tag:blogger.com,1999:blog-77805069153707660822024-03-13T22:49:44.709-04:00Managing Miracles: Policy for the Network SocietySteve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.comBlogger71125tag:blogger.com,1999:blog-7780506915370766082.post-88808002421622540512013-06-19T02:08:00.000-04:002013-06-19T02:09:04.495-04:00I Join the EFF and Others in Calling for Craigslist to Drop CFAA Claims<em>[Cross-posted on <a href="https://freedom-to-tinker.com/blog/sjs/i-join-the-eff-and-others-in-calling-for-craigslist-to-drop-cfaa-claims/">Freedom to Tinker</a>]</em><br />
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Craigslist is suing several companies that scrape data from Craigslist advertisements. These companies, like <a href="https://www.padmapper.com/">Padmapper</a> and <a href="https://3taps.com/">3taps</a>, repurpose the data in order to provide more useful ways of searching through the ads. I have written about this in earlier posts, "<a href="https://freedom-to-tinker.com/blog/sjs/dear-craig-voluntarily-dismiss-with-prejudice/">Dear Craig: Voluntarily Dismiss with Prejudice</a>," and "<a href="https://freedom-to-tinker.com/blog/sjs/a-response-to-jerry-craig-should-still-dismiss/">A Response to Jerry: Craig Should Still Dismiss</a>." Fundamentally, I think that the company's tactic of litigating against perceived competitors is bad for Craigslist (because it limits the reach of its users' ads and thus the success of Craigslist), it is bad for the law and policy of the web (because scraping of public web sites has historically been a well-established and permissible practice that beneficially spreads public information), and is in bad taste (given Craiglist's ethos of doing well by doing good).<br />
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One of the most problematic aspects of the lawsuit is the set of claims under the <a href="https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act">Computer Fraud and Abuse Act (CFAA)</a> and its California state-law counterpart. The CFAA, passed in 1986, introduces criminal and civil penalties for "unauthorized access" to "protected computers." The CFAA was largely a reaction to generalized fear of "computer hacking," and it did not envision the public internet as we know it today. Nevertheless, some have tried to apply the CFAA to public web sites. This approach has been widely frowned upon by both the tech community and the courts. For instance, the <a href="https://www.cdt.org/category/blogtags/computer-fraud-and-abuse-act">Center for Democracy and Technology (CDT)</a> and the <a href="https://www.eff.org/issues/cfaa">Electronic Frontier Foundation (EFF)</a> are actively pushing to reform the CFAA because it has been subject to prosecutorial abuse. Craigslist has nevertheless alleged violations of the CFAA based on access to their public web site. <br />
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Today I signed on to an <a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.92.1.pdf">an amicus brief</a> written by the EFF--which was also co-signed by other scholars in the field--that urges the court to dismiss these ill-advised CFAA claims. <a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.92.1.pdf">The brief</a> reads, in part:<br />
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<blockquote>"The CFAA does not and should not impose liability on anyone who accesses information publicly available on the Internet. Because the CFAA and Penal Code S 502 imposes both civil and criminal liability, it must be interpreted narrowly. That means information on a publicly accessible website can be accessed by anyone on the Internet without running afoul of criminal computer hacking laws. In the absence of access, as opposed to use, restrictions, Craigslist cannot use these anti-hacking laws to complain when the information it voluntarily broadcasts to the world is accessed, even if it is upset about a competing or complementary business."</blockquote><br />
Craig Newmark, founder of Craigslist, actually <a href="https://www.eff.org/about/advisoryboard">sits on the Advisory Board of the EFF</a>. I have been bewildered about why the company's Founder and Chairman appears to be going along with such a misguided attack. As it happens, I ran into him a couple of weeks ago at the Personal Democracy Forum, where he was advocating for his various philanthropic causes via his organization, <a href="http://craigconnects.org/">craigconnects</a>. Craig has long maintained that he is merely a "customer support representative" for the company, and that he will only comment on how the company's decisions relate to what the users want. He <a href="http://arstechnica.com/tech-policy/2012/07/craigslist-sues-padmapper-for-copyright-infringement/">told Ars Technica last year</a> that, "I can say that our culture has always been community-driven, and what they tell us, in large numbers and for years, [is] that their posts are not to be used by others for profit." <br />
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When I ran into Craig, I told him that it was my impression that users want their advertisements to find successful buyers (or traders, or whatever), and that it seems logical that they would want their ads spread as widely as possible. He urged me to make sure that when writing about the issue I take care to get my facts straight. I asked him what facts he thought that I was unaware of, but he wouldn't elaborate. He then proceeded to talk at more length about the importance of fact-based journalism--which is apparently <a href="http://craigconnects.org/2012/12/craig-newmarks-big-issues-for-craigconnects-in-2013.html">one of the issues he is focusing on via craigconnects</a>, although I had trouble figuring out how it related to the issue at hand. Nevertheless, I took to the (nearly unusable) Craigslist forums in order to try to find evidence that users do not want their advertisements spread across the web. I found <a href="https://forums.craigslist.org/?ID=217082740">some</a> <a href="https://forums.craigslist.org/?ID=217407517">users</a> that objected to "parasites" that build businesses on top of user advertisement data, but I also found <a href="https://forums.craigslist.org/?ID=214986939">other</a> <a href="https://forums.craigslist.org/?ID=217405841">users</a> that thought that the lawsuit ran counter to their interests.<br />
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What counts as "large numbers," and how does Craig decide which users to listen to? I have no idea. However, in fact-check land, <a href="http://bits.blogs.nytimes.com/2012/07/29/when-craigslist-blocks-innovations-disruptions/">Craig was quoted last year</a> as saying, "Actually, we take issue with only services which consume a lot of bandwidth, it’s that simple." Or maybe it's not. <a href="http://bits.blogs.nytimes.com/2012/07/29/when-craigslist-blocks-innovations-disruptions/">3Taps was allegedly scraping all Craigslist advertisement data only indirectly, from Google caches</a> until Craigslist allegedly added a "noarchive" tag in order to tell Google to stop offering cached versions. For their part, Craigslist claims that they had long been including the "noarchive" tag, so I suppose that this will come out in the discovery process if we get to that stage. Regardless, it appears that Craigslist is fine with Google or Bing consuming a "lot of bandwidth," but not with them passing it along to services that it perceives to be a threat to its core business. Of course, if Craigslist were really concerned with rate-limiting for the sake of bandwidth, it could offer an API like so many other modern web sites.<br />
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In any event, Craigslist is behaving like a jealous incumbent. If that were all that were at stake, then it would be enough to say "shame on them" and move on. However, this lawsuit threatens to create and reinforce bad law precisely at the time when the larger community--of which Craig is a part--is calling for its reform. Drop the case, Craig.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-19136184250788031872013-05-24T13:36:00.003-04:002013-06-19T02:09:53.981-04:00Arlington v. FCC: What it Means for Net Neutrality<em>[Cross-posted on <a href="http://freedom-to-tinker.com/">Freedom to Tinker</a>]</em><br />
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On Monday, the Supreme Court handed down a decision in <em>Arlington v. FCC</em>. At issue was a very abstract legal question: whether the FCC has the right to interpret the scope of its own authority in cases in which congress has left the contours of their jurisdiction ambiguous. In short, can the FCC decide to regulate a specific activity if the statute could reasonably be read to give them that authority? The so-called <em>Chevron doctrine</em> gives deference to administrative agencies' interpretation of of their statutory powers, and the court decided that this deference extends to interpretations of their own jurisdiction. It's all very meta, but it turns out that it could be a very big deal indeed for one of those hot-button tech policy issues: net neutrality.<br />
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Scalia wrote the majority opinion, which is significant for reasons I will describe below. The opinion demonstrated a general skepticism of the telecom industry claims, and with classic Scalia snark, he couldn't resist this footnote about the petitioners, "CTIA—The Wireless Association":<br />
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<blockquote>This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.<a name='more'></a><br />
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Ha. Ok, on to the merits of the case and why this matters for net neutrality.<br />
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<em><a href="https://dockets.justia.com/docket/circuit-courts/cadc/11-1356/">Verizon v. FCC</a></em> is a long-running case currently in DC Circuit court, arising out of Verizon's challenge to the FCC's "Open Internet Order." It all started in 2010, but for a variety of reasons it has moved at a snail's pace. They haven't even scheduled oral arguments yet. One one side, Verizon claims that the FCC does not have the authority to implement the non-discrimination rules contained in the order, and that they as a company have a First Amendment right to discriminate. On the other side, the FCC has asserted a patchwork of statutory theories for why they can enforce the order. The Commission also claims that the free speech arguments by Verizon are bogus because the company is merely a carrier of speech and, if anything, the free speech obligations should counsel in favor of non-discrimination.<br />
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These arguments are largely untested ground for both sides. Although Verizon's free speech argument may seem rather dubious, it might nevertheless turn out to be a legal winner in light of cases like Citizens United. The FCC's "carrier of speech" argument fits a common-sense notion of what telecommunications companies do. Unfortunately for the Commission, it has already chosen to "deregulate" internet communications by stating that they are not "common carriers" -- that is, entities that are traditionally obliged to deliver communications without discrimination. Instead, they articulated the patchwork of other statutory theories -- the so-called "ancillary jurisdiction" approach.<br />
<a href="http://www.broadcastingcable.com/article/493665-FCC_Says_Supreme_s_Decision_Backs_Its_Open_Internet_Order_Authority.php"><br />
As others have observed</a>, the decision in <em>Arlington</em> gives the FCC a much better shot at winning the ancillary jurisdiction argument in the Verizon case. <a href="http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/20/how-net-neutrality-regulations-could-undermine-the-open-internet/">Tim Lee thinks that on balance this is a bad thing for public policy</a>, because it contributes to regulatory jurisdiction creep. I can appreciate his position.<br />
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Let's assume for a moment that the FCC loses the Verizon case in the DC Circuit. If the Supreme Court hears the case, it would be quite entertaining indeed. That's because Scalia has some strong views on how broadband should be classified and what jurisdiction the FCC should have. This takes us back to a case in 2005, <a href="http://www.law.cornell.edu/supct/html/04-277.ZO.html">NCTA v. Brand X</a>. In that case, a company named Brand X Internet Services claimed that cable-based broadband internet service was indeed a "common carrier" service. The FCC was at the time proceeding with its novel approach to "deregulating" broadband internet by stating that it was not a common carrier but instead subject to ancillary jurisdiction. The logical and legal acrobatics of this approach were quite impressive. The Supreme court, in a 6 to 3 vote applied <em>Chevron</em> deference to the FCC's interpretation of the statute, and let it stand. <a href="http://www.law.cornell.edu/supct/html/04-277.ZD.html">Scalia dissented vociferously</a>. He simply didn't think that the statute was ambiguous. Broadband internet was a a common carrier service, rather than some new "information service" under the FCC's "deregulated" scheme (see his extended pizzeria metaphor). He also noted that the Court's decision (and the other dissenting opinions) would permit the FCC to change its mind and reclassify broadband as a common carrier under the Chevron doctrine. <a href="http://www.law.cornell.edu/supct/html/04-277.ZD.html">As he said</a>:<br />
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<blockquote>"In other words, what the Commission hath given, the Commission may well take away–unless it doesn’t."<br />
