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What happens is that the air is broken down TO PLASMA between the wires so that it conducts electricity, just like lightning 8-D. The spark then convects upwards due to the very hot air. After it's shot off, air is broken down at the bottom again, and another spark is started.

The best photos are probably HERE, but they're yellow sparks (i think that's to do with the gas) which isn't in my opinion as cool as brilliant blue ones :). TechTV also has a page on it and a cool-ish video if you can view asx files. Their JL is pretty weak though, because it stops before the spark "falls off" the end - meaning the wires are too far apart for the voltage to be that small to be able to turn the air in between into plasma.

What happens is that the air is broken down TO PLASMA between the wires so that it conducts electricity, just like lightning 8-D. The spark then convects upwards due to the very hot air. After it's shot off, air is broken down at the bottom again, and another spark is started.

The best photos are probably HERE, but they're yellow sparks (i think that's to do with the gas) which isn't in my opinion as cool as brilliant blue ones :). TechTV also has a page on it and a cool-ish video if you can view asx files. Their JL is pretty weak though, because it stops before the spark "falls off" the end - meaning the wires are too far apart for the voltage to be that small to be able to turn the air in between into plasma.

What happens is that the air is broken down TO PLASMA between the wires so that it conducts electricity, just like lightning 8-D. The spark then convects upwards due to the very hot air. After it's shot off, air is broken down at the bottom again, and another spark is started.

The best photos are probably HERE, but they're yellow sparks (i think that's to do with the gas) which isn't in my opinion as cool as brilliant blue ones :). TechTV also has a page on it and a cool-ish video if you can view asx files. Their JL is pretty weak though, because it stops before the spark "falls off" the end - meaning the wires are too far apart for the voltage to be that small to be able to turn the air in between into plasma.

ICANN and Antitrust, by A. Michael Froomkin and Mark A. Lemley :

The small take-up is hardly surprising, given that the alternate roots suffer from a classic network effect, and that a registration in an alternate root is of relatively little value in the absence of a critical mass of fellow users who can access that root. The existence of this network effect, coupled with ICANN's control over the dominant root, makes ICANN's exclusive deal particularly effective. By denying alternate roots the right to participate in running gTLDs in the legacy root, ICANN keeps those alternate roots marginalized, and makes it far less likely that they will ever achieve that critical mass. The foreclosure in question here is not substantial in percentage terms simply because ICANN's control is so complete.

Sig: What Happened To The Censorware Project (censorware.org)

Here is the abstract:

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace.

This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U.S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U.S. government's power over the DNS, and convinced other parties to recognize ICANN's authority. ICANN then took regulatory actions that the U.S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders.

Professor Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC's use of ICANN to make rules either violates the APA's requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution's nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of "policy partners" with DoC.

Here is the abstract:

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace.

This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U.S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U.S. government's power over the DNS, and convinced other parties to recognize ICANN's authority. ICANN then took regulatory actions that the U.S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders.

Professor Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC's use of ICANN to make rules either violates the APA's requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution's nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of "policy partners" with DoC.

I also want to plug ICANNWatch as a place to go for discussion of all ICANN-related issues, including domain name arbitrations.

So you're sending your credit card details to an anonymising service. How long will you stay anonymous?

Exactly why we need government backed (so it's accepted) digital cash (a.k.a. e-cash) (cash so it's anonymous).

Any bets how soon that will happen, post 9-11?

(Yes, I am aware of the downside.)

At the school I attended, for the dorm network ("CaneNet") it was a DHCP setup with what I like to call 'sticky' IPs...i.e. if your system was on 24/7, you got the same IP upon lease renewal. Ports in the rooms were switched 10Mbps to Foundry Networks FastIron routers, then onto a gigabit fiber backbone...from there it was an OC-3 for Internet1 and an OC-xx for Internet2 access which was open to all on the premise that 90% of the traffic would be used for research being that it's an education-only backbone for now. We screened out Napster and such, and also screened out incoming requests for Canenet located servers...i.e you could have a webserver, but it'd only be visible to folks within the miami.edu domain. Working for the IT dept. as a student-manager, we only supported Win9x and up, and MacOS 7.6 and up. Unixes, BeBoxen and so forth were allowed, we just didn't officially support them...though unofficially, we encouraged employees to take a stab at their problems *if they were positive* they could help...i.e. if the solution backfired, we'd call the employee up on it. By default I became one of the building's "resident geeks", only cause my RA told the students ... "Yeah, pod is a student manager with IT"...I really didn't relish the thought of dealing with people's Presarios, iMacs and so forth, but I had to anyway...on the upside, it gave my then-fledgling career as a photographer a boost when I'd casually mention around a pretty girl that I "had to finish this up, since i have a shoot on Ocean Drive in 2 hours..." ... inevitably led to 'I've always wanted some nice photos done of me...' hehe :)

For two legal views on ICANN's Legitimacy, see Jonathan Weinberg, ICANN and the Problem of Legitimacy (.pdf), and my (long) article, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution , available in HTML or .pdf formats.

