Category Archives: Criminal

How will Biden regulate tech? Carefully.

This week in MIT Sloan Management Review, Larry proposed a series of solutions to looming crises in the regulation of disruptive innovation. The article, “How Should the Biden Administration Approach Tech Regulation? With Great Care,” proposed five principles lawmakers have traditionally followed in regulating emerging technologies, but which have fallen out of favor in the last decade as the pace of technological change continues to accelerate. Larry argues that the relative slowness of law favors less, not more, intervention.

Larry also participated in a lively debate with SMR editor in chief Paul Michelman about his proposal. You can listen to in on the SMR website.

On NSA Surveillance, Why We're Doomed to Repeat History

***Cross-posted from Forbes.com***

It was, to paraphrase Yogi Berra, déjà vu all over again. Fielding calls last week from journalists about reports the NSA had been engaged in massive and secret data mining of phone records and Internet traffic, I couldn’t help but wonder why anyone was surprised by the so-called revelations.

Not only had the surveillance been going on for years, the activity had been reported all along—at least outside the mainstream media. The programs involved have been the subject of longstanding concern and vocal criticism by advocacy groups on both the right and the left.

For those of us who had been following the story for a decade, this was no “bombshell.” No “leak” was required. There was no need for an “expose” of what had long since been exposed.

As the Cato Institute’s Julian Sanchez and others reminded us, the NSA’s surveillance activities, and many of the details breathlessly reported last week, weren’t even secret. They come up regularly in Congress, during hearings, for example, about renewal of the USA Patriot Act and the Foreign Intelligence Surveillance Act, the principal laws that govern the activity.

In those hearings, civil libertarians (Republicans and Democrats) show up to complain about the scope of the law and its secret enforcement, and are shot down as being soft on terrorism. The laws are renewed and even extended, and the story goes back to sleep.

But for whatever reason, the mainstream media, like the corrupt Captain Renault in “Casablanca,” collectively found itself last week “shocked, shocked” to discover widespread, warrantless electronic surveillance by the U.S. government. Surveillance they’ve known about for years.

Let me be clear. As one of the long-standing critics of these programs, and especially their lack of oversight and transparency, I have no objection to renewed interest in the story, even if the drama with which it is being reported smells more than a little sensational with a healthy whiff of opportunism.

In a week in which the media did little to distinguish itself, for example, The Washington Post stood out, and not in a good way. As Ed Bott detailed in a withering post for ZDNet on Saturday, the Post substantially revised its most incendiary article, a Thursday piece that originally claimed nine major technology companies had provided direct access to their servers as part of the Prism program.

That “scoop” generated more froth than the original “revelation” that Verizon had been complying with government demands for customer call records.

Except that the Post’s sole source for its claims turned out to a PowerPoint presentation of “dubious provenance.” A day later, the editors had removed the most thrilling but unsubstantiated revelations about Prism from the article. Yet in an unfortunate and baffling Orwellian twist, the paper made absolutely no mention of the “correction.” As Bott points out, that violated not only common journalistic practice but the paper’s own revision and correction policy.

All this and much more, however, would have been in the service of a good cause–if, that is, it led to an actual debate about electronic surveillance we’ve needed for over a decade.

Unfortunately, it won’t. The mainstream media will move on to the next story soon enough, whether some natural or man-made disaster.

And outside the Fourth Estate, few people will care or even notice when the scandal dies. However they feel this week, most Americans simply aren’t informed or bothered enough about wholesale electronic surveillance to force any real accountability, let alone reform. Those who are up in arms today might ask themselves where they were for the last decade or so, and whether their righteous indignation now is anything more than just that.

As Politico’s James Hohmann noted on Saturday, “Government snooping gets civil libertarians from both parties exercised, but this week’s revelations are likely to elicit a collective yawn from voters if past polling is any sign.”

Why so pessimistic? I looked over what I’ve written on this topic in the past, and found the following essay, written in 2008, which appeared in slightly different form in my 2009 book, “The Laws of Disruption.” It puts the NSA’s programs in historical context, and tries to present both the costs and benefits of how they’ve been implemented. It points out why at least some aspects of these government activities are likely illegal, and what should be done to rein them in.