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The FCC actually <a href="http://blog.broadband.gov/?entryId=419239">considered relying</a> on this so-called "Title II" reclassification approach initially, but rejected it at the time because it was too politically sensitive (telcos/cablecos have friends in Congress). So, even if Verizon wins the case at the DC Circuit, and even if the Supreme Court does not reverse the DC Circuit, the FCC could take the significant (and, logical, to Scalia) approach of common-carrier classification.<br />
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<em>Arlington</em> supports this approach, and the FCC filed a letter with the court yesterday noting this fact. Verizon, for what it's worth, filed a letter citing a recent DC Circuit opinion upholding the free speech rights of corporate conveyors of speech against control by others.<br />
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For Verizon, there is no going back now. They have staked out their position and will defend it to the hilt. Many other broadband internet providers (including the cable companies) decided not to take part in this battle. MetroPCS, the other appellant, pulled out last week. Intervenor "CTIA—The Wireless Association", represented by <a href="http://www.wilmerhale.com/jon_nuechterlein/">Jonathan Nuechterlein</a> of WilmerHale, pulled out last summer. I, for one, am looking forward to oral arguments.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-25579015930697116552013-05-07T17:57:00.001-04:002013-05-07T22:06:41.914-04:00A Response to Jerry: Craig Should Still Dismiss<em>[Cross-posted on <a href="http://freedom-to-tinker.com/">Freedom to Tinker</a>]</em><br />
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Jerry Brito has <a href="http://reason.com/archives/2013/05/06/craigslist-takes-upstart-competitors-to">a new post on the Reason blog arguing that</a> I and others have been too harsh on Craigslist for their recent lawsuit. As <a href="https://freedom-to-tinker.com/blog/sjs/dear-craig-voluntarily-dismiss-with-prejudice/">I wrote in my earlier post</a>, Craigslist should give up the lawsuit not just because it's unlikely to prevail, but also because it risks setting bad precedents and is downright distasteful. Jerry argues that what the startups that scrape Craigslist data are doing doesn't "sit well," and that there are a several reasons to temper criticism of Craigslist.<br />
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I remain unconvinced.<br />
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To begin with, the notion that something doesn't "sit well" is not necessarily a good indicator that one can or should prevail in legal action. To be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn't seem right. Jerry concedes that the copyright claims are bogus, and that the CFAA claims are ill-advised, so we're left with doctrines like misappropriation and trespass to chattels. I'll get to those in a moment.<br />
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First, there is a bit of confusion around the copyright claims, so it's worth revisiting them. The court held that Craigslist unambiguously does not hold copyright in user-created postings, except for those three ill-fated weeks last summer when they instituted that horrible terms of service. At all other times, they do not own the posts. However, Jerry's claim--which has been made by others--that no copyright exists in these posts whatsoever, seems weak. As <a href="http://ia601209.us.archive.org/33/items/gov.uscourts.cand.257395/gov.uscourts.cand.257395.74.0.pdf">the court noted</a>, at this stage of the proceedings it portrays Craigslist's claim of copyrightability in the "most favorable light" and concludes that the claim:<br />
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<blockquote>sufficiently alleges that users’ posts on the Craigslist site have a level of creativity that is not "so trivial as to be virtually nonexistent," and thus are sufficiently “original” to fall within the scope of copyright protection.</blockquote><br />
It seems likely that the court will ultimately hold that these are not <em>Feist</em>-style facts, but instead creative works. I don't necessarily think that this is a great policy outcome, but it is consistent with copyright jurisprudence generally (as ill-founded as that may be). It's just that (other than during those three weeks) the copyright resided with the poster, not Craigslist.<br />
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The court did not dismiss Craigslist's claim of copyright over the compilation of posts. The way in which Craigslist organizes and presents posts may well be copyrightable. I didn't see that the order specifically spoke to the complaint's allegation that the 3taps "craiggers" site imitated the "visual fashion" of the Craigslist posts, but perhaps this survives. It is somewhere between a copyright and trademark claim (maybe "trade dress"?). This is all to say that the copyright <br />
claims are not entirely dead, although the strongest claims are indeed thrown out.<br />
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On the CFAA claims, Jerry says that, "one can understand why it might have thrown the kitchen sink into its lawsuit." Well yes, I can understand why one might do that, particularly if one were a litigator interested solely in winning the case. However, the lawyers are not adequately representing the interests of their client here--I think that the client includes Craig, and the Craig I've met would not have agreed. If that's the case, the "kitchen sink" approach is wildly inappropriate. It has the potential to do collateral damage to internet-related jurisprudence, and goes against principles of tolerance and freedom.<br />
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Jerry then argues that maybe this is the right case to test out some novel approaches to applying physical-world torts to online things that feel kinda like property. The tort of Misappropriation is about property. The tort of trespass to chattels is about property ("chattels" are, roughly speaking, "your stuff"). Jerry is suggesting that this case is a good opportunity to further propertize the digital world.<br />
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First of all, this is not the right case. It's a messy fact pattern, and the conflicting interests of the Craigslist ethos and intellectual property make it more ugly. Second, moving law in this direction is bad policy. Jerry has written extensively about the problems with propertization creep, so I don't know why he would think that this makes sense.<br />
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Jerry also turns to the economics of network effects to support his "it doesn't feel right" hypothesis. As his argument goes, Craigslist built the network effects that it now enjoys, so competitors should have to do the same. I suppose that this satisfies a visceral sense of fairness, but it doesn't say much about what is optimal for the market and for innovation. Jerry says that what Craigslist did was to disrupt the newspaper market for classifieds via, "true innovation: taking command of the network effect by offering a superior product." <br />
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I agree that Craigslist innovated. However, their innovation <em>contributed</em> to their network effect, which then (as network effects tend to do) fed itself. Once you have a network effect in a market, your incentives to innovate <em>decrease</em> because of lock-in. Others, however, are strongly motivated to try to break into that market. Padmapper and others innovated--in a way that is no less "true" than Craigslist's original innovation. Craigslist saw the value of that innovation and even tried to imitate it by creating its own mapping tool (arguably innovation in and of itself).<br />
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No doubt, some Paleo-<a href="http://en.wikipedia.org/wiki/Joseph_Schumpeter">Schumpeterian</a> will argue that these incentives are necessary in order to motivate innovation. They will argue that without them, creative destruction will be halted and all of us will trade in our riding boots for birkenstocks. Of course, I'm not sure that Craig ever had the incentive to become the greatest horseman in San Francisco. He had a different incentive.<br />
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It all sounds more like a shift from incentive to excess to me.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-45111866024563329492013-04-30T23:55:00.000-04:002013-05-01T09:01:00.396-04:00Dear Craig: Voluntarily Dismiss with Prejudice<em>[Cross-posted on <a href="http://freedom-to-tinker.com/">Freedom to Tinker</a>]</em><br />
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Last summer, Craigslist <a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.docket.html">filed a federal lawsuit</a> against the company <a href="https://www.padmapper.com/">Padmapper</a> (and some related entities). <a href="https://www.padmapper.com/">Padmapper.com</a> is a site that, among other things, allows users to view Craigslist postings on a geographical map. It is a business premised on providing value added services to Craigslist postings -- with some of that added value going back to Craigslist in the form of more users. Craigslist did not like this, and alleged a host of claims -- seventeen of them, by the time they were done with the "<a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.35.0.pdf">First Amended Complaint</a>" (FAC). Among their claims were alleged violations of copyright, trademark, breach of contract, and -- surprisingly -- Computer Fraud and Abuse Act (CFAA). The CFAA claims were not in the original complaint (they showed up only in the September 2012 FAC). Today, the judge ruled that some of the claims would be dismissed, but that many would survive.<br />
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I am still at a loss about why Craigslist is taking such a scorched earth tactic against a site that appears to help more people find Craigslist postings. Sure, they're looking to make money while doing it, but that's how much of the internet business ecosystem works. I'm particularly shocked, because Craig Newmark has been at the forefront of fighting for so much good online policy. We've met a few times, including the period when he was embroiled in the <a href="http://en.wikipedia.org/wiki/Dart_v._Craigslist,_Inc.">fight over whether or not "adult services" would do away with his CDA 230 intermediary liability</a>. He was on the right side of SOPA/PIPA and helped to fight against over-expansive copyright. I've always found him to be personally friendly, thoughtful, and savvy about what makes the internet work.<br />
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<a name='more'></a><blockquote><strong>Craig:</strong> Why do you care if these guys scrape Craigslist? Don't you want to see what kind of useful tools they'll produce? I tried your own mapping function recently (which appears to be in reaction to Padmapper) and it's not that great. You lost your primary copyright argument already in pretrial motions, but don't you think that it's poor form to pursue the remaining claims at trial? The internet economy has grown out of sharing information and building better tools. Instead of trying to imitate your new competitors, why don't you define an API to provide them with the data in order to encourage their work? The CFAA (and state counterpart) claims are particularly distasteful and ill-advised for reasons that we all understand. You created the site to do good in the world, but this lawsuit feels like an attempt to do well.</blockquote>Those of you following along at home can see the <a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.docket.html">full docket</a>, as well as the <a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.35.0.pdf">"First Amended Complaint" by Craigslist</a>, and <a href="http://www.archive.org/download/gov.uscourts.cand.257395/gov.uscourts.cand.257395.74.0.pdf">today's Order</a>. You should read the <a href="https://www.eff.org/deeplinks/2013/04/craigslist-owns-what-you-did-last-summer">EFF's summary</a>, <a href="http://www.forbes.com/sites/derekkhanna/2013/04/30/craigslists-allegations-of-copyright-violations-thrown-out/">Derek Khanna's summary</a>, and the <a href="http://www.dmlp.org/blog/2012/copyright-%E2%80%9Cpublic-facts%E2%80%9D-craigslist-v-padmapper">DMLP summary</a>.<br />
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The fact pattern is a bit complex, but the 17 claims can be roughly broken down into the following:<br />
1. Copyright Infringement, and the tort of Misappropriation<br />
2. Trademark Infringement<br />
3. Breach of Contract claims<br />
4. Computer Fraud and Abuse Act, it's California counterpart, and the tort of Trespass<br />
5. Unfair Competition<br />
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Today's opinion does not throw out any of these claims in their entirety.<br />
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The court says that, in general, Craigslist did not obtain copyright in the user postings, so it cannot enforce them. However, in a flip-flop of policy, Craigslist added on July 16 2012 a disclaimer to all new posts stating that it gained full exclusive copyright in the post contents, only to reverse that policy on August 8. The initial move was obviously in response to their concern that the copyright claim in this lawsuit would fail, and the reversal was the result of the <a href="https://www.eff.org/deeplinks/2012/08/good-news-craigslist-drops-exclusive-license-your-posts">natural response of the internet</a> (<em>i.e.</em> "this is ludicrous"). That means that we have a weird situation in which user posts for a few weeks were arguably copyrighted works of Craigslist. So, the court tosses most of the copyright claims, but there are still quite a few posts in the course of that three weeks that could qualify.<br />
