Adam Thierer's Blog, page 110

Why SOPA Threatens the DMCA Safe Harbor

The Stop Online Piracy Act (SOPA), a controversial bill before the House of Representatives aimed at combating "rogue websites," isn't just about criminal, foreign-based sites that break U.S. intellectual property laws with impunity. Few dispute that these criminal websites that profit from large-scale counterfeiting and copyright infringement are a public policy problem. SOPA's provisions, however, extend beyond these criminal sites, and would potentially subject otherwise law-abiding Internet intermediaries to serious legal risks.

Before moving forward with rogue websites legislation, it's crucial that lawmakers take a deep breath and appreciate the challenges at stake in legislating online intermediary liability, lest we endanger the "utopia of utopias," as my colleagues have explained time and time again on these pages (1, 2, 3, 4, 5, 6). The unintended consequences of overbroad, carelessly drafted legislation in this space could be severe, particularly given the Internet's incredible importance to the global economy.

To understand why SOPA could amount a game-changer for online service providers, it's important to understand the simmering disagreement surrounding the Digital Millennium Copyright Act (DMCA) of 1998, which grants certain online service providers a safe harbor from liability for their users' copyright infringing actions. In exchange for these protections, service providers must comply with the DMCA's notice-and-takedown system, adopt a policy to terminate users who repeatedly infringe, and meet several other conditions.

Service providers are only eligible for this safe harbor if they act to expeditiously remove infringing materials upon learning of them. Also ineligible for the safe harbor are online service providers who turn a blind eye to "red flags" of obvious infringement. The DMCA does not, however, require providers to monitor their platforms for user infringement. A service provider that complies with the DMCA safe harbor provisions but also has generalized knowledge that its service is used for many infringing activities, in addition to lawful ones, is shielded from copyright infringement liability so long as it does not induce or encourage users' infringing acts.

Defenders of the DMCA safe harbor argue that it's helped enable America's Internet-based economy to flourish, allowing an array of web businesses built around lawful user-generated content — including YouTube, Facebook, and Twitter — to thrive without fear of copyright liability or burdensome monitoring mandates.

Conversely, some commentators, including UCLA's Doug Lichtman, argue that the DMCA inefficiently tips the scales in favor of service providers, to the detriment of content creators — and, ultimately, consumer welfare. Pointing to a series of court rulings interpreting the safe harbor's provisions, critics argue that the DMCA gives online intermediaries little incentive to do anything beyond the bare minimum to stop copyright infringement. Critics further allege that the safe harbor has been construed so broadly that it shields service providers that are deliberately indifferent to their users' infringing activities, however rampant they may be.

What does SOPA have to do with all of this? Buried in the bill's 78 pages are several provisions that run a very real risk of effectively sidestepping many of the protections conferred on online service providers by the DMCA safe harbor.

Section 102

Section 102 of SOPA empowers the Attorney General to seek a court order against an allegedly infringing foreign website. Such a court order would, if granted, effectively deny the site access to payment processors, ad networks, and even parts of the domain name system. Under § 102, a foreign, U.S.-directed website is deemed a "foreign infringing site" if:

[T]he owner or operator of such Internet site is committing or facilitating the commission of criminal violations [involving illegal copyright infringement, counterfeiting, or theft of trade secrets] and the Internet site would . . . [therefore] be subject to seizure in the United States . . . if such site were a domestic Internet site.

Section 102 goes on to specify that a "foreign infringing site" must also be eligible for seizure by the Attorney General were the site domestic. This provision refers to 18 U.S.C. § 2323, which states among other things that "[p]roperty subject to forfeiture" includes:

Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of [criminal copyright or trademark infringement].

