Yesterday was an excellent example of what makes the Anti-Spyware Coalition’s Public Workshops so exciting for members of the Anti-Spyware industry and the other organizations impacted by spyware. The ASC hosted its third Public Workshop at Harvard University Law School, in conjunction with the Berkman Center for Internet and Society and StopBadware.org.

Steve Gibson offered a morning keynote to start the day off. He talked about how he came into the anti-spyware business, and what he saw as the inherent problems in modern network security. Steve also sat on the first panel of the day, which continued to explore the current state of spyware and malware and the fight against it.

Chris Boyd (aka paperghost) of vitalsecurity.org and FaceTime Communications, joined fellow spyware fighters from Earthlink and CAUCE to discuss the various international threats that they have been picking up recently in the second panel of the morning.

Over lunch, Cindy Southworth of the National Network to End Domestic Violence put a very real face on what can sometimes become a very academic discussion by conducting an informal chat with a survivor of domestic abuse whose abuser used various forms of spyware to track her.

In the afternoon, two more panels offered insights into the less technical side of the issue. John Palfrey of the Berkman Center, Ari Schwartz from CDT and Tracy Shapiro from the Federal Trade Commission had an in depth discussion of the current laws, both national and state, and the current bills that are moving through the US Congress.

Finally, representatives from some of the larger anti-spyware filtering, white-listing and black-listing efforts took to the stage to discuss non-software approaches to combating spyware. TrustE, StopBadware, SiteAdvisor and Google each talked about the work they’re doing to combat spyware by informing the user about the content they’re downloading, before they download it. An interesting discussion of user education ensued.

StopBadware and paperghost blogged the event, and Harvard video recorded the day. Keep an eye on the ASC website to see the video in the near future.

We were thrilled this week when the editors at PC World named PolicyBeta among the “100 Blogs We Love,” citing it as one of their favorite policy blogs. It’s true, as they note, that we’ve been involved with these issues for an awfully long time, but we’re still pretty new to the blogosphere, so its exciting to be honored by such a prestigious national publication.

In fact, it was only a little more than a year ago that we launched PolicyBeta as part of an effort to expand our ongoing discussion of the critical policy issues affecting civil liberties and democratic values on the Internet. A little more than a year, and well over 100 posts later, we’ve been extremely gratified to witness our readership grow with each passing month.

Thanks to the editors at PC World for recognizing us and thanks to all of those who’ve visited over the past year. We look forward to many more years of discussing digital policy in process.

It was 10 years ago today that the Supreme Court officially recognized the Internet as a unique medium for democratic communication when it ruled that online speech was entitled to the highest protection possible under the First Amendment.

That CDT was able to play such a critical role in winning that decision remains one of our proudest moments. In the years since the high court found the Communications Decency Act to be unconstitutional, the landmark decision in the case of ACLU v. Reno has often been referred to as the Internet Bill of Rights.

What is beyond dispute is that that decision paved the way for 10 years of unprecedented innovation on the Internet. The blogosphere, social networking, online grassroots political organization — things we take for granted in 2007 — are built on the foundation of online free expression established in 1997. A decade ago, we believed that the Internet would evolve to become the most revolutionary communications medium since the printing press, creating a new world in which the “marketplace of ideas” promised by the First Amendment would become a tangible reality. Today, thanks in great part to that landmark ruling, we are living that vision.

This vision of the free and open Internet that we fought for is once again under strain from technological and regulatory forces in the United States and abroad. New questions will test the resolve of those who have defended the Internet since its advent as a mass medium.

Are we going to keep the Internet open; a network without gatekeepers; a network where many communicate with many on equal footing; or will we move toward a model where a fewer and fewer providers exert greater and greater control — in turn making this dynamic medium more restricted and subject to intrusive regulation?

Will international efforts to censor content create ripple effects that are felt throughout the Internet? Or will restrictive laws in developing nations lead to a balkanized Internet in which the global reach of the medium is severely undermined?

The good news is that the powerful coalition of public interest advocates, librarians, academics and high-tech industry leaders that have supported the free and open Internet remains resolute and committed to protecting the medium for future generations. For CDT’s part, we will continue to meet these challenges wherever they arise and look forward to many more decades of revolutionary growth.

At a few minutes after 10 a.m. on June 26, 1997 – ten years ago today – I was in the “Lawyers Lounge” of the U.S. Supreme Court listening to the live audio of the Court’s announcement of the days’ decisions. We did not know for sure whether the Court would issue its decision in the Reno v. ACLU case against the Communications Decency Act (CDA), but it was very late in the term and so a decision was likely. I had chosen not to go into the courtroom itself because I knew that I needed to run out as soon as the decision was announced.