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<blockquote><strong>Craig:</strong> If you push forward on this claim based on the 3-week period during which your company imposed a draconian and universally hated term of use, you'll look foolish and vindictive.</blockquote>The trademark claims seem thin as well, given that in the course of using the CRAIGSLIST mark, Padmapper stated clearly that it was not CRAIGSLIST. I don't see any reasonable likelihood of confusion... and as for dilution, really guys?<br />
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The breach of contract claims seem hard to sustain because Padmapper cannot be forcibly made party to a contract by visiting a public web site (or, at least, the Ninth Circuit generally doesn't think so). In any case, I'm not sure what remedy comes purely out of that claim.<br />
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It appears that the bulk of what remains involves whether or not Padmapper or its alleged affiliates accessed Craigslist data in an unauthorized fashion such that it would trigger the Computer Fraud and Abuse Act or the California equivalent. There are many far-reaching negative consequences, that I am sure Craig undertands intimately, to defining "unauthorized access" broadly enough to make it into a criminal claim in this case. <a href="https://www.eff.org/deeplinks/2012/08/good-news-craigslist-drops-exclusive-license-your-posts">The EFF has it right on this issue</a>.<br />
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<blockquote><strong>Craig:</strong> You should be helping to reform the CFAA rather than helping to bastardize its use in the federal courts. It's time to voluntarily dismiss the entire suit, with prejudice.</blockquote>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-9005655376249705772011-03-16T20:14:00.004-04:002011-03-16T20:21:04.709-04:00Things Have Been Quiet Around HereMy rate of posting here has slowed down in the past year as my day job at Princeton's <a href="http://citp.princeton.edu/">Center for Information Technology Policy</a> has consumed more of my time. I've also been posting more regularly on the <a href="http://www.freedom-to-tinker.com/">Freedom to Tinker</a> blog. If you're looking for my latest thoughts, head over there. Here are some of my recent posts:<br /><ul><li><a href="http://www.freedom-to-tinker.com/blog/sjs/web-browser-security-user-interfaces-hard-get-right-and-increasingly-inconsistent">Web Browser Security User Interfaces: Hard to Get Right and Increasingly Inconsistent</a></li><li><a href="http://www.freedom-to-tinker.com/blog/sjs/trying-make-sense-comcast-level-3-dispute">Trying to Make Sense of the Comcast / Level 3 Dispute</a></li><li><a href="http://www.freedom-to-tinker.com/blog/sjs/join-citp-dc-friday-emerging-threats-online-trust">Emerging Threats to Online Trust</a></li><li><a href="http://www.freedom-to-tinker.com/blog/sjs/htc-willfully-violates-gpl-t-mobiles-new-g2-android-phone">HTC Willfully Violates the GPL in T-Mobile's New G2 Android Phone</a></li><li><a href="http://www.freedom-to-tinker.com/blog/sjs/npr-gets-it-wrong-rutgers-tragedy-cyberbullying-unique">NPR Gets it Wrong on the Rutgers Tragedy: Cyberbullying is Unique </a></li></ul>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-31724699534771445942010-08-18T23:59:00.006-04:002010-08-19T01:00:49.684-04:00I Got Interested in Web Authentication and SecurityLately there have been some interesting developments in the fundamental structure of web security, and I've gotten involved in discussing how they are coming together. I did a post earlier this year on "<a href="http://www.freedom-to-tinker.com/blog/sjs/web-security-trust-models">Web Security Trust Models</a>", and recently added an update called "<a href="http://www.freedom-to-tinker.com/blog/sjs/major-internet-milestone-dnssec-and-ssl">A Major Internet Milestone: DNSSEC and SSL</a>." This whole topic area is a fascinating convergence of technology and policy. If you want to geek out, here are a few good links:<br /><br /><ul><li>Adam Langley's overview of <a href="http://www.imperialviolet.org/2010/08/16/dnssectls.html">DNSSEC and TLS</a></li><li>Dan Kaminsky's Slides on the <a href="http://www.recursion.com/talks.html">Domain Key Infrastructure</a></li><li>EFF's Slides on their <a href="http://www.eff.org/observatory">SSL Observatory</a> project</li><li>Jason Roysdon talking about how "<a href="http://jason.roysdon.net/2010/08/15/dot-us-cctld-opened-for-dnssec-signing-new-ssl-certificate-authority-model-proposal/#">SSL CAs should become hierarchical, the same as the DNSSEC trust model is</a>." </li><li><a href="http://groups.google.com/groups/profile?enc_user=ZGPDPBsAAABWYITB-AtXV0PUyme5BQKe3s8kExJYhGfxFk8UcVvXdg">My rantings</a> on <a href="http://groups.google.com/group/mozilla.dev.security.policy/topics">mozilla.dev.security.policy</a></li><li>My rantings on the brand new IETF list, <a href="http://www.ietf.org/mail-archive/web/keyassure/current/maillist.html">keyassure</a></li></ul>[Update: oops, forgot to mention that <a href="http://www.nytimes.com/2010/08/14/technology/14encrypt.html">I got a quote in the NYT</a>. It's actually an awful quote... I sound like a valley girl ("This is, like, totally important, you know?"). Other than that, the gray lady got the story right.]Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-50663659777843054672010-07-27T15:10:00.001-04:002010-07-27T15:12:03.600-04:00Private Information in Public Court Filings<blockquote>Court proceedings are supposed to be public. When they are public and easily accessible, citizens know the law and the courts are kept accountable. These are the principles that underpin <a href="https://www.recapthelaw.org/">RECAP</a>, our project to help liberate federal court records from behind a pay-wall.<br /><br />However, appropriate restrictions on public disclosure are equally critical to democracy-enhancing information management by the judiciary. Without protections on personal data, trade secrets, the addresses of cooperating witnesses, or other harmful information the courts would become a frightening place for many citizens in need of justice. Peter Winn has <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1438674">described this challenge in detail</a>.<br /><br />Thus, somewhat counter-intuitively, it is important to restrict some legal information in order to set the rest free. That is why our courts have a strong legacy of sealing cases when, on balance, their disclosure would do more harm to justice than good. When the risks don't require the entire case to be sealed, portions of documents can be redacted. <a href="http://www.law.cornell.edu/rules/frcp/Rule5_2.htm">Federal Rule of Civil Procedure 5.2</a> and <a href="http://www.law.cornell.edu/rules/frbp/rules.htm#Rule9037">Federal Rule of Bankruptcy Procedure 9037</a> define these instances.<br /><br />But what happens when mistakes are made or negligence occurs?</blockquote><br /><br />Read the rest over at <a href="http://www.freedom-to-tinker.com/blog/sjs/private-information-public-court-filings">Freedom to Tinker</a>.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-29860840838163694242010-06-24T13:42:00.002-04:002010-06-24T13:44:42.144-04:00New Post at FTT on FCC DramaI just posted over at Freedom To Tinker.<br /><br /><br /><blockquote><a href="http://www.freedom-to-tinker.com/blog/sjs/broadband-politics-and-closed-door-negotiations-fcc">Broadband Politics and Closed-Door Negotiations at the FCC </a><br />The last seven days at the FCC have been drama-filled, and that's not something you can often say about an administrative agency. As I noted in my last post, the FCC is considering reclassifying broadband as a "common carrier" service. This would subject the access portion of the service to some additional regulations which currently do not apply, but have (to some extent) been applied in the past. Last Thursday, the FCC voted 3-2 along party lines to pursue a Notice of Inquiry about this approach and others, in order to help solidify its ability to enforce consumer protections and implement the National Broadband Plan in the wake of the Comcast decision in the DC Circuit Court. There was a great deal of politicking and rhetoric around the vote. Then, on Monday, the Wall Street Journal reported that lobbyists were engaged in closed-door meetings at the FCC, discussing possible legislative compromises that would obviate the need for reclassification. This led to public outcry from everyone who was not involved in the meetings, and allegations of misconduct by the FCC for its failure to disclose the meetings. <a href="http://www.freedom-to-tinker.com/blog/sjs/broadband-politics-and-closed-door-negotiations-fcc">more...</a></blockquote>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-68391325559851252492010-05-29T18:26:00.071-04:002016-09-20T19:22:30.594-04:00What Does It Cost to Provide Electronic Public Access to Court Records?US Courts have long faced a dilemma. Public access to proceedings is essential to a well-functioning democracy. On the other hand, providing public access requires expenditure of funds. Charging for access works against public access. Traditionally, these costs have been considered to be part of the general operating cost of courts, and there have been no additional fees for public access. The cost of the courthouse, the public gallery, and the bailiff are included. The administrative cost that the clerks incur in providing free public inspection of records is also covered, although the clerk may collect fees for filing actions or making physical copies.<br />
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I have been trying to understand how these practices have been translated into the networked digital era by exploring <a href="http://www.pacer.gov/">PACER</a>, the US Courts' system for "Public Access to Court Electronic Records." Digital technologies have a way of pushing the cost of information dissemination toward zero, but as I observed in a recent <a href="http://managingmiracles.blogspot.com/2009/09/my-new-working-paper-on-pacer.html">working paper</a>, this does not appear to be the trajectory of public access fees. Congress has provided a <a href="http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001913----000-notes.html">statutory limitation</a> that states that the "Judicial Conference may, only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services." In short, <font style="font-weight: bold;">you can only charge for public access services if those fees are used to, at most, cover the operating expenses for those same services.</font> What's more, in an accompanying conference report, Congress noted that it "...intends to encourage the Judicial Conference to move... to a fee structure in which this information is freely available to the greatest extent possible."<br />
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As described below, the Judiciary's financial reports appear to tell a different story: In the past several years, the <a href="http://www.uscourts.gov/FederalCourts/JudicialConference.aspx">Judicial Conference</a> has consistently expanded the scope of its expenditures of public access fees such that the vast majority is now spent on other services.<br />
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<font style="font-weight: bold;">The Judiciary Financial Plans</font><br />
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The first source for my analysis is the Judiciary's annual set of Financial Plans, submitted to Congress after their funds for that year have been appropriated. These are not made publicly available, but I have obtained the relevant excerpts from 2007, 2009, (appended to my <a href="http://managingmiracles.blogspot.com/2009/09/my-new-working-paper-on-pacer.html">working paper</a>) and 2010 (<a href="http://bulk.resource.org/courts.gov/ao/US_Judiciary_2010_Financial_Plan_EPA_Excerpt.pdf">here</a>). I haven't yet obtained the 2008 Plans, so for two data points from that year I have to estimate based on averages for the prior and following years. You can download my <a href="http://web.mit.edu/%7Eschultze/www/blog/Schultze_Jud_Financial_Plans_Comparison.xlsx">Excel spreadsheet</a> that combines the top-level data and drives the chart below (note the comments in the spreadsheet for details on how the numbers were derived).<br />
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EPA (Electronic Public Access) funds are collected solely via PACER fees, and are expended on a variety of programs. One of these expenditures is the PACER program itself, but many other expenditures are not. This includes things like "courtroom technology", "telecommunications", and "CM/ECF" (the electronic filing system). I described some of these in my working paper, but after I published that I had the opportunity to ask a panel made up of staff members from the <a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/AdministrativeOffice.aspx">Administrative Office of the US Courts</a> and federal judges how these fees were used. At the <a href="http://www.privacy.legaltechcenter.net/privacy/">7th Conference on Privacy and Public Access to Court Records</a>, the Hon. William E. Smith from the United States District Court for the District of Rhode Island explained that PACER fees:<br />
