<-- The Filter --> January 2002

January 18, 2002
No. 4.8  .  The Filter  .  01.18.02

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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What have developments of the past year taught us about what the future holds for Internet law and policy? What kind of civil liberties fallout can we expect from September 11? How far will the current trend toward expanded digital property rights go?

Follow the links below for articles featuring answers to these and other questions by leading cyberlaw thinkers including James Boyle, Michael Geist, Mike Godwin, Lawrence Lessig, Barry Steinhardt and many more.

      "The Year in Cyberlaw" and "Divining the Future of Law and Technology" by Carl Kaplan

      "Cyberlaw 2002: The Next Generation," by Michael Geist

      "ACLU Exec Voices Concern" by Ben Polen

      "A Year of Learning Limits," by Mike Godwin

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> Court Disapproves 'Court-Approved Predatory Pricing': District Judge J. Frederick Motz denied preliminary approval last Friday to Microsoft's proposal for settling numerous civil suits against it by donating technical training, support, hardware and software to impoverished schools. Motz ruled as a procedural matter that the record was insufficiently developed to establish the underlying value of the civil claims, and as a substantive matter that the foundation contemplated to administer the donation was "critically under-funded." He also found the proposed software donation "self-evidently" problematic. "[T]hese provisions raise antitrust concerns from the perspective of other software manufacturers," wrote Motz. "To put it bluntly, in the words of the opponents of the proposed settlement, the donation of free software could be viewed as constituting 'court-approved predatory pricing.'"



For additional news and background, visit the Berkman Center's Microsoft Case website.

> Congress Checks Carnivore, Bush Eyes the Balance: When President Bush signed the antiterrorist USA Patriot Act into law in October, opponents of provisions granting federal authorities expanded latitude in using DCS 1000—the Internet surveillance tool formerly known as Carnivore—braced themselves for a long fight. "We don't expect there will be any immediate litigation here," ACLU Associate Director Barry Steinhardt told Wired. "The real law will be made on appeal in criminal prosecutions."

Now, however, Congress is poised to finalize legislation that could serve as a stop-gap measure in preventing Carnivore abuse: the 21st Century Department of Justice Appropriations Act (H.R. 2215). Section 305 of the bill contains a provision requiring that the Attorney General submit to Congress an annual report on "the use of the DCS 1000 program (or any subsequent version of such program)," detailing such pertinent information as how many times the program was used, who authorized its use, and the number and nature of the Internet communications intercepted.

The bill has garnered strong bipartisan support, with supporters trumpeting its House and Senate passage as a breakthrough in protecting citizens' civil liberties. The question remains, however, as to how it will be received by the President—whose reception of another recent authorization bill containing similar provisions was notably frosty. That bill, the Intelligence Authorization Act for Fiscal Year 2002 (H.R. 2883), requires that reports by the executive branch on "significant anticipated intelligence activities or significant intelligence failures" be submitted to Congress in written form and include a brief statement of the pertinent facts and their significance. The President's response? He signed the bill—but also issued a separate statement asserting his authority to interpret the reporting provision "in a manner consistent with the President's constitutional authority to withhold information [that could] impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."



> FBI Logs Key Victory: In related news, a federal judge in New Jersey has made a pre-trial ruling in United States v. Nicodemo S. Scarfo, et al.—raising timely questions about where courts draw the line between law enforcement's Internet surveillance powers and citizens' Fourth Amendment rights. At issue is whether the FBI violated federal wiretapping laws and the defendant's Fourth Amendment rights when it gathered evidence against him using a computer keystroke-logging device. The defense argued that using the so-called key-logger to record such information as passwords to encrypted files is directly comparable to a telephone wiretap— something for which the FBI failed to secure a specific court order. The prosecution contended otherwise, arguing that the FBI never captured electronic communications in progress, but instead worked within the bounds of the search orders it was granted, which authorized agents to "install and leave behind software, firmware, and/or hardware equipment which will monitor the inputted data...by recording the key-related information as they are entered."

The conflict sharpened in August when prosecutors took the unusual step of invoking the Classified Information Procedures Act, requesting that US District Judge Nicholas Politan withhold from the defense complete details on how the FBI key-logger works on the grounds that sharing the information would jeopardize the national interest. That request was granted.

