Dent, is an everyday man who does his best to deal with having his house, his planet, and his view of his place in the universe all destroyed in a matter of about 15 minutes. Dressed only in his pajamas and bathrobe, he sets forth with his towel on a quest to find some tea. Normal readers of this blog are familiar with Internet issues, so keeping with the theme I’ve put interesting posts on computer and internet law issues here.

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Babel Fish
The most common problem in Science Fiction is how to get everybody to speak the same language? Douglas’ solution was, shall we say, unique. A fish called the Babel Fish goes into your ear and it translates for you. It’s such an endearing tribute to Douglas that Alta Vista’s free translation service is still called Babel Fish. Turning now to language in the Blawgosphere, there has been a great debate by linguists over the use of the word “Blawg” to describe a legal blog.

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Marvin the Paranoid Android
Marvin is the ship’s robot from the Heart of Gold. Despite his name, he isn’t paranoid, he’s really just depressed and bored. Really, really depressed. Marvin has some of the best lines in the books, and certainly is a very popular character. Google is a company that depends on its robots, or bots, to carry out its searching. These bots scour the web for changes in web sites. In the last week, Google has received lots of press, some of it over its bots.

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Last Chance to See
As mentioned above, although he joked about destroying the world, Douglas was a naturalist. He’d be interested, though, over the fight J. Craig Williams discussed in his post regarding cell phone towers disguised as trees. (Douglas’s interest would likely be in how to make a good joke out of it.) The city of La Cañada Flintridge in California disapproved some cell phone towers because of their lack of aesthetics. The 9th Circuit reversed, holding that the state law does not allow aesthetics to be taken into account.
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Pan-Galactic Gargle Blaster
According to the Guide, the best drink in existence is the Pan-Galactic Gargle Blaster, the effect of which is “like having your brain smashed out with a slice of lemon… wrapped ’round a large gold brick.” Speaking of drinks, I was hoping this week to find out more details about Lexthink’s next event, a “Salon in a Saloon,” as Matt Homann has hinted at here. As a happy attendee of Blawgthink 2005, I’m curious to see what’s up next for them.
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Magrathea
In the Hitchhikers universe, a good example of branding is the planet Magrathea. Everybody has heard of it, but nobody knows where to find it. Accordingly, I’ve put posts dealing with marketing, client development, and customer service here.

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The Vogons
Douglas liked to poke fun at management and bureaucracy wherever he could. The Vogons were a race of the ultimate bureaucrats, refusing to do anything unless the orders were signed in triplicate, cross referenced, returned three times for corrections, and so forth. Oh, and a word of advice – avoid their poetry whenever possible. Keeping with the theme, I’ve put posts relating to management here. Keep in mind that the category name may be silly, but these are seriously great articles.

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Ford Prefect
Ford is Arthur’s best friend who happens to be from the planet Betelgeuse. He serves as Arthur’s guide to the wacky universe around him. In that vein, there are two great posts by Charley Foster at The State of the Beehive in which he discusses and explains the fourth and the ninth amendments to the U.S. Constitution.
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The Ravenous Bug Blatter Beast of Traal
The Ravenous Bug Blatter Beast of Traal is the most ferocious carnivore in the galaxy, but it’s also the stupidest animal around. It thinks if you can’t see it, then it can’t see you, which is why the smartest hitchhikers carry a towel to wrap around their heads just in case they come across the beast. Our fellow bloggers have found some outstanding examples of stupidity in action this week.

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Zaphod Beeblebrox
Zaphod Beeblebrox is the coolest, slickest dude in the galaxy. He’s got two heads, three arms, and his title is President of the Galaxy until he steals the ship the Heart of Gold with its infinite improbability drive. He can sweet talk anybody out of anything. Speaking of mouths, the Greatest American Lawyer brags that he can speak faster than he can type in his post called “Leveraging a Lawyers Greatest Asset, Their Mouth.” By his logic, Zaphod would make the ultimate lawyer because he’s got twice as many mouths!
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Trillian
Trillian is the really smart woman that Arthur once met at a costume party, but lost to a mysterious slick talking stranger with a birdcage on one shoulder. (Zaphod’s idea of a good costume.) Arthur is reunited with her on the Heart of Gold. She’s the only one who really understands how to work the ship and its infinite improbability drive.

