All three of these acronyms stand for federal legislative attempts to design digital devices and applications.  The first two failed.  The third has just been proposed.

So what are these things?  The first, the 2001 Security Systems Standards and Certification Act, suggested that any "interactive digital device" (defined as "any machine, device, product, software, or technology, whether or not included with or as part of some other machine, device, product, software, or technology, that is designed, marketed or used for the primary purpose of, and that is capable of, storing, retrieving, processing, performing, transmitting, receiving, or copying information in digital form") needed to respect digital content restrictions and "certified security" technologies.  Because standards for indicating digital content restrictions (and implementing them) didn't exist, industry was supposed to come up with them. 

Many people didn't like the SSSCA, and it didn't pass.

Then, in 2002, the Consumer Broadband and Digital Television Promotion Act [pdf] was proposed by Sen. Hollings.  It was aimed at protecting digital content and promoting broadband penetration, and it (like the SSSCA) addressed "digital media devices".  The CBDTPA called for creation of security standards and encoding rules, and banned the sale of devices that didn't use "standard security technologies."

Many people didn't like the CBDTPA, and it didn't pass. 

Then, in 2003, the FCC adopted its "broadcast flag" rule, which was aimed at protecting digital content and promoting the digital transition, and (like the SSSCA and CBDTPA) addressed a broad range of digital devices.  The broadcast flag rule called for devices to respect encoded "flags" (markers) in digital content and to ensure that the content could not be transmitted over the public internet.

Many people didn't like the flag (including the DC Circuit), and it is not now the law.

Now, in 2005, Sen. Ensign has proposed the Broadband Investment and Consumer Choice Act.  Indirectly, it aims to do the same thing that SSSCA, CBDTPA, and the flag tried to do. It says that a broadband service provider is not supposed to "prevent any person from utilizing equipment and devices in connection with lawful content or applications."  Who decides what's lawful?  The broadband provider does, apparently.

And BICCA gives broadband providers license to block anything that is unlawful in their view.  Blocking content is fine when the provider is trying to prevent unlawful conduct.  Making available only customized content and services is fine.  Blocking based on whatever the provider's terms of service say is fine.

So here's how the logic runs:  if the terms of service of a broadband service provider say "your access device must be authorized by us," that's fine.  The device can be required to run only authorized applications.  A device that's capable of running unauthorized applications would not be "lawful" under those terms of service (or those applications would not be "lawful"), and so the language saying "you can't prevent someone from using devices in connection with lawful applications" won't apply.

Attaching an unauthorized device to the network would be unlawful conduct, and so a provider under BICCA could demand that it not be attached (just as providers now demand that users not run mail servers or host web pages).    

The whole point of BICCA is that it dismantles any interconnection obligations for broadband providers.   These obligations go upwards -- so there's no requirement to allow all applications or content to be permitted or carried on the network.  And they also go downwards -- so there's no requirement to allow all user devices to be attached to the network.

Unauthorized devices (such as untrustworthy PCs) would quickly become very unattractive to users.  What's the point of owning something that isn't authorized to connect to any broadband network? 

The missing link here is, of course, the incentive of the broadband providers to allow only authorized devices to connect to their networks.  Why would they want to frustrate their customers?  Well, if the only way they can get access to really great big media content (the kind of thing they think consumers really want) is to make deals with content companies to have "mini-Hollings" terms of service, I bet they'd do it. And law enforcement would like to have a regime of locatable, authorized devices in place as well. Gradually, incrementally, the world of "authorized devices" might narrow. 

Our network, our devices.

Sen. Ensign (R-Nev) has introduced a new telecommunications bill [warning, 72-page pdf].  As far as I can tell, the draft bill has the effect of removing traditional common carriage elements for telephone companies (required interconnection, tariffed rates), but keeping in place other requirements that will apply to everyone (telecommunications providers and applications alike).  The bill foreshadows a telecom-mindset internet, in which the default setting is "everything not permitted is prohibited" -- rather than the other way around.

The bill covers all internet applications by defining "communications service" to include

any service enabling an end user to transmit, receive, store, forward, retrieve, modify, or obtain voice, data, image, or video communications using any technology....

This covers email, IM, blogging software, and anything else you can think of that's offered to the public.

On p. 23, the Commission is explicitly given authority to make rules for any communications service about several topics, including E911, "the use, sale, and distribution of consumer proprietary network information" (in other words, privacy rules), and access for the disabled (both hearing and speech).  On p. 34, service providers that use telephone numbers (in any way) are required to provide number portability. 

The Commission's authority under Section 230 (which says that online service providers should not be treated as publishers of information they don't create) remains, but I can't tell what happens to the preemption or immunities that that section creates.  The FCC's CALEA authority remains too.  But the universal service section of the prior act is skipped, signaling that a universal service framework couldn't be worked out in time for this bill.

The bill says squarely that no government authority can require any "facilities-based communications service provider" (any company that runs its own network, like a telephone company or a cable company) to allow third parties to use its lines.  This means that ISPs that are not owned by telephone companies will have a hard time staying in business.

Broadband providers (defined by the bill as anything ISDN-speed or higher) can deny consumer access to anything they want, as long as the service plan they're offering provides a rationale for doing so (which won't be hard).  And broadband providers can make available vertically-integrated packages of content and applications.  There's a strange section on p.21 that seems to say that if (and only if) a broadband provider offers naked internet access (without vertical customization), then its customers should be able to get to content and services offered by other people. 

But there's no requirement that broadband providers make this kind of unconditional access available as an option for consumers.  And broadband providers are welcome to block access to anything that is "unlawful."  "Lawful" applications and devices are fine.  (Who decides what's "unlawful"?)

On p. 23, there's a strange section saying broadband providers can't prevent customers from using VoIP applications "offered by a competitor."  Is Skype a competitor of a broadband provider? Probably not -- they don't operate in the same marketplace.  (Who decides what a competitor is?)  And what about other services that aren't VoIP -- can they be blocked?

Although the draft includes pages of rules about removing local franchise obligations for telephone video services, and provisions about having municipalities run auctions for VoIP services, I'm focused on the breadth and vagueness of the "regulating the internet" provisions, and the potential for deep integration of broadband access with content and services.

Others have already noted (particularly Harold Feld) that the definition of "broadband" in the bill is a joke.  If you have more than 64kb/second, you've got broadband.  Suddenly, US broadband penetration figures don't look so bad.

Let's hope different bills show up promptly.