"This is a bad precedent for our judicial system...There was nothing extraordinary about this case that warranted them using the Classified Information Procedures Act,'' defense attorney Vincent Scoca told Reuters. "That's a police state and we don't want a police state. Even in these times, after September 11, people still don't want unwarranted government intrusion.''

Now the prosecution has scored another victory, with Judge Politan flatly rejecting the defense's pre-trial motion for suppression of evidence. "Each day, advanced computer technologies and the increased accessibility to the Internet means criminal behavior is becoming more sophisticated and complex," wrote Judge Politan in his decision. "As a result of this surge in so-called 'cyber crime,' law enforcement's ability to vigorously pursue such rogues cannot be hindered where all constitutional limitations are scrupulously observed."





> Rep. Ron Paul Baits the Worm: If the United States v. Nicodemo S. Scarfo, et al. ruling suggests that the FBI is free to use a planted keystroke-logging device to snatch a suspect's computer or Internet passwords, what's to stop it from deploying a computer "worm" that will do the same thing?

As this issue of The Filter was prepared for release, Representative Ron Paul (R-Texas) sent a letter asking FBI Director Robert Mueller to provide details on the bureau's "Magic Lantern" project, which reportedly uses a key-logger software program that can be distributed, worm-like, via the Internet. "Recently, my legislative director attempted to obtain information on this project from the FBI and was told such information was classified," wrote Paul. "Considering the potential impact of Magic Lantern, I am sure you can understand why I was disturbed by this refusal."


> If You Can't Lock the Door, Throw Away the Key: With Magic Lantern on the loose, how can Internet users keep computer files safe from prying eyes? Harvard professor Michael Rabin and electrical engineer Woody Yang are developing an encryption system in which the "key" vanishes after use. The system reportedly works by sending a steady stream of random numbers generated by satellite or some other source, which are then captured at an agreed-upon point by the sender and receiver of the encrypted file, and plugged into the key. These numbers then disappear, which means that even if an eavesdropper retains an encrypted message for future decryption, the key is gone—making decryption impossible.



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> Golan v. Ashcroft—Round 2 of the Copyfight: With a decision pending as to whether the US Supreme Court will hear Eldred v. Ashcroft, the first challenge to Congress's copyright term extension, the government has taken an even more extreme position in Golan v. Ashcroft, the second challenge.

In this second challenge the government has argued for even broader powers than it claimed in Eldred I. The government now claims that Congress has the power not only to extend existing copyrights, but also to "restore" the copyright of work that has already entered the public domain. And unlike Eldred I, the government does not maintain that copyright is "largely" immune from First Amendment scrutiny; now the government claims it is wholly immune.

Follow the links below to read a National Journal piece on the case and to access the Golan v. Ashcroft website, which contains legal documents including the government's brief and Golan's reply.



***EXTRA: This week's New Yorker features a piece on Eldred v. Ashcroft. Take a peek online here.

> 2002 BOLD Series Gears Up for Action: The Berkman Center will present two new 2002 Berkman Online Lecture and Discussion (BOLD) series: "Internet Technology and Privacy," led by Professor John Nockleby, and "Violence Against Women on the Internet," led by Berkman Fellow Diane Rosenfeld.

In addition, we will be partnering with the Harvard Law School Islamic Legal Studies Program to provide open online access to and participation in portions of "Contemporary Islamic Legal Thought: Law, State, and World Order," a Harvard Law School course led by Professor Frank Vogel.

Please note that these are all non-credit educational offerings.

* Internet Technology and Privacy
With the enactment of the USA Patriot Act, Congress has authorized Web snooping of a wide range of individuals and groups, foreign and domestic. What impact does this legislation have on Web-surfers' privacy? The series will look at this and other contemporary instances in which new online technologies have increased the risk that intimate or private information about individuals can be collected, stored, sorted, manipulated, and disclosed. In addition, the series will examine the utility of current schemes to regulate these putative invasions in the name of privacy.