What I describe is just as scandalous, if not moreso, than anything that came out last week.

Yet I present it below with the sad realization that if I were writing it today–five years later–I wouldn’t need to change a single word. Except maybe the last sentence. And then, just maybe.

Searching Bits, Seizing Information

U.S. citizens are protected from unreasonable search and seizure of their property by their government. In the Constitution, that right is enshrined in the Fourth Amendment, which was enacted in response to warrantless searches by British agents in the run-up to the Revolutionary War. Over the past century, the Supreme Court has increasingly seen the Fourth Amendment as a source of protection for personal space—the right to a “zone of privacy” that governments can invade only with probable cause that evidence of a crime will be revealed.

Under U.S. law, Americans have little in the way of protection of their privacy from businesses or from each other. The Fourth Amendment is an exception, albeit one that applies only to government.

But digital life has introduced new and thorny problems for Fourth Amendment law. Since the early part of the twentieth century, courts have struggled to extend the “zone of privacy” to intangible interests—a right to privacy, in other words, in one’s information. But to “search” and “seize” implies real world actions. People and places can be searched; property can be seized.

Information, on the other hand, need not take physical form, and can be reproduced infinitely without damaging the original. Since copies of data may exist, however temporarily, on thousands of random computers, in what sense do netizens have “property” rights to their information? Does intercepting data constitute a search or a seizure or neither?

The law of electronic surveillance avoids these abstract questions by focusing instead on a suspect’s expectations. Courts reviewing challenged investigations ask simply if the suspect believed the information acquired by the government was private data and whether his expectation of privacy was reasonable.

It is not the actual search and seizure that the Fourth Amendment forbids, after all, but unreasonable search and seizure. So the legal analysis asks what, under the circumstances, is reasonable. If you are holding a loud conversation in a public place, it isn’t reasonable for you to expect privacy, and the police can take advantage of whatever information they overhear. Most people assume, on the other hand, that data files stored on the hard drive of a home computer are private and cannot be copied without a warrant.

One problem with the “reasonable expectation” test is that as technology changes, so do user expectations. The faster the Law of Disruption accelerates, the more difficult it is for courts to keep pace. Once private telephones became common, for example, the Supreme Court required law enforcement agencies to follow special procedures for the search and seizure of conversations—that is, for wiretaps. Congress passed the first wiretap law, known as Title III, in 1968. As information technology has revolutionized communications and as user expectations have evolved, the courts and Congress have been forced to revise Title III repeatedly to keep it up to date.

In 1986, the Electronic Communications Privacy Act amended Title III to include new protection for electronic communications, including e-mail and communications over cellular and other wireless technologies. A model of reasonable lawmaking, the ECPA ensured these new forms of communication were generally protected while closing a loophole for criminals who were using them to evade the police. (By 2005, 92 percent of wiretaps targeted cell phones.)

As telephone service providers multiplied and networks moved from analog to digital, a 1994 revision required carriers to build in special access for investigators to get around new features such as call forwarding. Once a Title III warrant is issued, law enforcement agents can now simply log in to the suspect’s network provider and receive real-time streams of network traffic.

Since 1968, Title III has maintained an uneasy truce between the rights of citizens to keep their communications private and the ability of law enforcement to maintain technological parity with criminals. As the digital age progresses, this balance is harder to maintain. With each cycle of Moore’s Law, criminals discover new ways to use digital technology to improve the efficiency and secrecy of their operations, including encryption, anonymous e-mail resenders, and private telephone networks. During the 2008 terrorist attacks in Mumbai, for example, co-conspirators used television reports of police activity to keep the gunmen at various sites informed, using Internet telephones that were hard to trace.

As criminals adopt new technologies, law enforcement agencies predictably call for new surveillance powers. China alone employs more than 30,000 “Internet police” to monitor online traffic, what is sometimes known as the “Great Firewall of China.” The government apparently intercepts all Chinese-bound text messages and scans them for restricted words including democracy, earthquake, and milk powder.

