<-- The Filter --> February 2001

February 5, 2001
No. 3.11  .  The Filter  .  02.05.01

Your regular dose of public interest Internet news and commentary from
the Berkman Center for Internet & Society at Harvard Law School


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> Rock-ICANN-Hard Place: Mired in controversy since its inception in 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) this month faces a new challenge to its authority: a hearing before Congress to determine whether the organization's selection process for new generic top-level domain names is thwarting competition. The hearing, tentatively scheduled for February 8, is in large part the result of a Capitol Hill lobbying campaign by the businesses that, after paying ICANN $50,000 apiece simply to propose new top-level domains, then lost their bids. Also petitioning for the hearing was a coalition of public interest groups including the ACLU, which cited concerns that the selection process negatively impacts free speech on the Internet. Is ICANN worried? Not according to CEO Michael Roberts. "It's entirely legitimate for Congress to inquire," Roberts told the Washington Post. "We've been asked to testify at previous oversight hearings and we'd be pleased to do it again."





***EXTRA:In a recent Silicon Valley News interview, Roberts breaks down into categories the groups criticizing ICANN: "One group basically is against a privatized ICANN because they feel it should have been done by legislation. There's a second group—businesses that view the existence of ICANN as being something that will diminish their ability to commercially exploit the Internet.[...] Then there's a third group—your standard variety Internet libertarians who object to any kind of an authoritarian or institutional presence inside cyberspace."


How might Roberts' assessment apply to the current controversy over top-level domain selection? Are the public interest concerns raised by the ACLU coalition valid? How would ICANN respond? Filter reporter Cedar Pruitt caught up last week with Karl Auerbach, North American representative for ICANN's At-Large membership, to ask his opinion on the issue. Then, she persuaded Berkman Fellow Diane Cabell to play devil's advocate, asking her to respond to Auerbach's arguments by presenting the opposing viewpoint. Follow the links below (also linked from DISPATCHES) to read what each had to say:



> DoubleClick Double Take: Not long ago, "Doing a DoubleClick" was a common catch phrase in the Internet community for an embarrassing online privacy debacle. An Internet advertising firm, DoubleClick raised the ire of privacy advocates last year when reports surfaced that the company planned to tie anonymous "clickstream" data with personally-identifying offline information such as names and addresses. Several class-action suits, inquiries from state attorneys general, and a Federal Trade Commission (FTC) investigation shortly ensued. In July, however, the FTC endorsed the Network Advertising Initiative (NAI), a consortium created by DoubleClick and its competitors to establish self-regulatory data-privacy standards. Two weeks ago, the Commission took the matter a step further and abandoned the DoubleClick probe. "DoubleClick never used or disclosed consumers' PII [personally-identifying information] for purposes other than those disclosed in its privacy policy," writes the FTC in a letter closing the investigation. "Staff further notes the recent effort by the [NAI] to establish an ethical code for online preference marketing, and your client's commitment to that code."

So is DoubleClick in the free and clear? Not according to privacy watchdog groups including the Electronic Privacy Information Center (EPIC). "The [FTC] letter does not prohibit DoubleClick from merging online and offline data at a later date," points out a recent EPIC Alert e-newsletter. EPIC, which last year lodged a complaint asking the FTC to investigate the company, has now filed a Freedom of Information Act request with the Commission seeking all records pertaining to the DoubleClick investigation. "We raised a whole series of factual issues," says EPIC executive director Marc Rotenberg. "It looks to me like the FTC's staff just completely misses the point."




> "Taking It to the...States?: In the wake of news that the FTC had dropped the DoubleClick investigation, competitor 24/7 told the New York Times that, like DoubleClick, it was working on ways to preserve consumer anonymity—but would wait for cues from Capitol Hill before coming up with a concrete plan. "Given that there's still a lot of talk in Congress about legislation," said chief executive David Moore, "we'd like to have a clearer direction from this new Republican regime as to where this will go, before we make any decisions." Now, coming in tandem with the reintroduction by Senator John Edwards (D-NC) of a bill to make tracking Internet users' online behavior without consent a crime, two George Mason University School of Law professors have published a paper arguing in support of privacy legislation—but at the state rather than the federal level. "Federal law would perversely lock in a single regulatory framework while Internet technology is still rapidly evolving," the paper says. "State law, by contrast, emerges from 51 laboratories (50 states, plus the District of Columbia) and therefore presents a more decentralized model that fits the evolving nature of the Internet." Will the paper's message resonate with lawmakers? Its authors, Larry Ribstein and Bruce Kobayashi, are hopeful but realistic. "We have had a hard time convincing the people we really want to convince," says Ribstein.