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The Restaurant at the End of the Universe
A restaurant that can only be visited by means of time travel, guests can watch the universe ending all around them as they finish their meal. Bills are paid by depositing one penny in the diner’s real time, by the time of the meal compound interest will be enough to pay the extremely large bill. Speaking of endings, some miscellaneous entries are listed here as we finish our Review.

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Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Thanks for reading! So long, and thanks for all the fish!

Joel on Software, written by Joel Spolsky, is a great resource for software developers. He’s in my aggregator because you don’t have to be one to get something good from Joel’s writing.

Ryan Park reports on the posting there in an off-topic discussion board of a suicide note, along with one on the personal blog, by Chris McKinstry. Readers of the group tried to alert authorities, but it was too late. The non-moderated off-topic discussion group was permanently closed by Joel on January 24th as a result. Thanks to Dave Winer for the initial link.

What a sad, sad, series of events.

Let this be an example to what can happen to discussion boards. While there should be no legal liability for Joel as the publisher, the fact that it happened is enough of a concern. Section 230 of the Common Carrier communications regulations is entitled “Protection for private blocking and screening of offensive material.” The intent of Section 230 is to provide immunity for most causes of action for the provider of an “interactive computer service” in which the provider is acting as a “publisher” or “speaker.” Under this section, the action Joel took in closing the discussion board was a sufficient response regarding the posting of the suicide note, which could have been considered offensive to some readers.

I’m all for free speech on the Internet, but you have to take bad days like this one along with all the good.

UPDATED TO ADD: I want to make it clear that I did not intend to imply that forum members were responsible for Chris’ death. Instead, they should be commended for their heroic efforts to try to prevent it. I was making a technical point about the note itself, which could be considered offensive material. For more on the facts, review the comments below, or read Mark’s excellent summary here. While I dispute Mark’s statements as to my intentions in writing the article, I will defend to the death his right to say what he wants.

Jonathan B. Wilson is the host of Blawg Review #41, please be sure to check it out here.

FYI, I’m hosting next week’s Review, so if you’re a legal blogger please be sure to submit your post (written during this week) for consideration. The deadline is Saturday at 11:59PM PST. For submission guidelines, see here.

Also, I’ve finally added email subscriptions to the blog via Feedblitz. So, if you haven’t figured out RSS, or just like email, feel free to try it out. I’ve been testing it for the past few weeks and it seems to work pretty well. Just enter your email in the box on the site and it will start the process to register with Feedblitz.

The FBI’s Computer Crime Survey 2005 has been released. Thanks to BeSpacific for the link.

At the time of this writing the survey itself is not accessible, but the summary of the findings can be found from the above link. In relevant part, the important findings are as follows:

Frequency of attacks. Nearly nine out of 10 organizations experienced computer security incidents in a year’s time; 20% of them indicated they had experienced 20 or more attacks.
Types of attacks. Viruses (83.7%) and spyware (79.5%) headed the list. More than one in five organizations said they experienced port scans and network or data sabotage.
Financial impact. Over 64% of the respondents incurred a loss. Viruses and worms cost the most, accounting for $12 million of the $32 million in total losses.
Sources of the attacks. They came from 36 different countries. The U.S. (26.1%) and China (23.9%) were the source of over half of the intrusion attempts, though masking technologies make it difficult to get an accurate reading.
Defenses. Most said they installed new security updates and software following incidents, but advanced security techniques such as biometrics (4%) and smart cards (7%) were used infrequently. In addition, 44% reported intrusions from within their own organizations, suggesting the need for strong internal controls.
Reporting. Just 9% said they reported incidents to law enforcement, believing the infractions were not illegal or that there was little law enforcement could or would do. Of those reporting, however, 91% were satisfied with law enforcement’s response. And 81% said they’d report future incidents to the FBI or other law enforcement agencies. Many also said they were unaware of InfraGard, a joint FBI/private sector initiative that battles computer crimes and other threats through information sharing.

My take is that reporting viruses and spyware as computer crime in the same survey that covers intrusion and phishing attacks is a bit disingenuous. It artifically inflates the number of people that were the victims of computer crime, while also artificially lowering the number of people that reported it to authorities. Not everyone is going to report a simple virus caused by an uninformed user blindly opening email attachments, but more serious crime is more likely to be reported.