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<blockquote>"...also go to funding courtroom technology improvements, and I think the amount of investment in courtroom technology in '09 was around 25 million dollars. [...] Every juror has their own flatscreen monitors. We just went through a big upgrade in my courthouse, my courtroom, and one of the things we've done is large flatscreen monitors which will now -- and this is a very historic courtroom so it has to be done in accommodating the historic nature of the courthouse and the courtroom -- we have flatscreen monitors now which will enable the people sitting in the gallery to see these animations that are displayed so they're not leaning over trying to watch it on the counsel table monitor. As well as audio enhancements. In these big courtrooms with 30, 40 foot ceilings where audio gets lost we spent a lot of money on audio so the people could hear what's going on. We just put in new audio so that people -- I'd never heard of this before -- but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers. So now the back of the courtroom can really hear what's going on. This all ties together and it's funded through these fees."</blockquote><br />
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Clearly, the costs of expensive multimedia systems for courtrooms are not part of the expenses incurred in providing PACER. The 2007 Judiciary Financial Plans delineate between EPA (PACER) and non-EPA programs, illustrating the substantial discrepancy in funds generated by the PACER program and the funds spent on PACER. As described in my <a href="http://managingmiracles.blogspot.com/2009/09/my-new-working-paper-on-pacer.html">working paper</a>, the Courts can point to no statutory justification for spending PACER fees on these non-EPA programs. As of 2009, the Financial Plans no longer separate EPA and non-EPA expenses, but it is easy to reconstruct these totals based on the individual breakouts included in the plans. By doing this, I generated the following graph:<br />
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<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://3.bp.blogspot.com/_ruUmIKONrM0/TAaO01kLGCI/AAAAAAAAAM0/U-5t3NEb_qc/s1600/judiciary-epa-expenditures.png"><img style="display: block; margin: 0px auto 10px; text-align: center; cursor: pointer; width: 400px; height: 269px;" src="https://3.bp.blogspot.com/_ruUmIKONrM0/TAaO01kLGCI/AAAAAAAAAM0/U-5t3NEb_qc/s400/judiciary-epa-expenditures.png" alt="" id="BLOGGER_PHOTO_ID_5478223035125930018" border="0"></a><br />
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Income is in green, which consists of either direct collections or carryover from the previous year. Expenditures are in red. As you can see, according to the courts, the cost of running PACER has grown only slowly over time, whereas other services have grown dramatically. The carryforward peaked in 2008 at $44.5m, around the time that the courts decided to start spending more aggressively on non-PACER programs. Specifically, in March 2007, the Information Technology Committee of the Judicial Conference <a href="http://bulk.resource.org/courts.gov/ao/IT_Committee_2007-03.pdf">observed that</a>, "In recent years, significant unobligated balances have accumulated," and proposed to, "expand use of Electronic Public Access funds for IT efforts, such as applicable network, courtroom technology and jury management requirements. The IT Committee did not support any reduction to the fee at this time." In 2010, expenditures on non-EPA services will actually exceed EPA revenues. As of 2011, the courts plan to have spent out most of the carryforward they had accumulated.<br />
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In their defense, the courts argue that all of the programs on which they spent PACER funds are somehow generally related to electronic public access. The current PACER site <a href="http://www.pacer.gov/about.html">notes that </a>PACER fees are "used to finance other expenses related to electronic public access to the courts in areas such as courtroom technology and the Bankruptcy Noticing Center." Nevertheless, the fact remains that many of those do not represent "expenses incurred in providing [the charged for] services." Programs like CM/ECF or Telecommunications represent, at best, ancillary programs. However, most if not all of their expenses would exist regardless of the PACER program. What's more, parties have always had to pay filing fees for certain actions, and although CM/ECF has saved them time and money compared to the days of couriers, public access fees are instead paying for the entirety of the system's development. Likewise, the Telecommunications program extends far beyond anything required to support PACER, and would be necessary regardless of any EPA-related use. Bankruptcy Noticing ($9.7m planned for 2010) is a free service that creditors use to monitor incoming bankruptcy claims.<br />
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<font style="font-weight: bold;">Long Range IT Plan for the Judiciary</font><br />
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My second source for a big-picture perspective on IT spending by the courts is the annual "Long Range Plan for Information Technology in the Federal Judiciary." The <a href="http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/FederalCourts/Publications/2010ITLongRangePlan.pdf">2010 version</a> is available from the US Courts website, but the <a href="http://www.uscourts.gov/News/NewsView/09-02-10/Information_Technology_Long_Range_Plan_FY_2009.aspx">link to the 2009 version</a> was broken in the recent upgrade of the site (which was, ironically, intended to make information more easily accessible). Fortunately, <a href="http://www.openpacer.org/hogan/lrp-fj2009.pdf">I have it</a>. [Update: the 2010 link is now also broken, but I posted <a href="http://www.openpacer.org/hogan/2010ITLongRangePlan.pdf">a copy here</a>.]<br />
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The Long Range Plan covers IT financing of the entire Judiciary, and as such it describes far more than just EPA (PACER) fees. That being said, there is a fascinating shift from the 2009 Plan to the 2010 Plan. Each year, the Judiciary forecasts costs for many different IT-related program areas. We can therefore compare the projections for FY 2010 that are found in the 2009 Plan with the FY 2010 projections found in the 2010 Plan. Four of these program areas immediately pop out in such a comparison: Electronic Public Access Program, Court Allotments, Court Administration and Case Management, and Telecommunications. You can see the changes from one year to the next reflected in the chart below:<table style="border: 1px solid black;"><tbody>
<tr><td width="20%"><b>Program Costs</b><br />
</td><td><b>FY 2010<br />
in 2009 LRP</b></td><td><b>FY 2010<br />
in 2010 LRP</b></td><td><b>% Change</b></td><td><b>Change</b></td></tr>
<tr><td><i>Electronic Public Access Program (PACER)<br />
</i></td><td>$26.5m</td><td>$105.6m</td><td style="color:green;">+298.49%</td><td style="color:green;">+$79.1m</td></tr>
<tr><td><i>Court Allotments</i></td><td>$143.9m</td><td>$102.7m</td><td style="color:red;">-28.63%</td><td style="color:red;">-$41.2m</td></tr>
<tr><td><i>Court Administration and Case Management</i></td><td>$22.1m</td><td>$2.6m</td><td style="color:red;">-88.24%</td><td style="color:red;">-$19.5m</td></tr>
<tr><td><i>Telecommunications</i></td><td>$88.8m</td><td>$76.8m</td><td style="color:red;">-13.51%</td><td style="color:red;">-$12m</td></tr>
</tbody></table><br />
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Somehow, the projected costs of the Electronic Public Access program in 2010 grew by about 300% between 2009 and 2010. The cost of Court Allotments, Court Administration and Case Management, and Telecommunications shrank by an equivalent amount. It is hard to imagine that the actual plans of the Judiciary changed so dramatically from one year to the next. Rather, it seems far more likely that they simply decided to change their accounting practices to portray a cost for the EPA system commensurate with the amount they are collecting.<br />
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<font style="font-weight: bold;"><br />
What <font style="font-style: italic;">Should</font> PACER Cost To Run?</font><br />
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The FY2010 Financial Plan represents the lowest estimate from the Judiciary that I can find for current PACER costs, listing "Public Access Services and Applications" at $21.9m. But is that a reasonable number for what PACER should cost to run? Even if the Judicial Conference believes so, there are several reasons why it could be run far more efficiently:<br />
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<font style="font-style: italic;">PACER is run on a highly inefficient decentralized infrastructure</font><br />
Every court runs its own instance of PACER software, requiring its own hardware, network connection, and support staff. This means that, between district, bankruptcy, and circuit courts, these resources are duplicated approximately 200 times. I have heard various theories for why this is the case, including the notion that control of records has been traditionally delegated to local jurisdictions. It may also be true that at the time PACER was first deployed this was the only technical and operational way to implement it. However, a modern system administrator would never choose to implement a system that exhibited these inefficiencies. Fortunately, the Administrative Office of the Courts already controls the whole network and a first step of physical (if not logical) centralization should be fairly straightforward.<br />
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<font style="font-style: italic;">PACER costs include maintaining a staff in San Antonio, TX to answer phones</font><br />
Although the average PACER user may not be aware of it, there is a full-time staff at the PACER Service Center just waiting to answer their various PACER-related questions (In 2009 this included <a href="http://www.pacer.gov/about.html">135,000 help desk calls, and almost 30,000 support emails</a>). This service helps to overcome some of the more confusing usability barriers of the current PACER system, because these people will walk users through the process. This service is funded out of basic PACER access fees, which are based on per-page access rather than phone calls to the support staff.<br />
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<font style="font-style: italic;">PACER costs ironically include overhead from fee collection itself</font><br />
Every quarter, PACER staff must prepare and physically mail bills to all PACER users that have incurred a billable level of fees. They must deal with all of the administrative overhead of managing these collections, including chasing down delinquent debtors and prosecuting them, if necessary. This portion of costs is a self-fulfilling prophecy.<br />
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<font style="font-style: italic;">PACER costs include expenses from upgrading the user interface, when third-parties could do a better job for free</font><br />
The courts could publish all PACER data in bulk-downloadable format with relative ease and at a low cost. In this scenario, it is very likely that third parties would make the data more easily accessible in a variety of formats, at no cost to the courts. This general principle is laid out by my colleagues in a paper entitled "<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138083">Government Data and the Invisible Hand</a>."<br />
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If providing electronic public access can be grounded in free bulk access, the costs might well be manageable even within a no-fee system. The courts might also find it easier to avoid straying from their statutorily constrained requirement to, "only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services."<br />
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<span style="font-style: italic;">[An advance copy of this post was sent to the Administrative Office of the Courts, which declined to provide comments, corrections, or additional documentation.]</span>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com7tag:blogger.com,1999:blog-7780506915370766082.post-90261379387853395232010-05-27T15:19:00.013-04:002010-05-31T17:07:47.310-04:00Summary of "The FCC’s Authority Over Broadband Access"[Update: the video and transcripts for <a href="http://blogs.law.harvard.edu/mediaberkman/2010/05/27/the-fccs-authority-over-broadband-access-the-history-and-context-of-the-debate/">Panel 1</a> and <a href="http://blogs.law.harvard.edu/mediaberkman/2010/05/27/the-fccs-authority-over-broadband-access-the-third-way-what-happens-next/">Panel 2</a> are now posted]<br /><br />Today I attended the "<a href="http://cyber.law.harvard.edu/events/2010/05/broadband">The FCC’s Authority Over Broadband Access</a>" event in DC. These DC policy events tend to have more talking points than I'm willing to tolerate, but today's event was both balanced and substantial.<br /><br /><span style="font-style:italic;">[A disclaimer, this post is fairly hastily written and assumes some deeper background knowledge of some of the terms. I recommend <a href="http://tales-of-the-sausage-factory.wetmachine.com/content/want-to-play-fcc-fantasy-baseball-follow-the-title-ii-debate">Harold Feld's recent blog post</a> if you find unfamiliar language or concepts in here. Susan Crawford also has good <a href="http://scrawford.net/blog/berkman-event/1352/">stream-of-discussion notes</a> of the first panel.]<br /></span><br /><span style="font-weight:bold;"><br /><br />Session 1: The History and Context of the Debate</span><br /><br />The first panel was mostly a history of how we got here, hitting many of the points I explored in my post on Freedom to Tinker yesterday, "<a href="http://www.freedom-to-tinker.com/blog/sjs/regulating-and-not-regulating-internet">Regulating and Not Regulating the Internet</a>". The panelists were certainly well qualified. <a href="http://www.wiltshiregrannis.com/sitecontent.cfm?pageid=9&itemid=11091">John Nakahata</a> is a former FCC Chief of Staff who lived through many of the relevant policy decisions in the late 1990s. <a href="http://www.broadcastingcable.com/article/94935-Senate_Commerce_Gets_Top_Communications_Counsel.php">Jessica Rosenworcel</a> is the current Senior Counsel for the Senate Commerce Committee (which has authority over the FCC). <a href="http://www.educause.edu/Community/MemDir/Profiles/JohnWindhausenJr/68804">John Windhausen</a> is one of her predecessors, former Senior Counsel for the committee, who lived through the 1996 Telecommunications Act.