This definition of a "foreign infringing site" is enormously troubling. Note the absence of any requirement of actual or constructive knowledge on the part of the site operator, let alone criminal intent. Under § 102, a foreign website built around user-generated content may be deemed an "infringing site" simply because its server has facilitated the criminally infringing acts of a single user — even if the site operator neither induced nor knew of the user's unlawful activities. While an innocent foreign site operator might eventually be able to persuade a court to vacate an order deeming it a "foreign infringing site," SOPA imposes an astonishingly low burden on the Attorney General of showing that a site is a "foreign infringing site." If the bill is enacted as is, foreign websites that contain any user-generated content had better watch out.

SOPA proponents defend § 102 by pointing out that its definition of infringing sites comes straight out of the 2008 PRO-IP Act, which established the aforementioned civil forfeiture provision in 18 U.S.C. § 2323. But this statute's constitutionality is currently being challenged in federal court by a team of attorneys that includes Stanford law professor and copyright guru Mark Lemley. The law's breadth raises serious First Amendment concerns since it permits ex parte seizures of entire outlets of speech (e.g., websites) simply because the outlet has been used in some unlawful manner. SOPA may be based on existing law, but why should Congress extend this overbroad provision of the PRO-IP Act to encompass an even broader range of websites? If anything, lawmakers should revisit PRO-IP and narrow its applicability to sites intentionally operated for the purpose of committing or facilitating criminal infringement. Via Mike Masnick, even Floyd Abrams, a constitutional scholar who represents content companies that strongly back SOPA, conceded in a recent letter to Congress that unanswered questions remain regarding the constitutionality of 18 U.S.C. § 2323.

Section 103

The next section of SOPA, Section 103, isn't any better. This section provides for private rights holders to seek court orders against U.S.-directed websites — including domestic sites — to deny them access to U.S. payment processors and ad networks. Section 103 deems a website "dedicated to theft of U.S. property" if any of the following conditions are met:

[The site] is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [copyright infringement, circumvention of copyright protection systems, or trademark infringement]; or
[The site operator] is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the . . . site to carry out acts that constitute [copyright infringement or the circumvention of copyright protection systems]; or
[The site operator] operates the . . . site with the object of promoting, or has promoted, its use to carry out acts that constitute [copyright infringement or the circumvention of copyright protection systems], as shown by clear expression or other affirmative steps taken to foster infringement.

The scope of websites encompassed by these provisions appears to be potentially vast. The first prong covers any website that "has only limited purpose or use other than" infringement. Just how "limited" of non-infringing uses must a site have to meet this definition? It's hard to say. As Rob Pegoraro observed in a recent Roll Call op-ed, "'[l]imited' is one of those wonderfully elastic words — notice the ever-longer yet still 'limited' copyright terms granted to artists and creators?" This section of SOPA would be more clear if it simply used the "capable of substantial non-infringing uses" test established by the Supreme Court in its famous 1984 Betamax opinion, Sony Corp. v. Universal City Studios, Inc., which has since been interpreted by numerous federal courts in copyright infringement cases.

The second prong of the § 103 definition, which covers websites that take "deliberate actions to avoid confirming a [high probability of infringement]," is perhaps the most worrisome of the three prongs. As David Sohn of the Center for Democracy & Technology has pointed out, "[t]his seems like a backdoor way of imposing a monitoring obligation on any website that allows users to post content."  Temple Law Professor David Post, writing at the Volokh Conspiracy, observed that the bill might make it a "violation of law to keep the prosecutors from 'confirming' that you're violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you've somehow tried to keep the prosecutor off of your website!"

This language appears to have been lifted directly from a 2011 U.S. Supreme Court decision, Global-Tech Appliances, Inc. v. SEB S.A. In that case, a patent infringement lawsuit, the Court found the defendant liable for inducement on the grounds that it took willful steps to blind itself of the existence of the patent at suit. The Court held that "willful blindness" exists when (1) a defendant subjectively believes that there is a high probability that a fact exists; and (2) the defendant takes deliberate actions to avoid learning of that fact.