 

 

Dave Winer is thinking of coming to New York:

Sorry to say it, but every other city in the US is small potatoes compared to the Big One. And it's starting to get an interesting high tech life. Over the last few months I've spoken with half a dozen high tech investors based in NYC, and I don't know what it is, but they seem more outgoing and business-oriented than the west coast venture guys, who somehow seem to act like they're the show, and you're an employee. In all my years on the west coast I never got one of them to invest in one of my ideas. Not once.

I remember running into someone in 1993 who told me that he was doing transactions for America Online and that Northern Virginia was already a high tech hotspot.  I was living in Washington DC at the time, and I was surprised. 

But I'm not surprised about NY.  As Dave points out, the city not only has airports and museums, but also has the Second Avenue Deli. 

According to Robert Rosen, the study of mathematics took several bad turns more than 600 years ago, when several people failed to appreciate the richness of real numbers (a world in which there are infinite, uncountable points between zero and one).  Their mistake was to try to jam everything into syntax (or grammar), when in fact real numbers offer many semantic (language-like) opportunities, full of relational interest.  (I am not a mathematician and I only barely understand this, but stay with me for a few more brief paragraphs.) 

Rosen suggests that the history of math is filled with examples of people trying to work with bigger and more complex sets of data while using the same puny, simple, and syntactic tools they have always used in the past. His view is that we need a richer mathematics that looks at the connections between things -- their semantics.  But we don't have the language to do this yet.  He points to something called "category theory" that may help.  From what I can tell, category theory helps with clumping together kinds of relationships and allows people to work with them in the same kinds of ways we now add and subtract. 

Why think about this?  Well, the telephony/internet split, which has produced two entirely different mindsets looking at the same set of technologies, provides a simple example of the difference between syntactic and semantic thinking.  Syntax, or grammar, says we're looking for hierarchical, traditional operations on the network to provide the outputs we're interested in and used to.  This is the telephony view -- the same mindset that tells wireless carriers that they don't want to allow phones to connect to their networks that allow users to download music from users' computers.  Our network, our music. 

The internet mindset, which is much more semantic in nature, says that we want everything to connect because we're not sure what the results will be.  Something very lively and organized will unpredictably emerge from dense relational interactions, if we can only let ourselves let this happen.  We need better semantic tools to describe what happens when we let these processes run.

The Pew Internet & American Life Project is reporting [pdf] that most people in America are dim on what podcasting and phishing are, and what RSS feeds do.

This is not a moment for the technical elite to be snarky.  This is a moment for the technical elite to worry.  If only spam and cookies and viruses have inserted themselves into the public lexicon, internet policy in America is in trouble.  Who cares about protecting the net if all it brings is darkness and despair (read: spam)?  Let's lock it down and make it safe.  Sure, some kid told me that there are amazing something-casts out there that are fun to listen to, but this is a maturing network and someone needs to be in charge.

The game at this point is shaping consumer expectations.  This was the same game played for the broadcast flag.  If consumers don't expect to be able to transmit digital files freely, they won't mind having their devices crippled and their favorite songs locked to their kitchen table (metaphorically speaking).

Same thing here.  If consumers are used to sending email and taking in information, but aren't used to creating their own stuff in ways that directly challenge existing media sources (podcasts) or shaping their own information filters (RSS), they won't mind when the net ceases to be as freely accessible or as interesting as it used to be.  The telcos and the cable guys would like to see the internet become just another proprietary, secure network over which they deliver video and data and approved applications.  Heck, law enforcement wouldn't mind this outcome either. 

Internet self defense is going to take educating and involving all the people who don't know (and don't yet care) about the amazing things the net can facilitate.  Rather than despairing about what the Pew study shows, play a podcast for a friend.  And explain phishing. 

More stories from our licensed future -- Michael Geist on the right to read. 

The line between thing and thought is getting ever blurrier.  Time was when an author could do a lot to control the first sale of the thing -- the book -- but after that first thing left his/her control the rights to control the thing were considered exhausted.  People didn't even think of trying to control the reading of the thing -- much less the discussion of the thing. Now that things are joined by electronic versions of authorship, the idea of a "right to read" doesn't sound as outlandish as it used to.  But it should.

The Harry Potter story told by Geist also shows the power and potential of trade secret law.  If you've made an effort to keep your thoughts secret, and these thoughts are valuable because they've been kept secret, and then someone learns them and starts talking about them--you've got a trade secret claim to bring.  Trade secrets can easily fill gaps left in a copyright regime (if there are any). Something can be a trade secret even if it's not copyrightable, it can last forever, and any reasonable efforts at secrecy are enough to protect it.

Do you have a license to sit on that chair?

I've been busy reading posts about brave things people have done to stand up for their digital rights, or funny memories they have about their online lives.  Here's the description of the blog-a-thon.

Add your post!  Add several posts!  (Don't forget to tag them with the Blog-a-thon tag: EFF15.) Here and here are the aggregators.

A related thought -- I've been thinking about netizenship principles, and I think I'll be thinking about them (and working on them) for the next ten years or so.  What do netizens care about and believe in?

They believe in leaving control of the net at the edges.  Families can filter; countries shouldn't.

They believe that optimism is a fine state of mind.  Why not believe the best of people, until you're proved wrong?  Cooperation produces breathtaking results. 

They believe that innovation is worth supporting at almost any cost, because you never know what might show up.

They believe that people affected by rules or filters should be involved in creating those rules or filters (or should at least be taken into account when those rules or filters are created).

Netizenship is a live-and-let-live view of the world.  We'll see the emergence of all kinds of different groups online, and they'll be able to take action in ways we can't imagine right now.  Netizens are interested in civic order online, but order that comes from the people involved rather than from a nation-state or a pre-existing entity.

There's more to netizenship -- a lot more -- and I'm looking forward to reading everyone else's posts.

Jeff Jarvis has a good post today about all the feeds, conversations, aggregations, and other kinds of thingies that make up what he calls Web 2.0.  He says, "This is a new architecture.  It's a dynamic architecture."

It's even more than that -- it's political.  These meta-informational thingies are letting us see our online environment in ways we can't possibly see the offline world.  What's important isn't just that these thingies are dynamic (although that's clearly important) but also that they can be (1) visualized and (2) affected by the attention of individuals.  When humans can see something and act on it, they are suddenly in charge of their own environment.  "Well, of course," you say.  "That's not a big deal.  People have been able to see commercial web pages for ten years now."

It is a big deal, because with all of this meta-informational depth (meta-information piled on meta-information, producing information of great quality -- a term Ben Reeve invented, and something he understands better than anyone else) we can find issues and people we want to work on/with and then actually do something about it. That's the big difference.  All this high-quality meta-information allows us to see the rules and roles that make up groups online, join those institutions for brief periods of time (because we're just the right person for the job) and change the world.  Offline, it's hard to see who's in charge or what's really going on.  Online, if enough information is available (and, boy, are we producing a lot of information), we can start to see patterns and form into groups on the fly.