For two legal views on ICANN's Legitimacy, see Jonathan Weinberg, ICANN and the Problem of Legitimacy (.pdf), and my (long) article, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution , available in HTML or .pdf formats.

• Lex Informatica: The Formulation of Information Policy Rules Through Technology
  
• TRANSNATIONAL THREATS: BLENDING LAW ENFORCEMENT AND MILITARY STRATEGIES
  
• THE METAPHOR IS THE KEY: CRYPTOGRAPHY, THE CLIPPER CHIP, AND THE CONSTITUTION
  

Depending on how they do this, Amtrak could be in trouble in Canada.

Most recently, in Lebron, the Supreme Court relied on the confluence of a number of factors to conclude that Amtrak, a federally chartered for-profit corporation, is "part of the government"{114} for "the purpose of individual rights guaranteed against the Government by the Constitution."

-- http://www.law.miami.edu/~froomkin/articles/reinve nt.htm

This would suggest that for tests outside of this area, Amtrak continues to be a private corporation, as the United States Congress stated it's intent to be.

Now - there are Amtrak trains that run in Canada. They pick up passengers, and (presumably) gather some personal information on them. The difference would be that federal Canadian legislation covers train transportation, and thus any personal information gathered will be protected by Canadian privacy legislation.

There is a nice article on this at http://law.miningco.com/newsissues/law/library/bri efs/ucanadaprivacy.htm, which quite correctly raises more questions than it answers. However - it seems possible that Amtrak is opening itself to legal liability by disclosing this information without a specific request from a law enforcement official (which should include a warrant).

And just to cover one item quickly - the Canadian legislation covers Canadians even outside of Canada. They don't lose the protection when they leave the country.

Ongoing coverage of ICANN issues in a Slashdot-like format can be found at ICANNWatch.org. In addition to today's coverage, note the interesting letters from Senator Burns to the Dept. of Commerce and to the GAO.

Ongoing coverage of ICANN issues in a Slashdot-like format can be found at ICANNWatch.org. In addition to today's coverage, note the interesting letters from Senator Burns to the Dept. of Commerce and to the GAO.

There are several classes of "illegal activity" you can worry about, it you like to worry about that sort of thing, such as (more serious) crackers and (much less serious) downloaders of politically incorrect materia[l, but the problem that may cause the most interference is abuse by spammers. They're not the Four Horsemen of the Infocalypse, but everybody understands them, everybody hates them, and they're not very clever but they won't go away, because there are suckers born every minute. Part of the interference will be the spammers themselves, but much of it will probably be the measures people take to prevent them that will make real wireless freenets harder to deploy than they should be.

That was the original intent. Today there's not much hierarchy. Whatever server "knows" .com has a more or less complete list of all the domain names. Ok, there's .edu, .net, .org, .mil, and country names, but .com is so much larger than effectively one database holds all the names.

When talking about things "ought to be", I'm suprised that so little is mentioned about introducing more heirarchy. Maybe another level of hierarchy is more than the average consumer's (joe sixpack user) limited mental model capacity can handle?

About the speed-up... does anyone else see this as an attempt to bypass the growing pressure they're under for having made such arbitrary decisions without any accountability for the basis behind them?

Maybe I'm overly suspicious... ICANN's got such a clean record, I'm sure they'd never do anything like...

• try anything underhanded and clearly against their own rules, or
• be accused of making inconsistent decisions based on ill-defined criteria
• cater to special interests of big business, or
• completely neglect legacy TLDs from alternate name servers

The full house hearing stuff is at http://www.house.gov/commerce/hearings/telecom0208 2001.htm.
And the full senate hearing stuff is at http://www.senate.gov/~commerce/issues/telco.htm#H earings. [NOTE: visiting the Senate committee's web site will produce a noise like a modem retraining. This is a feature, for no explainable reason, and just a sound effect. It's not your modem.]

