Cyberlaw Central

Word is spreading through the blogosphere about a new coalition that aims to protect Network Neutrality. The group, called Save The Internet, is obtaining support across the political spectrum. Here is the Statement of Principles:

We believe that the Internet is a crucial engine for economic growth and democratic discourse. We urge Congress to take steps now to preserve network neutrality, a guiding principle of the Internet, and to ensure that the Internet remains open to innovation and progress.

Network neutrality is the Internet’s First Amendment. Without it, the Internet is at risk of losing the openness and accessibility that has revolutionized democratic participation, economic innovation and free speech.

From its beginnings, the Internet was built on a cooperative, democratic ideal. It has leveled the playing field for all comers. Everyday people can have their voices heard by thousands, even millions of people. Network neutrality has prevented gatekeepers from blocking or discriminating against new economic, political and social ideas.

The major telecommunications legislation now under consideration in Congress must include meaningful and enforceable network neutrality requirements to keep the Internet free and open to all.

Here is a link to the Frequently Asked Questions list. A representative sample follows:

Who wants to get rid of net neutrality?

The nation’s largest telephone and cable companies — including AT&T, Verizon, Comcast and Time Warner — want to be Internet gatekeepers, deciding which Web sites go fast or slow and which won’t load at all.

They want to tax content providers to guarantee speedy delivery of their data. They want to discriminate in favor of their own search engines, Internet phone services, and streaming video — while slowing down or blocking their competitors.

These companies have a new vision for the Internet. Instead of an even playing field, they want to reserve express lanes for their own content and services — or those from big corporations that can afford the steep tolls — and a leave the rest of us on a winding dirt road.

When I last wrote about Net Neutrality, I expressed concern that it be considered on its merits and not be solely a political issue. I will keep an eye on this and other groups here on the blog, but I sure like how it has begun by garnering support across political lines.

Network Neutrality is one of the concepts the Internet was based upon. Essentially, one person’s traffic is just as important as the next piece of traffic. The packets of information that are reassembled on the other end back into your email message are not treated any differently than your neighbor’s video streaming packets. Before Congress currently is a piece of legislation in which the telecommunications companies are supporting that would change that. If it passes, the owners of the physical network the Internet travels over will be able to prioritize that traffic. For example, a Verizon customer viewing a streaming video provided by Verizon would receive priority over other traffic. A bill is coming out of a House Energy & Commerce subcommittee that is expected to be reviewed by the whole committee later in April. In the subcommittee, an amendment endorsed by Amazon.com, eBay, Google, Microsoft and Yahoo that would have returned the bill to a Net Neutrality position was defeated. Declan McCullagh of CNET News has written an article in which he claims in the headline that “Republicans defeat Net neutrality proposal,” but a more careful reading of the article shows that the amendment was not defeated on straight party lines, one Republican voted in favor of the amendment and four Democrats voted against it.

I’m concerned that this important issue is being trivialized into a political issue. A careful review of the proposed bill is needed, not a descent into political demagoguery. A bill supported by the owners of the information infrastructure is being opposed by the companies whose continued financial viability depends on the information that travels over that infrastructure. Both sides have an important stake in determining the best outcome for this issue. It’s not purely a political issue. Politics will be part of it, as it seems the infrastructure owners have strong Republican support, and Republicans currently control both houses of Congress and the Presidency. Information is the answer, explaining the issues in such a fair and balanced way that an equitable bill can be passed. Personally, I believe an appeal for legislative help to keep a business viable is a sign that the business model the business depends on is dated, outmoded, or otherwise obsolete. Accordingly, I have little sympathy for companies that thought the system worked well enough in order for them to have built their networks under the current rules in the first place. Still, if a change is truly needed, and a compelling case is made to show the need, I am not opposed to some concessions.

If you have an opinion on Net Neutrality, please express it in the comments to this post.

Here are some quick news and notes:

Ryan Singel at Wired News has a great article on the battle (has it really been ten years? My, how time flies) ten years ago over the Communications Decency Act. The article is entitled “They Saved the Internet’s Soul.” I highly recommend it, it’s only two pages long.

This case went all the way to the Supreme Court while I was in law school, and wow, it was an exciting time to be interested in technology and the law. Reading through the Court’s opinion, it was clear that the Court actually understood the technology and its implications and was very careful in this case of first impression to get it right. Even ten years later, the decision is a good primer on how the Internet works.

On Monday, a Verizon executive named John Thorne spoke before a conference celebrating the 10th anniversary of the Telecommunications Act of 1996. His message? That Google is freeloading on the companies that built the Internet backbone, companies like Verizon that own the fiber, without paying their fair share. For a deeper summary of what he said, here is a link to an article at the Washington Post.

I’ve heard similar grumblings like this for some time coming from those who build and maintain the Internet’s infrastructure, basically amounting to little more than “They’re making money hand over fist using our pipes, and we want some of that money too.” It’s childish.

Nevermind that users pay for access, and that Google is also paying for its bandwidth. Nevermind that the Internet was founded on the principle that the pipes are shared, with users on both ends paying for their access. Nevermind that many of these pipes were subsidized with government money. Nevermind that Verizon is trying to frame the argument in such a way that it actually seems harmed by its inability to suck money directly from Google’s pockets. All this with a straight face.