The words are removed from the messages, and a copy of the original along with identifying information is stored on the government’s system. When Canadian human rights activists recently hacked into Chinese government networks they discovered a cluster of message-logging computers that had recorded more than a million censored messages.

Netizens, increasingly fearful that the arms race between law enforcement and criminals will claim their privacy rights as unintended victims, are caught in the middle. Those fears became palpable after the September 11, 2001, terrorist attacks and those that followed in Indonesia, London, and Madrid. The world is now engaged in a war with no measurable objectives for winning, fought against an anonymous and technologically savvy enemy who recruits, trains, and plans assaults largely through international communication networks. Security and surveillance of all varieties are now global priorities, eroding privacy interests significantly.

The emphasis on security over privacy is likely to be felt for decades to come. Some of the loss has already been felt in the real world. To protect ourselves from future attacks, everyone can now expect more invasive surveillance of their activities, whether through massive networks of closed-circuit TV cameras in large cities or increased screening of people and luggage during air travel.

The erosion of privacy is even more severe online. Intelligence is seen as the most effective weapon in a war against terrorists. With or without authorization, law enforcement agencies around the world have been monitoring large quantities of the world’s Internet data traffic. Title III has been extended to private networks and Internet phone companies, who must now insert government access points into their networks. (The FCC has proposed adding other providers of phone service, including universities and large corporations.)

Because of difficulties in isolating electronic communications associated with a single IP address, investigators now demand the complete traffic of large segments of addresses, that is, of many users. Data mining technology is applied after the fact to search the intercepted information for the relevant evidence.

Passed soon after 9/11, the USA Patriot Act went much further. The Patriot Act abandoned many of the hard-fought controls on electronic surveillance built into Title III. New “enhanced surveillance procedures” allow any judge to authorize electronic surveillance and lower the standard for warrants to seize voice mails.

The FBI was given the power to conduct wiretaps without warrants and to issue so-called national security letters to gag network operators from revealing their forced cooperation. Under a 2006 extension, FBI officials were given the power to issue NSLs that silenced the recipient forever, backed up with a penalty of up to five years in prison.

Gone is even a hint of the Supreme Court’s long-standing admonitions that search and seizure of information should be the investigatory tool of last resort.

Despite the relaxed rules, or perhaps inspired by them, the FBI acknowledged in 2007 that it had violated Title III and the Patriot Act repeatedly, illegally searching the telephone, Internet, and financial records of an unknown number of Americans. A Justice Department investigation found that from 2002 to 2005 the bureau had issued nearly 150,000 NSLs, a number the bureau had grossly under-reported to Congress.

Many of these letters violated even the relaxed requirements of the Patriot Act. The FBI habitually requested not only a suspect’s data but also those of people with whom he maintained regular contact—his “community of interest,” as the agency called it. “How could this happen?” FBI director Robert Mueller asked himself at the 2007 Senate hearings on the report. Mueller didn’t offer an answer.

Ultimately, a federal judge declared the FBI’s use of NSLs unconstitutional on free-speech grounds, a decision that is still on appeal. The National Security Agency, which gathers foreign intelligence, undertook an even more disturbing expansion of its electronic surveillance powers.

Since the Constitution applies only within the U.S., foreign intelligence agencies are not required to operate within the limits of Title III. Instead, their information- gathering practices are held to a much more relaxed standard specified in the Foreign Intelligence Surveillance Act. FISA allows warrantless wiretaps anytime that intercepted communications do not include a U.S. citizen and when the communications are not conducted through U.S. networks. (The latter restriction was removed in 2008.)

Even these minimal requirements proved too restrictive for the agency. Concerned that U.S. operatives were organizing terrorist attacks electronically with overseas collaborators, President Bush authorized the NSA to bypass FISA and conduct warrantless electronic surveillance at will as long as one of the parties to the information exchange was believed to be outside the United States.

Some of the president’s staunchest allies found the NSA’s plan, dubbed the Terrorist Surveillance Program, of dubious legality. Just before the program became public in 2005, senior officials in the Justice Department refused to reauthorize it.