Note, however, that Section 103 omits the first prong of the Global Tech willful blindness test, the subjective belief element. This omission might simply be an oversight — or it could reveal the intent of the bill's authors to cast aside the subjective knowledge standard (which currently applies to service providers in the context of knowledge for purposes of the DMCA) and replace it with an objective, "reasonable person" standard. If plaintiff bringing a SOPA action is only required to show that a website operator should have known of its users' infringement from the perspective of a "reasonable" operator, and that the site's operator acted in some manner that had the effect of contributing to its ignorance of infringing activities by users, a vast array of websites that currently enjoy the protections of the DMCA safe harbor may face significant new legal risks. After all, website operators make design decisions all the time that might foreseeably impact on their awareness (or lack thereof) of user' potentially infringing activities. Who knows what sort of well-intentioned, albeit deliberate, decisions might amount to"avoiding confirming a high probability" of infringement?

Why SOPA Could Endanger the DMCA Safe Harbor

SOPA proponents have dismissed concerns that the bill would risk undermining the DMCA safe harbor. U.S. Register of Copyrights Maria Pallante, testifying in a House Judiciary Committee hearing on SOPA on November 16, told members of Congress that it was extremely unlikely that any actions brought under SOPA would impact websites otherwise shielded by the DMCA safe harbor. Techdirt reports that Viacom executive Stanley Pierre-Louis recently argued that SOPA would not "[expand] the scope of secondary liability claims and [diminish] DMCA protections," noting that "[t]here is no rule that permits 'willful blindness' of obvious wrongdoing under U.S. law, and nothing in the DMCA or any other statute has been deemed to hold otherwise."

Technically, Pallante and Pierre-Louis are correct; SOPA's provisions appear to leave existing doctrines of copyright liability vis-à-vis the DMCA safe harbor untouched.

In practice, however, SOPA has the potential to effectively usurp the DMCA safe harbor in important respects. If the bill is enacted, online service providers would face a new worst nightmare: being cut off from payment processors, ad networks, and possibly even Internet service providers. As Eric Goldman recently explained, if a "website goes offline because of cash flow problems caused by the cutoff attributable to a single UGC content item, all of the UGC on that website goes dark because of a single content item."

To avoid such an outcome, website operators will likely do everything they can to avoid falling under SOPA's definitions — even if that means going above and beyond the requirements of the DMCA safe harbor. While I'm all for websites voluntarily taking prudent and measured actions to combat unlawful user activities (e.g., YouTube's innovative Content ID system), any legislation that effectively imposes on site operators any new duty or obligation to monitor, or facilitate the monitoring of, user activities merits careful consideration and a thorough cost-benefit analysis.

Fair concerns have been raised by commentators about the DMCA's limitations and shortcomings. Those concerns deserve a serious examination in the halls of Congress, and in some cases may even merit some careful legislative tweaks to the DMCA. But the extraordinary remedies provided contained in SOPA should be reserved for genuine rogue sites that willfully flout U.S. laws with impunity and are beyond the reach of U.S. law enforcement authorities. While there are U.S.-based websites out there that violate copyright and trademark laws, extraordinary remedies (such as "going after the money") should not be the preferred method of penalizing such sites. If a rights holder believes that a domestic website is breaking copyright or trademark laws, the proper means of obtaining recourse is to file a civil lawsuit and, if appropriate, seek an injunction. The U.S. Marshals Service routinely enforces civil judgments and other orders entered against domestic actors by federal courts, and rights holders may obtain writs of execution to order law enforcement intervention against American individuals or businesses that violate court orders.

We Have To Pass The Bill To Find Out What's In It

Reasonable people may read SOPA's provisions in very different ways, to be sure, and it's impossible to predict how SOPA would, if enacted, actually impact online service providers. Federal judges vary widely in the methods they employ in attempting to interpret vague statutes. There is no such thing as stare decisis when it comes to statutory construction; some judges focus on the plain meaning of a statute's language, while others pour through committee reports and hearing transcripts in hopes of divining the legislature's true underlying intent.

