Phone Numbers, E-Mail Addresses, and Metaphor Wars
The law normally advances by small and cautious steps—by the gradual extension of established precedents and rules to novel problems and fact patterns. Little wonder, then, that tricky questions of law often amount to conflicts between competing metaphors. Is a hard drive like a closed briefcase whose contents are all fair game for police once the “container” is legitimately opened? Or is it more like a warehouse containing hundreds or thousands of individual closed containers? If the latter, what are the “containers”? Directories? Individual files?
A similar metaphor war figures in the FBI’s effort to expand its authority to acquire information from Internet Service Providers using National Security Letters, which are issued by agents without judicial oversight, and typically forbid providers from disclosing anything about the demand for records. The Bureau had long assumed that the NSL statutes gave them broad authority to get “electronic communications transaction records”—information about your online communications, though not the contents of the communications themselves—as long as they certified that those records would be “relevant” to a national security investigation, a far lower standard than the Fourth Amendment’s “probable cause.” But in a 2008 opinion, the Bush administration’s Office of Legal Counsel rejected this interpretation, finding that NSLs could only be used to obtain the particular types of records specified in the statute, including “toll billing records.” For Internet accounts, this meant the FBI could only get “information parallel to… toll billing records for ordinary telephone service.”
The obvious question is what, exactly, constitutes information “parallel to” a toll billing record in the online context. The FBI would prefer to resolve the ambiguity by simply amending the law to give them blanket authority to acquire transaction records. In particular, according to The Washington Post, government lawyers think they can obtain “the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history.” On its face, this sounds like a reasonable reading. An important 1979 Supreme Court case, Smith v. Maryland, held that the information contained in telephone “toll billing records”—the itemized list of calls placed and received you’d find on a standard phone bill—didn’t enjoy Fourth Amendment protection, and so unlike the contents of phone conversations themselves, could be obtained by the government without a full probable cause warrant. Surely the obvious equivalent in the online context is the list of e-mail addresses in an Internet user’s inbox and outbox? At a second glance, though, there are some problems with that metaphor, of two central kinds.
On Net Neutrality Regulation: Suppose Free Press Called a Crisis and Nobody Noticed?…
In the wake of today’s ruling in the D.C. Circuit that the FCC had exceeded its authority in attempting to regulate access to the Internet, I did a number of radio interviews and a radio debate with Derek Turner of Free Press, a leading advocate of Internet regulation.
The debate was a brief, fair exchange of views. I was struck, though, to hear Turner refer to the situation as a “crisis.” Sure enough, in a Free Press release, Turner says three times that the ruling creates a “crisis.”
Recall that in 2007 Comcast degraded the service it provided to a tiny group of customers using a bandwidth-hogging protocol called BitTorrent. Recall also that before the FCC acted, Comcast had stopped doing this, relenting to customer complaints, negative attention in news stories, and such.
In the wake of the D.C. Circuit ruling and the crisis it has created, Internet users can expect the following changes to their Internet service: None.
Wow. With crises like these, who needs tranquility?
“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites,” the release intones.
That would be worrisome, though still not quite a crisis—except that Comcast would be undercutting its own business by doing that. Did you know also that no federal regulation bars people from burning their furniture in the backyard? That’s the same kind of problem.
As Tim Lee points out in his paper, “The Durable Internet,” consumer pressures are likely in almost all cases to rein in undesirable ISP practices. Computer scientist Lee presents examples of how ownership of communications platforms does not imply control. If an ISP persists in maintaining a harmful practice contrary to consumer demand—and consumers can’t express their desires by switching to another service—we can talk then. The focus should be on increasing competition by freeing up spectrum and removing regulatory barriers.
In the meantime, this “crisis” has me slightly drowsy and eager to go outside and enjoy the spring sunshine.
Big Teacher Is Watching
Researching government invasions of privacy all day, I come across my fair share of incredibly creepy stories, but this one may just take the cake. A lawsuit alleges that the Lower Merion School District in suburban Pennsylvania used laptops issued to each student to spy on the kids at home by remotely and surreptitiously activating the webcam built into the bezel of each one. The horrified parents of one student apparently learned about this capability when their son was called in to the assistant principal’s office and accused of “inappropriate behavior while at home.” The evidence? A still photograph taken by the laptop camera in the student’s home.
I’ll admit, at first I was somewhat skeptical—if only because this kind of spying is in such flagrant violation of so many statutes that I thought surely one of the dozens of people involved in setting it up would have piped up and said: “You know, we could all go to jail for this.” But then one of the commenters over at Boing Boing reminded me that I’d seen something like this before, in a clip from Frontline documentary about the use of technology in one Bronx school. Scroll ahead to 4:37 and you’ll see a school administrator explain how he can monitor what the kids are up to on their laptops in class. When he sees students using the built-in Photo Booth software to check their hair instead of paying attention, he remotely triggers it to snap a picture, then laughs as the kids realize they’re under observation and scurry back to approved activities.
I’ll admit, when I first saw that documentary—it aired this past summer—that scene didn’t especially jump out at me. The kids were, after all, in class, where we expect them to be under the teacher’s watchful eye most of the time anyway. The now obvious question, of course, is: What prevents someone from activating precisely the same monitoring software when the kids take the laptops home, provided they’re still connected to the Internet? Still more chilling: What use is being made of these capabilities by administrators who know better than to disclose their extracurricular surveillance to the students? Are we confident that none of these schools employ anyone who might succumb to the temptation to check in on teenagers getting out of the shower in the morning? How would we ever know?
Consumer Protection for Intellectuals
Nate Anderson at Ars Technica has a good write-up of the New America Foundation’s interesting proposal for labeling of broadband services, something akin to the nutrition labels we have for food.
Labeling and disclosure are better than direct regulation of the terms on which goods and services can be sold, of course. Labeling does not presume to decide unalterably what factors are or will be the most salient to consumers. But it does seek to channel those interests, and it does presume that consumers discover information that is important to them via labels. (I dealt with some of these concepts in my recent post about privacy notices.)
What labeling is really about, I believe, is pushing consumers to focus on the terms that intellectuals believe are most interesting. Smart people’s interests often match up with everyone else’s, but not always. Anderson’s write-up wonders aloud “whether requiring disclosure of the ‘maximum round-trip latency to border router’ will do more than induce eye glaze among most broadband users.”
I want my ISP to give me a live tech-support person that can solve the problem with my wifi router, but that didn’t make it into New America’s labeling plan. Any labeling plan will likely be either overinclusive or underinclusive or both, obscuring and omitting the most relevant information.
Yes, labeling is “market-friendlier” than regulation dictating what broadband providers can and can’t offer. But if we believe that markets discover the dimensions of goods and services that are salient to consumers, we can also believe that markets discover what information consumers want, and how they best learn it.
Is This Intervention Necessary?
So asks the Washington Post in a cogent editorial about FCC Chairman Jules Genachowski’s speech proposing to regulate the terms on which broadband service is provided. (More from TLJ, Julian Sanchez, and me.) The WaPo piece nicely dismantles the few incidents and arguments that underlie Genachowski’s call for regulation.
As the debate about “‘net neutrality” regulation continues, I imagine it will move from principled arguments, such as whether the government should control communications infrastructure, to practical ones: Will limitations on ISPs’ ability to manage their networks cause Internet brown-outs and failures? (This is what Comcast was trying to avoid when it ham-handedly degraded the use of the BitTorrent protocol on its network.) Will regulation bar ISPs from shifting costs to heavy users, cause individual consumers to pay more, and hasten a move from all-you-can-eat to metered Internet service? We’ll have much to discuss.
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