In a bizarre real-world game of cloak-and-dagger, presidential aides, including future attorney general Alberto Gonzales, rushed to the hospital room of then-attorney general John Ashcroft, who was seriously ill, in hopes of getting him to overrule his staff. Justice Department officials got wind of the end run and managed to get to Ashcroft first. Ashcroft, who was barely able to speak from painkillers, sided with his staff.

Many top officials, including Ashcroft and FBI director Mueller, threatened to resign over the incident. President Bush agreed to stop bypassing the FISA procedure and seek a change in the law to allow the NSA more flexibility. Congress eventually granted his request.

The NSA’s machinations were both clumsy and dangerous. Still, I confess to having considerable sympathy for those trying to obtain actionable intelligence from online activity. Post-9/11 assessments revealed embarrassing holes in the technological capabilities of most intelligence agencies worldwide. (Admittedly, it also revealed repeated failures to act on intelligence that was already collected.) Initially at least, the public demanded tougher measures to avoid future attacks.

Keeping pace with international terror organizations and still following national laws, however, is increasingly difficult. For one thing, communications of all kinds are quickly migrating to the cheaper and more open architecture of the Internet. An unintended consequence of this change is that the nationalities of those involved in intercepted communications are increasingly difficult to determine.

E-mail addresses and instant-message IDs don’t tell you the citizenship or even the location of the sender or receiver. Even telephone numbers don’t necessarily reveal a physical location. Internet telephone services such as Skype give their customers U.S. phone numbers regardless of their actual location. Without knowing the nationality of a suspect, it is hard to know what rights she is entitled to.

The architecture of the Internet raises even more obstacles against effective surveillance. Traditional telephone calls take place over a dedicated circuit connecting the caller and the person being called, making wiretaps relatively easy to establish. Only the cooperation of the suspect’s local exchange is required.

The Internet, however, operates as a single global exchange. E-mails, voice, video, and data files—whatever is being sent is broken into small packets of data. Each packet follows its own path between connected computers, largely determined by data traffic patterns present at the time of the communication.

Data may travel around the world even if its destination is local, crossing dozens of national borders along the way. It is only on the receiving end that the packets are reassembled.

This design, the genius of the Internet, improves network efficiency. It also provides a significant advantage to anyone trying to hide his activities. On the other hand, NSLs and warrantless wiretapping on the scale apparently conducted by the NSA move us frighteningly close to the “general warrant” American colonists rejected in the Fourth Amendment. They were right to revolt over the unchecked power of an executive to do what it wants, whether in the name of orderly government, tax collection, or antiterrorism.

In trying to protect its citizens against future terror attacks, the secret operations of the U.S. government abandoned core principles of the Constitution. Even with the best intentions, governments that operate in secrecy and without judicial oversight quickly descend into totalitarianism. Only the intervention of corporate whistle-blowers, conscientious government officials, courts, and a free press brought the United States back from the brink of a different kind of terrorism.

Internet businesses may be entirely supportive of government efforts to improve the technology of policing. A society governed by laws is efficient, and efficiency is good for business. At the same time, no one is immune from the pressures of anxious customers who worry that the information they provide will be quietly delivered to whichever regulator asks for it. Secret surveillance raises the level of customer paranoia, leading rational businesses to avoid countries whose practices are not transparent.

Partly in response to the NSA program, companies and network operators are increasingly routing information flow around U.S. networks, fearing that even transient communications might be subject to large-scale collection and mining operations by law enforcement agencies. But aside from using private networks and storing data offshore, routing transmissions to avoid some locations is as hard to do as forcing them through a particular network or node.

The real guarantor of privacy in our digital lives may not be the rule of law. The Fourth Amendment and its counterparts work in the physical world, after all, because tangible property cannot be searched and seized in secret. Information, however, can be intercepted and copied without anyone knowing it. You may never know when or by whom your privacy has been invaded. That is what makes electronic surveillance more dangerous than traditional investigations, as the Supreme Court realized as early as 1967.

