Andrew Moshirnia's blog

The Anti-Counterfeiting Trade Agreement (ACTA) is slowly inching its way towards implementation, but obstacles still remain. Now that the signing window for ACTA has been open for a while, let’s take a quick look at which countries have actually signed the agreement: United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea.

Sounds like a pretty impressive roster. Should go deep into the playoffs.

But not so fast.  It looks like the US Congress is not too happy with the idea of the executive entering into a binding international agreement pertaining to intellectual property. As a reminder, the Constitution gives power over IP to the Legislature: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Senator Ron Wyden (D) of Oregon sent a letter to President Obama seeking clarification that ACTA is not binding:   read more »

So, the video game case came down today, Brown v. EMA. First off, a tip of the hat to SCOTUS for A) coming out the right way and declaring California's violent video games for minors ban unconstitutional and B) reaching the actual merits, rather than settling on the fairly obvious vagueness concerns. But the 7 - 2 still leaves me a little puzzled, mainly for Justice Breyer's dissent.

Note: Justice Thomas was the other dissenter. While I don't agree with his minors-have-no-speech-rights theory, at least it's consistent with Morse. Let's save the scary implications of that position for another day.   read more »

I am not a very big fan of the Anti-Counterfeiting Trade Agreement (ACTA). In essence, the secret agreement looks like an attempt to institute a wide swath of changes related to intellectual property without all that pesky legislation, public comment, etc. This black cauldron has birthed all sorts of interesting horrors (dramatic much?) but perhaps the most terrifying is the specter of three-strikes internet termination policies.  Read more about this terror here, here, here, here, and here.

So my heart grew three sizes when I read that a UN report on Human Rights soundly denounced any automatic Internet termination plan (I'm looking in your direction HADOPI):   read more »

And boom goes the dynamite. Last month I wrote about the looming disaster that is COICA – the Combating Online Infringement and Counterfeits Act.  Thanks to a brewing fight between a United States government agency and web advocate and Firefox distributor Mozilla, we're getting a preview of the conflicts that COICA would cause if enacted.

As a quick refresher: COICA would allow the government to block sites at the domain name level. Immigration and Customs Enforcement (ICE), an arm of the Department of Homeland Security (DHS), had already made a dry run of sorts, pulling down several sites earlier in the year, angering our allies who had declared the sites non-infringing. So just think of COICA as an invitation for the US to declare war on the infringing internet, casualties be damned.

I argued this would be a terrible idea for all sorts of due process reasons and wouldn’t work due to easy technological adjustments. Now we see what will be the likely US response to those technological adjustments: arbitrary demands! Let’s see how this brilliant strategy plays out.    read more »

Any customer can have a car painted any colour that he wants so long as it is black. - Henry Ford

So the Congress appears to be considering the Combating Online Infringement and Counterfeits Act ("COICA") again. The act would essentially allow the government “to block sites at the domain name (DNS) level” (per Ars Technica) and would impose intermediate liability on credit card companies that did not stop transacting with blacklisted sites.  This (much like a jump to conclusions mat) is a terrible, terrible idea.  

Let’s imagine for a second that there actually exists such a dire piracy problem posed by rogue sites that we need to risk tinkering with the basic structure of the internet.  The government has not done a great job with arbitrary domain seizures, COICA might undermine the safe harbor offered by Section 230 of the Communications Decency Act ("CDA 230"), and DNS intervention will at best be ineffective and at worst threaten the stability of the internet.   read more »

I recall a Twilight Zone episode with a great twist: a man, in order to win a bet that he could stay quiet for an entire year, has had his vocal cords severed. The idea being, it is particularly gruesome to imagine a human being rendered mute for money. Sadly, this episode has not aged terribly well: the obscenity of modern three-strikes Internet laws takes any sting out of the twist ending.   read more »

I love reading Shel Silverstein’s The Giving Tree, but it always makes me a little bit sad. Commenting on need, devotion, and mortality, the story revolves around a tree that gives up everything to please a boy. I’ve always kept my eye out for a similar book. So imagine my delight when I discovered that the administration wanted to write the sequel: The Giving ISP.  It goes a little something like this:

"Once there was an ISP. . ."