What we'll do together in this new Web 2.0 isn't predictable, because we're joining a complex system that is growing more complex all the time.  (In a real sense, online organizations are alive.)  But it will be more fulfilling for us.  The first step, though, is to realize (as Jeff has for a long time now, and many others) that meta-information is enormously valuable.  

The next step is to have the tools that allow us to act on it -- easily.  That means ways to create groups with a click, show rules and roles and boundaries, include deliberation modules, allow adaptation and evolution and bank accounts, etc.  We need all of this now. Groups are always more powerful than individuals acting on their own, and with all of this information we're ready to move on.

 

Alexander Svensson has posted this picture of the Working Group on Internet Governance (WGIG) models suggested in its recent paper [doc].

The paper (and thus the picture!) doesn't seem to acknowledge the possibility that online citizens -- netizens -- might be able to get along just fine without internet-specific involvement by governments.  Of course law should apply to the internet.  But that doesn't mean we need specific technical mandates or control of internet resources by governments.

What would the netizenship drawing look like?

Back in 2003, SCO Group (holder of certain IP rights in the Unix operating system) sued IBM for more than $1 billion, claiming that IBM by having a Linux product had misappropriated SCO's Unix.

But SCO has never produced any real evidence that, in fact, its copyrights have been infringed.  The litigation has been plowing on and on, and a trial is scheduled for some time in 2007.

Now the estimable Pamela Jones, author of Groklaw, has obtained an August 2002 internal SCO email that makes it clear that SCO commissioned an extensive external audit that revealed "no evidence of any copyright infringement whatsoever." 

The SCO suit has made many people worry about the future of open source.  It was, from the beginning, a business model masquerading as a lawsuit -- SCO really has nothing to offer other than litigation threats.  Now it's even clearer than it was before (and it was pretty clear before) that the copyright portions of the lawsuit were based on less than nothing.

As Pam Jones put it yesterday, "If this doesn't make your blood boil, see your doctor right away."

Today, the Department of Homeland Security's Michael Chertoff announced that cybersecurity and telecommunications issues would be managed under a single new (yet to be named) Assistant Secretary. 

About a week ago, the Department of Homeland Security, Department of Justice, and FBI asked [pdf] the FCC to make sure that all in-flight broadband communications were easily and immediately tappable.

The agencies also asked the FCC to mandate many more obligations for in-flight broadband carriers, including the obligation to record all traffic information and retain it for 24 hours after a flight lands and to require authentication and registration (by providing lots of identifying data including seat position) for all users of broadband aboard an aircraft.

Finally, law enforcement also asked for "rules and/or policies concerning in-flight use of these [broadband] devices and related conduct to minimize any increase in air rage incidents which could potentially result from the unrestricted use of such devices on flights."

So now the FCC is in charge of air rage.  Some have suggested that the Commission should also be responsible for the interstate highway system, because use of cell phones while driving can lead to road rage. 

We need to organize.

The FCC has been extremely solicitous to law enforcement, and this new DHS telecom/cybersecurity link is only going to strengthen the bond.  And the FCC's power to make law-enforcement friendly rules for all internet services has just been given an enormous shot in the arm by the Supreme Court's opinion in BrandX. 

Just look at recent history.  Law enforcement's comments in the CALEA proceeding foreshadow a world in which all manufacturers of internet applications will need to ask permission from law enforcement before they launch (so that they can be easily tappable by law enforcement). The DOJ is interested in having all ISPs store information for its use, and it is more than conceivable that the FCC could use its newly-enhanced ancillary jurisdiction over ISPs to ensure that this happens.

And FCC is suggesting in the E911 proceeding that all VoIP-capable devices and applications (including personal computers) be able to automatically report their location at all times -- another expression of law enforcement desires for perfect information.

Look, everyone's been up in arms about intellectual property issues for so long that we're late to the true battles for the future of the internet.  The real fight is with two other incumbent industries:  traditional internet access providers (the great telco/cable duopoly) and law enforcement.  FCC seems happy to give these guys what they want, and there are no principled limits to the rules they're capable of cooking up. 

The only thing we can rely on is FCC's self-restraint.

Which is a resource in short supply.  Remember the broadcast flag?

So -- I'm going to continue to make noise about the need for internet activism.  World Net Day seems ever more relevant.  I just need a few foundations and enormous online companies to see that their longterm interests lie in supporting the health of the internet.  For everyone.

Public Knowledge announced yesterday that the deadline for nominations for its IP3 awards is August 1, 2005.

That's soon.  So please, send in nominations ASAP to IP3nominees at publicknowledge.org!  The awards honor achievement in the areas of Intellectual Property, Information Policy and Internet Protocol.  (Hence "IP3").

Last year's IP3 Award winners were Rep. Rick Boucher, (D-Va.); Danger Mouse, creator of the Grey Album; and Brewster Kahle, founder of the Internet Archive.

I'm honored to serve as one of the people deciding who will get these awards.  The other judges are Mike Godwin, legal director of Public Knowledge, who is heading the awards committee, Lateef Mtima of the Howard University School of Law, Hal Abelson of MIT, Alan Davidson of Google, Art Brodsky, communications director of Public Knowledge, and Siva Vaidhyanathan of NYU. 

Please write in.  Feel free to nominate more than one person, and certainly look beyond the shores of the US.

Right now, it's possible for me to imagine the nation of America.  I can do this not only because I know about America's geographic boundaries, but also because I've read publications in my native language that assume American nationalism and the existence of comparable "American" institutions (schools, newspapers, hospitals).  I'm comfortable with all this American-ness, even though a lot of it is imaginary.

According to today's Times, it's impossible to count the number of languages spoken in China:

. . . China's Han [is] the ethnic group that makes up more than 90 percent of the population. The Han speak as many 1,500 dialects, with the bulk of those concentrated in the southern half of the country.

1500 dialects -- that's a lot.  And they're not even close cousin kinds of dialects, apparently.

The encounter at the Datian market began when the dumpling seller approached the foreigner with a phrase that sounded like "goodbye" in the Wu dialect. Knowing it must mean something else, the foreigner guessed she was asking his name, and provided it, producing a laugh from the woman who explained, switching to Mandarin, that she had asked if he had eaten lately.

And it's not just foreigners who have this problem.

