Back in 2005, CDT filed a complaint with the Federal Trade Commission against two Web sites that claimed to offer “100% Legal” music downloads. In reality, the sites essentially provided access to popular peer-to-peer file sharing networks, where copyright infringement is common. But because the sites charged subscription fees, in addition to making claims of legality, it wasn’t hard to see how consumers might mistake the sites for legitimate, licensed services. The FTC agreed that there was deception going on, filed a lawsuit, and eventually reached a settlement.

Every now and then, CDT gets an email thanking us for bringing the complaint. Typically, the email explains that the Internet user was considering plunking down money to one of the sites named in the complaint, but first did a quick search on the site name. Up popped the CDT complaint–alerting the user that subscribing to the site wouldn’t necessarily buy the user lawful access to the promised music. So the email says, in effect, “thank you for warning me so I wouldn’t waste my money.”

That got us thinking, maybe there are other sites out there that Internet users could misperceive as licensed, fee-based music services, when in fact the sites have no such license. Such sites not only dupe individual consumers; by sowing confusion, they undermine the development of the legitimate online music marketplace. But bringing lots of FTC complaints would be cumbersome, and not all such sites make such blatantly deceptive claims as “100% legal.”

Through the magic of search engines, however, the mere presence of the original complaint on our site was providing useful information to people doing a quick pre-purchase inquiry. So we figured if we listed other sites likely to confuse consumers, search engines would find those, too, and we could provide a useful warning to people seeking information about a broader range of sites.

That’s the genesis of CDT’s new “Music Download Warning List.” We did some searches for terms like “music download” and investigated some of the sites that popped up. We found over 30 sites that we think could leave Internet users with a mistaken impression about what the sites are really offering. More details about the specific criteria we used are included with the list itself.

We hope to grow this site and have it be a tool consumers can use if they’re at all concerned about the claims being made by a music download site. There are probably other sites that could qualify of course, the Internet is a big place, but we think our list is a good place to start.

Following today’s decision by the Federal Trade Commission to approve the Google –DoubleClick merger, the Center for Democracy and Technology’s President Leslie Harris stated: “It is now important for Google to step up and make a clear, public statement about its plans for proactively protecting consumer privacy. Such a move on Google’s part would send a strong message to consumers and an industry that continues to struggle with privacy issues as online advertising evolves.”

The Center for Democracy and Technology believes that the privacy and consumer protection issues raised by behavioral targeting remain an industry-wide concern, requiring ongoing attention from companies, consumers and policymakers, particularly in light of the number of major mergers and acquisitions of behavioral targeting firms that have been announced this year.

In addition to approving the Google-DoubleClick merger, the Commission also today released for public comment a set of self-regulatory principles for online behavioral targeting. CDT intends to carefully review the principles and participate in the open comment period.

“The release of these new principles is a clear sign that the Commission does not believe that the industry’s current self-regulation framework is sufficient to protect consumers today,” said CDT Deputy Director Ari Schwartz.

“In releasing these principles, the FTC hasn’t closed the door to other options,” said CDT’s Harris. “Self-regulation is part of the solution for protecting consumer privacy, but clearly self-regulation hasn’t lived up to its promises. At the end of the day, we’ll need a rigorous mix of self-regulation backed by regulatory enforcement.”

Relevant Documents:

FTC Statement on Google DoubleClick Merger
FTC Staff statement for Comment: Possible Self-Regulatory Principles for Online Behavioral Advertising
Dissenting Statement of FTC Commissioner Harbou
Concurring Statement of FTC Commissioner Leibowitz

Last week Wikileaks announced that it discovered that U.S. officials at Guantanamo Bay were secretly altering various websites to promote the detention center in the news and online generally.

Being a defender of the First Amendment, CDT has always supported the right of citizens to speak anonymously in our free and democratic society. We’ve noted the practical value of this right, which encourages the sharing of valuable ideas and information that might otherwise go unexpressed due to fear of reprisal. And we certainly support the government’s participation in online discussion sites – when that participation is acknowledged. But the U.S. military’s anonymous tinkering with online information for apparent public relations purposes raises some real concerns. This also raises some tough First Amendment questions, but without a doubt it’s a very serious issue of government transparency, or lack thereof.

A couple years back, it came to light that some federal agencies had produced fake “news” stories (Video News Releases) without notice to viewers that the federal government produced them. The Government Accountability Office found that this was a violation of the law. It also reviewed at least two instances in which ostensibly independent journalists were paid to promote Administration policies. The GAO found one journalist’s contract to be a violation of the law and the other not, still the revelations sparked enough of a public outcry to inspire President Bush to terminate the use of this outrageous tactic.