I had the dubious distinction of testifying at both hearings...Since some of the above is in .pdf, here are links to HTML versions of my House and Senate prepared statements.

The full house hearing stuff is at http://www.house.gov/commerce/hearings/telecom0208 2001.htm.
And the full senate hearing stuff is at http://www.senate.gov/~commerce/issues/telco.htm#H earings. [NOTE: visiting the Senate committee's web site will produce a noise like a modem retraining. This is a feature, for no explainable reason, and just a sound effect. It's not your modem.]

I had the dubious distinction of testifying at both hearings...Since some of the above is in .pdf, here are links to HTML versions of my House and Senate prepared statements.

From: http://www.bus.miami.edu/~jdavis/Starwars/sw-scrip t.html

GOVERNOR TARKIN: Princess Leia, before your execution I would like you to be my guest at a ceremony that will make this battle station operational. No star system will dare oppose the Emperor now.

LEIA: The more you tighten your grip, Tarkin, the more star systems will slip through your fingers.

Actually I'm well aware that there will be an optional method, eventually, for masking MAC addresses in IPv6, although last I checked a few months ago it wasn't final yet and no one seemed in a great rush...and no one held up IPv6 to wait for this fix to be part of the rollout.

And I'm also aware that because it will not be the default, very few folk will use it; most folk will therefore have their true MAC address visible. Your comment is therefore not only snide but thoroughly misleading in terms of the practical effect on the privacy of not just average AOL users, but most people. I discuss all this and a great deal more about privacy in a recent article on privacy and the law (Note: article is in .pdf but a crude HTML of an earlier draft is available here)& lt;/P>

Actually I'm well aware that there will be an optional method, eventually, for masking MAC addresses in IPv6, although last I checked a few months ago it wasn't final yet and no one seemed in a great rush...and no one held up IPv6 to wait for this fix to be part of the rollout.

And I'm also aware that because it will not be the default, very few folk will use it; most folk will therefore have their true MAC address visible. Your comment is therefore not only snide but thoroughly misleading in terms of the practical effect on the privacy of not just average AOL users, but most people. I discuss all this and a great deal more about privacy in a recent article on privacy and the law (Note: article is in .pdf but a crude HTML of an earlier draft is available here)& lt;/P>

I've been a slashdot reader for quite a while. So no need to do this in the third person. (I wish they'd contacted me before slashdotting our server...I could also have told them the documents had moved.) The current online draft is being checked over to remove a very large number of spelling and formatting errors, and what I hope is a very small number of sourcing errors. A final version should be online some time next week for your quoting pleasure. Meanwhile, all 169 pages of the draft are now in one handy file. I intend to produce an HTML version in due course, but because the law review publishing this uses MS Word, which I don't use often, I have to find an easy way to convert the footnotes in a readable manner. Suggestions welcome.

Of the comments made so far, just two replies:

• I don't claim that putting "don't quote" at the top of an academic paper creates a legal obligation on anyone -- just a moral one. Isn't that enough? For two weeks? If I wanted to create a legal obligation, I'd write you an NDA, ok?
• The hardest question in my mind is not, "Is the US's use of ICANN illegal?" but rather, "If not ICANN, what?". I do offer some answers in Part IV of the paper (you have to struggle a long way to get there), but I would hope that readers on this list might come up with something better, where better is both freedom-enhancing and also at least marginally likely to be politically acceptable.

The Register covered this more than a month ago. Karl Auerbach also has some interesting comments on the legality of ICANN in US non-profit law. Read them here and here.

* Do try and keep up, YRO :)

Andrew - The Register

What I get when trying http://personal.law. mia mi.edu/~froomkin/articles/icann1.pdf:

Forbidden

You don't have permission to access /~froomkin/articles/icann1.pdf on this server.

That seems pretty effective to me.