> DMCA Comes Under "Friendly" Fire: No fewer than eight separate coalitions filed "friend of the court" briefs last week in the case of Universal v. Reimerdes, kicking off the latest round of the fight over posting or linking to DeCSS—software code that decrypts the data on commercial DVDs. The amicus briefs—submitted by diverse constituencies including law professors, computer scientists, journalists and cryptographers—support an appeal filed a week earlier by the Electronic Frontier Foundation on behalf of the defendant, 2600 Magazine. Amici argue that the district court opinion, and the Digital Millennium Copyright Act upon which it relies, represent an unwarranted expansion of copyright at the expense of free speech, fair use of copyrighted works, journalistic reporting, and scientific research. Collectively, they urge the Second Circuit Court of Appeals to reverse the injunction and narrow the DMCA's anticircumvention provision.




To read more about the case or join a discussion of the critical issues at stake, follow the link below to the Berkman Center's moderated Openlaw/DVD forum:


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ICANN heads to Capitol Hill this month for a hearing to determine whether the nonprofit corporation's process for choosing for new generic top-level domain names is thwarting competition—or threatening free speech on the Internet. Is expanding the top-level domain space a "damned if you, damned if you don't" proposition? How valid is the criticism being leveled at ICANN?

Last week, Filter reporter Cedar Pruitt asked Karl Auerbach, self-described ICANN critic and the North American representative for its At-Large membership, for his take on the issue. Then, she persuaded Berkman Fellow Diane Cabell to play devil's advocate, asking her to respond to Auerbach's arguments by presenting the opposing viewpoint. Follow the links below to find out what each had to say:



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> Berkman Center Welcomes New Fellow: This week the Berkman Center welcomes Dan Markel, a 2001 Berkman Fellow. Markel will be a resident at the Berkman Center, writing on issues (surprise!) related to technology, intellectual property and criminal law. Raised in Toronto, Markel received his A.B. from Harvard, where he studied government. He then spent a year as a Dorot-Harvard Fellow in Jerusalem, where he studied philosophy and worked as a legislative aide for M.K. Naomi Chazan. After completing an M.Phil. in Cambridge, England, he returned to Harvard for his J.D. A former editor of the Harvard Law Review and Olin Fellow at Harvard Law School, Markel has written extensively on the philosophy of punishment as well as on intellectual property. These and other works-in-progress will soon be available via the Berkman Center website. Markel can be reached at markel@post.harvard.edu.

> New Online Series in the Wings: The Berkman Center will shortly unveil its 2001 program of interactive online lectures and discussions. The program will explore the most pressing cyberlaw issues currently being debated by lawmakers in the United States and other countries: copyright and content control, discovery in digital-age litigation, and legal aspects of doing business online. Stay tuned to The Filter for further details, including dates for registration and participation.

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* 02/13/01, Cambridge, MA—World War 3.0: Microsoft and Its Enemies (Harvard Book Store)

* 02/17/01, San Diego, CA— Enhancing Access to the Justice System Through Technology (ABA)


* 03/06/01-03/09/01, Cambridge, MA—Computers, Freedom & Privacy 2001

* 03/10/01-03/13/01, Melbourne, Australia—ICANN Meetings

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* Justice Talking.com


Online home of "Justice Talking Live!," a two-hour weekly radio talk show examining in depth the controversial constitutional issues before the nation's courts. Enables listeners to submit questions and comments via the Internet.

* Jurist—The Legal Education Network

      http://www.jurist.law.pitt .edu/

Award-winning legal education portal created by the University of Pittsburgh School of Law.

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"Now we've got to tell them, 'Look. If you want to get to the summit, you've got to take risks. If you fail, you've got to try again.' And failure is no disgrace in this new age of new technology. It's being tested all over the world."

—Lee Kuan Yew, senior minister of Singapore, getting real at this year's World Economic Forum in Davos, Switzerland.


"...underneath that flashy entertainment stuff is the hope that [the Internet] will become an infrastructure of ordering pizzas, and selling stocks, and doing eBay auctions [...]. And there's reason to think that that's the case. On the other hand, my guess is that the window into that kind of commerce, the business transactions, will be a window that looks an awful lot like television."

—Jonathan Zittrain, faculty co-director of the Berkman Center, getting real at last year's World Economic Forum.


"We are heading towards a time when it will no longer be tolerable to say, 'Those used to be your civil liberties, but now it's digital.'"

—Eben Moglen, Columbia University law professor and counsel to the Free Software Foundation.


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Comments? Questions? Opinions? Submissions? Send a letter to the editor at filter-editor@cyber.law.ha rvard.edu

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January 15, 2008