One now wonders whether President Bush would approve of Gitmo officials on his watch anonymously altering Wikipedia pages. According to Wikileaks, the officials are also “systematic[ally] posting unattributed ‘self praise’ comments on news organization web sites in response to negative press” and “boosting pro-Guantanamo stories on the internet news site Digg.” While the military’s motivation to do these things is obvious, the question is whether it or any sector of the government should be able to secretly push unattributed government propaganda for consumption in the United States.

Some law already exists on this issue. Appropriations acts since 1951 have routinely included the prohibition: “No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by Congress.” This is what the GAO relied on in evaluating the Video News Releases and the public relations contracts with the journalists, and the GAO has interpreted this language as prohibiting “covert propaganda” – meaning PR communications not attributed to the government. But is this enough? Some members of Congress didn’t think so. In 2005, two similar bills were introduced: the “Federal Propaganda Prohibition Act” (H.R. 373) and the “Stop Government Propaganda Act” (S. 266). Both bills died in committee.

But perhaps Congress should revisit the question. To be sure, there are some very difficult legislative drafting challenges. We would not want to impose inappropriate free speech constraints on federal employees who are not acting in their official capacity. And it may be reasonable in some narrow circumstances to allow the government to post unattributed content on websites that are clearly aimed at overseas populations. But it seems crystal clear that our government should not be permitted to manipulate online discussion forums and information sources aimed at Americans, without disclosing the governmental source of the changes or new information.

When the White House issues a press release, or a government-created Public Service Announcement is broadcast on TV, the fact that the government is the source of the information is clear, and the public can take it for what it’s worth. But secretly altering Wikipedia pages or posing as regular citizens when commenting on online news stories is something entirely different. The public debate – the marketplace of ideas, which is key to a free and democratic society – is skewed when the government talks but fails to identify itself. The problem isn’t only that taxpayer money has been used to contract for the spin services of others (as in the fake “news” videos) – but that taxpayer money is now paying the salaries of government officials who are themselves acting as the spin doctors without identifying themselves as such. This is an egregious violation of the principle of government transparency. It may be time for Congress to look again at this issue.

CDT is participating in the inaugural run of the Google Policy Fellowship program, which provides funding for undergraduate, graduate, and law students to engage in Internet-related public policy issues for the summer. The application deadline for the fellowship program is January 1, 2008.

Fellows selected to work at CDT for the summer will have the opportunity to engage in one or more issue areas, including free expression, consumer privacy, security and freedom, digital copyright, and open government. Fellows’ activities may include conducting policy research; drafting reports and analyses; attending government and industry meetings and conferences; and participating in other advocacy work. Check out our summer internship and summer law clerkship job descriptions for more details.

Last week the House subcommittee with jurisdiction over intellectual property issues held a hearing on H.R. 4279, an I.P. enforcement bill introduced last month by Judiciary Committee Chairman John Conyers.

CDT does not have any problem with efforts to provide additional resources for I.P. enforcement. Adding more prosecutors tasked or trained for I.P. enforcement is fine, so is reorganization aimed at providing better coordination. And efforts to address the tricky problem of foreign I.P. enforcement–such as the bill’s provisions to deploy I.P. attachés and enforcement coordinators to key embassies and countries– make sense.

It was clear from the hearing, however, that section 104 of the bill is highly controversial. Section 104 would increase potential damages in cases involving works in a compilation, by allowing courts to treat the different items in a compilation as separate works eligible for separate damages. So infringing a website or a software program with multiple component parts could end up getting treated as multiple violations, not just one.

This provision seems just plain unnecessary. Statutory damages already can get sky-high. Moreover, courts already have ample discretion to adjust damages to reflect whatever factors they consider relevant. So the impact on actual damages assessed against actual pirates in court would likely be nil. In practice, the main effect of section 104 would be to increase the theoretical maximum damage amount that a rights holder can wave around when trying to exert pressure for settlement of a legitimate business or legal dispute. That may hurt innovation, because risk-averse innovators may be intimidated from standing their ground even when their legal position is relatively strong.

The hearing touched on a few other parts of the bill. For example, there was some debate about the bill’s proposal to eliminate copyright registration as a prerequisite to criminal enforcement against infringement.

But I was struck by how little the hearing focused on the bill’s provisions calling for a fundamental restructuring of the federal government’s I.P. enforcement structure. The bill would create a new division within the DoJ devoted solely to I.P.; the new division would be on par organizationally with existing units such as the Criminal Division, Civil Division, Antitrust Division, and Civil Rights Division. And it would create a new “United States Intellectual Property Enforcement Representative,” modeled on the U.S. Trade Representative, within the Executive Office of the President. These are major institutional changes, and the DoJ witness at the hearing cautioned against them.

At a minimum, the pros and cons of this kind of large-scale reorganization merit careful scrutiny as this bill moves forward.