My site was MTHVAX

Given that:

• [ A ] HavenCo is explicitly designed for regulatory arbitrage
• [ B ] Sealand was chosen by HavenCo specifically for :
  • [ i ] theoretical sovreignty
  • [ ii ] relative advantages for physical security
• [ C ] HavenCo is a commercial venture
• [ D ] HavenCo is also a political statement
• [ E ] Many countries (including USA, UK, France, Russia, and China) have all acted aggressively to prevent regulatory arbitrage (ie, double tax treaties, etc)

Then:

• [ 1 ] What precautions have been taken to ensure that HavenCo physical assets and human resources will be protected from predatory legal and/or physical assault?
• [ 2 ] Have any "pro-active" plans to co-opt national intelligence agencies, to prevent possible destruction of HavenCo physical and human assets (ie, developing a relationship with the CIA so that the NSA doesn't call "national defense" and activate SEAL teams to neutralize a potential "national security risk")?
• [ 3 ] In the event that physical security is breached, and it becomes necessary to incinerate the Data Vault, have "live tests" been done to verify that, indeed, the data is unrecoverable (uncompromisable)?

Given that:

• [ A ] HavenCo is explicitly designed for regulatory arbitrage
• [ B ] Sealand was chosen by HavenCo specifically for :
  • [ i ] theoretical sovreignty
  • [ ii ] relative advantages for physical security
• [ C ] HavenCo is a commercial venture
• [ D ] HavenCo is also a political statement
• [ E ] Many countries (including USA, UK, France, Russia, and China) have all acted aggressively to prevent regulatory arbitrage (ie, double tax treaties, etc)

Then:

• [ 1 ] What precautions have been taken to ensure that HavenCo physical assets and human resources will be protected from predatory legal and/or physical assault?
• [ 2 ] Have any "pro-active" plans to co-opt national intelligence agencies, to prevent possible destruction of HavenCo physical and human assets (ie, developing a relationship with the CIA so that the NSA doesn't call "national defense" and activate SEAL teams to neutralize a potential "national security risk")?
• [ 3 ] In the event that physical security is breached, and it becomes necessary to incinerate the Data Vault, have "live tests" been done to verify that, indeed, the data is unrecoverable (uncompromisable)?

Anonymity must not be equated with privacy. As citizens, we have a right to privacy. We have no such right to anonymity.

I simply can not believe that depths to which some people will lie. Perhaps Seagrams is just ignorant of this, but as a US Citizen you do have a right to be anonymous. To speak anonymously, to buy things anonymously and yes, to even walk around, all day if you want, with a ski mask on to remain anonymous. You do have a right to anonymity. My guess is that Seagrams is saying this as part of a larger straw man argument to equate anonymity with criminal activity and hence to be able to dismiss it out of hand. Whatever the case, Edgar Bronfman, Jr., is totally and completely wrong. However, its this kind of thinking that is not only incorrect but its dangerous for us as citizens to dismiss his argument out of hand. Alot of people think this way, and alot of those people, like Mr. Bronfman, have tremendous power to change the laws so that anonymity can be restricted and to try and take that right away.

Here are some references to back my assertions on anonymity:

McIntyre v. Ohio
Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases
Talley v. California
--
Python

Yeah, but cryptography is *nothing like* as important as these things.

I must disagree. To start with, cryptography is the rock upon which our banking and currency systems rest. If you use an ATM, or get your paychecks directly deposited, you've directly relied on cryptography. Even you keep your money in a mattress, the whole reserve banking system (upon which, for good or ill, the economy is based) needs it to function. Every day between one and two trillion dollars worth of interbank transfers are processed by Fedwire and the Clearing House Interbank Payment System; all these transations use cryptography.

And cryptography is essential for modern military operations. Whether you're a hawk or a dove, you can't help but admit that military operation have an important impact on the lives of people around the globe, and that impact would (for good or ill) be much lessened in the absence of secure communication. Cryptography is also important in the diplomacy that holds tensions short of a state of war - the old "Red Telephone" line between Moscow and Washington was protected with, IIRC, a one time pad.

Cryptography is used by people around the globe working for human rights; groups like Human Rights Watch and Amnesty International use cryptography to secure their communication.

So, if you want to engage in commerce, protect or attack a nation, or are concerned about human rights, cryptography is fundamental. There are good reasons why it gives certain government agencies extreme heartburn to think of cryptography in the hands of the rest of us...

one more.
--

Actually, one can't use a contract to get around a Federal Law. For example, Federal Law requires certain stafty standards in the workplace. A union can not negotiate those standards away in exchange for benefits or pay.

It is a well established matter of law that contract provisions "contrary to public policy" are unenforcable. I'm familiar with this in the context of insurance law. Insurance contracts, like EULAs, are "contracts of adhesion" -- you either accept the contract as offered or decline. You can not negotiate the terms. Insurance law requires that I offer a "nonforfeiture provision" (i.e cash value) on certain types of insurance contracts. It would be cheaper if I could offer you an insurance contract without the cash surrender benefit, but I can't legally do that. Even if I wrote a contract without such a benefit, you could claim it. The contract can not take away rights that you have under law.