On the plus side, the survey points out the need to be vigilant for the beginning of intrusions like port scans, while also reminding users of the need for internal controls. Much computer crime is the result of an inside job from a former employee (or one on the way out), sometimes to hide evidence of another crime such as embezzlement or theft of trade secrets. Your security is only as good as the weakest link, make sure you look at it from the point of view of a potential intruder and see how easy access to your vital data can be obtained.

The concern over the copyright a website/blog owner has in the RSS feed she publishes isn’t new, but the debate lately has focused on one particular RSS aggregator, called Top Ten Sources. Top Ten Sources is an editor-selected list of ten feeds on a particular topic. When the editor revises the list, he sends an email to the site author giving her an opportunity to opt out of being included. The debate is over whether Top Ten Sources commits copyright infringement by making an arguably commercial use of the author’s entire feed.

Some good resources on the debate:

Personally, this site’s feed is published under a noncommercial, attribution, share alike Creative Commons license. That means that anyone can take what I write and use it for their own purposes, provided only that they give attribution to me, that the use is noncommercial, and that any resulting text is distributed under the same Creative Commons license. That license will keep commercial sites from using my material, but it still allows my readership to comment and continue to debate these topics on their own without being unduly restrictive.

RSS is syndication at its purest form, failing to tell people what terms under which you will allow people to use your syndicated content is a mistake, in my opinion.

In Wired News, Quinn Norton has an interesting article on an open source CD that contains a self-contained operating system. The purpose is to never actually use the hard drive of the machine while still allowing internet access, thereby leaving no fingerprints that the machine was used. The CD runs OpenBSD, but it disguises the user’s profile so that others “see” that user as running XP SP1 so as not to stand out. It isn’t perfect, Norton advises that the experience is slow, but this is the first public unveiling of what is called a “live CD” based on Open BSD that is self contained, so you can expect the next version to run better.

Time will tell whether the author has succeeded in making a truly anonymous user, I would imagine that this release will result in a challenge for someone to try to find the flaws in the concept. Truly anonymous surfing is an ideal, one likely not to be achieved in the first attempt.

The existence of such CDs raise concerns for security experts and network administrators that now will have to try to make sure that their users aren’t using this CD (or its eventual ilk) to circumvent their security procedures already in place. Such CDs could also be used by dissidents seeking anonymity, but the more likely scenario involves office workers hiding their web surfing.

My tablet arrived last Friday, and ever since then my computing life has not been the same. Out of the box the experience was good. For you true geeks, the specific model I chose is the C203etci. The C200 is a convertible tablet, the screen slides up to discover a nice sized keyboard underneath. It’s the sliding hinge that makes this model unique. Acer provides a cover for the screen that flips around to act as a heat shield for your lap. The weight is competitive with other tablets, about 5.5 pounds with the battery and CD/DVD drive installed, less if you don’t need to bring the drive with you. The screen is 12.1”, which is just fine for my purposes. Since I commute a lot in tight spaces it made sense to go small and functional. If you’re working in landscape mode with the tablet the conversion to keyboard is quick and slick. When working in portrait mode I’ve noticed some small arm fatigue over time, but I’ve also managed to balance it against my chest to reduce that slight drawback.

The first thing it did was install some Acer software, which I was surprised to discover wasn’t preloaded. I then backed up the install using the built-in CD burner, which took some time to burn five CDs. I also had trouble initially in tablet mode, the machine kept going into sleep mode with the screen down. However, it worked just fine with the screen up, which was puzzling. I eventually was able to determine that the power saving software (installed among the other pieces when I first started the machine) was designed for normal laptops, thinking that when the screen is down *should* go to sleep. On the C200, having the screen down means you want to use the pen. After then trying in vain to connect to the wireless network I’d set up the night before, I started then to install some additional software and quit only after my youngest woke up. Further exploration of the tablet would have to wait.

The next day was a planned trip to Madison, WI with family. Once there, at my Aunt’s house I discovered one of her neighbors was running a completely open Wifi port, which I have previously written about here. The next day involved more events with family and friends, returning home that Sunday night. I spent some time that night finishing up some software installations, but still was unable to connect to the WiFi. I knew it wasn’t the tablet’s fault since I could see the network, it just wouldn’t let me log in. Something was wrong with the router’s setup, not the tablet.