Thus, with apologies to Nancy Pelosi, we probably won't know what's in SOPA until it's passed. Even then, only after years of costly litigation will the contours of the bill's provisions likely begin to approach a state of clarity. Consider that the DMCA, now thirteen years old, is still the subject of substantial disagreement among federal courts. For instance, courts disagree on what it means for a service provider to take "volitional acts" that encourage users to engage in infringement.

SOPA's lack of clarity is especially problematic given that its potential victims are small, entrepreneurial Internet start-ups that lack the resources to pay a team of lawyers to examine their operational decisions for potential SOPA violations. As leading high-tech venture capitalist Fred Wilson has argued, "venture capitalists will think more than twice about putting $3mm of early stage capital into startups if they know that the vast majority of the funds will go to pay lawyers to defend the companies instead of to hire engineers to create and build product."

Lawmakers Should Tread Carefully

While new legislation is indeed needed to combat rogue foreign websites that violate U.S. laws flagrantly and with impunity, SOPA's definitions and remedies are too broad and too vague in their current form. They would cast a cloud of legal uncertainty over America's innovative, startup-driven Internet economy. It would be a grave mistake to grant enormous discretion to Justice Department and rights holders and assume that federal trial judges will interpret SOPA's unclear provisions as narrowly as is necessary to protect legitimate Internet companies .

This week's House Judiciary Committee hearing on SOPA made clear just how much work remains to be done to craft an effective but targeted approach to rogue sites. Serious questions remain unresolved — not only about SOPA's impact of the DMCA safe harbor, but also about cybersecurity, due process and free speech. Additional hearings are needed to explore these important issues with Internet engineers, law professors, and venture capitalists. Marking up the legislation before the end of 2011 — as Chairman Lamar Smith desires, according to the National Journal – would be a serious mistake.

For more on SOPA and rogue websites legislation; see: 

Ryan Radia, Preliminary Thoughts  on Stop Online Piracy Act (SOPA)
Ryan Radia, Congress Should Amend SOPA to Address Cybersecurity, Due Process Concerns
Ryan Radia, Congress takes another stab at combating Rogue Websites with the PROTECT IP Act
Ryan Radia, Five Ways Congress Can Fix COICA Copyright Bill
Joint Letter from Public Interest Groups to the House Judiciary Committee on the Stop Online Piracy Act
Timothy B. Lee, ArsTechnica, The Stop Online Piracy Act: Big Content's full-on assault against the Safe Harbor
Letter from Sens. Ron Wyden, Rand Paul, Jerry Moran, and Maria Cantwell to Congressional Leadership objecting to the PROTECT IP Act
U.S. Rep. Zoe Lofgren's Opening Letter on SOPA
Prof. Eric Goldman, Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act
Prof. David Post, How About Occupy Hollywood?
Fred Wilson, Protecting The Safe Harbors Of The DMCA And Protecting Jobs
Rob Pegoraro, Online Piracy Act is Copyright Overreach
Center for Democracy & Technology, The Stop Online Piracy Act: Summary, Problems and Implications
Sherwin Siy, Public Knowledge, House Version of Rogue Websites Bill Adds DMCA Bypass, Penalties for DNS Workarounds
Techdirt's SOPA coverage
Parker Higgins, Electronic Frontier Foundation, What's On the Blacklist? Three Sites That SOPA Could Put at Risk
Corynne McSherry, Electronic Frontier Foundation, SOPA: Hollywood Finally Gets A Chance to Break the Internet
Larry Downes, TechFreedom, SOPA: Hollywood's latest effort to turn back time

 

SOPA & Selective Memory about a Technologically Incompetent Congress

Listening to this morning's House Judiciary Committee hearing on H.R. 3261, the "Stop Online Piracy Act" (SOPA) was painful for many reasons, including the fact that the first hour of the Committee's video stream was practically inaudible and unwatchable.  That led to a barrage of snarky jokes on Twitter about whether we should trust these same folks to regulate the Internet in the way SOPA envisions if they can't even get their own tech act together.