In the uneasy balance between the right to privacy and the needs of law enforcement, the scales are increasingly held by the Law of Disruption. More devices, more users, more computing power: the sheer volume of information and the rapid evolution of how it can be exchanged have created an ocean of data. Much of it can be captured, deciphered, and analyzed only with great (that is, expensive) effort. Moore’s Law lowers the costs to communicate, raising the costs for governments interested in the content of those communications.

The kind of electronic surveillance performed by the Chinese government is outrageous in its scope, but only the clumsiness of its technical implementation exposed it. Even if governments want to know everything that happens in our digital lives, and even if the law allows them or is currently powerless to stop them, there isn’t enough technology at their disposal to do it, or at least to do it secretly.

So far.

Abuse of the CFAA: The Problem of Prosecutorial Indiscretion

With renewed interest in the failings of the Computer Fraud and Abuse Act and the role of prosecutorial discretion in its application in light of the tragic outcome in the Aaron Swartz case, I went back to what I wrote about the law in 2009.

Back then, the victim of both the poorly-drafted amendments to CFAA that expanded its scope from government to private computer networks and the politically-motivated zeal of federal prosecutors reaching for something—anything—with which to punish otherwise legal but disfavored behavior was trained on Lori Drew, a far less sympathetic defendant.

But the dangers lurking in the CFAA were just as visible in 2009 as they are today.  Those who have recently picked up the banner calling for reform of the law might ask themselves where they were back then, and why the ultimately unsuccessful Drew prosecution didn’t raise their hackles at the time.

The law was just as bad in 2009, and just as dangerously twisted by the government.  Indeed, the Drew case, as I wrote at the time, gave all the notice anyone needed of what was to come later.

Here’s the section of The Laws of Disruption from 2009 discussing CFAA:

What did Lori Drew do?

The late-forties suburban St. Louis mother was apparently unhappy about the “mean” behavior of Megan Meier, a thirteen-year-old former friend of Drew’s daughter Sarah. The Drews, along with Ashley Grills, the eighteen-year-old employee of Lori Drew’s home business, hatched a plan. They created a fake MySpace profile for a bare-chested sixteen-year-old boy named “Josh,” who would befriend Megan and encourage her to gossip about other girls. Then they would take printouts to Megan’s mother to show her what the girl was up to.

Not only was the idea stupid, it wasn’t even original—Sarah and Megan, back when they were friends, had done the same thing, creating a profile for a boy who didn’t exist as a way to talk to other boys. This time, however, the plan went awry. Megan became deeply infatuated with Josh. She pressed for his phone number. She wanted to meet him in person. The women behind his account looked for a way out.

According to Grills, “We decided to be mean to her so she would leave him alone . . . and we could get rid of the page.” After deliberating on the easiest way to end an ill-conceived hoax that was going very wrong, Grills sent an instant message to Meier: “The world would be a better place without you.”

The consequences were tragic. Meier, who was being treated for depression, took the suggestion all too literally. After an argument with her parents, who had closely monitored the relationship with Josh from the beginning, Meier went to her room and hanged herself.

Media accounts of the teen’s suicide and the subsequent revelation of who was behind “Josh” created a froth of outrage and hand-wringing. Commentators invented and then proclaimed an epidemic of “cyberbullying.”

When it became clear that the mother of one of Meier’s former friends was involved, Drew herself was subjected to death threats and vandalism. A fake MySpace page for her husband was created. On cable news and the blogosphere, Drew was instantly convicted and sentenced to hell. (“Call me vindictive,” a typical blog entry read, “but i hope that someone kills the woman who is responsible.”)

In the midst of the media storm, state attorneys in Missouri announced there would be no prosecution of Drew for the simple reason that no criminal law had been broken. Federal prosecutors weren’t so sure. They found a 1986 law, the Computer Fraud and Abuse Act, that set stiff penalties for breaking into and damaging computers.

Drew was charged under the novel theory that since the MySpace terms of service agreement prohibits posting false information in one’s profile, the creation of Josh violated Drew’s contract. Hence, she “accessed” MySpace computers without “authorization.” The creation of Josh, in other words, was a kind of hacking. The victim was not Meier (who with her parents’ permission had also violated the TOS, which requires users to be at least fourteen years old). The victim was MySpace.