Monday was my first using the tablet as an adjunct to my main work computer. I had installed the 30-day demo of Franklin Covey’s Plan Plus 4.0, and was thrilled. Two years earlier I’d saved a page from a Covey sales brochure showing what was then called TabletPlanner. The planner uses a good mix of ink and text input, allowing me to use whichever input method is best at the time. I don’t like its formatting of contacts, so I will likely continue using Palm Desktop for that purpose. (I still will carry around my small and old [but functional] Treo 90 for the sole purpose of having a portable rolodex when I don’t want to start up the tablet just to search for a phone number.)

I wonder if the reason I’ve taken to the tablet is my long use of different Palm organizer models. My first was the original Pilot [before a trademark dispute with Pilot Pen forced the company to change its name to Palm Pilot, and then just Palm]. The Treo 90 I use has a keyboard and pen input, just not quite the same as this machine, though. This is way more powerful.

That Monday night I finally deciphered the mysteries of the wireless router. In order to get the WPA encryption up and running I ended up having to upgrade the firmware on the router, after which it has worked like a charm. Many thanks to Leo Laporte and Steve Gibson for their Security Now podcasts, be sure to check out Episodes 10 & 11 and 13 for their series on wireless security.

For attending Blawgthink in November I received some excellent software packages, including MindManager, One Note, and NoteMap. The first two really take great advantage of the tablet, I’ve enjoyed learning how to use them best. On Thursday I attended a local Bar association lunch seminar, and the speaker let me try out the tablet’s built in microphone while taking notes with OneNote. The sound isn’t the best due to room conditions, but I really like its ability to take me to the time index of the recording from when I made each note. I’ve heard that a lot of attorneys use OneNote to record depositions while taking notes, it really is great on the tablet. I’ve also got good use out of MindManager, I’m starting to get the hang of its pen shortcuts. ActiveWords has also been another great package. I’m sure enjoying learning it, and will write more about that package soon.

Overall, I have been very happy with my choice of the C200. It’s easy to type out longer essays with the keyboard, and yet for most purposes the pen is a great input device. The conversion between the two modes is rapid enough to keep the flow of my work, unlike other tablets that make you stop and twist the screen around to convert it to tablet mode. I’ll write more about the tablet in the future if it’s relevant to the blog.

While you can get a bulk package of CD-R’s really cheap at local stores or online, they are not the best for backup purposes. The physical material degrades over time, and some types degrade faster than others. An IBM expert indicates that a 2-5 year lifespan is typical for most self-recorded CD’s. (Link courtesy of BeSpacific) The best solution is to use magnetic tapes, which can last 30 to 100 years.

As a lawyer, I owe my clients a duty to safeguard the data entrusted to me, as well as to backup my own work product. As a user, I understand the necessity of saving early and often. Backup solutions have become really affordable and easy to use over the last few years, making the lack of a backup system troubling. I saw a demonstration of a Mirra Personal Server last year at the ABA Techshow, I am now considering that as my next backup system.

Jamais Cascio’s talk from Mesh Forum 2005 entitled “participatory panopticon” is very interesting, it regards the societal changes that come from mobile phones with digital cameras and other always on mobile networked tools. The Panopticon was Jeremy Bentham’s proposed prison where the inmates could be watched all the time. Mr. Cascio’s idea is that we will be soon living in a ‘participatory’ panopticon where the people voluntarily take the part of the warden. Instead of big brother, there are a lot of little brothers and sisters with cell phones.

As cell phones get better, imagine a world where politicians won’t know whether they are being recorded at any particular time. Look at what happened with Abu Ghraib – individuals with a digital camera and network access changed the public perception of the war in Iraq. Look at Rodney King – an individual with a video camera changed the public perception of the police. Recently, a plane crash in Miami was recorded by a man on vacation who happened to be recording at the time.

An interesting new concept is personal memory assistance. A first generation device allows you to record the last thirty seconds of what you have seen. It’s bulky and has a limited battery life. As these get better, imagine the copyright issues. Since meat memories are imperfect, nobody cares if you remember a copyrighted song imperfectly. When memories become perfect, then you could enter a situation where a license is needed to remember. Memory assistance devices would be required to be deactivated in movie theaters and other performance spaces. The backlash could come only when people feel restricted on their ability to remember. The more the people feel these devices are important to their lifestyle the less likely that they will accept restrictions on their use.

Always on networked devices that can record important events are an important tool to implement an ethos of citizen journalism. When the average person can record, upload, and share easily, as these devices become ubiquitous, then we come closer to the world envisioned by Mr. Cascio.

UPDATED TO ADD: Geek Press has a link to a great article on the use of cameras on public property.