The snark-casm went into overdrive, however, once the lawmakers starting discussing DNS issues and the underlying architectural concerns raised by SOPA's sweeping solution to the problem of online piracy. At that point, the techno-ignorance of Congress was on full display. Member after member admitted that they really didn't have any idea what impact SOPA's regulatory provisions would have on the DNS, online security, or much of anything else. This led to some terrifically entertaining commentary from the Twittersphere, including the two below.

I'm highly sympathetic to such concerns, but here's my question: Where the heck were all these people when we were debating Net neutrality regulation, new privacy mandates, cybersecurity restrictions, Net gambling, and more? It strikes me that there's a selective memory (or selective morality?) problem at work in these cyberlaw debates: When critics hate a particular bill, they'll go out of their way to point out how technologically incompetent Congress is and why we should be skeptical of whatever it is they are up to.  But if the critics are sympathetic to the regulatory cause du jour, well then, we should just trust that those crusty Congress critters will get it right!

I wrote about this selective morality problem at greater length in my essays,"When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed,"and "And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars."  Put simply, people hate Internet regulation… until they love it.

For example, the conservatives rush out and breathlessly denounce each and every effort to impose Net neutrality regulation because of the danger of empowering an already over-zealous bunch of bumbling bureaucrats at the FCC. (And I agree with them.) Yet, with their next breath many conservatives praise SOPA even though it also empowers government to muck with the inner workings of the Internet. Some of those conservatives are also turning a blind eye to the growing appetite of the defense/security community to meddle with the Net's architecture in the name of avoiding any number of non-catastrophes.

Meanwhile, the liberals decry SOPA and want it stopped at all costs. There's never been a copyright protection measure they liked, of course, but each time one pops up we hear them claim that our analog era Congress is not well-positioned to be designing industrial policy schemes for the Internet. (And I generally agree with them.) But most liberals do a complete 180 whenever online privacy or Net neutrality regulations are the subject of congressional inquiry. Suddenly, the cyber-oafs in Congress are considered veritable technocratic philosopher kings who we should trust to guard our cyber-freedoms to lead us to the digital promised land.

Oh, the hypocrisy of it all!  Is there no one who stands for real Internet freedom? I guess not. But I hope all these people lambasting congressional and bureaucratic techno-incompetence today will have that same script handy at the next Internet policy hearing. Because if they aren't willing to use it consistently, I will.

How Players Police Online Gambling

Cross-posted at Reason.org

The big news in online gambling circles these past two weeks has been the busting of BLR Technologies, a software supplier for a number of online gambling sites, after a leading gaming mathematician determined the variance against winning at its craps game was statistically off the charts.

While most online gambling sites host honest games, there's bound to be some bad apples. What's often overlooked is that there is a market-enforced structure that militates against suspect play or outright cheating. That was clearly at work here.

The finding already has led at least one online casino, 5Dimes, to remove the BLR software from its site. That the news circulated the online gambling community as quickly as it did, and led to immediate action from a major online casino group, testifies to the knowledge and power of online gamblers. Of course, the image of informed players backed by mathematical and statistical experts contrasts with the views of government policymakers, who tend to treat online gamblers as gullible knuckleheads who need to be protected from unscrupulous gambling predators, predominantly through bans. This misconception is worth keeping in mind as a Congressional panel convenes this week to revisit federal laws against online gambling.

In the BLR case, Michael Shackleford, whose Wizard of Odds website takes an in-depth mathematical approach to all manner of gaming probabilities, strategies and odds, personally tested the software after a reader complained that he had won only 25 percent of 3,200 "pass" or "don't pass" bets made.

In craps, the bettor wins a pass bet by rolling a 7 or 11 on the initial, or "come-out," roll. He loses immediately on a 2, 3 or 12. Rolling a 4, 5, 6, 8, 9 or 10 establishes a "point." After this, in order to win, the player must roll the point before rolling another 7. A "don't pass" bet works exactly the opposite.