To drive a few miles down the road from one village to another [in Datian County, Fujian Province] is indeed to plunge into a new linguistic universe. Things can be as confusing for someone from the next town as they are for the total outsider.  In one village near the county seat, where an old Daoist shrine sits high above the roadside, a man who said he spoke southern Min, one of Fujian's most widely spoken dialects, tried to exchange words with some boys who said they also spoke southern Min. A few words from each side, however, sufficed to show they were mutually unintelligible.

China is worried about the consequences of all this linguistic variety, according to The Times.  No one is saying that local languages have to go, of course, but China wants to have people understand Mandarin, so that its national identity will be coherent.

[This is beginning to sound like an "English first" post, but it's not -- stay with me.]

The application of this to the online world is worth thinking about.  I can imagine that at this very moment there are millions of other English readers and writers commenting on a million different things.  I can imagine that there are bloggers out there writing ironically for their readers, knowing that the readers will understand. I can imagine that many of these readers make pilgrimages to the English version of Google (we used to make pilgrimates to AltaVista) and to whatever Glenn Reynolds writes.  I'm confident that all this talk and creativity is going to go on even when no one is watching, and that it will have a character of its own that's different (a different voice and affect) from what happens in the offline world.

In other words, I can imagine a kind of online "nation."  Without geographic boundaries.

Ecommerce Times reports that Google is investing in a broadband over power line company that is already experimenting with providing services in Cincinnati.  BPL is being explored around the world (and particularly in parts of Europe where transformer density is high), and it's exciting to think that there might be a real alternative someday to DSL and cable.

The power line company, Current Communications, is run by William Berkman (whose family has made some other good investments), and Goldman Sachs and The Hearst Corp. are also backing the project. With wireless hops from utility poles to homes, and with some assurances about security, this could just work.

Why does this matter?  Well, maybe there's something magical about the number three.  Having only two ways to buy fast internet access doesn't provide much choice and gives the cable and DSL guys enormous power (to, for example, (a)  forbid their subscribers from hosting web servers or (b) filter out VoIP services they don't like) without much risk that they'll lose out in the marketplace.  Three providers, and one an upstart with Google behind it doing-no-evilling, may loosen things up.

Granted, getting to three will take an enomous, audacious buildout.  But maybe that's what Google's there for.

I'm personally a little nervous about BPL because my formidable grandmother, Beatrice Lamb, had those initials -- and no one who met her ever forgot the experience.  I won't go so far as to say she was shocking.  That would be too easy.

What are Yahoo! and AOL going to do? 

I'm struggling to compress ten years of online history from the mainstream user's perspective into a readable account, and the only way to do it seems to be to use AOL as a lense.  But wandering around online looking for the right stories to tell (AOL and otherwise) has been rewarding. 

Netcraft has great web server surveys accompanied by cheerful narratives.  They're seeing "dramatic growth" in server numbers, and it may be explained in part by "the explosive growth of weblogs."  The growth is also likely explained in part by greater numbers of speculators hoping that people will miss-type domain names. 

Business 2.0 doesn't have an online archive; Red Herring does; Wired does; and the Pew Internet Project reports are great. But, boy, I could use some pointers to your favorite Joe Consumer perspective online history sources.  (The part after consumers piled on and ruined everything for the people who had really been enjoying themselves and actually writing code. Although maybe consumers will start writing code themselves someday.)  What has it been like for people who don't usually read Wired? (This is a plea for help -- if you feel shy or the comment registration system doesn't work for you (it often doesn't), send me an email.)

I did a podcast interview today with Ernie Miller and Phil Weiser on BrandX, but -- it won't be available for a couple of weeks.  What happened to internet time?  At any rate, a good time was had by all.

[update, 20 days later:  podcast is here]

Adam Liptak has a finely-wrought story in the Times now about the Judy Miller situation.  It must have been a painful headline to see in print:  New York Times Reporter Jailed For Keeping Source Secret.

Judy Miller didn't have enough of a story for the Times to publish.  No one knows precisely what crime the prosecutor is investigating.  And a journalist (someone that New York magazine intimates isn't liked very much) goes off to jail -- charged with civil contempt -- after shakily reading a statement about the importance of a free press.  It's all so strange.

Someone asked tonight, "Why is she protecting whatever jerk was her source?"  Reporters care a great deal about protecting all their sources, but some reporters involved in this situation have presumably talked to the prosecutor.  Robert Novak.  The Post's Walter Pincus.  Those reporters, no doubt ably represented, appear to have made the decision that the fact that their sources may have been committing a crime by leaking the CIA agent's name vitiated their privilege not to talk about that source.  Matt Cooper's source has let him talk, so he's talking.

Why is Judy Miller not taking this route?  The Times staunchly says that her approach is principled. It seems to me that this is a terrible test case, and it may undermine other reporters' efforts to claim the privilege in more appropriate circumstances.  I tend to think that the reporter's privilege is important -- and we have other privileges that we care about as well, like the attorney-client privilege and the priest-penitent privilege, and all the rest -- but these privileges are rebuttable under some circumstances.  On the other hand, because we don't really know what the prosecutor is up to, it's difficult to assess the propriety of asserting the privilege in this particular context.

So -- I applaud principles and privileges, but this entire morass is bound to have negative effects on an already-troubled profession.  The prosecutor seems vindictive.  I wish he would back off -- that's the piece that seems most moveable on this particular chessboard.

In the past, we've been able to recognize that consumers have gotten dumber in some contexts -- and we've created laws to help them.  In the online world, consumers are arguably getting smarter.  But for some reason laws aren't arriving that recognize this trend.  Is consumer dumbness a one-way ratchet?

The specific analogy I'm thinking of has to do with landlord-tenant relationships.  Before the 1970s in America, leases were thought of as estate transfers.  The landlord made no promises at all about what the housing quality would be of a leased property.  Livable housing was not something that a tenant had a right to and courts refused to imply landlord duties to fix rental units if something went wrong.  So if a tenant failed to pay his rent, the landlord had a cause of action against him -- and there were no defenses available based on horrendous conditions existing in the rented place. 

Then, in the 1970s, courts abandoned caveat emptor.  Many judges took the view that leases were contracts as well as estate transfers, and that landlords implicitly had promised to keep leased premises in habitable condition.  Thus, the old common law rule imposing an obligation on the lessee to repair the premises during the term of his lease changed to an implied warranty of habitability for all lease contracts.

There's a key opinion on this by Judge Skelly Wright, writing for the DC Circuit court [link is to great web resource on the case put together by Georgetown law professor Richard Chused].  Skelly Wright reasoned that the old common law rule absolving the lessor of all obligation to repair had come from a different time: 

Such a rule was perhaps well suited to an agrarian economy; the land was more important than whatever small living structure was included in the leasehold, and the tenant farmer was fully capable of making repairs himself.