Similarly (though the law has not been tested in a case that I could site for you) I think that a strong case could be made that Copyright gives you certain rights and that a contract (and especially a contract of adhesion like an EULA) can not take away rights that you have by virtue of a Federal Law.

Links? Michael Froomkin's page has information and links to a lot of current Internet legal issues.

Actually, there's very little new in this paper, although the presentation is very snappy, and the PR blitz is impressive, verging on excessive (I've seen this announcement about 15 times on various lists today).

For a much more detailed, and perhaps more tedious, look at law and anonymity issues, see my paper Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases (1996), which discusses the cryptographic foundations of anonymity, and the legal issues it raises. You may also be interested in my 1996 paper on the Clipper Chip, which discusses whether a legal restrictions on crypto use would be consitutional.

Hmmm. Maybe next time I write a paper I should issue a press release? (No, I know, I should write shorter papers....)

Actually, there's very little new in this paper, although the presentation is very snappy, and the PR blitz is impressive, verging on excessive (I've seen this announcement about 15 times on various lists today).

For a much more detailed, and perhaps more tedious, look at law and anonymity issues, see my paper Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases (1996), which discusses the cryptographic foundations of anonymity, and the legal issues it raises. You may also be interested in my 1996 paper on the Clipper Chip, which discusses whether a legal restrictions on crypto use would be consitutional.

Hmmm. Maybe next time I write a paper I should issue a press release? (No, I know, I should write shorter papers....)

Net libertarians also worried that the ruling legitimized the idea that the government needs to step in and regulate the Internet. History suggests they have good for concern. Judge Jackson's ruling was, in fact, by far the most significant and far-reaching intrusion into Net commerce by a federal authority, and represents a landmark judicial effort to begin writing Net law.

I'm afraid these un-named "net libertarians" (who are they?) have it about 100% backwards. First, the MS case is not primarily about e-commerce. It's about old-fashioned markets. How many copies of Windows are sold online? Second, there's little or nothing in the decision relevant to regulation of the Internet except in the sense that businesses located in the US that happen to do Internet-related work are of course subject to the same (antitrust, and other) laws as everyone else. This was already pretty clear -- just as making phone calls doesn't allow you to contract out of local law, so too with a modem. (Yes, you can do regulatory arbitrage but that takes more than one jurisdiction.)

What this case shows is that it is not really that difficult to apply traditional anti-trust principles to the software business. Which is at best a small part of the e-commerce business.

Attention "net libertarians": Want to worry about global Internet goverance? You will get more traction (although the jury is still out) by worrying about ICANN instead. Now that's a real potential (so far) for regulation of the Internet on a global basis.

The MS opinion, for all its vices or virtues, is not about "net law". It's not about the Internet. It's about old-fashined strong-armed marketing and anti-competitive behavior with (alleged) domestic, territorial, effects. And it's not the first time someone sold (gave away) well below cost to hurt a rival, either.

The most important point I came away with is that although the purpose of the surgery is to free one of glasses/contacts, one will probably still need them after the surgery. This can happen for two reasons.

The first is that not everyone comes out of the procedure with 20/20 vision. In most cases it will be close but there is still a good chance that corrective lenses of a weaker prescription will be required.

The second reason is that after about age 40 (I'm 31 now), glasses would be required for reading and other close-up work. Since I'm very near-sighted now I will never need glasses for reading, so in that respect the situation would actually be worse if I had the surgery.

Other side effects that have been mentioned elsewhere in this discussion were also brought up. The halo effect on point souces of light does not always go away.

Needless to say, I'm still wearing contact lenses.

--Adam :-)

When ICANN was formed, its charter contemplated having a big chunk of the Board directly elected by individual "members" of the Corporation. The date for that election continues to recede, and the terms by which ordinary domain name registrants or other regular folks might get to choose representatives get more and more crabbed and limited.

The following exchange I had with Joe Sims, ICANN's Chief Counsel, regarding ICANN's proposed By-laws changes illuminates the issues. I should note that there is a fourth message from Sims that is not in the ICANN Bylaws comment archive. In that fourth message he says, among other things, the he is speaking in his personal capacity, not as an ICANN spokesperson. (As Sims authored most of the legal documents that shape ICANN, the distinction is a subtle one, but real.) When I get permission to host an HTML copy, I'll post a link to it on my WIPO/ICANN page.