<br /><br />Nakahata reminded the audience that in the mid-1990s, the administration had proposed a new <a href="www.ibiblio.org/pub/academic/political-science/internet-related/NII-white-paper">Title VII</a> to the Communications Act that would have explicitly set policy for broadband. However, this approach never progressed and instead the <a href="http://www.cybertelecom.org/notes/telecomact.htm">1996 Act</a> simply codified a version of the <a href="http://www.cybertelecom.org/ci/">Computer Inquiries</a> "basic"/"enhanced" services distinction in the form of "information"/"telecommunications" services... without explicit reference to the internet. This is a layered model, in opposition to the silo-like approach of the Act's overall structure. He also observed that the 1998 "<a href="http://www.cybertelecom.org/voip/fccstevens.htm">Stevens Report</a>" (to which <a href="http://www.law.cornell.edu/supct/html/04-277.ZO.html">Brand X</a> refers extensively) noted that if placing broadband under Title II was too onerous, the FCC could forbear from much of it (essentially what Chairman Genachowski is proposing today -- Nakahata seemed to think this was ironic, but it seems more like evidence of good research and historical consistency on the part of the Charman's office). He also noted that since that time there have been changes in the market -- including the elimination of mandatory unbundling or line-sharing -- that alter the broader policy calculus (presumably toward greater regulatory intervention). Finally, he observed that although there may be limited precedent for defining a separate telecommunications portion of an integrated service, pursing this approach on a large scale would be a revolutionary rather than evolutionary development.<br /><br />John Windhausen confirmed Nakahta's telling of the 1996 Act's "information"/"telecommunication" service legacy in the Computer Inquiries. He laid out two basic principles which he thought had guided regulation of communications going all the way back to common law: 1) Common Carriage and a non-disciminatory duty to serve of public transport providers and 2) The principle of not regulating the communications that are transported. We are having today a variation of the age-old discussion of where to draw the line between the two. He also noted that some of the ambiguity of the 1996 Act was intentional. Congress sought to defer to an expert agency on the details. He emphasized that his reading of Brand X was that it quite clearly concluded that the categorization of broadband services was up to the determination of the FCC under the <a href="http://lsolum.typepad.com/legal_theory.../doctrine_and_theory/"><span style="font-style:italic;">Chevron</span> doctrine</a>. He also indicated that the Commission had already demonstrated the possibility of classifying a portion of internet service as a telecommunications service when it issued the wireline broadband order and noted that ISPs could still voluntarily offer the service as a common carrier.<br /><br />Jessica Rosenworcel didn't speak to the issues in as much depth as her fellow panelists, but such reticence to make public pronouncements is to be expected from an actively employed congressional counsel. That being said, she identified some high-level themes. First, technology changes quickly, making it difficult for regulators let alone legislators to keep up. Second, she observed that in the past ten years there appears to have been an effort to (understandably and logically) treat like services alike, regardless of the different technologies used to provide those services. However, this approach is perennially made difficult because of the "siloed" structure of the Act.<br /><br /><span style="font-weight:bold;">Session 2: The Third Way - What Happens Next?</span><br /><br />The second panel was a bit more rough-and-tumble as it addressed the current debate over broadband reclassification. First up was Jim Speta, a Northwestern law professor who has long argued for a more antitrust-like approach to communications law. Second was Susan Crawford, a Cardozo law professor who recently did a stint advising the Obama Administration on technology issues. Third was Yochai Benkler, the primary investigator on the Berkman Center's <a href="http://cyber.law.harvard.edu/pubrelease/broadband/">Next Generation Connectivity Report</a> for the FCC (which I contributed to). Finally, there was Jon Nuechterlein, an attorney for the broadband companies (representing only his personal views), who observed that he was the only practicing lawyer on the panel. Nuechterlein is one of the more fun people to critique, because he is so very smart and often so very wrong. You can see my stream of consciousness thoughts about Jon's position in <a href="http://search.twitter.com/search?tag=bbauth&from=sjschultze">my tweets</a>.<br /><br />As the panel began, I <a href="http://twitter.com/sjschultze/statuses/14840264785">predicted</a>: <span style="font-style:italic;">Speta: "antitrust!", Crawford: "infrastructure!", Benkler: "innovation!", Nuechterlein: "determinacy!"</span>. I meant that Jim would continue to push <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1529318">his antitrust-oriented view</a> of Communications Act reform, Susan would remind us that <a href="http://scrawford.net/blog/letter-to-the-fcc/1346/">broadband is general-purpose infrastructure</a> and not just another market, that Yochai would argue that oversight of the broadband market is <a href="http://www.nytimes.com/2010/03/21/opinion/21Benkler.html">essential to all sorts of innovation</a>, and that Jon would emphasize that any attempts to reclassify broadband would result in drawn-out court battles that would cast a pall of <a href="http://www.google.com/search?q=nuechterlein+determinacy">indeterminacy</a> over the market, chill investment, and slow growth. I was not disappointed.<br /><br />However, the panel focused far more on the intricacies of whether reclassification would hold up in court, what arguments would hold the day, and whether there were respectable policy justifications for these arguments. I love that stuff, so I can't complain. Speta started by observing that he thought it likely that reclassification would survive, given the Chevron-based deference articulated in Brand X. However, he was not sure that this was a good policy outcome. In particular, he said that he does not agree with the portion of the <a href="http://blog.broadband.gov/?entryId=419239">Schlick memo</a> that claims that forbearance is difficult to reverse. Thus, he's worried about subsequent regulatory overreach. His prescription is a new governance structure based entirely on analysis of whether one firm has unreasonably foreclosed business of another. Susan agreed that reclassification should prevail, and made her typically well-articulated case for precedentially and empirically grounded government oversight of public communications carriers. She also observed that the reclassification position being advanced is that only the <span style="font-style:italic;">access portion</span> of internet services be classified as a Title II service. Yochai began by observing the across-the-board agreement on the legal viability of reclassification, and provided some comparison points from around the world where defer-to-the-market approaches failed (such as New Zealand).<br /><br />Then came Nuecterlein. His comments might serve as a clue on what might be included in a petition for reconsideration on the FCC's ultimate reclassification order. I was expecting something new and challenging, but frankly I was disappointed. He of course didn't think that reclassification would survive legal challenge (given that he'd be on the side arguing against it). His argument followed the predictable pattern: There is no "telecommunications" component of internet access, and in any case the service offered to end users is integrated with an information service component which is mutually exclusive with any telecommunications component (thus transforming the service into merely an information service). His policy argument was that if reclassification succeeded, many higher-layer services (such as web applications) would be poisoned with overbearing regulation because they inevitably would be classed as telecommunications services as well (I critiqued his first stab at this argument <a href="http://managingmiracles.blogspot.com/2010/02/internet-and-common-carriage.html">over here</a>). What's more, according to Jon, other portions of the internet might <span style="font-style:italic;">not</span> be classified as telecommunications services and thus bad things could be done there with impunity. I suppose this final point is somewhat new, but the others are rather standard fare and don't really account for the counterpoints already in circulation. The success of his legal arguments will likely hinge on a series of finely focused distinctions in the web of service definitions found in the 1996 Act. He referred briefly to <a href="http://tales-of-the-sausage-factory.wetmachine.com/content/want-to-play-fcc-fantasy-baseball-follow-the-title-ii-debate">Harold Feld's recent fantasy FCC predictions</a>, but thus far I am far more persuaded by Harold's position than Jon's (especially in the deference-rich environment of <span style="font-style:italic;">Chevron</span>). You can get a sense for my opinion on a few of his specific points in <a href="http://search.twitter.com/search?q=+%23bbauth+from%3Asjschultze">my tweets</a>.<br /><br />In any case, I'll do a follow-up post on Freedom to Tinker outlining my fantasy FCC reclassification predictions. Sorry about the inevitable typos and harried prose above, but I've got some real baseball to attend to -- I'm about to get off the train to Citi Field to watch the Phillies beat the Mets.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com3tag:blogger.com,1999:blog-7780506915370766082.post-16199449574056283252010-03-25T15:50:00.009-04:002010-03-25T16:57:44.427-04:00E-Government Oversight Committee Writes Appropriators About PACER FeesThe Senate's Committee on Homeland Security and Government Affairs has oversight over the implementation of the E-Government Act of 2002. Chairman Lieberman just sent a letter (<a href="http://hsgac.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=f28783bb-68cb-410c-a99c-5fe802cee2ef">PDF</a>) to the Senate appropriators for the Judiciary explaining that the courts are using PACER fees to fund unrelated expenses, which is "against the requirement of the E-Government Act."<br /><br />The Judiciary <a href="http://www.uscourts.gov/Press_Releases/2010/ExpandingCaseload.cfm">presented its budget request</a> to the House appropriators last week. This letter suggests that the unrelated expenses should be funded via direct appropriations rather than out of PACER fees.<br /><br />The committee had written an <a href="http://managingmiracles.blogspot.com/2009/02/lieberman-letter-on-pacer.html">initial letter</a> to the courts in February 2009, asking whether they were complying with the Act. The courts replied in <a href="http://public.resource.org/scribd/13838758.pdf">a letter</a> the following month. Evidently their answer was not satisfactory.<br /><br />For context, you might find my <a href="http://managingmiracles.blogspot.com/2009/09/my-new-working-paper-on-pacer.html">working paper on PACER finances</a> illuminating, as well as my <a href="http://www.freedom-to-tinker.com/blog/sjs/round-2-pacer-debate-what-expect">recent thoughts on where the PACER fee debate is going</a>.<br /><br /><br /><div style="background-color:#eeeeee;"><br /><center><span style="font-size:1.4em">United States Senate</span><br />COMMITTEE ON<br />HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS<br /><br />March 25, 2010</center><br /><br />The Honorable Richard Durbin<br />Chairman<br />Subcommittee on Financial Services and General Government<br />Committee on Appropriations<br />184 Dirksen Senate Office Building<br />Washington, DC 20510<br /><br />The Honorable Susan Collins<br />Ranking Member<br />Subcommittee on Financial Services and General Government<br />Committee on Appropriations<br />125 Hart Senate Office Building<br />Washington, DC 20510<br /><br />[...]<br /><br /><span style="font-weight:bold;">Public Access to Court Electronic Records (PACER)</span> <br /><br />I have concerns about how the Administrative Office of the Courts is interpreting a key provision of the E-Government Act relating to public access to Court records. Given the transparency efforts that have been made a priority across the Federal Government - as well as the recent call in the FCC's Broadband plan for increased online access to court records - I believe more attention needs to be paid to make these records free and easily accessible.