The federal court hearing Viacom’s billion-dollar copyright lawsuit against YouTube issued an order earlier this week in the discovery phase of the case. The court denied Viacom’s audacious request to require YouTube to turn over the source code that powers YouTube’s (and Google’s) search engine. But the court granted the request to compel YouTube to turn over the “logging database” that records all video viewing history information for the site — a compilation of which users watched which videos and when.

This raises privacy concerns. The logging database does not identify users by name, but it does contain users’ IP addresses and unique login IDs. A login ID will be whatever the user chose — which could be anything from a nonsensical set of characters or a random word to the user’s actual name. I’d guess that in a substantial number of cases, the login ID will contain name or email information. In those cases, the login ID, perhaps aided by IP address, could be sufficient to identify the actual, real-world world identity of the user. So the logging database will include identifying information for such individuals, linked to their full YouTube video viewing history.
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The report gives an overview of CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing Act), how it is implemented, related legislation, and legal actions based on the act. The report also looks at the FTC rules on CAN-SPAM compliance and related state anti-spam laws.

CRS No. RL31953, May 14, 2008

From the report’s summary:

Proponents of CAN-SPAM have argued that consumers are most irritated by
fraudulent email, and that the law should reduce the volume of such email because
of the civil and criminal penalties included therein. Opponents counter that
consumers object to unsolicited commercial email, and since the law legitimizes
commercial email (as long as it conforms with the law’s provisions), consumers
actually may receive more, not fewer, UCE messages. Thus, whether or not “spam”
is reduced depends in part on whether it is defined as only fraudulent commercial
email, or all unsolicited commercial email. Many observers caution that consumers
should not expect any law to solve the spam problem — that consumer education and technological advancements also are needed.

Thirty years ago this week (July 3rd), the Supreme Court handed down its landmark First Amendment decision, FCC v. Pacifica Foundation. Spurred by a Pacifica Foundation radio station airing the late George Carlin’s infamous “seven dirty words” monologue, a splintered 5-4 court held that the Federal Communications Commission (FCC) was justified in levying fines on broadcasters who aired indecent content during daytime and early evening hours.

The logic behind Pacifica has always been shaky. The so-called “pervasiveness” concept articulated in Pacifica - the notion that broadcasting was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions - is easily contradicted by the fact that no one forces parents to bring televisions or radios into their homes.
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On Monday, Missouri Governor Matt Blunt put his signature on a new law that targets stalking and harassment on the Internet, pulling the state’s harassment law into the 21st Century by including telephone and electronic communications in a statute traditionally reserved for in-person activities.

What that new law can’t do is rein in the U.S. Department of Justice in its quest to stretch federal computer anti-hacking statutes the point of absurdity. If that leaves you scratching your head, here’s the quick backstory:

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The report begins with an overview of U.S. science and technology policy, followed by explanations on who makes the policy, what organizations provide information on policy, and the challenges that policymaking presents.

CRS No. RL34454, April 22, 2008.

From the Report’s Summary:

Several organizations, when requested by the federal government or Congress,
provide formal science and technology policy advice: federal advisory committees,
congressionally chartered honorific organizations, and federally funded research and
development corporations. In addition, many other organizations and individuals —
international intergovernmental organizations, policy institutes/think tanks, the
public, professional organizations, disciplinary societies, universities and colleges,
advocacy, special interest, industry, trade associations, and labor — also provide their
thoughts. These organizations may agree on the scientific and technical knowledge
regarding an issue, but disagree on what actions to take in response, as their values
on a proposed policy may differ. Policymakers may be overwhelmed with an
abundance of information from these organizations.

Does the new FISA bill authorize wholesale interception of all communications to and from the US, or does it only authorize the interception of the communications of particular individuals?

In either case, the legislation affects Americans, because some of the intercepted communications of persons abroad will be with people in the United States. Also, in either case, the legislation dispenses with the normal Fourth Amendment standard of probable cause and FISA’s requirement that at least one party to the communication being monitored be a terrorist or spy or other “agent of a foreign power.” And, in either case, the legislation creates a unique procedure whereby a judge approves procedures for conducting surveillance, but Executive Branch officials authorize the surveillance itself and issue directives compelling communications carriers to assist. All these are huge departures from traditional surveillance practice.

