The Justice Department sure doesn't like oversight -- even when it's required by law. Julian Sanchez points us to the disturbing news that, despite being required by law to report to Congress each year on "the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice," it appears that for many years the Attorney General has delivered no such report. This has happened before as well. In 2004, the Justice Department dumped five years worth of reports on Congress, and it appears it did so again in 2009. Meaning that Congress did not get the interim annual reports. That would mean that for five year periods, Congress -- who is supposed to be overseeing such surveillance activity -- has not been doing its job, effectively allowing the Justice Department to do what it wants with such surveillance efforts. And, remember, this is a Justice Department that has already been found to have massively abused surveillance activity beyond what the law allows. Doesn't that make you feel safer?

Just a couple weeks ago, I received a ridiculous PR pitch from the entertainment industry lobbying group Arts+Labs, suggesting that a story that "hasn't really gotten the attention it deserves" is the "threat" from P2P software being used to "expose private documents to the world." The PR guy offered to help walk me through the process of downloading Limewire and finding such "exposed documents." Of course, what the PR guy left out is the reason this story hasn't received that much attention: because it's a bogus story that's been debunked for years -- but it's a favorite of the entertainment industry and its lobbyists in trying to come up with any reason to get Congress to issue laws against file sharing software.

However, it was obvious that this PR campaign was a setup: something bigger was underway... and, indeed, now we find out that these entertainment industry lobbyists have had a chance to bubble up yet again this silly idea to Congress, leading to yet another investigation of file sharing services, with a specific focus on Limewire. Of course, we did this already. Two years ago, there was a bunch of grandstanding in Congress against Limewire because some gov't officials had leaked documents possibly (though, not definitely) via Limewire. But, of course, the target was wrong. It wasn't Limewire that was the problem, it was government employees being stupid and setting up private government documents in their shared folders and poor government computer security systems that allowed this to happen. But rather than blame bad gov't computer security or clueless users, the government set upon Limewire as the problem (encouraged, of course, by the entertainment industry's lobbyists).

The PR campaign and the Congressional investigation didn't happen in the same month by accident. You can pretty much assume that the whole effort was orchestrated by these lobbyists as yet another misguided attack on file sharing software, playing up the ridiculous idea that it's the software that's responsible for people leaking documents, rather than user stupidity and bad security.

It's nice to see some in the mainstream press not fall for this bogus story. The LA Times notes how pointless this effort is, pointing out how the whole thing is misguided, and accurately noting:

Perhaps the real motive here is to find grounds to ban the software outright, which would please Hollywood but wouldn't solve the problem.

Of course, not all mainstream publications bothered to figure that out. Five days after Arts+Labs pitched me on the "Limewire-is-a-security-leak-problem" story, the WSJ published exactly that story, including (of course!) a quote from Arts+Labs, and no quotes from anyone who would point out what a made up story it is, and how it's been planted by the entertainment industry in an effort to create a moral panic against P2P software. I thought the mainstream press was supposed to be where real journalists did their homework rather than just parroting the story lobbyists hand them?

FCC boss Kevin Martin is nearing the end of his tenure at the FCC, looking ready to jump into a lucrative industry job or (some have speculated) explore the possibility of running for elected office. We've been among his many critics over the year -- specifically for his rather blatant efforts to side with the telcos, even when his views are exactly the opposite for telcos when compared to cable companies. The worst, however, may have been his awkward attempt to not just bury an analysis that showed that a la carte cable would be more expensive -- but to come out with a totally different report claiming the opposite.

Congress has now released a report slamming Martin for widespread abuses of power during his chairmanship, noting his efforts to force the FCC to bury the original report and publish the new report. He ordered the group to rewrite the report with the opposite findings and demoted the guy who wrote the original report. The Congressional report also noted that Martin had failed to properly oversee various telco slushfunds. You know all those extra "fees" the telcos charge? Basically it all goes into a big fund controlled by the telcos (not the gov't) with almost no oversight. The Congressional report specifically dings Martin for his oversight (or lack thereof) of the Telecommunications Relay Service Fund. Apparently, Martin ignored plenty of evidence that the telcos were overcharging, and let them just keep collecting. And, on top of that the FCC did little to actually audit the program.

It's also worth noting that Congress decided to release the report without holding hearings, noting: "due to the climate of fear that pervades the FCC...we found that key witnesses were unwilling to testify or even to have their names become known." Good thing they got that figured out just about a month before he's leaving office...