I haven’t seen anything yet in any of these arguments from the backbone providers that I find compelling. It always seems to boil down to base emotions like greed and avarice.

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.

As I wrote on September 30th, the battle over the expansion of the CALEA regulations (which stands for the Communications Assistance for Law Enforcement Agencies) is underway. A lawsuit filed on October 25, 2005 before the D.C. circuit asks for review of the FCC’s final order. Seven organizations, including the American Library Association, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, have joined together into a coalition to request that the final order be vacated.

Interestingly, Kurt Opsahl of the EFF has reported on the views of Senator Patrick Leahy, the original sponsor of CALEA in 1994.

In relevant part, Senator Leahy said in his statement:

“Congress recognized the unique architecture of the Internet and explicitly excluded it from the scope of CALEA’s surveillance design mandates, and we did that to allow Congress to re-visit the appropriateness of such an extension as the Internet developed. Any extension of CALEA – a law written for the telephone system in 1994 – to the Internet in 2005 would be inconsistent with congressional intent.

“There are certainly legitimate law enforcement interests concerning ‘tapping’ the Internet, and they must be addressed appropriately. We need to develop suitable solutions after reaching a broad consensus. Congressional hearings are a good place to start.”

I agree that the FCC has overstepped its bounds to introduce this final rule without the congressional oversight required. Blindly applying a law designed eleven years ago to an entirely different set of technology is a scary idea.

Here comes the Attention Recorder!

Introduced today by AttentionTrust.org is a Firefox extension that allows users to save their attention data and to share it with services that are als0 members of the Attention Trust. It doesn’t look like that there is anybody to share it with yet, I presume that the entry for “Acme Attention Service” is a placeholder.

Here’s the FAQ list.

We’ll see how this turns out, and if others use it. As I have written previously, this is an ambitious effort to essentially create a new property right in the data that comes from your online interactions.

Stay tuned!

I was referred to a nice article by Declan McCullagh outlining the implications of a new “Policy Document” released by the FCC late last Friday, Sept. 23rd.

The FCC has come up with the following four pronged set of principles that will govern any new Internet policy it develops:

Moreover, to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

Pay close attention to the end of #2 - Consumers can use whatever software and Internet services they want, provided that law enforcement has a back door into that software that it can use as needed. Wow.

At the same time, the FCC announced its rule implementing a longstanding request (from law enforcement) to extend the Federal wiretapping rules from telephones to the Internet. When Congress last touched the issue, it had expressly *NOT* extended the rule to broadband providers. Now, the FCC is trying to do it without Congress’ help.

Declan’s not the only one to notice this obscure little pronouncement from the FCC. The Electronic Frontier Foundation (EFF) has announced its plans to sue when the final rules are officially published.

“A tech mandate requiring backdoors in the Internet endangers the privacy of innocent people, stifles innovation, and risks the Internet as a forum for free and open expression,” said Kurt Opsahl, EFF staff attorney.

I couldn’t have said it better myself.

Since the first post, I found an excellent summary of Attention from a practical point of view by Dare Obasanjo. Nick Bradbury has another good post.

From an IP attorney’s point of view, Attention is interesting because it is an attempt to create a new property right in the aggregate of data. It’s different from other forms of property that currently can be protected. Patents cover inventions and business methods. Copyright covers original works of authorship, like books and software (yet software can also be covered by patents, too.) Trademarks covers symbols used in commerce, like the golden arches that serve as a trademark for McDonalds. Trade secrets are another regime, it covers any information so long as it is kept reasonably secret and it provides economic advantage to the one possessing it. A good example of a trade secret is the Coca Cola formula.

Attention, unlike trade secrets, is public information. It’s the aggregate of your interactions with third parties like shopping sites. The current state of affairs is that the shopping sites, with Amazon as the best example, are collecting this data for their own commercial advantage. While you might appreciate seeing what others who bought a book also bought, it’s really in Amazon’s interest since they are more likely to get an additional sale out of the deal.

A related right is the so-called “right to privacy,” which is really a penumbra of rights put together by the Supreme Court. It’s complicated, but the short definition is that you have the right to be left alone in seclusion. Attention is different since it’s the aggregate of public activities. It’s what you have already exposed by interacting with third parties. You have just as much ability to keep track of what you do online as the shopping sites, but you can’t fault the sites for using the data for their own benefit. Attention Trust wants us, as consumers, to be able to control this information that’s been collected, to put the genie back in the bottle.

Attention Trust wants us, as consumers, to refuse to release our information (i.e. don’t do business with them) except with companies that also support the principles of the Attention Trust. That’s great if the big sites sign on, but there is nothing forcing these sites to agree to voluntarily release the information they’ve gathered about you or to agree to no longer use it once you’ve told them not to. Grass roots campaigns are a great way to test the waters, but to really take off some sort of enacting legislation is going to be needed here. Gillmor admits that point in his response to Dare.

I like the concept of Attention, and will be covering this as it develops further. First, I want to see how many shopping sites Attention Trust can get to join, that’s going to be the first litmus test. For now, the word is spreading among users through the power of blogs.