Educate, Then Legislate

Researching the policy debates surrounding SOPA I came across “Dear Internet: It’s No Longer OK to Not Know How Congress Works.” Clay Johnson, its author, posted it in response to “Dear Congress: It’s No Longer OK to Not Know How the Internet Works,” which rightfully criticized members of Congress for their wilfull ignorance of fundamental aspects of Internet architecture during debates on SOPA. Johnson’s point is that “online activists, the free culture crowd, and the pro-open and free Internet crowd needs to get a clue too. See — it’s just as important for us to understand how Congress works as it is for the Congress to understand how the Internet works. In Washington, those who ‘educate’ Congress the best usually end up with the winning legislation.” As a teacher this is what most interests me, helping students understand how policy is translated into legislation and other modes of regulation. I’m not talking about the mechanics of How a Bill Becomes a Law, but understanding that law is the manifestation of policy. The topic of tomorrow’s Internet law class is “Architecture, Values, and Regulation,” introducing students to Larry Lessig’s concept that with respect to the Internet, Code is Law. (Here’s Lessig’s 2000 article by that title in Harvard Magazine; he developed the concept most fully in Code v.2.) It’s not surprising that after years of being the foremost thinker about modes of Internet regulation Lessig turned his attention to how money, lobbying, and corporate influence affects how policy becomes law.

Stop SOPA

Here’s another NY Times Op-Ed, this one by Rebecca MacKinnon, titled Stop the Great Firewall of America. MacKinnon compares effects of the the proposed Stop Online Privacy Act–the Senate version is the Protect IP Act–to the Great Firewall of China, i.e. Chinese censorship of online content. These proposed laws would upend the DMCA notice-and-take down provisions that establish the ISP safe harbor from liability for copyrighted content and impose affirmative duties on ISPs to screen for unauthorized posting of copyrighted content. These are dangerous laws that would protect copyright at the expense of speech and other democratic principles.

Small Town Dirt, Served Fresh Daily

Small towns in rural America are putting their own spin on social networking: “they write and read startlingly negative posts, all cloaked in anonymity, about one another” on sites hosted by Topix such as Mountain Grove Forum.  The New York Times reports in “In Small Towns, Gossip Turns to the Web, and Turns Vicious” that

Topix, a site lightly trafficked in cities, enjoys a dedicated and growing following across the Ozarks, Appalachia and much of the rural South, establishing an unexpected niche in communities of a few hundred or few thousand people — particularly in what Chris Tolles, Topix’s chief executive, calls “the feud states.” One of the most heavily trafficked forums, he noted, is Pikeville, Ky., once the staging ground for the Hatfield and McCoy rivalry.

Anonymity, website immunity under federal law from liability for defamatory content created by third parties, and long-time social connections and population stasis of small towns combine to make online gossip popular, riveting, and divisive. And good business:

Topix said it received about 125,000 posts on any given day in forums for about 5,000 cities and towns. Unlike sites like Facebook, which requires users to give their real name, Topix users can pick different names for each post and are identified only by geography. About 9 percent are automatically screened out by software, based on offensive content like racial slurs; another 3 percent — mostly threats and “obvious libel,” Mr. Tolles said — are removed after people complain.

Bet he never shoveled his sidewalk, either

You know that neighbor who plays loud music too late, or hangs out with friends at 3 AM on his driveway beneath your bedroom, or who walks too loud on the floor above? Count your blessings.  This guy was worse: “WiFi-hacking neighbor from hell gets 18 years in prison.”  18 years is a long sentence for a first offense where there was no physical injury, but he deserved it.

I wonder how he’ll get on with his new neighbors in Cell Block D?

Stuxnet

I’m months behind the curve on the story of the Stuxnet virus that destroyed Iran’s nuclear-fuel processing capability, but this 13-minute PBS video provides an excellent summary of Stuxnet’s fascinating and disturbing combination of espionage, cyber-warfare, International politics, sci-fi, and network security.  (Thanks to YS, who tries to keep my brain from turning to mush over the summer.)

Nachas with Spam

No, nachas is not a feminine form of nachos.  NACHA.org is the electronic payment system, a legit organization, and it does NOT send individual emails with subject lines like “Rejected ACH transaction.”  Nacha.org spam has been around for a while; I encountered it today for the first time when Gmail flagged it.  I looked at the email because I made an electronic payment earlier today and thought it might be related.  The mail appears to be from NACHA.org but a link to a “transaction report” in a “self-extracting PDF file” inflamed my already-tingling spider sense.  A Google search confirmed it to be malware-installing spam. It’s bad stuff.

U.S. Online Gamblers Can Access Their Accounts

Ars Technica reports that federal government is allowing U.S. poker players to withdraw their accounts with the gambling websites targeted in last week’s indictment:

The government today announced an agreement with PokerStars and Full Tilt Poker under which it will return their domain names temporarily—so long as they agree not to allow US-based IP addresses to gamble for real money, and so long as they don’t allow any further US-based deposits.