Last month, I posted how cool it was that Republican Congressman John Culberson was really using Twitter to communicate with people. It was a great use of the technology. However, today he's been using Twitter to ignite a totally misguided partisan war, pretending (falsely) that Democrats are trying to prevent him from using Twitter. First, he announced on Twitter that "the Dems are trying to censor Congressmen's ability to use Twitter" claiming that "They want to require prior approval of all posts to any public social media/internet/www site by any member of Congress!!!" Fascinating, and troubling, if true, but it's not actually true.

The actual issue is one that we discussed a few months back. Existing House rules actually forbid members of Congress from posting "official communications" on other sites. This was first noticed by a first-term Congressman who was worried that posting videos on YouTube violated this rule. Other Congressional Reps told him to not worry about it as everyone ignored that rule, and no one would get in trouble for using various social media sites such as YouTube. However, that Congressman pushed forward, and eventually got Congress to act. Of course, rather than fixing the real problem (preventing Reps from posting on social media sites), they simply asked YouTube to allow Reps to post videos in a "non-commercial manner." YouTube agreed, and that was that.

However, the existing rules still stood. Culberson's complaint stems for a letter (pdf) sent by Democratic Rep. Michael Capuano, suggesting that the rules actually be changed to be loosened to deal with this situation and make it easier to post content on various social media sites. Culberson, however, bizarrely claims that this is the Democrats trying to limit what he can say on Twitter. But that's actually not at all what the letter states. The problem isn't this letter, but the existing rules that are already in place. In fact, based on the letter, it would appear that this would make it possible for Congressional Reps to Twitter, so long as their bio made it clear they were Reps.

A bunch of people tried to understand this, and even I asked him to clarify why the problem was with this new letter, as opposed to the existing rules. His response did not address the question at all -- but rather was the identical response he sent to dozens of people who questioned his claims. He notes that based on the letter, each Twitter message must meet "existing content rules and regulations." Indeed, but the problem is that's already true based on those existing content rules and regulations. The problem isn't this new effort, but those existing rules and regulations, which mean that his existing Twitter messages violated the rules.

It's really disappointing to see someone who had embraced the technology use it to try to whip up Twitter users into a frenzy, while misleading them to do so -- and then not using the tools to respond to actual criticisms. The problem here is that the existing rules for Reps is problematic. It's not this new effort to loosen the rules, other than in the fact that the loosening of the rules might not go far enough. That's not, as Culberson claims, an attempt to censor him on Twitter, but simply an attempt to loosen the rules with a focus on YouTube and (most likely) with an ignorance of the fact that Twitter even exists.

Late last year, the FCC decided to relax media ownership rules in a really minor way. Basically, with the FCC ruling, a newspaper could purchase an also-ran TV station. It could only buy a station that wasn't in the top 4 in the market. Yet, this got people up in arms over some nefarious "media consolidation" claims. Yet, these claims make no sense. There are more media outlets than ever before in history, and there are more ways and more sources to get your news from than ever before in history. Yes, many of them are online, but that doesn't change the fact that they exist. But apparently, the Senate is unaware of that. It has started a process to invalidate the FCC's changes, claiming that it's "not healthy for this country" to only have a few major media outlets. That might be a point worth debating if it were true, but it's not. Meanwhile, no one's explained what's so problematic about a newspaper company owning a TV station at the same time. Considering that it only applies to 5th ranked or beyond TV stations, it's not as if it will somehow block out the voices from other stations.

The FBI, which still can't even get its own computer network working properly, would rather just have more widespread access to spy on the computer network everyone else uses: the internet. Talking to Congress today, the FBI proposed a few different things, including the right to more widely spy on internet activity as well as legislation to force ISPs to retain log file data for an extended period of time. While the Congressional reps in attendance seemed to respond by saying "sure, sounds great" to both of these suggestion, both should actually be looked at much more closely.

More freedom to spy on internet usage potentially violates the 4th Amendment as well as federal wiretap laws. Given the evidence that the FBI has widely abused its ability to wiretap, this should be a major concern. As for data retention, problems with such an idea have been chronicled for years. It tends to put a tremendous expense on ISPs for no real reason -- and it tends to make it even harder to find the type of data authorities actually need to deal with criminal activities. If you're in the FBI, it's no surprise that you'd want both things in place, but that hardly means Congress should roll over and give them to the FBI.