At the time I was a partner in the Jenner & Block law firm. The Center for Democracy & Technology, along with the American Library Association and America Online, had in January 1996 formed the “Citizens Internet Empowerment Coalition” to challenge the just-passed CDA, and had hired my firm to handle the case. The ACLU had already filed a legal challenge to the CDA, but the “CIEC” coalition wanted to file a second lawsuit, one that was focused on the serious threat to the Internet itself that the CDA posed. Jerry Berman and the folks at CDT had put together an impressive group of plaintiffs — led by the librarians and AOL, and joined by other national trade associations and a range of tech companies like Microsoft, CompuServe, Apple Computers, and others. My law firm partners — Bruce Ennis and Ann Kappler — and I worked side-by-side with the ACLU’s legal team during the very intense discovery and evidentiary hearing in Philadelphia during February to May of 1996. Bruce, who was one of the best Supreme Court advocates ever (and who sadly passed away a few years ago), argued the case to the Justices on behalf of both the CIEC and ACLU plaintiffs.

Before the Supreme Court’s decision came down that day ten years ago, I had made special arrangements with the Court’s Clerk and Press Office to get an electronic copy of the Court’s decision as soon as the Court announced it. At the time, the Supreme Court did not have a web site, and Supreme Court decisions were not posted to the Net when they were issued.

Back in the Lawyers Lounge that morning, I heard Justice Stevens begin to summarize the Court’s decision striking down the CDA — issuing what I now believe to be the most important First Amendment case for the 21st Century. I immediately ran downstairs to the Press Office, was handed a floppy disk with the decision, and ran outside to meet up with Jonah Seiger of CDT, who was waiting on the steps of the Court with two laptops. On one laptop, I loaded the WordPerfect file and quickly converted it to a plain text file, while Jonah used the other laptop to connect to the Internet using the old Ricochet wireless network. I handed Jonah a floppy with the converted file, and he posted the decision to the CIEC coalition web site. We got the decision up on the Internet within about ten minutes of the Court’s announcement of the decision — the first time ever that a Supreme Court decision had been made available to the world right after it was announced. Now, thankfully, the Court posts its decisions itself, without any running around or trading of floppies between two laptops.

Much has been written about the CDA decision and its importance to the fostering of the amazing diversity of content available on the Internet today. But on a wholly personal level for me, the CDA case was a very significant event. It is safe to say that it is, and will be, the most important case of my legal career — a case that perfectly combined my prior First Amendment experience with my involvement with computers (and later the Internet) that dates back to 1971. It also is how I first got to know Jerry, Jonah, Danny Weitzner, and the other staffers at CDT. I was impressed by them, and by the approach that CDT takes to policy issues, and so I was very happy in 2001 to come over to join CDT’s staff. Unfortunately, the threats to online free speech today are even more diverse than what we faced ten years ago, and so it is likely that we will be fully employed for years to come.

The Senate Judiciary Committee on Thursday is expected to decide whether to give subpoena authority to Chairman Patrick Leahy (D-VT) so that he can deepen the congressional investigation into the administration’s warrantless wiretapping of Americans.

We held a press briefing here earlier today to discuss the warrantless surveillance program(s), the subpoena process and the status of the administration’s proposal to legalize warrantless surveillance on Americans. In anticipation of possible subpoenas, we also released our lists of the “Most Wanted Documents” and the “Most Wanted Answers” relating to the warrantless wiretapping program.

CDT has long maintained that Congress needs to learn the scope and nature of the warrantless surveillance activities that have been conducted in the wake of September 11, 2001 before it can even begin to consider rewriting the law designed to prevent innocent Americans from being swept up in investigative dragnets. By asking the right questions and obtaining the documents that the administration considered in creating the program, Congress can finally understand how that surveillance impacted the privacy rights of Americans.

Earlier this week we submitted the first of what we hope will become a regular series of columns about technology policy for ABC News’ excellent technology page. CDT Executive Director Leslie Harris wrote our first submission about the upcoming FCC airwave auction.

As we said in our comments to the Federal Communications Commission, we believe that a substantial portion of the soon-to-be-available public airwaves should be allocated to promote new competitive alternatives for general-purpose broadband Internet service.

The FCC is facing a momentous decision over what to do with valuable wireless spectrum in the 700 MHz band that is being returned by broadcasters as part of the switch from analog to digital television signals. CDT believes that allocating substantial spectrum to broadband with preconditions for neutrality and wholesale access will be the best way to foster competition and innovation on the newly available airwaves. We encourage everyone to read the whole article, and we’ll keep you updated about future submissions.

CDT on Friday joined with a substantial group of public interest advocates and industry associations — from EFF to the U.S. Telecom Association and many others — in filing a brief in the federal appeal concerning Cablevision’s plan to deploy a “remote digital video recorder” service. The service would act just like a TiVo or other DVR device, except that it would store recorded programs on a server at a remote location instead of on a hard drive inside a small black box sitting next to the consumer’s television. But a lower court held that Cablevision can’t deploy the service because it would violate copyright.

Hopefully the participation of so many signatories on the brief will send a message to the court that there’s more at stake here than just the fate of a particular DVR product. The lower court’s decision in this case runs roughshod over the important distinction between a person who makes a copy himself and a person who provides the means — say, a xerox machine or a VCR — for someone else to make a copy. That may sound technical, but it’s an important distinction. Those who offer machines or services with perfectly lawful uses shouldn’t be on the hook every time someone uses them in an illegal way. Unfortunately, the lower court’s decision implies that this key principle of copyright law shouldn’t apply to modern services that deliver some capabilities remotely.