Last night I had dinner with a friend who plays poker online.  He wondered how easy it would be to use a non-U.S. IP address to access poker sites–the indictments target the companies’ U.S. gambling operations, not their legitimate operations in other countries.  Ars Technica describes one U.S. player’s plan to evade the law by establishing a non-U.S. bank account and routing gambling access through non-U.S. channels. It’s not easy, and requires serious commitment to online poker.

Gambling Crackdown

Here’s a brief summary of last Friday’s federal government offensive against online gambling.

  • Federal prosecutors brought fraud and-money laundering charges against the three largest online poker sites: Full Tilt Poker, PokerStars, and Absolute Poker.  The government also seized their domain names, terminating their presence online–until they obtain another domain name.
  • All three sites are located outside the U.S.  Full Tilt is based in Alderney (an island in the English Channel and part of the U.K., ) PokerStars is on the Isle of Man, and Absolute Poker is in Costa Rica.
  • According to the Wall Street Journal online poker sites last year took in about $16 billion in wagers from about 1.8 million U.S. residents who play poker online.
  • The Unlawful Internet Gambling Enforcement Act of 2006 made it a crime for U.S. financial institutions to process payments for online gaming businesses.  The NY Times reports “[t]he online poker operators sought to avoid detection by banks and legal authorities by funneling payments through fictitious online businesses that purported to sell jewelry, golf balls and other items, according to the indictment. It says that when some banks processed the payments, they were unaware of the real nature of the business, but the site operators also bribed banks into accepting the payments.”
  • The legal environment is online poker is hardly clear.  Disagreement exists over whether poker and blackjack are even illegal under federal anti-gaming laws, since some argue they are games of skill, not chance.
  • The NY Times again:
    • “Prosecutors seemed to skirt the issue. They based parts of their prosecution on state laws in New York and elsewhere that prohibited unlicensed gambling, including poker. Legal experts said the prosecutors needed to rely on such prohibitions as a foundation for going after the claims of money laundering and fraud. But Mr. Walters [a lawyer whose clients include other online gaming sites]  said this strategy might face challenges. He said it was not clear that the state laws applied to foreign-based gambling operations, given that under federal law, international commerce was regulated at the federal level.”
  • According to the WS Journal the sudden enforcement action surprised the sites’ customers, quoting a professional poker player who said “we understood there were issues.  We never assumed there’d be some type of black-out overnight.”

Wrong Without a Remedy

My Internet law students recently read Facebook’s Terms of Service and Privacy Policy.  One lesson learned:  once a picture from one’s Facebook page is shared with others, neither Facebook nor the one who posted the picture can control its uses.   Facebook may be able to delete it from its servers–I’m dubious that it can do so reliably, but for this post I’ll resolve my doubts in Facebook’s favor–but if it is shared beyond Facebook, kiss control goodbye.  A NYTimes article makes the point with a gruesome example.  After Caroline Wimmer was murdered in her apartment Mark Musarella, one of the responding EMT’s, took a picture of her beaten and strangled body and posted it on his Facebook page.  Wimmer’s family learned of the photo through a reporter.  Musarella’s Facebook account was deleted by the time they looked for it–one of his Facebook friends reported the picture to his employer hospital, which fired him–but that did not end the family’s inquiry.  They hired a lawyer to track what happened to the picture while it was on Facebook.  “Facebook said it would provide the Wimmers with certain details about the activity on Mr. Musarella’s account, but only if he — the very man who had taken the picture of the dead woman and posted it for his world to see — signed a consent form. Facebook helpfully sent along a copy of the standard form.”  The Wimmers recently sued Facebook.  Not for money, but “to change things, so no other family members of a murdered person have to experience these things.”  I empathize with the Wimmers’ anguish and horror but this lawsuit is a nonstarter.  The website immunity provisions of Section 230 of the Communications Decency Act should relieve Facebook of any obligation to screen for or remove content such as this.

“Electronic Hickey”

This post’s title comes from a state prosecutor’s description of teenagers have naked pictures of boyfriends or girlfriends on their cell phones.  It is “an advertisement that you’re sexually active to a degree that gives you status. It’s an electronic hickey.”  The prosecutor is quoted in A Girl’s Nude Photo, and Altered Lives, an article from Sunday’s New York Times that discusses sexting.  The article focuses on Margarite, an 8th grade girl who send her then-boyfriend Isaiah a naked picture of herself.  Isaiah and Margarite broke up a few weeks later, and he forwarded the picture to a girl identified in the article only as Margarite’s “former friend”–“tough and strong-willed, determined to stand out as well as fit in.” Former Friend then forwarded the photo to her contact list with this message:  “Ho Alert! If you think this girl is a whore, then text this to all your friends.”  The quality of Margarite’s life deteriorated from there.  The photo spread throughout Margarite’s school, a school to which she transferred, and beyond.  School officials and police learned of the photo’s viral distribution and charged Isaiah and Former Friend with disseminating child pornography.   The prosecutor agreed to reduce and dismiss the charges if the three charged created public service messages about the dangers of sexting and met with Margarite to discuss what happened.  The article presents a broad view of the issues, noting that sexting is not illegal–the AARP (look it up, kids) has written of it approvingly–, and that the media presents teenagers with conflicting messages, wagging its finger about its dangers while winking at it through, for example, Megan Fox’s 2010 Superbowl ad for Motorola.