* Violence Against Women on the Internet
Building on her previous BOLD series on "Violence Against Women" in 2000, Diane Rosenfeld will lead a spring series with modules on such topics as "Music, Misogyny, and MP3," "Pornography on the Internet," "Cyberstalking," "Safety Planning for Domestic Victims on the Internet," and "Using the Internet as Political Organizing Tool for Women's Human Rights."

* Contemporary Islamic Legal Thought: Law, State, and World Order
This Harvard Law School course explores contemporary Islamic thought on the legitimacy of national and international legal orders; in other words, it reviews contemporary Islamic legal theories on the topics of legislation, constitution, legal system, nation-state, international relations, war, and world order with regard to both ideal objectives and actual conditions. While the course does not directly address the events of September 11 and thereafter until late in the seminar, one of its purposes is to enhance understanding of those events by illuminating one of the contexts—that of Islamic law—within which violent Islamist extremists claim justification for terrorist acts (falsely, according to most Muslims).

Details about the 2002 BOLD series, including the dates that the series will run and how to register to participate, are not yet finalized. However, you can sign up now for our BOLD email announcement list, which will keep you updated on all developments:


> Berkman Center to Complete ICT Assessment in Jamaica: In conjunction with its other projects in Jamaica, the Berkman Center is now completing field research on information and communication technology (ICT). Berkman Fellow Rohan Kariyawasam and research assistant Zorina Matthews, as part of an E-Readiness Assessment developed by IBM with Harvard's Kennedy School of Government, will shortly travel across the country from Montego Bay in the north to Kingston in the south, meeting with representatives from schools, technical colleges, universities, and business and government along the way.

In an effort to help bridge the digital divide by spreading the development of ICT, the Jamaican government is funding projects and working with international donor organizations. In the past two months Kariyawasam and Matthews have been assisted in their research by the Ministry of Commerce and Technology in Jamaica. They plan to return with video and audio interviews that will form a part of the E-Readiness Assessment, describing to what degree Jamaica has become part of the networked world.

> Tech Help Wanted: The Berkman Center is seeking a Senior Software Engineer for our H2O project to build free software that experiments with methods for encouraging educational collaboration on the Web. Follow the URL below for details.


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* The Big Ten


Chart identifying and detailing the holdings of the "Big Ten" media conglomerates, created by The Nation as part of a special media issue for a series focusing on the "National Entertainment State."

* Media Unspun


Remember "Media Grok," the award-winning Industry Standard daily e-newsletter that provided top-notch reporting and analysis of Internet industry news? We do, too. Now the Grok team is back with "Media Unspun"—the "indy" version of the original.

* O' Reilly Open Books Project


Online repository of out-of-print and open publication books by the good folks at O' Reilly & Associates.

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"The culture was built on desktop operating systems, it was built on putting all the control in the hands of the user...[then] they started selling software to enterprises, and enterprises said, 'Wait a minute, we don't want to put control in the hands of the user.'"

—John Pescatore, research director for Internet security at Gartner, on the (market) reasons why Microsoft now claims to be making security job #1.

      http://dailynews.yahoo.com/h/cn/20020117/tc/gates_security_is_top_priority_ 1.html

"Whoever released the code for the Internet probably didn't understand what they were doing."

—Bill Hoskins, who directs the Office of Technology and Licensing at the University of California at Berkeley, where computer scientists helped develop the open source version of Unix and TCP/IP that forms the backbone of the modern Internet.

      http://www.salon.com/tech/feature/2002/01/04/university_open_source/index.h tml?x

"I'd like to urge every company whose products are 'obsolete' to consider making them available under an open source license, or putting them in the public domain. While many of these contributions may go unnoticed and unused, they will enrich the soil of our collective commons."

—Tim O' Reilly, founder and president of O' Reilly & Associates publishing house, advocating the creation of a global, digital compost pile.


"I like to think of this as the Napster recession. If you plot the stock markets before September 11th, you can see that the crucial court rulings are almost like hinge points where the market bends up or down. The stock prices go up after a favorable ruling for Napster and drop afterwards...Until Napster crashed, everyone kept predicting more, bigger and better things for the humming space heaters under the desks."

—Peter Wayner, author of seven books on Internet technology and policy, in an interview he recently conducted with Stanford law professor Lawrence Lessig for Slashdot.org.


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

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Last updated

January 15, 2008