Derek Khanna's Favorite Techdirt Posts Of The Week

Techdirt

from the the-civil-liberties-edition dept

It’s a pleasure to write about my favorite Techdirt posts of the week. I have been a longtime fan of Techdirt and can attest that the small tech literate crowd (yes it exists) on Capitol Hill are also avid readers. I was the Capitol Hill staffer who worked for House Republicans and authored the report on copyright reform (Techdirt article). As of January 6, 2013, I no longer work on Capitol Hill but am still involved in many technology issues, currently spearheading some of the advocacy on unlocking cellphones.

Techdirt was quite a resource when we were fighting SOPA — at the time I worked for Senator Scott Brown who came out against SOPA and Techdirt provided timely and accessible commentary on SOPA and other technology issues. Near the beginning of that fight, when it was called COICA, the content industry came to visit us with Senator Scott Brown and it was presented to us for the first time. They presented it as a relatively simple bill that that would, “. . .end online piracy by blocking the URL.” My response at the time was, “Wait at the DNS level? But can’t you just type in the IP address?” Immediately, it was clear that this legislation was highly problematic as it would amount to censorship and that it would be extremely ineffective. At the time, I wrote a 20 page internal memo for our office on how terrible COICA was. In my research at the very beginning, there were few articles on this topic, but Techdirt had a number of valuable resources even when it was COICA before it became SOPA/PIPA. This timeliness was critical, and I’m not the only one who has used Techdirt as such as resource.

It’s a common — and unfortunately effective — tactic in Washington, DC to make an issue seem more complicated than it is to intimidate dissenting voices. This is particularly true on intellectual property laws. While there is surely complexity in IP issues, complexity for complexity’s sake is not productive, and I appreciate that Techdirt can take complicated and even academic arguments and distill them to an audience who may not have time to read the literature in depth — but may be presented with some of these arguments for the first time.

So with that, I will turn to the stories of the week. This week Techdirt continues to detail how some of our laws affecting technology have run amok impairing both the market and our civil liberties.

First, Masnick’s piece on unlocking cellphones, now being presumably illegal, was spot on, and his further coverage of the ongoing advocacy movement to reverse this situation was a great read. This is an issue that I’m personally involved with as I wrote the major article on this issue over at the Atlantic and the petition creator and I wrote a follow-up article detailing how his company was shut down as a result of unlocking cellphones becoming illegal.

Masnick rightfully explains that, “While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that’s not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough.” Many people appear to agree.

The petition we have been spearheading now has over 69,000 signatures but will need Techdirt readers help to get over 100,000. This is a clearly an issue that has engaged a lot of people who believe in basic property rights and that they should be able to unlock their own cellphones. The first piece in the Atlantic got over a million hits and was number 1 on Reddit.

Techdirt also detailed Public Knowledge’s submitted question on this issue for President Obama’s Hangout yesterday. Despite being the 8th most popular question it was not asked (however, bloggers found time to ask President Obama to help name their child).

Like other articles by Techdirt this week — such as the piece on the DMCA being used to impair mechanics repairing your car — the unlocking issue highlights how while the DMCA was created and passed to safeguard copyright it has been used for radically divergent purposes. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it’s clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, its incumbent upon Congress to act. My article explains: “Congress’s inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD’s to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.”

If you agree, I hope you will also sign the petition and get us over 100,000.

Second, I’m going to have to slightly break the rules of posts of the week and suggest that everyone watch the Copyright Explained PandoHouse Rock video — which is pretty terrific but technically was from last Friday.

Third, the piece on the impact of the three strikes law in France: Three Strikes May Decrease File Sharing, But if Sales Keep Dropping, Who Cares. It details how, “The latest data out of France shows that, despite Hadopi (the administrators of the 3 strikes program) claiming some sort of victory because stats on file sharing are down, the bigger issue is that the sale of recorded music keeps declining.”

This piece is particularly fascinating, because inside the Beltway the threat of piracy is often used as the problem requiring invasive solutions. The argument goes, rampant piracy causes content industries to lose lots of money, therefore we have to restrict individual freedom with x or extend copyright even further, etc. I personally have problems with this argument, but the data from France demonstrates how even with file sharing declining, it isn’t solving the content industry’s problem. It will be fascinating to see if this data is consistent with data in other countries as well.

Fourth, Masnick’s newest piece on border searches is a bit scary: Homeland Security: Not Searching Your Laptop Doesn’t Benefit Your Civil Liberties, So We Can Do It. Because of how crazy many laws are in application to modern technology, many of us are accidentally committing relatively trivial violations of the law on a regular basis. In a world where all of our technology can be searched at the border this should be disturbing. For example, some courts have held that simply violating the terms of service on a website is a violation of the law, and of course we have all likely done that (until recently ToS at Google prohibited minors from using Google). Today unlocking your phone and jailbreaking an iPad are illegal. In a world where most average Americans have violated these and other laws, and our laptops, phones and tablets have “evidence of these violations” and are searchable without reasonable suspicion because we are crossing the border, that’s a precarious place to be. And it doesn’t seem to advance any form of national security benefit either as the searches are not limited in scope. The statement that Masnick highlighted by the DHS is particularly troubling:

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

Believing that there is no benefit for our civil liberties by requiring reasonable suspicion is truly dangerous thinking. In a world where transfer speeds continue to increase, with no reasonable suspicion requirement, what would stop the government from a dragnet that backs-up and searches the files of every device that crosses the border? It’d be interesting to see, if your device is searched in this manner and it’s encrypted, if you could be required to provide the encryption key — which is a major ongoing legal issue but in a different context in border searches.

Overall a terrific week of timely and insightful coverage. And I didn’t get to mention coverage on CISPA’s expected reintroduction and the Cyber Executive Order. As for me, I’m going to be continuing to advocate for sensible changes in technology policy. Feel free to follow me @Dkhanna11.