We've already explained why Google's actions in the recent 700 MHz spectrum auction wasn't "fleecing" taxpayers as some lobbyists had contended. Yet, it appears that the lobbying has been effective. A set of Congressional representatives have started asking whether or not Google gamed the system. This is a pretty bizarre claim against a company that put up $4.6 billion in an auction and was then outbid. Clearly, in putting up the bid, there was a chance that Google could have won and had to pay the $4.6 billion. There's no rule that Google had to keep bidding. The company stopped at the point at which it was comfortable bidding. Of course, it will probably surprise no one that if you look at the top campaign contributor to all 3 representatives attacking Google's actions, you'll notice a pattern (in the letters A, T and T). Check it out for yourself. There's Fred Upton, Cliff Stearns and John Shimkus. You think that had something to do with their opinion on the spectrum auction process? Nah...

Following a second year of stories about the NFL stopping churches from throwing Superbowl parties if they have TV screens larger than 55", it appears that some folks in Congress are stepping up to create an exception in copyright law for "houses of worship." For everyone else, the 55" limit would prevail, but churches would now be allowed to show "The Big Game" without worrying about copyright infringement charges. It's not clear why churches deserve an exemption to this law (or why the 55" limit is in the law in the first place), but don't expect that to stop politicians from jumping on a popular bandwagon issue.

Still, it's fun to watch people who clearly have no understanding of what's going on weigh in on the topic -- sometimes in well known publications. Witness a columnist for the Boston Herald who is upset about the proposed change, but for the wrong reasons. First, he appears to not understand the difference between copyright and trademark, claiming that the NFL has to enforce its copyright or it will lose it (that would actually be trademark, but who's fact checking?). He then goes on to state that "the copyrights are private property, and the league has every right within the law to profit from that property." Indeed, but banning 55" screens doesn't prevent the NFL's right to profit. In fact, this gets even more ridiculous when the guy says: "To have the government in effect confiscate that property to benefit religious institutions seems a very worrisome precedent." Wait, and having the government in effect determine the maximum size of a private TV isn't a worrisome precedent?

While Congress' new bill on education funding may not be as bad as some are making it out to be, it still seems quite questionable that Congress appears to be regulating the idea that universities need to do the kind of marketing and educational campaigns that the recording industry cannot. We've asked supporters of the bill to explain how it could possibly make sense to mandate such things, and the MPAA's top lawyer, Fritz Attaway, has given his answer, claiming that it's because the internet is "used primarily to allow college students to traffic in infringing content," while being subsidized by gov't funds. It would be nice if Attaway or someone else at the MPAA could actually back up the claim that the primary use of the internet by students is infringement. While I wouldn't doubt that it's a popular use, to say that it's the primary use is hard to believe -- unless you count things like visiting Facebook pages, using Google and sending emails as "infringement." At the same time, this doesn't seem to support the reasons for this bill. After all, many kids on college campuses own cars -- and I'd imagine that most of those students break the speed limit frequently enough. Yet, we don't see any bills being proposed in Congress that would prevent financial aid funding unless universities start handing out more speeding tickets and put in place plans to offer public transportation. So why should they do that for copyright infringement?

Last night, the Senate Judiciary Committee approved wiretapping legislation. There's been quite a bit of confusion around the web about how the committee handled the most contentious issue: whether to grant telecom companies retroactive blanket immunity for violating their customers' privacy. It appears that after an effort to strip out the immunity language failed, the committee only referred part of the legislation out of committee, leaving the immunity provisions in limbo. The net effect will be to leave the issue to be decided by the full Senate, where we can be sure someone will offer an blanket immunity amendment. Sen. Specter, who is the leading Republican on the committee and has occasionally been critical of the Bush administration's civil liberties record, is apparently intending to offer a "compromise" that would have the government take the place of AT&T and Verizon in the privacy lawsuits now pending against them. Frankly, I have trouble seeing how this is a compromise. The problem with granting immunity liability is that it undermines the whole point of the fines, which is to give the companies an incentive to obey the law. If the government takes the telecom companies' place in the lawsuit, that saves them from paying any real penalty for breaking the law. As a result, they'll have no incentive to say no next time the executive branch asks them to do something illegal. If Congress wants the telecom industry to take the laws it writes seriously, then it has to insist that companies pay the penalty when they break them. Meanwhile, the House approved wiretapping legislation without an immunity clause. And the White House, for its part, has vowed to veto any legislation that doesn't include a get-out-of-jail-free card for the AT&T and Verizon. So there will almost certainly be a showdown, either between the House and the Senate, or between Congress and the White House.