Although the jury ultimately refused to convict Drew on the felony charge, they did convict her of the lesser crime of unauthorized access. Valentina Kunasz, the jury’s foreperson, made no apologies for the conviction. “It was so very childish; so very pathetic,” she told reporters after the trial. “She could have done quite a few things to stop it, and she chose not to. And I think she got kind of a rise out of doing this to another person and that bothers me, it really irks me.” Drew faces up to three years in prison and $300,000 in fines.

Legal scholars were generally in agreement that the prosecution was deeply flawed and will very likely be set aside or reversed on appeal. (N.B.  Later, it was.) First, there were gaping holes in the government’s case. For one thing, it was Grills, and not Drew, who set up the Josh account and therefore agreed to the TOS (Grills, testifying for the prosecution in exchange for immunity, admitted she never read the TOS). Drew herself was only occasionally involved in the hoax.

By a weird twist of irony, one of the few times she communicated with Meier it turned out she was talking to Meier’s mother, who told Josh he ought to be looking for friends his own age. The fateful message was sent by Grills without Drew’s knowledge, and wasn’t even sent through MySpace.

As a matter of public policy, the prosecution is even more disturbing. Even assuming Drew was bound by the TOS, these contracts are notoriously long and intentionally unreadable. Most of us, even lawyers, don’t read them.

Yet following the logic of the Drew prosecution, anyone who misrepresents some of their personal details on an online dating service has committed a federal crime. Anyone who gives a nonworking telephone number when signing up for a Web site has committed a federal crime.

Indeed, after the verdict, one social network researcher was pained to admit, “We’ve been telling our kids to lie about ID information for a long time now.”

The computer fraud law began as a protection against hackers targeting government computers. The law has never before been used in connection with the violation, willful or otherwise, of private terms of service. There’s no reason to believe Congress intended to criminalize cyberbullying in 1986 or any other time.

Supporters of the conviction argue that the real problem here was a hole in the law—the lack of a statute outlawing whatever it was Lori Drew had done.  But the decision of lawmakers not to criminalize a behavior is no reason to correct the problem in a way that undermines the very idea of law.

People are often cruel to each other. Other children, adults, and even parents can and do humiliate children in the real world. No laws, in all but extreme cases, are being broken.

It’s difficult to see how this case differs in any respect other than the use of a computer and the tragic outcome.

If the conviction stands, it effectively gives every federal prosecutor a blank check to charge anyone they want with criminal behavior, subject only to their discretion of whether and when to use that power.

Some commentators, pleased with the result if not the process, argued that there was no cause for alarm. Prosecutors, they said, will only use this power in extreme cases.

The Drew prosecution suggests precisely the opposite. For elected prosecutors in particular, the real temptation is to exercise discretion not when the law would otherwise let a heinous crime slip through the cracks but when passions are high and the facts (at least the version presented by the media) are the most lurid—when, in other words, an angry mob demands it.

How the SOPA Fight Was Won…For Now

On Forbes yesterday, I posted a detailed analysis of the successful (so far) fight to block quick passage of the Protect-IP Act (PIPA) and the Stop Online Piracy Act (SOPA). (See “Who Really Stopped SOPA, and Why?“) I’m delighted that the article, despite its length, has gotten such positive response.

As regular readers know, I’ve been following these bills closely from the beginning, and made several trips to Capitol Hill to urge lawmakers to think more carefully about some of the more half-baked provisions.

But beyond traditional advocacy–of which there was a great deal–something remarkable happened in the last several months. A new, self-organizing protest movement emerged on the Internet, using social news and social networking tools including Reddit, Tumblr, Facebook and Twitter to stage virtual teach-ins, sit-ins, boycotts, and other protests. Continue reading →

Supreme Court affirms First Amendment in Cyberspace

John Perry Barlow famously said that in cyberspace, the First Amendment is just a local ordinance.  That’s still true, of course, and worth remembering.  But at least today there is good news in the shire.  The local ordinance still applies with full force, if only locally.