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This week’s highlighted report:

The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues
RL34279 Dec. 7th, 2007

From the report’s summary:

This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection.

CDT’s OpenCRS project collects and indexes Congressional Research Service (CRS) reports and makes them available to the public free of charge. Each week, PolicyBeta features a CRS report on an important topic. For more reports, or to help contribute new reports to the OpenCRS database, visit the Web site.

Recently, some strong criticism has been voiced about a Congressional proposal entitled “The Violent Radicalization and Homegrown Terrorism Prevention Act.” While some valid points are being made, the fervor and attention being given the bill is disproportionate in light of greater and more urgent threats to civil liberties. Moreover, there is actually a good intent behind the bill: to study the potential problem of homegrown terrorism and develop a rational response. The bill would create a study commission. Rather than opposing the bill, civil liberties advocates should work to improve it and then, if it becomes law, to show the Commission and the public why dissent is an antidote to terrorism, not a precursor to it.

Summary of the Violent Radicalization Bill
The bill that is drawing attention is H.R. 1955, written by Rep. Jane Harman (D-CA), who happens to be one of the most thoughtful and approachable Members of Congress on issues of national security and civil liberties. The bill passed the House on October 23, 2007, by a vote of 404 to 6. A companion bill in the Senate is S. 1959, introduced by Sen. Susan Collins (R-ME), another respected and responsible lawmaker.

The House version would do two things: It would establish a National Commission, variously called the “National Commission on the Prevention of Violent Radicalization and Homegrown Terrorism” or the “National Commission on the Prevention of Violent Radicalization and Ideologically Based Violence.” And it would direct the Secretary of Homeland Security to establish or designate a university-based Center for Excellence “to study the social, criminal, political, psychological, and economic roots of violent radicalization and homegrown terrorism in the United States and methods that can be utilized by Federal, State, local, and tribal homeland security officials to mitigate violent radicalization and homegrown terrorism.”
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Last night the search engine Ask.com released AskEraser, a tool that gives users the choice of having their search histories deleted from Ask.com’s servers. Consumers who want to use the tool can visit Ask.com and turn the AskEraser “On” by clicking a link at the top of the page. All of the search terms typed in while AskEraser is on will be deleted within hours. AskEraser can be easily turned on and off, so users get to decide which queries will be deleted and which ones will be kept.

This kind of user control is a welcome step forward for search engine privacy, as consumers currently have few choices from any of the major search engines about how to control their own queries.

At this early stage it is impossible to know how many consumers will make use of the AskEraser or how successful it will be. But ultimately success will not merely be a measure of how many queries are conducted with the AskEraser turned on, or how many unique users are employing the tool. While those statistics are useful, they won’t tell the whole story.

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The REAL ID boondoggle drags on. The REAL ID Act was passed in 2005 yet the Department of Homeland Security still has not issued implementing regulations. Proposed regulations were published by DHS in March of this year. Now there are rumblings that the final regulations, initially expected late summer, will be released around Christmas or even after the New Year.

Back in May we submitted extensive comments to DHS highlighting the utter lack of meaningful privacy and security standards for the protection of personal information in the proposed regulations. Now some believe that the final regulations will be even more stripped down than the proposed regulations were. This doesn’t bode well for privacy or security, and underscores what CDT and many other civil liberties advocates have been saying for a long time: the REAL ID Act itself is fundamentally flawed and must be revisited by Congress.

In particular, the REAL ID Act paves the way for making centrally accessible highly sensitive personal information on virtually every American, including copies of birth certificates, Social Security Cards, passports and other personal documents. This will create an extremely valuable central source of identification data that would be vulnerable to terrorists, ID thieves, and unscrupulous DMV or other state and federal employees.

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If you didn’t get a chance to read Garrett Graff’s opinion piece in the Washington Post last Sunday, “Don’t know Their Yahoo from Their YouTube,” take a minute to read it.

And then weep.

Every word of Graff’s piece right on target. The people in charge of formulating national policy on technology and the Internet don’t know much about either. That’s not news to CDT. In our experience, there are no more that 12 members of Congress at any one time that understands the Internet. That’s why we spend so much time testifying before Congress, to try and craft a solid technical and legal framework that policy proposals can be judged against, rather than the concern of the day. That is an uphill battle, to say the least. If you’ve ever tried explaining why a broadcast flag mandate would interfere with fair use to the Senate Commerce Committee, or why it may not be a good idea to task the NTIA with rating Internet content-and watched their eyes glaze over-then you understand my point.

The truth is that we’ve spent eight long years without strong and visible leadership on technology policy. The public dialogue about the future of the medium has been reduced to sound bites; without a clear agenda policymakers most often treat the Internet as a problem to be fixed rather than a critical national resource. The question is whether we can expect a renewed emphasis on technology policy from the next Administration.

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