So the old norm was simple:  in return for permission to use land, the tenant would pay rent, keep the land in good condition, and return the land when the lease was over.    Given that modern urban tenants would have no idea how to deal with “major problems, such as heating, plumbing, electrical or structural defects, the tenant’s position corresponds precisely with the ‘ordinary consumer’. . ”    Urban tenants, Judge Wright concluded, were far from the “jack of all trades” farmers whose skills formed the premise of the old common law rule.  So modern tenants couldn’t be assumed to be able to fix anything for themselves.

The jack-of-all-trades farmer tenant was replaced by the housing consumer.. 

This generally accepted story about the shift from medieval farmer tenants to modern housing consumers has had tremendous anecdotal appeal.  It has been repeated in countless cases. And it was based on a broad generalization about consumer empowerment – that consumers of rental property had become more helpless over time, less able to fix things, and more in need of legal protection.

In the online world, consumers are (arguably) getting more competent all the time.  From The Economist (Mar. 31, 2005):

“I am constantly amazed at the confidence level and sophistication of the average consumer,” says Mike George, Dell's chief marketing officer and general manager of its consumer business in the United States. Dell soared to the top of the personal-computer business by cutting out retailers and selling directly to consumers. If Dell changes prices on its website, its customers' buying patterns change literally within a minute. “That tells you people are well-researched and knowledgeable,” adds Mr George. . . . "In the past you would keep pounding the creative message out into the market place and look at reach frequency,” says Howard Draft, a veteran direct-marketing expert and chief executive of his eponymous New York agency, part of Interpublic. “Well, basically that is dead. What you have today is an informed consumer who is taking control of the way he learns and hears about products.

According to a 2005 Edison Media Research report [pdf], growing numbers (close to 70%) of internet users have found applications to use that help them block pop-up ads, spyware, and spam, and almost 80% of "heavy" internet users use such programs.  Consumers are learning.  Consumers aren't even "consumers" -- they're producers! They're cooperating and blogging and working away in gigantic numbers, all across the world.

But we don't seem to have the language to talk about "empowered" consumers in a way that doesn't sound like a sales pitch.  More importantly, regulators don't think consumers are getting smarter online. And so they assume the worst, and the worst gets made into law.

[Many thanks to Y.B. for talking to me about this over gelato.]

Gaylord Nelson, a former senator from Wisconsin, died yesterday.  Mr. Nelson founded Earth Day and built the environmental movement in this country.

From today's Times obituary:

On a speaking tour of the West in 1969, Mr. Nelson came up with an idea for what he called "a huge grass roots protest" modeled after that era's campus "teach-ins" to oppose the Vietnam War. At a conference in Seattle in  September, he announced that the protest would take place the following spring. The date chosen was April 22, 1970, a Wednesday.

More than 20 million Americans marked the first Earth Day in ways as varied as the dragging of tires and old appliances out of the Bronx River in White Plains and campus demonstrations in Oregon. Mayor John V. Lindsay of New  York closed Fifth Avenue to vehicles. Congress shut its doors so lawmakers could participate in local events. . . .

"The reason Earth Day worked," Mr. Nelson said, "is that it organized itself. The idea was out there and everybody grabbed it. I wanted a demonstration by so many people that politicians would say, 'Holy cow, people care about this.' "

Thanks, Mr. Nelson.  Reminder:  World Net Day happens on the same day as Earth Day -- April 22 every year.  And, like Earth Day, it's celebrated in a million different ways, many of which are collective happenings.

Once upon a time, we had three distinct forms of communications technologies -- print, broadcast, and telecommunications.  Now they're all becoming one.  But instead of moving the regulatory model to the print end of the continuum -- no prior restraints, no licensing requirements, no permission needed, freedom of speech, that kind of thing -- we're heading towards a mushy "common carrier light" form of regulation.  We'll see the migration of obligations that used to be imposed only on common carriers (not necessarily interconnection or tariffing, but things like universal service and E911 and CALEA) to online applications.  Even though those applications feel more like print than telecommunications. 

But we don't only protest on World Net Day. We also celebrate.  And the day organizes itself. 

Back in September 1995, freelancer Mark Nollinger wrote an extensive profile of AOL for Wired.  AOL saw itself as reaching mainstream consumers in a way that the internet alone never would.  Steve Case was confident that simple access to affordable bundled content was what consumers wanted.

Case believes that Microsoft and the Internet players are not going to be cheaper or easier to use, and therefore, are not taking the approach that's going to build a mass market. He's convinced that his opponents' strategy of "disintermediation" - unbundling systems and letting users "roll their own" packages - is going to be too much of a hassle for Mr. and Mrs. Average Online Consumer. "I don't see any evidence to suggest that this is what the 93 percent [the percentage of Americans that were unconnected in 1995] wants," Case says. "I think a subset of the 7 percent wants that. The people I talk to who don't yet use online services don't use them because they are still a little scared of them. Making it more complicated for people to connect and use the service, giving them a bewildering array of options to pick from - it's hard to imagine that's going to help."

The reporter is enthusiastic about the AOL view of the world:

[I]f history is any guide, sell AOL short at your own risk. Some services may turn out to be cheaper, others may have cooler technology. But it's hard to imagine anyone having a better insight into the hearts and minds of American consumers. The folks at AOL have risen to the top by demonstrating that the online business isn't just about technology; it's about understanding what people really want - an easy, affordable, mediated experience. As the market grows and the common denominator lowers, that should prove to be more true than ever.

Ted Leonsis had advice for everyone who wanted to sell unbundled access to the web:

To the naysayers who persist in believing that the world is full of intrepid adventurers just itching to climb the mountains of cyberspace on their own, Leonsis has a final story about human nature.

As he relates it, the cruise-ship business was once fragmented into hundreds of tiny little companies. Then a guy named Ted Arison came along and discovered that what excited people the most about cruises was the idea of sailing to exotic foreign lands. So Arison started Carnival Cruise Lines. For a few hundred dollars, Carnival gave passengers a nice berth and all the food they could eat, and sent them off on a journey with people like themselves.

And when they arrived at that exotic foreign land, what did they do? "Well, half of them would run to the Hard Rock Cafe," Leonsis says with glee. "A couple would buy a Swatch watch. And a couple would go eat some shrimp. And Carnival became a multibillion-dollar company."

Then he delivers the punch line: "We have the opportunity to become the Carnival Cruise Lines of this environment."