The FBI wants access to the Internet records of various individuals. And for this purpose, the government uses National Security Letters (NSL).  NSLs allow the FBI to demand user information from ISP’s AND to insist that the ISP keep this demand secret. All this is done without the pesky need for a warrant, provided that the FBI decides the information might be relevant to preventing or investigating terrorism.   read more »

"Man goes to doctor. Says he's depressed. Says life seems harsh and cruel. Says he feels all alone in a threatening world where what lies ahead is vague and uncertain. Doctor says 'Treatment is simple. Great clown Pagliacci is in town tonight. Go and see him. That should pick you up.' Man bursts into tears. Says 'But, doctor...I am Pagliacci.'" - Rorchach's Journal, Oct. 16th, 1985. 

It seems terribly cruel to debate the potential malignancy of a mole located on a severed hand. At present, two camps are arguing over the rapidity of the spread of broadband, while ignoring a nationwide rollback of potential Internet access for the nation's poorest communities. This would be funny if only it weren't so sad.    read more »

The latest leak of the Anti Counterfeiting Trade Agreement (ACTA) came out a few days ago. Before we delve into the more troublesome elements of the agreement, let’s take a few moments to ponder how sad it is that our government continues to craft this agreement in secret.

I have spilt much digital ink over the stupidity of overt secrecy. When you won’t show me what is behind the curtain, I want nothing more than to rend draped velvet. But if you just pull the fabric back and show me the fantastipotamus, I’ll quickly grow bored.   read more »

It is a good thing to want to protect children from the vulgarity of the world. Accordingly, states have adopted prohibitions on exhibiting or selling harmful material to minors. These laws make sense, in that we usually don’t want sex shops selling pornography to kids. But occasionally the legislature goes a bit insane and decides that, in order to fully protect the children, we need to criminalize or block off whole sections of the Internet.

Massachusetts recently changed its “harmful to minors” law (Mass. Gen. Laws ch. 272, § 31) to include information hosted on the Internet:
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The first rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.

One of the problems with the law is that it does not do a great job of preventing jackassery. Talking in the theatre will not result in hard time (though it will result in burning in a special hell). It is not that we as citizens want to endure boorish behavior, it's just that we don’t know how to criminalize rudeness without chilling all other aspects of public interaction.  It is in these situations that we rely on a socially enforced notion of decorum. This system works fine when we can see the loutish perpetrator; but we don’t quite know what to do when the little twit is invisible. See Plato, The Republic, 2.359a – 2.360d (recounting the rapid moral decay of an invisible man); cf. South Park, Mystery of the Urinal Deuce (detailing the difficulty of discovering which boy "la[id] out a big fudge dragon [in the boys' room urinal] for all the world to see").   read more »

Memes never die. They just fade away. Downfall subs were a meme to last a thousand years, but survived only six.

If you have never seen Hitler complain about Brett Farve’s pseudo-retirement, the HD-DVD/Blu-Ray format wars, or the American election cycle, then this may be your last chance. The uber-popular Downfall subs, aka The Hitler Meme or Hitler Finds Out, in which users provide new subtitles to an amazing scene from the 2004 film Der Untergang (Downfall) of the Great Dictator melting down in his bunker, are in the process of being walled off. The German production company Constantin Film has blocked these parodies from YouTube “on copyright grounds.” If there is still time, I recommend you read Alex Leavitt’s excellent exploration of the history and meaning of this meme (and memes in general) at doalchemy.org.

My immediate thought on hearing this news was to create a “Hitler finds out that ‘Hitler finds out’ is being taken down” but was I happy to discover that general friend of Internet Freedom, Brad Templeton, has already completed a masterful parody of an earlier rash of take downs. But my joy was tempered by the thought that YouTube users may lose access to such a widespread, versatile, and dare I saw, intellectually valuable meme.   read more »

A stunningly bad decision came down from the 11th Circuit Court of Appeals that threatens the right to privacy in email. I want to alert everyone to the confused logic of this decision and point out, once again, that availability of online data provides an irresistible temptation for abuse.

Background (according to court documents):  Charles Rehberg sent some faxes to the management of Phoebe Putney Memorial Hospital, criticizing some (possibly shady) recent decisions taken by the board. As a favor to the hospital, the District Attorney of Dougherty County, Kenneth Hodges, investigated Rehberg’s actions. Hodges convened a grand jury and indicted Rehberg on charges of assault, burglary, and six counts of “harassing phone calls.” It later became clear that there was no evidence to support the phantom assault and burglary charges; for example, there was no police record or investigation of either crime, and these were dismissed. Then Hodges indicted Rehberg two more times on charges that were also dismissed.
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It is hard to know how to feel when a court does the right thing for the wrong reasons.  On April 2, in United States v. Russell, the D.C. Court of Appeals vacated an immutable 30-year computer and Internet ban as a condition for the supervised release of a sex offender. The court's main problems with the ban were that it was a smidge too long, it did not allow for probation officer approved waivers, and it would interfere with Russell's white-collar career. Each of these reasons is unsatisfying or downright worrisome.