• My original comment attacking the proposal
• Joe Sims's Response
• My reply to Sims.
• Sims's Latest. This link takes you to a Harvard Law School newsgroup. Look for a message from Joe Sims dated Mon Oct 25, 7:08 pm entitled Re: [names] from Michael Froomkin

Perhaps the most interesting issues to come out of this debate are, first, to what extent is it correct, as Sims argues, that allowing individuals a direct role in ICANN governance threatens to "destabilize" either ICANN or the Internet. Second, if one has strong individual representation in ICANN (or even if one doesn't) how to structure the body to avoid "capture" by a small faction. And, last but not least, how much individual representation, of what nature, does ICANN require to be legitimate?

Visit ICANNWatch.org !

When ICANN was formed, its charter contemplated having a big chunk of the Board directly elected by individual "members" of the Corporation. The date for that election continues to recede, and the terms by which ordinary domain name registrants or other regular folks might get to choose representatives get more and more crabbed and limited.

The following exchange I had with Joe Sims, ICANN's Chief Counsel, regarding ICANN's proposed By-laws changes illuminates the issues. I should note that there is a fourth message from Sims that is not in the ICANN Bylaws comment archive. In that fourth message he says, among other things, the he is speaking in his personal capacity, not as an ICANN spokesperson. (As Sims authored most of the legal documents that shape ICANN, the distinction is a subtle one, but real.) When I get permission to host an HTML copy, I'll post a link to it on my WIPO/ICANN page.

• My original comment attacking the proposal
• Joe Sims's Response
• My reply to Sims.
• Sims's Latest. This link takes you to a Harvard Law School newsgroup. Look for a message from Joe Sims dated Mon Oct 25, 7:08 pm entitled Re: [names] from Michael Froomkin

Perhaps the most interesting issues to come out of this debate are, first, to what extent is it correct, as Sims argues, that allowing individuals a direct role in ICANN governance threatens to "destabilize" either ICANN or the Internet. Second, if one has strong individual representation in ICANN (or even if one doesn't) how to structure the body to avoid "capture" by a small faction. And, last but not least, how much individual representation, of what nature, does ICANN require to be legitimate?

Visit ICANNWatch.org !

I have no idea.

Got bored. -mgcpl

What's a mechan?

Actually, with liveice and icecast, it can work quite well. You can configure it to use different encoders like FhG and Xing to encode the audio live from the soundcard. I'm the student engineer at my station here in Miami, WVUM, and we're in the process of putting together a box for this purpose. Some guy from the school of communications tried to sell the advisory board on RealAudio, but for any decent amount of users, the licensing cost goes into the tens of thousands of dollars, even with an "educational discount." We're going to try to use Live 365 for starters, until we get more bandwidth from the university. If anyone has any advice or experience on that or any related issues, please feel free to share.

Methods of "soft-regulation" can be more dangerous than direct!

Reagle. Why the Internet is Good: Community governance that works well.

The US Constitution is an adept instrument of constraining direct legal regulation, "Congress shall make no law ...." However, modern regulation often is indirect, it sets incentives and disincentives for others (usually the market) to implement and enforce policies more effectively than the government ever could. Whereas Reidenberg suggests that governments should shift the "focus of government action away from direct regulation and towards indirect influence;" I find this trend to be frightening because he makes an assumption that I am unwilling to make: "The shift can, nevertheless, still preserve strong attributes of public oversight." [Reid97, 588] The US Constitution is poorly equipped to constrain indirect regulation.

Consider the following mechanisms of cyberspace regulation:

• direct: threat of violence, monetary penalties, and imprisonment by a centralized authority. Applies if you have a locatable physical presence or assets.
• indirect: direct methods are applied to third parties to create incentives or disincentives against the governed. (My ontology is similar to but differs from Reidenberg's [Reid97, 588])
• link : associate the resolution of a contentious proposal to one for which there is greater support. The US Government's Clipper III proposal linked the government's contested desire to access citizens' private encryption keys to the government's ability to grant much needed legal legitimacy to digital signatures.
• choke : regulate those that are easy to go after. Bavarian authorities prosecuted the head of the German Compuserve division for providing access to Internet materials including pornography and games that were violent or had Nazi imagery.
• gouge : regulate those that have deep pockets, often used with choke. A US Government copyright proposal criminalized the contributory infringement of copyright and made Internet Service Providers fiscally liable for the actions of their users.
• browbeat :threaten further regulatory action. US privacy policy has to date been predicated on the - rather weak - threat that if the "industry" doesn't self regulate, the government will get involved.
• herd : selectively place and remove liability to channel policy towards a goal without overtly setting the direction. "Mandatory self regulation" and safe harbor provisions are frequently proposed solutions to Internet issues.