Ten years later, how does AOL's point of view sound?  Its subscriber base is down to about 22 million from almost 27 million in 2002.  (There may be a lot of churn in the subscriber numbers.)  But it's making money on online ads.  And it's getting rid of its walled-garden forums and moving its focus to aol.com (free webmail! Live8 streaming!), while announcing VoIP plans and streaming radio initiatives.  In a sense, AOL is reinventing itself by spiffing up online where the rest of us can see it. 

It sounds as if access to mediated content isn't (by itself, at least) driving AOL's business plans.  And that consumers are getting much better at making their own choices than the AOL of 1995 predicted they would.  Today more than 60% of Americans are online, and they want access and virus protection.  Not Carnival Cruises. 

People adopting new technologies are very apt to predict that the new ones will simply amplify old ones. Carolyn Marvin, in her 1988 book (When Old Technologies Were New) notes the "tendency of every age to read the future as a fancier version of the present."

Because people in the late 19th century were taken by the idea of mass audiences viewing electric light messages in the night sky, they assumed that twentieth century media would take the form of messages splashed on faraway surfaces by vast numbers of electric lights:

"Imagine the effect," speculated the Electrical Review, if a million people saw in gigantic characters across the clouds such words as 'BEWARE OF PROTECTION' and 'FREE TRADE LEADES TO H--L!'" . . . According to one electrical expert, "You could have dissolving figures on the clouds, giants fighting each other in the sky, for instance, or put up election figures that can be read twenty miles away."

So as we get used to online communications, we need to figure out whether our guesses about the future are based on our constrained imaginations.  As it turned out, television made us retreat to our own living rooms rather than watch outdoor spectacles projected onto the clouds. 

Analysts started off believing that internet use would destroy social relations. More recently, the findings [pdf] seem more nuanced -- use of the internet may reduce television watching time (and perhaps some family face time), but what we're doing online is engaging in our favorite human activity -- socially communicating.  And, in increasing numbers, contributing [pdf] to the online commons. 

No big conclusions yet, though.  We're still barely at the beginning of human adoption of online communications.  We're just emerging from the "fancy telephone" stage of internet history.

 

For an entire generation after the telephone was introduced, the Bell system managers resisted its use for social purposes.  Yes, there are memos and reports from the early years saying that managers were trying to get people to stop gossiping on the telephone.  The president of Bell Canada, in 1890, complained he couldn't stop trivial conversations, and a manager in Seattle in 1909 wanted to limit use of the telephone for purely idle gossip.

By 1928, a frustrated advertising guy said that this approach of treating the telephone seriously "is about as commercial as if the automobile people should advertise: ‘Please do not take out this car unless you are going on a serious errand. . . . ‘ We are faced, I think, with a state of public consciousness that the telephone is a necessity and not to be trifled with, certainly in the home."  In other words, the telephone was being sold as something necessary and serious, rather than conversational.

The Bell System felt that the need for telephones should be created by focusing on emergency uses, not sociability.  (These managers weren't at all confident that people actually needed these magnificent instruments, and wanted the surest sales pitch they could find -- particularly one that would be effective on anxious parents and farmers.)  Sales manuals from the 1920s to 1935 focused on emergencies.  Not until the late 1920s did advertising begin to even mention sociability.

Why did it take an entire generation for a shift to advertising sociability to occur?  Not, according to Claude Fischer's terrific essay "Touch Someone:  The Telephone Industry Discovers Sociability," because of economics.  Many of the big cities were pay-by-calling-volume from the beginning.  And many of the flat rate rural areas stayed flat rate, even after sociability was recognized.  Nope -- this lag can only be explained because of the cultural background of the telephone men.

The first telephone men, you see, had been telegraph men.  They thought of telephones as just like the telegraph -- something you used for urgent business messages and alarms, never for chatting.  Only when the telegraph tradition loosened its grip on management did sociability become a selling point for the telephone.

Now we live in a world where some very powerful companies with connections to sell to the internet are made up of telephone men.  Or cable men.  They see the internet as just another network, and they're used to a world of competing proprietary networks that sell packaged services to passive subscribers.  They think of the internet as just like the telephone.  In the meantime, in a span of years far shorter than a generation, some other people have shown up who don't have this mindset.

And now we're having a tussle.  Not only are these new non-telephone men used to a lot of sociability, they're also used to helping themselves (who needs E911?) and building resources collaboratively.  A new kind of consumer is online, with different expectations and different abilities. 

Unfortunately, the telephone men and the cable men have a pretty strong hold on policymakers. 

We've finally gotten to the point at which the idea of "professional" fact-filtering no longer makes sense.  Adam Liptak noted yesterday in the Times that blogging culture may be undermining the idea that reporters are specially privileged.  Lawrence, Kansas, is now the home of an all-community online paper -- the Newspaper of the Future.

Meanwhile, Yahoo! is launching a "social" search engine that allows you to cooperate with people you know in pinning down information you -- and they -- care about.  David Weinberger dreams about collaboratively filtering news.  Dreamcard (from Runtime Revolution) lets people who can't code write software that brings objects alive.

If we can just stay insatiably curious for a few more years (long enough to get past the bumpy parts and get to the point where real tools work really well and really simply) the pros will become amateurs, the amateurs will become pros, and we'll all be handling information much more effectively.  Just a few more years to go.

Largely unnoticed (except by Eric Goldman) in the parade of pontification yesterday about Grokster and BrandX was a very nice decision by the Second Circuit about trademark "use in commerce."  The decision is 1-800 Contacts, Inc. v. WhenU.com, Inc, 04-0026-cv(L), 2d Cir. June 27, 2005.

Although, as Eric points out, there are some strange things in this opinion (most notably its attempts to avoid dealing with the legality of search engine keyword sales generally), the bottom line is truly commonsensical and laudable:  listing a keyword in a directory that the public doesn't see is not "use in commerce" of a trademark for purposes of an infringement claim. 

There's also some nice language in the opinion about the pop-up ads triggered by WhenU's software.  The court understands that these ads don't alter or affect the underlying web site at all. 

This opinion is a good thing to have around, because several states have taken to calling things "spyware" that are simply keyword-triggered-applications.  At least from now on we can put a stop to the ridiculous argument that listing a company's name in a set of keywords is in itself "use in commerce" of a trademark that can form the basis of an infringement claim.

Another very important good thing that happened yesterday:  CDT proudly unveiled its Congressional Research Report database.  (Post story is here.)  This is a huge, life-affirming event, made possible by the hard work of CDT staffer Joshua Ruihley. 