In a Nov. 2 blog post, Shackleford said he first dismissed the complaint. Then, after reviewing videos the reader posted on YouTube, Shackleford decided to conduct his own series of trials, which confirmed the anomaly.

For example, the probability of rolling a 7 or 11 on a come-out roll is 22.2 percent. In the 328 bets Shackleford made, his expectation was about 73 come-out wins. His actual result with the BLR software was 33. Wins by successfully rolling an established point were not just below expectation, but statistical outliers. By Shackleford's calculations, the odds of his overall result–a 24.7 percent win rate against an expectation of 49.29 percent–was 1 in 6 billion. Putting this in layman's perspective, he said, "it would be 184 times easier to win the Powerball [lottery] 2 out of 2 times than to be as unlucky as I was in this craps game."

Shackleford's test was repeated by mathematician and gaming software consultant Eliot Jacobson, who also experienced the same extreme improbabilities. While Shackleford simply cautioned players against sites using the BLR software, Jacobson went as far to call the software "rigged."

As the House panel gathers this week to evaluate the pros and cons of online gambling, members should be aware that most online gamblers are smart, responsible and sensible when it comes to playing. They are also very good at sniffing out suspicious sites, verifying whether real problems exist, and exposing them when they do. The online gambling ban, effectively managed through intrusive regulation of international financial transactions, was a mistake to begin with and deprives law-abiding Americans from using the Internet to engage in a recreational activity legal, in some form or another, in a majority of states. The busting of BLR is simply another reason to end the nannying over online wagering.

Laura Heymann on reputation

On the podcast this week, Laura Heymann, Professor of Law at William & Mary Law School, discusses her recent article in the Boston College Law Review entitled, The Law of Reputation and the Interest of the Audience. Heymann proposes viewing the concept of reputation as something formed by a community rather than something owned by an individual. Reputation, according to Heymann, is valuable because of the way a community uses it. She then discusses how thinking of reputation differently leads to thinking about different remedies for reputation-based harms. Heymann thinks current remedies for damage to one's reputation do not focus enough on the affect it has on the community and proposes remedies for emotional injuries be separate from remedies for damages to the reputation. She then discusses how the Internet affects reputation, including how it enlarges communities, and how it intersects with privacy.

Related Links

The Law of Reputation and the Interest of the Audience , by Heymann"Herman Cain seeks to salvage reputation as scandal continues", CBS News"When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed", Technology Liberation Front

To keep the conversation around this episode in one place, we'd like to ask you to comment at the webpage for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?

GPS Tracking Devices Do Not Have Power to Rewrite Fourth Amendment

Futurists have been predicting for years that there will be diminished privacy in the future, and we will just have to adapt. In 1999, for example, Sun Mcrosystems CEO Scott McNealy posited that we have "zero privacy." Now, Wall Street Journal columnist Gordon Crovitz is suggesting that technology has the "power to rewrite constitutional protections." He is referring to GPS tracking devices, of all things.

The Supreme Court is considering whether it was unreasonable for police to hide a GPS tracing device on a vehicle belonging to a suspected drug dealer. The Bill of Rights protects each of us against unreasonable searches and seizures. According to the Fourth Amendment,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the case before the Supreme Court, U.S. v. Antoine Jones, the requirement to obtain a warrant was not problematic. In fact, the police established probable cause to suspect Jones of a crime and obtained a warrant. The problem is, the police violated the terms of the warrant, which had expired and which was never valid in the jurisdiction where the tracking occurred. Therefore, first and foremost, this is a case about police misconduct.

If police are free to ignore the express terms of a warrant issued by a judge, then the police are essentially free to do whatever they think is necessary to get their job done. We are all human, subject occasionally to passionate and greedy impulses, and no one in a position of authority should be free to do exactly as they please.

Sometimes the requirement to obtain a warrant may be problematic. For example, Judge Richard A. Posner, among others, has argued that the warrant requirement makes it too difficult for police to prevent terrorism.