<br /><br />As you know, Court documents are electronically disseminated through the PACER system, which charges $.08-a-page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts "may, only to the extent necessary" (instead of "shall") charge fees "for access to information available through automatic data processing equipment." The Committee report stated: "[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information." <br /><br />Since the passage of the E-Government Act, the vision of having information "freely available to the greatest extent possible" is far from being met, despite the technological innovations that should have led to reduced costs in the past eight years. In fact, cost for these documents has gone up, from $.07 to $.08-per-page. The Judiciary has attempted to mitigate the shortcomings of the current fee approach in a variety of ways, including limiting charges to $2.40-per-document and the recent announcement that any charges less than $10-per-quarter will be waived. While these efforts should be commended, I continue to have concerns that these steps will not dramatically increase public access as long as the pay-per-access model continues. <br /><br />To move closer to the mandate of the E-Government Act, the Administrative Office of the Courts should reevaluate the current PACER pay-per-access model. Even to retrieve free materials such as opinions, PACER currently requires the individual to establish a PACER account. One goal of this review should be to create a payment system that is used only to recover the direct cost of distributing documents via PACER. That review should also examine how a payment system could allow for free bulk access to raw data that would allow increased analytical and oversight capability by third parties. <br /><br />Additionally, in 2007, the Judiciary asked for and received written consent from the Appropriations Committees to "expand use of Electronic Public Access (EPA) receipts to support courtroom technology allotments for installation, cyclical replacement of equipment, and infrastructure maintenance." As a result, funds collected by the $.08-per-page charge have been used for initiatives that are unrelated to providing public access via PACER and against the requirement of the E-Government Act. The Appropriations Committee should review the Judiciary Information Technology Fund Report provided each year to ensure the funds generated from PACER are only going to pay for the direct costs of disseminating documents via PACER, and not for additional items which I believe should be funded through direct appropriations.<br /><br />[...]<br /><br />Sincerely,<br />Joseph I. Lieberman<br />Chairman<br /></div>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com1tag:blogger.com,1999:blog-7780506915370766082.post-17015687822328960622010-03-18T11:53:00.002-04:002010-03-18T11:55:52.127-04:00My Latest Thoughts on the PACER DebateOver at <a href="http://www.freedom-to-tinker.com/">Freedom to Tinker</a>:<br /><br /><blockquote><a href="http://www.freedom-to-tinker.com/blog/sjs/round-2-pacer-debate-what-expect">Round 2 of the PACER Debate: What to Expect</a><br />The next round of the PACER debate will be over whether or not we make a fundamental change in access to federal court records, or if we concede minor tweaks and call it a day. <strong>(<a href="http://www.freedom-to-tinker.com/blog/sjs/round-2-pacer-debate-what-expect">more...</a>)</strong></blockquote>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-88017193279735238382010-02-22T14:01:00.004-05:002010-02-22T14:06:54.954-05:00How Do You Trust On the Web?Over at Freedom to Tinker, I've done a post outlining different models for web security trust models. This issue intersects with policy because it helps determine who we trust with our communications.<br /><br /><blockquote><a href="http://www.freedom-to-tinker.com/blog/sjs/web-security-trust-models">Web Security Trust Models</a><br />I will try to lay out the different types of models on a high level, and I encourage corrections or clarifications. It's worth re-stating that what we're talking about is how you as a web user know that who you are talking to is who they claim to be (if they are, then you can be confident that your other security measures like end-to-end encryption are working). <span style="font-style:italic;">(<a href="http://www.freedom-to-tinker.com/blog/sjs/web-security-trust-models">more...</a>)</span></blockquote>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-55749647108770106802010-02-13T20:42:00.003-05:002010-02-13T20:49:32.547-05:00Google Buzz BlowbackThe story of the week from my perspective has been Google Buzz and the various privacy concerns it raised. It seems clear that Google did not think this one through entirely. The best critique of the issues I've seen so far was Harry Lewis' "<a href="http://www.bitsbook.com/2010/02/what-was-google-thinking/">What Was Google Thinking?</a>" post.<br /><br />The latest <a href="http://gmailblog.blogspot.com/2010/02/new-buzz-start-up-experience-based-on.html">blog post</a> from the Gmail team may not fully answer this question, but it does demonstrate a willingness to listen to users and try to fix mistakes... and kudos to them for admitting that they made a mistake.<br /><br /><blockquote>We quickly realized that we didn't get everything quite right. We're very sorry for the concern we've caused and have been working hard ever since to improve things based on your feedback.</blockquote><br /><br />That's about as close to "we screwed up" as you're going to get from a large corporation.<br /><br />For what it's worth, I see promise in Google Buzz. I haven't yet deleted <a href="https://www.google.com/profiles/sjschultze">my profile</a>, and if Google sorts out the issues then I might actually keep using it.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-67093923866878359172010-02-01T16:37:00.012-05:002010-02-05T18:01:21.777-05:00The Internet and Common CarriageI spent this past weekend at the <a href="http://www.silicon-flatirons.org/events.php?id=688">Silicon Flatirons broadband conference</a> in Boulder. The gathering draws telecom lawyers, academics, and advocates for a discussion about policy issues in broadband. The Silicon Flatirons community is also responsible for a very good <a href="http://www.jthtl.org/">journal</a> (now open access!), and the 2005 book <a href="http://www.silicon-flatirons.org/digitalcrossroads/">Digital Crossroads</a> (co-written by former Executive Director Phil Weiser and his friend Jonathan Nuechterlein). Nuechterlein is a brilliant telecom attorney, and although Digital Crossroads is fundamental to my understanding of internet law, I find myself in eternal disagreement with his policy positions.<br /><br />We are all currently awaiting the conclusion of the <a href="http://arstechnica.com/tech-policy/news/2010/01/could-dc-court-strip-fcc-power-over-isps.ars">Comcast/Bittorrent case</a> in DC Circuit Court, which will determine whether the FCC has jurisdiction to enforce its so-called "four internet freedoms" (I <a href="http://managingmiracles.blogspot.com/2008/07/comcast-order-what-to-expect-aug-1-and.html">described the issues</a> way back when this fight started a year and a half ago). In parallel, the Commission is <a href="http://www.openinternet.gov/">conducting a proceeding</a> to determine whether it should more explicitly establish "open internet" rules. Neuchterlein generally does not like anything resembling ex ante regulatory obligations on telecom infrastructure providers -- certainly not from the perspective of his clients (like AT&T), and apparently not as a matter of personal opinion either. I disagree, as I have described <a href="http://managingmiracles.blogspot.com/2008/08/my-masters-thesis.html">elsewhere</a> (footnote 161, etc.).<br /><br />But that's old news. This year there's a new twist. Historically telecommunications were regulated under Title II of the Communications Act, and were referred to "common carriers" (or "telecommunications services"). Under this regime, carriers had to remain non-discriminatory in their service, and were subjected to a host of arguably overbearing price controls and the like. Between 1998 and 2005, the FCC effectively "deregulated" broadband by classifying it under the vague Title I (redefining it from a "telecommunications service" to an "information service"). This took seven years due to a series of court cases that ultimately put the issue in front of the Supreme Court, which affirmed the FCC's authority to classify broadband however it wished. If the FCC loses the Comcast case, it will likely consider whether to re-classify broadband under Title II so as to regain authority to regulate. Susan Crawford has a <a href="http://scrawford.net/blog/house-of-cards-needs-re-think/1297/">great description</a> of the state of play.<br /><br />Nuechterlein thinks that reclassification would be horrible. First, he is afraid of the many onerous elements of Title II that are unrelated to the policy goals of the "open internet" crowd. The FCC has the power to "forbear" from enforcing any or all of these, but Nuechterlein doesn't think they would. Second, he claims reclassification would confer very comprehensive regulation on FCC for "all corners of the internet ecosystem." In particular, he claims that application and content providers like Google and Netflix would fall within reach of the long arm of common carriage. You can see him make the case in the video below, starting at 1:23:00:<br /><br /><object classid="clsid:d27cdb6e-ae6d-11cf-96b8-444553540000" width="480" height="386" id="utv37487" name="utv_n_519094"><param name="flashvars" value="autoplay=false" /><param name="allowfullscreen" value="true" /><param name="allowscriptaccess" value="always" /><param name="src" value="http://www.ustream.tv/flash/video/4360880" /><embed flashvars="autoplay=false" width="480" height="386" allowfullscreen="true" allowscriptaccess="always" id="utv37487" name="utv_n_519094" src="http://www.ustream.tv/flash/video/4360880" type="application/x-shockwave-flash"></embed></object><br /><br />Even if Nuechterlein is right, these developments can be seen as direct backlash for years of chipping away at anything resembling regulation. After winning the battle to reclassify broadband, these entities continued to push against the notion that the FCC retained any authority at all to regulate. <a href="http://www.wetmachine.com/item/1820">Harold Feld</a> has argued that keeping oversight in a vaguely defined ex post arena serves incumbents' goals of maintaining the appearance of jurisdiction without any practical authority. However, the Comcast case threatens to expose this ruse (assuming the FCC does lose the case) and re-introduce the specter of Title II.<br /><br />To be fair, opponents of FCC jurisdiction or ex ante regulation have proposed theoretical alternatives. Weiser, Nuechterlein, and others in the Silicon Flatirons community have <a href="http://ssrn.com/abstract=300600">long</a> <a href="http://ssrn.com/abstract=1080672">argued</a> for antitrust-like ex post enforcement. Their proposals for how it would be implemented evolve from year to year, but more importantly the practical hurdles to achieving it seem very hard to overcome. <span style="font-style:italic;">[Edit: Speta just came out with <a href="http://ssrn.com/abstract=1529318">an article</a> suggesting yet another variation on the antitrust-like approach.]</span> I have described elsewhere (<a href="http://managingmiracles.blogspot.com/2008/08/my-masters-thesis.html">pp. 118-122</a>) how I think that framing this solely as an antitrust question misses the point, and in my most pessimistic moments I am sympathetic with those that claim it is just a euphemism for doing nothing.<br /><br />I do agree in part with Nuechterlein's first point -- that bringing the full force of Title II to bear on broadband would be a bad thing. Perhaps he is better at predicting how forbearance will play out than I am. Given that he wrote the book on the matter, I suppose this is likely. On the other hand, we do have ample evidence of Commission forbearance. Indeed, even as the FCC reclassified all broadband services under Title I, it noted that some operators may wish to continue to operate under Title II, and it preemptively chose to forbear from tariffing (<a href="http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-150A1.pdf">see paras. 89-94</a>). Maybe it is a bit like chipping away at Pike's Peak in order to carve a statue, but we are left with few alternatives. In any case, Title II at least carries a rich legacy of non-discrimination norms... even if it also carries baggage.<br /><br />I am not remotely convinced of his second major claim -- that bringing broadband under Title II necessarily implicates a host of higher-level services in its regulation (like Netflix, Google, and VoIP <span style="font-style:italic;">[edit: although in the case of VoIP there may already be some limited jurisdiction]</span>). We have a very rich history of distinguishing between transport providers and the services that are delivered over that infrastructure. The 2005 Supreme Court Brand X decision affirming the FCC's classification decision mangles these distinctions and is frankly a mess. To the extent that the description of the technology made sense in its time, it is largely inaccurate today, as described by <a href="http://fjallfoss.fcc.gov/ecfs/comment/view?id=6015532752">Public Knowledge</a>. In the course of the Brand X litigation, MCI had been making the argument that any information service that made use of a telecommunications service would necessarily be subject to common carriage. The <a href="http://www.law.cornell.edu/supct/html/04-277.ZO.html">majority opinion</a> notes, <br /><br /><blockquote>[Respondents] claim that the Communications Act unambiguously classifies as telecommunications carriers all entities that use telecommunications inputs to provide information service. As respondent MCI concedes, this argument would subject to mandatory common-carrier regulation all information-service providers that use telecommunications as an input to provide information service to the public.</blockquote><br /><br />Nuechterlein claims that reclassification would necessarily validate this argument. There are two problems with this. First, the MCI argument on its merits is at odds with decades of precedent that distinguishes between regulatory treatment these two types of services. Second, the Court was discussing this argument in the context of whether the FCC had unreasonably interpreted statute, rather than proactively determining what would necessarily follow if the Commission decided to classify broadband under Title II. In that sense, Nuechterlein and I both agree with the Court: MCI's argument isn't going to fly.