As I write in CNET this evening (see “Video Games Given Full First Amendment Protection“), the U.S. Supreme Court issued a strong and clear opinion today nullifying California’s 2005 law prohibiting the sale or rental to minors of what the state deemed “violent video games.”

The 7-2 decision in Brown v. EMA follows last week’s decision in Sorrell, which also addressed the role of the First Amendment in the digital economy.  Sorrell dealt with a Vermont law that banned data mining of pharmacy information.  That application, the Court said, was also protected speech.

The CNET article is quite long (duh), and I’ll let it speak for itself.  There is also excellent commentary on both decisions from Adam Thierer and Berin Szoka at the Technology Liberation Front.  Adam and Berin submitted an amicus brief in the EMA case that closely tracked the Court’s opinion, which in fact quoted from another amicus brief from the Cato Institute.  Berin also contributed a brief in the Sorrell case, again on the winning side.

Perhaps the most interesting commentary on today’s decision, however, comes from Prof. Susan Crawford.  Prof. Crawford’s blog on EMA notes that an important feature of the majority decision (written by Justice Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan) is what she calls the “absolute” view it takes of speech.  Crawford writes of Scalia’s opinion:

“Whether government regulation applies to creating, distributing, or consuming speech makes no difference,” he says in response to Justice Alito’s attempt to say that sale/rental is different from “creation” or “possession” of particular speech.

That view is absolute in the sense that it does not distinguish between different stages of the supply chain of information provisioning.  The “speaker,” for First Amendment purposes, is not only the author of the content, but also distributors, retailers, and consumers.  Each is equally protected by the First Amendment’s prohibition on government interference, whether that interference is a ban on certain content (violent video games) or a requirement to promote it (must-carry rules for cable).

Why does this matter?  Though I have written and tesftified extensively about the FCC’s December, 2010 “Open Internet” order, I have so far avoided discussion of a possible First Amendment challenge.  Frankly, I hadn’t initially thought it to be the strongest available argument against the legality of the rules.

But Prof. Crawford, a strong advocate for “net neutrality” in general, reads EMA as adding support to such an argument:

Today’s opinion may further strengthen the carriers’ arguments that any nondiscrimination requirement imposed on them should be struck down.  Although a nondiscrimination requirement arguably promotes speech rather than proscribes it, the long-ago Turner case on “must-carry” obligations for cable already suggested that the valence of the requirement doesn’t really matter.

If challengers to the Open Internet order (which today added the State of Virginia to the list of those waiting in the wings to file lawsuits) can convince a court that rules requiring nondiscriminatory treatment of packets are effectively requiring carriers to speak, such a rule would be seen as content-based.  Under EMA and last year’s decision in Stevens, such a rule could fail a First Amendment challenge.

It’s an interesting argument, to say the least.  I think I’ll give it a little more thought.

Updates to the Media Page

We’ve added about a dozen new posts to the Media Page on my website, reflecting a sampling of articles, media quotes, and radio appearances from the last few months. These include several pieces for CNET News.com and Forbes, as well as links to appearances on NPR’s “Science Friday” (debating Sen. Al Franken on privacy law) and “Marketplace.”

I continue to be called on to help business leaders understand the confusing and dangerous new interest that national, state and local governments are taking in the “management” of the digital economy. I’ve been speaking most recently about Apple’s iPhone privacy flap (which turned out to have nothing to do with privacy), the AT&T/T-Mobile merger, and pending legislation in Congress aimed at curbing online piracy of movies and trademarked goods, the so-called “Protect IP” Act.

Next week, I’ll be making my tenth visit this year to Washington to meet with Congressional staffers and other policy makers to discuss these and other worrisome developments. Increasingly, my role seems to be as an unofficial representative of Silicon Valley helping regulators see the potential damage to innovation from ill-considered laws.

Of course I continue my long-standing work with companies working to introduce new products and services that exploit digital technology. The introduction of “killer apps” only gets faster with time, and more than ten years since the publication of my first book, I’m deeply flattered to hear from entrepreneurs who tell me the book still works as a manual for success in the digital age.