These very useful CRS reports are usually hidden from public view unless a member of Congress releases them.  Now everyone can see them, and everyone can add to the collection.  Great news. 

[Cross-posted to SCOTUSblog]

If someone asks you what the Supreme Court thinks about the internet today, you've got a couple of responses.

1. In Grokster, the Court seems to understand that the case before it isn't just about P2P, and that the development of technology is really at issue. It doesn't want to let one industry -- the content industry -- use its statutory copyright monopoly to control the growth of another industry. On the other hand, the Court also recognizes that going after individual filesharers is very difficult, and that it may be necessary to go after intermediaries where sufficient evidence of intent is present. (This could be called the "There Must Be Liability In Here Somewhere" argument.) Result: some risk of liability for copyright infringement by technology providers, and a roadmap for what evidence is relevant when those cases come up.

2. In BrandX, the Court takes an entirely different approach. Using homespun analogies to pizza and dogs, and based on some fundamental misunderstandings about technology, the Court defers to the FCC's determinations about internet services. (This could be called the "This is Really Hard And We Want Out" tack.) Result: unfettered discretion lodged in the FCC to do what it wants with all internet services.

Now, the BrandX case is about a classification question. Should cable modem services be classified as "telecommunications services" or "information services"? If cable modem internet access is a telecommunications service, then many common-carrier obligations kick in -- like the obligation to allow others to plug into your network, to charge only set rates, and to contribute to the costs of rural telephone systems. The FCC didn't want to impose all of those costs on the cable industry, and so they said that cable internet access is really an "information service." This means that the FCC can apply "social policies" to the service (which can be very onerous and costly -- just as costly as the common-carrier rules), but won't set prices or require interconnection.

The problem with this classification by the FCC is that the statutory definition of "information service" doesn't fit with what internet access actually is. Information services are supposed to be things that generate, acquire, store, transform, process, retrieve, or make available information across telecommunications connections. The FCC reasoned that cable modem service is an information service because it gives people the ability to manipulate information using the internet across high-speed telecommunications. But that's not really right. Cable modem service allows people to reach online information, but doesn't necessarily allow them to manipulate it.

Your browser software allows you to see graphical online pages. Your email program allows you to receive and send email. Your IM client allows you to chat with friends. None of these things are necessarily provided by your cable service company. The 1996 telecom act, which contained these definitions, didn't foresee what the internet would become or how it would be used.

The Court defers to the FCC's classification, and along the way drops some very powerful dicta that gets ahead of the rewrite of the telecom act that is now in progress. Federal telecommunications policy, the Court says, should be set by the Commission. Everything accessed online is an information service. The Court says "the Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications."

The opinion has no limiting principles. The FCC can call anything that processes information an "information service," including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.

That should be good cocktail-party banter.

[UPDATE:  In response to emails and comments -- I agree with the Court's holding to the extent that it will result in freeing both naked DSL and cable modem access from Title II obligations.  What I'm arguing about here is the FCC 's assumption that the world is divided neatly into two things -- information services and telecommunications services -- that it has jurisdiction over all of 'em (including web sites), and that it can impose "social policies" without limit.  The Court's dicta in BrandX supports this FCC adventurousness.  I understand that many people believe the 1996 Act did this in the first place, but I don't agree with that assumption for reasons I've explained in Shortness of Vision.]

[Cross-posted to SCOTUSblog]

Ed Felten is right to focus on Footnote 12. That's the key footnote that technologists will be waving to say "don't allow the content industry to get into the business of designing our products and services." If there is no other evidence of intent and the device is capable of substantial noninfringing uses, you can't tag a technology with secondary infringement liability based on mere reluctance to filter.

Another legal-beagle point on this "don't design" argument is that the Court specifically says it is not talking about vicarious infringement. Vicarious infringement is based on "profiting from direct infringement while declining to exercise a right to stop or limit it," according to the Court. Vicarious liability doesn't require intent.

But we're in the contributory infringement box, which is based on "intentionally inducing or encouraging direct infringement." So the Court focuses on evidence showing an "affirmative intent" that the product be used to infringe. Contributory infringement looks at active steps evidencing intent, while liability for vicarious infringement might only require a failure to act (such as failure to filter). The classic example given by the Court of active steps is advertisement -- which is a corporate message encouraging infringement.

I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.

Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.

[Cross-posted to SCOTUSblog]

Humble metaphors make for bad internet policy. The Grokster 9-0 opinion doesn't use them.

But the BrandX guys -- my, all that talk about pizzas v. pizza delivery and dogs v. leashes. Just painful. And the use of this simplifying (but really obfuscating) set of metaphors indicates that the Court really didn't know what it was talking about when it started defining everything online as "information services" provided by the access provider.

So I'm hoping that we can categorize everything said about "information services" other than cable modem access as "dog dicta."

In my next entry, I'll go back to musing about Grokster, and, in particular, the meaning and import of fn. 12. We may have another fn. 4 of Carolene Products in the making.

[Cross-posted to scotusblog.] 

The consequences of BrandX (also decided today) are more important than those of Grokster. Grokster keeps the status quo in place. BrandX opens up a whole new world of regulatory power.

"What?" you ask. "I thought BrandX was just about the access of little ISPs to big mean cable systems."

No. In fact, both opinions are the reverse of what they purport to be. The Grokster opinion gives certainty to tech companies. And the BrandX opinion takes it away again.

In BrandX, Justice Thomas gets very confused about the internet and ends up essentially announcing that everything a user does online is an "information service" being offered by the access provider. DNS, email (even if some other provider is making it available), applications, you name it -- they're all included in this package. And the FCC can make rules about these information services under its broad "ancillary jurisdiction."

This is very very big. This means that even though information services like IM and email don't have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules -- all the subjects of the FCC's IP-enabled services NPRM. I've blogged about this a good deal, and now it's coming true: the FCC is now squarely in charge of all internet-protocol enabled services.

The implications of all this are staggering. This is the real news from today. After the DC Circuit's ruling in the broadcast flag case, people may have thought that the FCC's "ancillary jurisdiction" was in trouble. No longer -- the FCC has been given an enormous jurisdictional surge in power.  Even though its statute -- in my view, at least -- doesn't really give it this authority.

Whoof.

Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.

Now, that's not to say that there aren't some clouds here for technology companies. If you've got a stated intent to help others infringe, and a bunch of "bad" ads, and lots of other evidence of culpable intent, and THEN someone writes to you and encourages you to adopt their filtering technology, and you don't -- well, then you might be liable for inducement. There are certainly ways that this opinion might spark litigation.

But for the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision. Happy summer vacation, Justices.