<br /><br />If the Commission were ultimately to classify broadband under Title II, it might be a workable means of gaining necessary jurisdiction to do good policy. It is not without its risks, but I think that the risks are far less severe than Nuechterlein's straw men.<br /><br />In the final panel of Day 2, Marc Berejka of the Commerce Department observed (starting 2:17:00 in <a href="http://www.ustream.tv/recorded/4375608">the video</a>) that the hardest thing about doing good internet policy is that we don't have good governance tools. Regardless of what the Commission does in the short run with respect to broadband classification, we need to seriously reconsider the structure of communications regulation, all the way back to first principles and enabling statute.<br /><br /><em><strong>Bonus:</strong> Yesterday, CITP hosted Chris McDonald, who talked about "The Computer Utility and the First Computer-Communications Policy Debate." He gave a very good overview of the first round of debates in this area. The <a href="http://citp.princeton.edu/chris-mcdonald/">audio is now available</a>.</em>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-35561458810360209172009-10-23T14:06:00.004-04:002009-10-23T16:58:33.947-04:00The FCC Releases an Improved Electronic Filing System: ECFS 2.0This is a super-wonky item, but I am truly excited. This morning, the FCC went live with a new version of its <a href="http://fjallfoss.fcc.gov/ecfs2/">Electronic Comment Filing System</a> (ECFS). Anyone who has worked on policy issues that touch the FCC is probably familiar with this system. Any time the Commission solicits comments on an issue, ECFS is used for filing and lookup. ECFS is the venue for a great deal of data and debate on the core issues of communications policy in the United States. However, the earlier version of ECFS didn't allow very sophisticated searching, direct-linking to search results, RSS feeds, or the like. As such it was often a pain to get a sense of what was on the record or to follow a particular issue or docket.<br /><br />These limitations were nothing, of course, compared to the physical limitations that existed before ECFS 1.0 (and, thankfully, before I ever had to work on FCC issues).<br /><br />In the era of ECFS 1.0, I actually spent many hours building a system for automatic download and RSS-ification of dockets. However, this was an extremely painful process, fraught with errors. ECFS 2.0 introduces a series of improvements, which are detailed in the following video of this morning's FCC presentation. Good job FCC! I'm sure we'll have suggestions for improvements, but this is a huge step forward.<br /><br /><embed src='http://www.fcc.gov/live/player.swf' height='375' width='480' allowscriptaccess='always' allowfullscreen='true' flashvars='description=FCC%20Public%20Forum&image=http%3A%2F%2Fwww.fcc.gov%2Flive%2Fimages%2Flive-preview-img.png&autostart=false&streamer=rtmp%3A%2F%2F4.21.126.176%3A1935%2Fcontent%2F&dock=false&file=2009_10_23-public-forum.flv&plugins=viral-2d'></embed>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-40433544631730597802009-10-07T18:00:00.005-04:002010-05-11T13:12:10.863-04:00Let's Hear it for Renegade Law Librarians!<blockquote><a href="http://www.jasoneiseman.com/blog/?p=332">Video: Interview with Stephen Schultze, co-creator of Recap</a><br /><br />Today, Stephen Schultze and Harlan Yu from the Center for Information Technology Policy at Princeton, and two of the creators of the Recap project, presented Recap at Yale Law School. Afterwards I had a chance to record a short video interview with Stephen Schultze about issues related to Recap and online access to government records. My hand was a little unsteady, so it’s a little Blair Witch, but think it’s an interesting interview, enjoy.<br /><br />Here’s the links for the petition to <a href="http://www.thepetitionsite.com/1/improve-PACER">improve PACER</a> and <a href="http://fedthread.org">Fedthread</a>, both of which he discusses.</blockquote><br /><i>(via <a href="http://www.jasoneiseman.com/blog/">Jason the Content Librarian</a>)</i><br /><br /><embed src="http://blip.tv/play/AYGltFMC" type="application/x-shockwave-flash" width="480" height="390" allowscriptaccess="always" allowfullscreen="true"></embed>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-20454288269865471742009-09-26T15:12:00.002-04:002009-09-26T19:19:00.836-04:00Android Open Source Model Has a Short CircuitLast year, Google entered the mobile phone market with a Linux-based mobile operating system. The company brought together device manufacturers and carriers in the <a href="http://www.openhandsetalliance.com/">Open Handset Alliance</a>, explaining that, "Together we have developed <a href="http://www.android.com/">Android</a>™, the first complete, open, and free mobile platform." There has been considerable engagement from the open source developer community, as well as significant uptake from consumers. Android may have even been instrumental in motivating competing open platforms like <a href="http://www.limofoundation.org/">LiMo</a>. In addition to the underlying open source operating system, Google chose to package essential (but proprietary) applications with <a href="http://www.t-mobileg1.com/">Android-based handsets</a>. These applications include most of the things that make the handsets useful (including basic functions to sync with the data network). This two-tier system of rights has created a minor controversy.<br /><br />A group of smart open source developers created a modified version of the Android+Apps package, called Cyanogen. It incorporated many useful and performance-enhancing updates to the Android OS, and included unchanged versions of the proprietary Apps. If Cyanogen hadn't included the Apps, the package would have been essentially useless, given that Google doesn't appear to provide a means to install the Apps on a device that has only a basic OS. As Cyanogen gained popularity, Google decided that it could no longer watch the project distribute their copyright-protected works. The lawyers at Google decided that they needed to send a <a href="http://androidandme.com/2009/09/hacks/cyanogenmod-in-trouble/">Cease & Desist letter</a> to the Cyanogen developer, which caused him to caused him to take the files off of <a href="http://www.cyanogenmod.com/">his site</a> and spurred <a href="http://phandroid.com/2009/09/25/eff-google-screw-android-the-backlash-begins/">backlash from the developer community</a>.<br /><br />Android represents a careful balance on the part of Google, in which the company seeks to foster open platforms but maintain control over its proprietary (but free) services. Google has <a href="http://android-developers.blogspot.com/2009/09/note-on-google-apps-for-android.html">stated as much</a>, in response to the current debate. Android is an exciting alternative to the largely closed-source model that has dominated the mobile market to date. Google closely integrated their Apps with the operating system in a way that makes for a tremendously useful platform, but in doing so hampered the ability of third-party developers to fully contribute to the system. Perhaps the problem is simply that they did choose the right location to draw the line between open vs. closed source -- or free-to-distribute vs. not. <br /><br />The latter distinction might offer a way out of the conundrum. Google could certainly grant blanket rights to third-parties to redistribute unchanged versions of their Apps. This might compromise their ability to make certain business arrangements with carriers or handset providers in which they package the software for a fee. That may or may not be worth it from their business perspective, but they could have trouble making the claim that Android is a "<em>complete</em>, open, and free mobile platform" if they don't find a way to make it work for developers.<br /><br />This all takes place in the context of a larger debate over the extent to which mobile platforms should be open -- voluntarily or via regulatory mandate. Google and Apple have been arguing via <a href="http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1736A1.pdf">letters to the FCC</a> about whether or not Apple should allow the Google Voice application in the iPhone App Store. However, it is yet to be determined whether the Commission has the jurisdiction and political will to do anything about the issue. There is a fascinating sideshow in that particular dispute, in which AT&T has made the very <a href="http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=7020039523">novel claim</a> that Google Voice violates network neutrality (well, either that or common carriage -- they'll take whichever argument they can win). Google <a href="http://googlepublicpolicy.blogspot.com/2009/09/response-to-at-letter-to-fcc-on-google.html">has replied</a>. This is a topic for another day, but suffice to say the clear regulatory distinctions between telephone networks, broadband, and devices have become muddied.<br /><br />(Cross-posted to <a href="http://www.freedom-to-tinker.com/blog/sjs/android-open-source-model-has-short-circuit">Freedom To Tinker</a>)Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-40779589787420987752009-09-18T09:53:00.002-04:002009-09-18T09:55:37.959-04:00AO and GPO to Host A Discussion on PACER Pilot "Lessons Learned"I'm curious about what this will entail.<br /><br /><blockquote>At its September 2007 session, the Judicial Conference endorsed a joint pilot between the Government Printing Office (GPO) and the Administrative Office of the U.S. Courts that was not to exceed two years in length. The GPO sought volunteers to participate in the pilot from among its 1265 depository libraries. Forty-nine depository libraries responded to the call for volunteers. In consultation with the GPO, the Administrative Office selected seventeen depository libraries to participate in the pilot.<br /><br />The pilot commenced in October 2007 and was suspended after 11 months for an evaluation. The data collected during that time suggests that the target population, a segment of the public that would be unlikely to go to the court house or establish a PACER account, was not reached as anticipated. In October 2009, the GPO and the Administrative Office will be holding a "Lessons Learned" focus group session with the librarians who participated in the pilot to pin point what worked and what could be improved.<br /><br />Although the pilot was initially well publicized, the level of ongoing public outreach about the pilot did not reach the desired level. More fundamentally, PACER is a tool, not a program. Therefore, the American Association of Law Libraries (AALL) has been contacted to discuss ways the pilot could be reinvented to make PACER part of a legal research and training program for librarians and the users. The AALL strongly supports the GPO and the FDL program, and is willing to assist with developing a proposal to move forward. Once a proposal is developed, it will be submitted to the Judiciary's advisory groups and the Judicial Conference Committee on Court Administration and Case Management for consideration.<br /><br />-- <a href="http://www.fdlp.gov/component/content/article/45-partnerships/496-paceraccess">Pilot for PACER Access at Federal Depository Libraries</a>, FDLP Desktop</blockquote>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-72992045941203724712009-09-04T11:25:00.003-04:002009-09-04T11:57:21.785-04:00My New Working Paper on PACER<span style="font-weight:bold;"><a href="http://cyber.law.harvard.edu/~sjschultze/Schultze_PACER_Budget_Working_Paper.pdf">Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview</a><br /></span><br />Stephen Schultze, Fellow, Berkman Center for Internet & Society at Harvard <br /><br /><br /><blockquote><span style="font-weight:bold;">Abstract:</span> This draft working paper examines the role of user fees for public access to records in the budgeting process of the federal courts. It sketches the policy principles that have traditionally motivated open access, describes the administrative process of court budgeting, and traces the path of user fees to their present-day instantiation. There has been considerable confusion about motivation and justification for the courts charge for access to PACER, the web-based system for “Public Access to Court Electronic Records.” Representatives from the Administrative Office of the Courts describe the policy as mandated by Congress and limited to reimbursing the expenses of operating the system. This paper identifies the sources of these claims and places them in the context of the increasing push to make government data freely accessible.</blockquote><br /><br /><a href="http://cyber.law.harvard.edu/~sjschultze/Schultze_PACER_Budget_Working_Paper.pdf">Download here</a>.Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com1tag:blogger.com,1999:blog-7780506915370766082.post-24135085302122119112009-08-14T12:26:00.002-04:002009-08-14T12:30:34.176-04:00RECAP the lawI'm proud to announce the launch of a new project that I've been working on with my colleagues at Princeton's <a href="http://citp.princeton.edu/">Center for Information Technology Policy</a>.<br /><br /><blockquote>RECAP is an extension to the popular Firefox web browser that gives PACER users a hassle-free way to contribute to a free, open repository of federal court records. When a RECAP user purchases a document from PACER, the RECAP extension helps her automatically send a copy of that document to the RECAP archive. And RECAP saves its users money by notifying them when documents they’re searching for are already available for free from the public archive.