But does the legislation authorize the vacuum cleaner approach (by which I mean the interception or recording on a wholesale basis for later analysis of any calls available from within the US where one of the parties is reasonably believed to be located outside the United States) or does it require a more targeted approach – the particularized interception of the communications of certain individuals (albeit with the particularity decision made by intelligence analysts, not judges, and on a very low standard of “reasonably believed to be located outside the US”)?
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A judge ruled this week that the Office of Administration (OA), part of the Executive Office of the President (EOP), is exempt from Freedom of Information Act requests because it is not an “agency” under the law.

The ruling adds to the inconsistent and somewhat arbitrary set of determinations on what is and what is not an FOIA agency. In this case, the OA had been responding to FOIA requests (65 last year alone) and even had a FOIA Officer, but didn’t want to respond to this one request and was able to opt-out of the law. This raises questions over how the definition of “agency” will be construed by the Bush Administration as it draws to a close; more importantly, how the next administration will approach this and other issues affecting the public’s right to know.

The OA case was filed back in May 2007 by Citizens for Responsibility and Ethics in Washington (CREW), a non-profit group, seeking information on missing White House e-mail records. Public reports revealed that close to 5 million e-mails were lost or deleted between March 2003 and October 2005 in apparent violation of record preservation laws. The OA initially agreed to process the CREW request but changed its decision, arguing that it was not required to comply with FOIA.
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From the report’s summary:

Building upon the Clinger-Cohen Act, the E-Government Act serves as the
primary legislative vehicle to guide evolving federal IT management practices and
to promote initiatives to make government information and services available online.
In doing so, it also represents a continuation of efforts to realize greater efficiencies
and reduce redundancies through improved intergovernmental coordination, and by
aligning IT investments. The law contains a variety of provisions related to federal
government IT management, information security, and the provision of services and
information electronically. One of the most recognized provisions involves the
creation of an Office of Electronic Government (OEG) within the OMB. The OEG
is headed by an Administrator who is responsible for carrying out a variety of
information resources management (IRM) functions, as well as administering the
interagency E-Government Fund authorized by the law.

Although Senator Lieberman raised the question of public availability of CRS reports at the hearing on E-Government Reauthorization last year, there is no mention within the report of making CRS reports freely available or other Legislative Branch openness issues.

Isn’t it about time for the U.S. wake up and fall in line with the rest of world when it comes to placing restrictions on certain kinds of speech? Why, in a world so volatile and fraught with religious and ethnic tension, does the U.S. stand alone in providing a safe harbor for speech that oozes with hate, incitement and contempt?

In the global race to place restrictions hate speech the U.S. runs dead last, owing to its dogged allegiance to the principle of free expression. Is it possible, in today’s post-9/11 world, that dedication to the ideology of free speech is still prudent?

You bet it is. But not everyone agrees.
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In Philadelphia today I attended the oral argument in the seemingly-never-ending case in which the “Child Online Protection Act” (COPA) has repeatedly been found to be unconstitutional. Chris Hansen, lead counsel in the case for the ACLU, presented an superb argument to the U.S. Court of Appeals for the Third Circuit (as detailed more fully below). Although one can never predict the outcome of any court case, the questions posed by the three judges make clear that they have serious doubts about the validity of the law.

The background on this case goes back ten or even twelve years. In 1996, both CDT and the ACLU led legal challenges to the “Communications Decency Act” (CDA); I was privileged to be one of the lead counsels in the CDT-led half of the case. We were successful, and in 1997 the U.S. Supreme Court unanimously decided that the CDA was unconstitutional, in the landmark Reno v. ACLU decision. A year later – in 1998 – Congress made minor changes to the overturned CDA statute, and passed COPA. Chris Hansen and the ACLU returned to court, and immediately got a preliminary injunction blocking COPA. Over the past ten years, the case has twice been up to the Supreme Court, which upheld the preliminary injunction and sent the case back the district court for a full trial. Judge Lowell Reed of the Eastern District of Pennsylvania conducted that trial in 2006, and issued in March 2007 a very thorough, careful opinion finding that COPA is unconstitutional. The Department of Justice (DOJ) appealed the case, and the appeals court heard argument in the appeal today.

The DOJ attorney, Charles Scarborough, argued first and faced a very skeptical court. The biggest hurdle for the DOJ is Judge Reed’s excellent trial court decision. Court of Appeals Judge Thomas Ambro today said that he “cannot conceive of any judge being more comprehensive” than Judge Reed had been. Judge Ambro made clear that the prior Supreme Court rulings in the case, when combined with the careful trial court decision, made DOJ’s appeal a very hard one to carry – the judge observed to Scarborough: “You are marching up San Juan Hill.” The other two judges were harder to read, but none of the three hinted that they were leaning in favor of the government.
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