I have previously noted that access to the Internet helps safeguard an individual’s rights (accessing government websites, contacting one's lawyer, alerting the media, conducting business, reading local newspapers, among other things). It is troubling that the D.C. Circuit appears willing to allow a ban on Internet use for any substantial period of time. Courts seem to feel that the appropriate duration of a digital prohibition is between 1 and 10 years. A decade! Ten years ago, there was no YouTube, Twitter, or social networking. It is impossible to predict how the Internet will evolve in the next few years, so I am uncomfortable with a decade-long digital exile.   read more »

The drafting of the Anti-Counterfeit Trade Agreement (ACTA) isn’t going so well. The agreement, which at least hints at three strikes provisions and third-party criminal liability for IP infringement, was finally leaked in its entirety last week. Now it seems that the drafters are a little nervous that authoritarian regimes might use ACTA to suppress speech. Wow, ya think? But we do not need to look to our enemies to find atavistic Internet policies. In the last few weeks, two of our staunchest supporters (South Korea and Australia) have been added to the illustrious Enemies of the Internet list.  If even our well-intentioned, democratic allies offend Internet freedom by way of the rule of law, can there be any doubt that repressive regimes will do the same?   read more »

Sometimes a story is so insane that you can’t help but wonder if someone has slipped you some crazy pills.  See, for example, the Google prosecution in Italy. I honestly thought that story could not be topped. But lo and behold, it appears that the EU has proposed to add third-party CRIMINAL liability to the Anti-Counterfeit Trade Agreement (ACTA). This essentially outlaws the entire Internet. Insanity.   read more »

"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it . . ." –Definition of Doublethink from 1984, George Orwell

If mental gymnastics were an Olympic event, the United States would be guaranteed gold. Our prowess at Doublethink is indisputable. The latest example of our mental contortion: (A) Internet Freedom is essential for the protection of basic human rights and (B) Access to the Internet is not a right and may be taken away without due process. At the same time as the United States is trying to increase Internet freedom in Iran, the United States Trade Representative is negotiating a copyright treaty (in secret) that will reduce Internet access both at home and abroad. This will not end well.   read more »

Well, it turns out this whole Internet thing is getting pretty popular. According to the Pew Internet and American Life Project, more Americans now get their news from the Internet than from old-fashioned newspapers. While this might just mean that consumers are reading mainstream media content online rather than in print, the Pew report also suggests that social media has its own significant role:

The rise of the internet as a news platform has been an integral part of these changes. This report discusses two significant technological trends that have influence[d] news consumption behavior: First, the advent of social media like social networking sites and blogs has helped the news become a social experience in fresh ways for consumers. People use their social networks and social networking technology to filter, assess, and react to news. Second, the ascent of mobile connectivity via smart phones has turned news gathering and news awareness into an anytime, anywhere affair for a segment of avid news watchers. (Source)   read more »

"If we walk without rhythm, we won't attract the worm.” – Dune; see also Weapon of Choice, Fat Boy Slim

Corporations are resurrecting a blast from the past in order to identify online users. And unlike earlier attempts to trace users, this method is behavioral. Get ready to go back to finger-pecking.

Online anonymity rests on two distinct barriers to identification: (1) the difficulty linking online activity to an IP address (often aided by a webmaster’s refusal to turn over such data); and (2) the difficulty establishing which user actually used that address. On this latter point, for example, a trace might lead to a city block, or to a household with unprotected WiFi. The problem has been that, even if the government or the plaintiff could follow the breadcrumbs, they could only be certain of the access point of the offending computer or at best, the location of the offending computer itself.  The user always had the last ditch defense “That wasn’t me at the computer.” But that may all be coming to an end.   read more »

I have written plenty of posts in which I have opined that sue-happy entities simply do not understand the Streisand Effect. That is, they do not grasp that the Internet has fundamentally changed the economics of menace: attempts to gag individuals will only result in a greater publication of those pieces of information that the litigant is trying to hide.  The story hits Twitter, the net hordes awaken, and the PR battle becomes a rout. See Sarah Palin, Tony La Russa, Shaw Printing, ACORN, et alia.   read more »