The administration is right to point out that [Foreign Intelligence Surveillance Act], enacted in 1978 — long before the danger of global terrorism was recognized and electronic surveillance was transformed by the digital revolution — is dangerously obsolete. It retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.

No one can make a compelling argument why the Fourth Amendment imposed an undue burden on police in the case of Antoine Jones. Naturally, it is understandable that police, prosecutors and some over-zealous law-and-order types would want to take full advantage of new technologies for keeping up with the bad guys. Some techno-futurists, such as Crovitz, who understand that privacy in the digital world will be different than what we became accustomed to in the analog world, are insufficiently sensitive to the dangers posed by unfettered investigative and prosecutorial discretion in the hands of government agents.

Crovitz offers the quaint example of cameras to remind us that at one time, way back when, it was considered an invasion of privacy to take a photo of someone else in a public setting without their permission. "What was unreasonable before may be reasonable now," he concludes. What Crovitz overlooks is that it may take decades for the public's reasonable privacy expectations to change, as it certainly did with respect to photography in public spaces. Should judges be guided by the privacy expectations we have today, or should they try to predict how privacy expectations will evolve so they can impose new norms? Isn't the latter a dangerous form of judicial activism?

The real problem here, as Justice Stephen G. Breyer warns, is that if the government wins the Jones case, "then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." The police have always had the right to tail a suspect, and they can still do that. They have never had sufficient resources to potentially surveil the entire population.

No one is suggesting that the police should not be free to take advantage of the opportunities that new technologies offer. The requirement to obtain a warrant hardly prevents them from doing that. But it does force the police to focus on the people who are reasonably suspected of committing particular crimes, and not on the rest of us. The Fourth Amendment protects us from harassment and intimidation just because we express, or may even be suspected of holding, unfavorable views about the people in power. Protecting the Fourth Amendment is vital for protecting our liberty.

Since there is no reason why police cannot obtain a warrant before they hide a GPS tracking device on a suspected criminal's vehicle, there is no novel conflict with the Fourth Amendment. Jones, therefore would seem to present a fairly straightforward question between whether we want to live in a police state or not.

GPS tracking devices have no intrinsic "power to rewrite constitutional protections." We do not have to relinquish our fundamental liberties so long as we remain vigilant patriots determined to keep them.

The consequences of Apple's walled garden

Over at TIME.com, I write about last week's flap over Apple kicking out famed security researcher Charlie Miller out of its iOS developer program:

So let's be clear: Apple did not ban Miller for exposing a security flaw, as many have suggested. He was kicked out for violating his agreement with Apple to respect the rules around the App Store walled garden. And that gets to the heart of what's really at stake here–the fact that so many dislike the strict control Apple exercises over its platform. …

What we have to remember is that as strict as Apple may be, its approach is not just "not bad" for consumers, it's creating more choice.

Read the whole thing here.

video: Panel on Governance of Social Media & Competition Law

On Friday, both Josh Wright and I spoke on a panel at the Michigan State University's conference on "Governance of Social Media." Our particular panel focused on emerging competition policy issues affecting social media and social networking sites. Also joining us on the panel were Nicolas Economides of NYU and Michael Altschul of the CTIA. The video of the panel can be found here and I have also embedded it down below. [My remarks begin around the 23-min mark of the video.]

At the event, I presented my forthcoming paper on "The Perils of Classifying Social Media Platforms as Public Utilities," which is currently out for peer review. I outlined the rising calls for treating social media or social networking sites as public utilities, essential facilities, or natural monopolies. Next, I briefly discussed some basic law and economics of public utility / essential facilities regulation. Third, I detailed six specific problems with efforts to classify these services as such. Finally, I briefly discussed regulatory proposals set forth by Professors Jonathan Zittrain and Tim Wu to apply traditional antitrust or public utility remedies to social media or information platforms. Specifically, I address Zittrain's call for "API neutrality" (which would apply net neutrality-like principles at the applications and device layer) and Wu's call for a "Separations Principle" (which would forcibly segregate information providers into three buckets: creators, distributors, and hardware makers). Watch the video for more details and see this for more critiques of the Zittrain and Wu proposals.