</blockquote><br /><br />Check it out at <a href="http://www.recapthelaw.org">http://www.recapthelaw.org</a>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-12116365914178933202009-08-10T14:41:00.005-04:002009-10-23T16:59:44.305-04:00Can Parties Sue Counsel for Wrongful Publication of Personal Information?Spam Notes has <a href="http://spamnotes.com/2009/08/03/sc-bankruptcy-ct-no-claim-for-including-ss-in-ecf-filing.aspx?ref=rss">a good summary</a> of a recent decision on the matter.<br /><br /><blockquote>The Killians filed for bankruptcy in 2005 and Green Tree (on its own, not through a lawyer) filed a proof of claim which attached a document containing the Killians' "social security numbers, full account number, and legal names." In 2008, Green Tree (this time, through its lawyer) filed a Motion for Relief from Stay, and attached Green Tree's original filing, which contained the Killians' social security numbers and account numbers. The Killians brought an adversary proceeding asserting claims under state law, Gramm-Leach-Bliley, and other statutes. </blockquote><br /><br />Read the rest of the analysis <a href="http://spamnotes.com/2009/08/03/sc-bankruptcy-ct-no-claim-for-including-ss-in-ecf-filing.aspx?ref=rss">here</a>.<br /><br />I've uploaded the <a href="http://www.archive.org/download/gov.uscourts.scb.208326/gov.uscourts.scb.208326.27.0.pdf">text of the opinion</a>. <a href="http://www.archive.org/download/gov.uscourts.scb.208326/gov.uscourts.scb.208326.34.0.pdf">There will be a hearing</a> on October 15th to further address the matter.<br /><br /><span style="font-style:italic;">Update: They settled. I guess we won't get to find out how the court would deal with this.</span>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-50191550383783308112009-07-29T11:55:00.009-04:002009-08-10T15:05:28.577-04:00Balancing Access and Privacy: Free PACERThe <a href="http://www.aallnet.org/products/pub_sp0907.asp">latest issue of AALL Spectrum</a> has an essay on PACER. It's fairly conservative in its recommendations, but certainly captures the issues and suggests some positive steps.<br /><blockquote><br /><b>Balancing Access and Privacy: Free PACER <br />By Susan Lyons<br /></b><ul>[...]<br /><li>Release all court decisions and briefs in motions and appeals without restriction on the open Internet and make the files available in bulk to anyone requesting them. These two categories of documents pose little risk to privacy and are among the most used and valuable of the materials in PACER. Exhibits and attachments with private information could be excluded from the release.</li><li>Give attorneys and litigants free and unlimited access to their own dockets. Under the current system, when a new document is uploaded to the court’s electronic docket, parties receive an e-mail notice that allows them one opportunity to download the document to their own computer without charge. While large law firms may capture these documents in sophisticated case management systems, many smaller firms may need to log in to PACER and incur charges to view documents in their own cases. Free access is especially critical for pro se litigants, who may not have regular access to computers and need to access PACER repeatedly to view files in their own cases.</li><li>Allow scholars doing empirical research on court records full access to bulk data. The Judicial Conference could establish reasonable limits on the terms of this access that would protect sensitive data.</li><li>Reinstitute the PACER pilot program and expand the pilot to all federal courthouses. Full release of the database could be prevented by restricting the number of downloads permitted at any one site and instituting reasonable guidelines to prevent abuse. Access should be provided through IP authentication rather than passwords.</li></ul><a href="http://www.aallnet.org/products/pub_sp0907.asp">Read the full article.</a><br /></blockquote>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-36711347746600067272009-07-02T12:55:00.011-04:002009-07-21T14:19:09.598-04:00Happy Broadband NOFA DayNTIA and RUS <a href="http://broadbandusa.sc.egov.usda.gov/">issued</a> the Notice of Funds Availability (NOFA) for stimulus-related broadband grants.<br /><br /><ul><li><a href="http://www.ntia.doc.gov/frnotices/2009/FR_BBNOFA_090709.pdf">Broadband Initiatives Program and Broadband Technology Opportunities Program</a></li><li><a href="http://www.ntia.doc.gov/frnotices/2009/FR_BroadbandMappingNOFA_090708.pdf">State Broadband Data and Development Grant Program</a></li></ul><br /><br />Analysis:<br /><ul><li><a href="http://arstechnica.com/telecom/news/2009/07/make-big-bucks-rolling-out-broadband-to-unserved-areas.ars">Ars</a></li><li><a href="http://www.fiercewireless.com/ctialive/story/broadband-stimulus-guidelines-call-net-neutrality/2009-07-02">Fierce Wireless</a></li><li><a href="http://www.wetmachine.com/totsf/item/1585">Harold Feld</a></li><li><a href="http://www.publicknowledge.org/node/2513">Public Knowledge</a></li><li><a href="http://broadbandcensus.com/2009/07/stimulus-rules-released-key-terms-defined/">Broadband Census</a></li><li><a href="http://www.networkworld.com/news/2009/070109-us-agencies-require-net-neutrality.html?hpg1=bn">Network World</a></li><li><a href="http://gigaom.com/2009/07/01/government-enforces-the-status-quo-with-broadband-stimulus-bucks/">GigaOm</a></li></ul>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com0tag:blogger.com,1999:blog-7780506915370766082.post-959328407637065682009-06-27T16:08:00.038-04:002009-07-14T12:00:18.244-04:00Radio Moon Bounce<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://2.bp.blogspot.com/_ruUmIKONrM0/SkaWCgYjjSI/AAAAAAAAAKo/Crtx8ShJjpI/s1600-h/img_moonbounce-small.jpg"><img style="margin: 0pt 0pt 10px 10px; float: right; cursor: pointer; width: 200px; height: 168px;" src="http://2.bp.blogspot.com/_ruUmIKONrM0/SkaWCgYjjSI/AAAAAAAAAKo/Crtx8ShJjpI/s400/img_moonbounce-small.jpg" alt="" id="BLOGGER_PHOTO_ID_5352130176973245730" border="0"></a><br />Everybody loves a good moon bounce. Today's moon bounce didn't involve taking your shoes off and jumping, but it was every bit as fun (if you are a geek). Every so often, when the moon is in the right spot, amateur radio operators ("hams") organize a competition to see who can communicate with the most people across the world by bouncing signals off of the moon. Today was the "<a href="http://echoesofapollo.com/moon-bounce/">Echoes of Apollo Moon Bounce</a>" event -- a global ham celebration of the 40th anniversary of the Apollo 11 mission. The NY Times did a <a href="http://www.nytimes.com/2009/06/27/technology/27moon.html">decent overview</a> of the event.<br /><br />I spent a good chunk of the day listening to these signals. Growing up, my dad was often in the basement with his radios or on the roof tweaking his antennas. I was always fascinated by his equipment and the people he talked to from all over the world, but by the time I got old enough to really get into it I had been bit by the computer bug. My dad sometimes compared what I was doing at age 12 with <a href="http://en.wikipedia.org/wiki/Bulletin_board_system">BBS</a>'es and my 2400 baud modem with some of his ham radio passions. I still remember my first VoIP experience in the early 90's, talking to an Australian guy over dialup.<br /><br />I never did get my ham radio license, in part because of the pull of computers and the burgeoning internet. Nevertheless, in the years since then I've gained a greater appreciation of the radio spectrum. Spectrum is a valuable shared resource that we have allocated to different users for communication. Sometimes we have tried to choose who is the most important, sometimes we have auctioned use of it off to the highest bidder, and other times we have allowed a "commons" oriented unlicensed use. New technologies shape the way we are able to use this common good, and we have plenty of active policy debate over these issues. Just yesterday I watched a New America Foundation event that was "optimistically" titled "<a href="http://www.newamerica.net/events/2009/end_spectrum_scarcity">The End of Spectrum ‘Scarcity': Opportunistic Access to the Airwaves</a>."<br /><br />Amateur radio operators have traditionally operated via analog means as they communicate by voice or morse code. Over time, they incorporated packet radio, allowing computers to transmit over certain frequencies using special analog-to-digital hardware. In the time since my dad's basement tinkering and my first modem, the worlds of radio and computer -- analog and digital -- have converged. The latest example of this was of course the analog-to-digital transition for broadcast television in the United States, and the extent to which this <a href="http://managingmiracles.blogspot.com/2008/10/white-spaces-and-red-herrings.html">opens up unused "white spaces" for broadband</a>. The most important innovation in wireless digital communications has been the emergence of <a href="http://en.wikipedia.org/wiki/Software-defined_radio">Software Defined Radio</a> ("SDR") technology that allows tuning, transmitting, and receiving to be done in software instead of special hardware. This means that computing devices can become general purpose radios, and whereas my dad used to have to buy new transistors and diodes at the <a href="http://en.wikipedia.org/wiki/Hamfest">hamfest</a>, I can just download and install a new <a href="http://www.telesphoreo.org/pipermail/g1-hackers/2009-January/000392.html">radio image</a> for my Android phone.<br /><br /><img style="margin: 0pt 10px 10px 0pt; float: left; cursor: pointer;" src="http://web.mit.edu/%7Eschultze/www/blog/moonbounce-users.png" alt="" id="BLOGGER_PHOTO_ID_5352124076877956450" border="0">Receiving the Earth-Moon-Earth ("EME") transmissions requires a decent parabolic antenna, but I don't have one. So how did I spend the day listening to radio signals bouncing off of the moon? I tuned in via a <a href="http://websdr.camras.nl:8901/">Dutch dish</a> that was streaming online. Now, it would be pretty cool if the operators of this dish were simply tuning around for signals and sending a single audio stream out to anyone who wished to listen. However, what they did was even cooler. They captured all of the data for a frequency band (1.24-1.3 GHz, what the hams call "23 cm" because of the wavelength) and then they published a web-based application for SDR decoding on that raw stream so that each person could tune to any transmission within that band! The interface includes a draggable tuner and live spectrum analyzer output of signals. You can actually see what location on the dial every other person is tuning to. This combination of SDR and internet-enabled interactivity just blew my mind. I chatted briefly with the folks in the Netherlands:<br /><br /><blockquote><span style="font-weight: bold;">me:</span> geek question: does <a href="http://www.websdr.org/">websdr</a> send all of the receiver data to the end-user and then the java app tunes locally, or is the java app instructing the server how to process before sending the stream?<br /><span style="font-weight: bold;">them:</span> The latter. The raw data stream would be about 3 Mbit/s, that would be too much for many home connections.<br /><span style="font-weight: bold;">me:</span> sdr is on the main cpu or other boards?<br /><span style="font-weight: bold;">them:</span> On the main CPU. The only external hardware is an analogue downconverter.</blockquote><br /><br /><img style="margin: 0px auto 10px; display: block; text-align: center; cursor: pointer;" src="http://web.mit.edu/%7Eschultze/www/blog/moonbounce-spec-ana.png" alt="" border="0"><br /><br />It really was fun to listen to the moon bounce, and the web-based experience just reinforced how much is possible in the radio spectrum when it is combined with computing. The traditional model of frequency allocation for a specific purpose needs to give way to more efficient spectrum-sharing techniques. The amateur radio operators have developed sophisticated social norms for sharing their radio waves, but they are highly inefficient when compared to something like WiFi, which is in turn highly inefficient compared to more modern approaches. As an example of what a bridging experience the moon bounce was for me, the signal was arriving in the 1.2 GHz band in the Netherlands, which then was piped over the internet to my house and then re-transmitted to my laptop over WiFi at 2.4 Ghz. <br /><br />As a policy matter, digitization of the airwaves means that we need to re-think how we use them. Today, computers can directly connect and transmit more in a millisecond than an entire ham radio back-and-forth ("<a href="http://en.wikipedia.org/wiki/CQ_%28call%29">CQ, CQ, CQ...</a>"). We need a map of the vast swaths of unused spectrum, and an automated digital means for sharing them. That's part of the upcoming <a href="http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-289900A1.pdf">National Broadband Plan</a> being created by the FCC.<br /><br />That's not to say that ham radio should go away. The thrill of finding a remote station in Russia, the Netherlands, London or Mexico and tuning it in for that brief moment is quite an experience. Everybody loves a moon bounce.<br /><br />Here are a few excerpts I captured while I was listening (sorry about the lousy tuning in a couple places, it just makes it sound more like the <a href="http://www.youtube.com/watch?v=6v5VahaEL7s">Death Star attack</a> from Star Wars):<br /><br /><center><a href="http://web.mit.edu/~schultze/www/blog/moonbounce-excerpts.mp3 ">Listen to the MP3</a></center><br /><br /><a href="http://www.ntia.doc.gov/osmhome/allochrt.html"><img src="http://web.mit.edu/%7Eschultze/www/blog/moonbounce-freq.png" alt="" border="0"></a>Steve Schultzehttp://www.blogger.com/profile/06607764551419013304noreply@blogger.com1