[Cross-posted to SCOTUSblog]

[I'm proud to have been part of the team that worked on an amicus brief arguing for the same middle ground adopted by the Court today in Grokster. The brief was filed by the Digital Media Association, Netcoalition, CDT, and the ITAA.]

Still waiting for the opinions.  A big day for the future of the internet.

FCC's victory in BrandX means that it will be pushing ahead with classifying IP-enabled services as "information services" over which it has jurisdiction for "social policies" purposes. 

And the content industry's victory in Grokster means that inducement is officially recognized as part of contributory infringement.  I'm hopeful that the test for inducement is straightforward enough that technology innovators have some certainty.

But we really need those opinions to say more.

In advertisements spanning the years between 1907 and 1958, the Bell System used emergencies as a key sales point to get people to buy telephones.  Much of the usefulness of the telephone, as advertised, was that it was there, that it was watching over you.  You weren't so much interacting as being guarded.  The telephone, that magnificent instrument, was silently keeping you safe. 

But it is in a dangerous crisis, when safety seems to hang upon a second, that the telephone is at its best. It is the instrument of emergencies, a sort of ubiquitous watchman. . . .  And it is at such moments, if ever, that the users of a telephone can appreciate its insurance value. No doubt, if a King Richard III were worsted on a modern battlefield, his instinctive cry would be, ``My Kingdom for a telephone!'

An advertisement from the 1910s has a drawing of a maiden in a nightdress nervously clutching her throat and looking anxiously out the windw.  The text reads:

When You Need a Neighbor – or a doctor or assistance of any sort at any time, a reliable telephone is a friend in need.It is a time-saver when time is most valuable; often a life-saver in illness – a property-saver in fire or theft..But you cannot get the full service, value and benefit of a telephone unless you have a reliable telephone – buy and use only Standard “Bell” Apparatus and Equipment.

From the 1930s, there's an ad showing a picture of a little blond girl, arms innocently flung out in sleep.  The narrative:

Sleep Soundly, Little Lady...Mother and Daddy are near and the telephone is always close by. It doesn’t go to sleep.  All through the night it stands guard over you and millions of other little girls and boys.

There's much more of this.  Fear sells.  More to the point, this idea of the telephone guarding you is fascinating.  You'd better get one, because you just ... might ... need it tonight.

The ties to the E911 controversy I've been focusing on are obvious.  An important part of joining the telephony network was gaining the ability to tell other people when you were in trouble. 

Here's the question:  when someone uses an online application that doesn't look like a phone or (only) act like a phone but that does use telephone numbers, do they think they're being guarded?

Maybe not.  Unless, of course, they're TOLD they're using a 'phone.'  

I can't resist telling you that the word "phony" implies that a thing so qualified has no more substance than a telephone talk with a supposititious friend.

While you look up "supposititious," I'm going to go buy another phone to watch over me. 

I've been reading about the history of telephony.  There are lots of buffs out there..

Here's an excellent scary (very short) movie about the revenge of the PSTN on VoIP systems.

And from a Bell-System-lauding 1910 history:

In 1896 there came a most revolutionary change in switchboards. All things were made new. Instead of individual batteries, one at each telephone, a large common battery was installed in the exchange itself. This meant better signalling and better talking. It reduced the cost of batteries and put them in charge of experts. It established uniformity. It introduced the federal idea into the mechanism of a telephone system. Best of all, it saved four seconds on every call. The first of these centralizing switchboards was put in place at Philadelphia; and other cities followed suit as fast as they could afford the expense of rebuilding. Since then, there have come some switchboards that are wholly automatic. Few of these have been put into use, for the reason that a switchboard, like a human body, must be semi-automatic only. To give the most efficient service, there will always need to be an expert to stand between it and the public.

 

Whoof.  I'm not doing THAT again any time soon.  In case anyone saw the Lehrer segment, please read this:  Although the show mentioned an affiliation with CDT, I want to make absolutely clear that I never speak for CDT on any issue.  I'm just a loose cannon policy fellow.  It's very unfortunate that I caused that affiliation to be mentioned. 

The whole remote-TV setup is extremely alienating.  You can't see anyone, and you are in a tiny freezing room.  There's a earphone in your ear that is just about to fall out.  I'm staying inside, writing law review articles, from now on.

Jeff Jarvis does this so gracefully, so I'll take a page from him: 

I'm scheduled to appear on CNN's Lou Dobbs Tonight tonight at some (very brief) point between 6 and 7pm ET.  And I will also appear tonight on the Lehrer NewsHour, as part of the first segment (right after the opening).  The topic is electronic privacy.

The New York Times, the Washington Post, CNN, AP, ABC News, and innumerable other outlets are reporting breathlessly that credit card numbers belonging to 40 million people "may have been exposed to fraud."

Why is this story is getting so much attention?

Look, I'm not in favor of identity fraud.  But as far as I can tell this particular breach doesn't raise the risk of true identity theft.  The card companies say that personally identifiable information (like SSN, address, etc.) wasn't stored in these exposed files.  And these kinds of breaches happen all the time.  The wheels of commerce continue to turn.  Harvard Business School continues to admit students.  The sun rises; the sun goes down; and if a US consumer has a false credit card charge, he/she can contest it and never lose more than $50.

In fact, my sense is that the card issuers are unbelievably good -- maybe too good -- at detecting fraudulent patterns of card usage.  After all, pattern detection led MasterCard to suspect its vendor of having a problem, according to this CNN story.  

And when I traveled to Africa in 2004, American Express promptly cancelled my card.  Why? Because I had charges coming from Africa.  And when I called to complain that my card number (memorized over 20 years of faithful use) had been cancelled, they said, "But we tried to call you."

Me:  "I didn't get the message.  I was in Africa."

Anyway, I wonder whether this story is getting so much play (warning, black helicopters pulsing overhead) because there's some deep legislative desire to have mandatory security standards for all internet transmissions/storage of sensitive information. After all, DOJ is rumored to be pushing for ISPs to keep their logfiles on file.  Maybe larger meddling is afoot.   

Or maybe 40 million is such a big number that editors figure it has to be meaningful.

 

As a law professor, my job is to write law review articles.  It takes a long time for one of these pieces to come into being.  Everyone else's articles are such things of beauty, and I want to do a good job and help the overall enterprise.  I enjoy the work a great deal.

But I have to say it was fun tonight to do something different -- to have a single rehearsal with this amazing group of players and know that tomorrow we'll play for an audience.

It's going to be good -- and it's only going to happen once.  No reprints, conferences, editorial suggestions, or power point presentations.

On Sunday I'll be back to law review production again.