Thinking about the Future of Broadband & FCC Reform

It was my pleasure this week to host a terrific panel discussion about the future of broadband policy and FCC reform featuring Raymond Gifford, a Partner at the law firm of Wilkinson Barker Knauer, LLP,  Jeffrey Eisenach, a Managing Director and Principal at Navigant Economics and an Adjunct Professor at George Mason University Law School, and Howard Shelanski, Professor of Law at Georgetown Law School who previously served as Chief Economist for the Federal Communications Commission and as a Senior Economist for the President's Council of Economic Advisers at the White House. We discussed two new papers by Gifford and Eisenach on these issues.

Gifford discussed his new Mercatus Center Working Paper on "The Continuing Case for Serious Communications Law Reform." Gifford's paper outlines what substantive FCC reform would entail and considers what antitrust agencies and enforcement can teach us about the way the FCC should work going forward.  Eisenach discussed his important new paper on "Theories of Broadband Competition," which similarly considers how competition oversight of broadband markets could be modeled after modern antitrust principles.  Shelanski offered his thoughts on both papers. It was an interesting discussion and I encourage you to watch the entire thing.

During the discussion period, we debated the likelihood that serious communications policy / FCC reform could occur in the current political environment.  I argued that the stars just don't line up at this time to achieve such reforms. However, keep in mind that many deregulatory experiments in the past sometimes started slowly and then something sparked sudden action.  Scholars have noted (see McCraw's "Prophets of Regulation") sometimes just a couple of key players (such as Alfred Kahn in the airline context) were able to change the underlying dynamics of deregulation very rapidly to push through long-lasting reforms.

The key difference between then and now, of course, is that, back then, liberal Democrats in Congress and the Carter Admin came to understand how regulation was having a deleterious impact on marketplace competition and consumer welfare.  I simply cannot find a single Democrat who makes that same case today for the communications or media sectors.  And if telecom / media reform remains a highly politically charged, partisan issue, then the hopes for reform remain quite slim. But I haven't given up all hope just yet!

Anyway, watch the event video for more discussion on this matter.

Senate to Vote on Net Neutrality

Tomorrow the United States Senate will vote on S.J.Res. 6, a joint resolution disapproving the rule submitted by the Federal Communications Commission with respect to regulating the Internet and broadband industry practices. An identical resolution (H.J.Res. 37) has already passed the House of Representatives by a vote of 240-179. Today Sen. Marco Rubio (R-FL) explained why Congress should protect the Internet from unnecessary government intrusion -- because regulation inhibits investment and innovation.

If the Senate adopts the resolution, our brilliant President will use his veto to block the will of the people as expressed through their Congressional representatives in a futile attempt to protect an unsustainable regulatory state rooted in the 1930s which continues to promise utopia but which cannot now deliver economic growth exceeding Mexico, according to reports.

Johnny Ryan on the history of the Internet and its future

On the podcast this week, Johnny Ryan, Senior Researcher at the Institute of International and European Affairs, discusses his recent book, "A History of the Internet and the Digital Future." The book is a comprehensive overview of the Internet and where it came from. Ryan discusses some of the core concepts, including what made the Internet revolutionary, and how many of these ideas came from RAND Corporation researcher Paul Baran. He explains that the initial concept for packet switching did come from the need to build a communications system to withstand nuclear attack. The discussion then turns to the advent of communication between computers, which sprang from a group of graduate students who used a collaborative process to create the network. Finally, Ryan discusses Web 2.0, and how technologies like cloud computing and 3-D printing will disrupt industries in the future.

Related Links

A History of the Internet and the Digital Future , by Ryan"Paul Baran and the Origins of the Internet", Rand Corporation"Is collaboration the future of invention?", CNN.com

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