That kind of remote capability isn’t some kind of rare quirk. We’re living in a networked world. Services and devices of all kinds will connect to and be offered over the Internet, with little regard for geography. So there is no reason that the law should fixate on the physical location of the machines used to deliver a service. Location really isn’t important; liability for a machine that uses remote components connected by the network should be evaluated under the same principles that apply to any other machine with copying capabilities.

So the precedent here is important. With any luck, the court will see the serious implications of the decision below and reject its flawed reasoning. Check out our Policy Post from April for further details on this critical case.

On June 4th, the Second Circuit federal appeals court issued a brilliant opinion that called into question the FCC’s constitutional authority to regulate indecent but otherwise legal speech uttered on broadcast programs. CDT filed an amicus brief in support of the networks in the case of Fox Television v. FCC in which we argued that technological advancements and convergence have eroded the basis of the commission’s authority to regulate broadcast content. We had hoped for a simple footnote acknowledging this point. Instead, we were thrilled that the Court of Appeals indulged in nine pages of discussion of this point, laying the foundation for a new breed of challenges to FCC censorship.

Since 1978, the Supreme Court has permitted the FCC to regulate “indecent” speech uttered over the airwaves. While indecent speech is generally protected by the First Amendment, the Court had found that the broadcast medium is uniquely pervasive in that it extends into the privacy of the home and is easily accessible to children. Thus, in FCC v. Pacifica Foundation, the Court agreed with the FCC that it had the constitutional authority to punish Pacifica for broadcasting George Carlin’s “Filthy Words” monologue in which he repeatedly uttered seven expletives within a 12-minute show that aired at 2:00 in the afternoon.

The Fox case centered on “fleeting expletives” — that is, swear words that are uttered once, rather than repeatedly. At the 2002 Billboard music awards, Cher responded to her critics with a single expletive. Similar incidents were repeated by other televised speakers at the 2003 Billboard Music awards, in various episodes of NYPD Blue, and on CBS’s The Early Show. The FCC had found all of these utterances indecent. The Second Circuit, however, held that the FCC’s decision was arbitrary and capricious under the Administrative Procedure Act (APA). The Court noted that the FCC — up until quite recently — had a policy that unrepeated swear words were not indecent. The Court held that the FCC violated the APA because it made an about-face in policy without sufficient justification, and remanded the case back to the agency to come up with a reasoned explanation for its policy change. While CDT supports this holding, it was not the best part of the opinion.

The Second Circuit went on to make several observations that supported the Court’s skepticism that the FCC will ever be able to “provide a reasoned explanation for its ‘fleeting expletives’ regime that would pass constitutional muster.” Most importantly, the Court said “technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.”

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Congress is back from its spring recess and the hot topic for debate is immigration reform (S. 1348). While the public debate has been focusing on guest worker programs and border fences, a small but important component of the proposed legislation has been overlooked: the immigration bill’s mandate that all potential employees present a REAL ID card before they can work. The immigration bill that is currently being considered by Congress requires all American citizens and qualified aliens to prove that they are authorized to work in this country. For U.S. citizens, this means that they must present either a passport, or a REAL ID driver’s license/state identification card plus a Social Security Card. Moreover, the bill requires employers to copy and store these highly valuable personal documents.

CDT strongly opposes the immigration bill’s REAL ID mandate. This is precisely the sort of mission creep that we have been concerned about since the beginning of the REAL ID debate. The Department of Homeland Security’s proposed regulations to implement the REAL ID Act appropriately limit the required uses for the REAL ID card to those specifically called out in the statute: accessing federal facilities, boarding federally regulated commercial aircraft, and entering nuclear power plants. Yet the immigration bill mandates a fourth use, and there are proposals being put forth to mandate additional uses for the REAL ID card such as receiving federal housing benefits (H.R. 1427).

The immigration bill promises not to “authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.” But that is the direction this bill is taking us. Without thoughtful policy restraint, the REAL ID card could eventually be required for every meaningful transaction with government and private entities. Under such a scenario, an individual would not be able to function in society without his or her REAL ID driver’s license or state identification card.

We also believe that the immigration bill’s REAL ID mandate is extremely irresponsible given that the Act and DHS’s proposed regulations create serious privacy and security risks. For example, there is a serious possibility that the REAL ID system will include a central ID database that holds personal information on virtually all Americans. And as of right now there are no meaningful limitations on who can access personal information and for what purposes, nor specifications on how information contained in government databases and in the card’s machine-readable zone will be secured. CDT’s work on the identity issue is available here. These privacy and security concerns, as well as funding problems, have placed the future of REAL ID in limbo. Several states are rebelling against implementation and there are bills in both the Senate (S. 717) and House (H.R. 1117) to approach driver’s license reform in a better way.

REAL ID proponents have often said, to alleviate concerns, that compliance with the Act is “voluntary.” But requiring employees to present a REAL ID card before they can work hardly makes state participation a meaningful choice.

CDT supports the amendment to the immigration bill proposed by Senators Max Baucus and Jon Tester from Montana that would take out all references to the REAL ID Act.