These are the principal methods by which real world governments would like to regulate the Internet. Let us now turn to the methods the Internet has developed to regulate itself.

ICANN = the good guys? I hope so. But the initial signs are much less encouraging than I would have expected given the stellar composition of the Board. ICANN has chosen to meet behind closed doors. The Board, with the sterling exception of the Chair, appears to take no part in the relevant mailing lists, and generally shows no sign of being aware of the very great concerns some of their actions are causing.

The main task of the "interim" Board was supposed to be to set up a fair means of choosing successors. This is going very slowly. Meanwhile two sorts of nearly irrevocable decisions are being made:

1. A structure for election of the Names Council is being created that gives disproportionate weight to trademark and copyright interests. To date, the only method for individuals to have a voice is awaiting to be born (meanwhile the rump Names council sets working groups in motion to make policy recommendations on proposals which favor TM interests and disfavor indiviudals). And, oh yes, the acadmic users of the Internet -- the pioneers -- have no place at all in this structure
2. The Interim Board is rushing ahead on policy issues, including the WIPO report. While the Board's approach to WIPO so far fails to disprove the hypothesis that they will reject the worst parts, procedurally there's something worrying and unsavory about having a group selected by a mysterious and as-yet-unexplained means, whose task it was to find a fair means to pick succcessors and get out of the way, making critical policy decisions that will be almost impossible to reverse. [On why the WIPO report is an issue, see my WIPO page.]

In short, if it does turn out badly, and it could, it will be too late to do much about it. Other than route around it of course. But that will be hard, at least in the short run, unless the tools are built and deployed before one knows if they are needed.

By way of background (missing from the article from InfoWorld), UCITA was until recently the proposed UCC 2B. The proposal to add a provision to the Uniform Commercial Code to deal with software licenses was until recently a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The proposal was so awful, and attacked by so many people (especially legal academics!) that the ALI pulled out. This is unusual.

NCCUSL historically is less likely to throw roadblocks in the way of a proposal once a drafting committee says it's done. On the other hand, this one is so controversial, for so many, many reasons, that there is a little hope that the steamroller can be stopped. Uniform Commissioners are political appointees, usually by state governors, so if you or your firm happens to have any pull in your state, a word to the (un)wise might help. Furthermore, even if it passes NCCUSL it then has to be adopted state-by-state, so there's another chance to fight it.

For my account of why an earlier draft was bad for e-commerce (the latest draft is bad in slightly different ways) see 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?.

The Ninth Circuit's decision in the Bernstein case is a major victory for the First Amendment in the computer age. It confirms that just because you use specialized tools to speak, like a computer, or a specialized language to communicate, like a programming language, you do not therefore put yourself outside the scope of the First Amendment. These propositions are fundamental to free speech, and to freedom of association, in the computer age. And while it is wonderful that the Court of Appeals ruled as it did, it is a pity that the Justice Department's stonewalling on this issue made such a ruling necessary in the first place.

Today the Ninth Circuit-the court of appeals with jurisdiction over Silicon Valley-holds that cryptographic source code is protected speech. The court held, correctly, that the US Government's unconstitutionally prevents the export of cryptographic source code with a system of speech licenses. The court held that preventing cryptographers such as Daniel Bernstein from using the Internet to share their work with colleagues around the world is an unconstitutional prior restraint on speech, one hedged with completely inadequate procedural safeguards.

This decision is especially important because U.S. government representatives openly admit that they have been using the export control laws to retard the domestic use of cryptographic software. This decision, which I hope will be upheld by the Supreme Court, will be the first step towards greatly increased use of cryptography in domestic products, and enhanced personal privacy for all Americans.

Perhaps the most important aspect of this decision is that the appeals court recognizes the critical connection between the regulation of cryptography and our modern lives:

"we note that the government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately."

The court was thus right on target when it noted that the regulation of cryptography "touches on the public interest broadly defined.".

A second important aspect of this decision is that the court recognized the effect of technical change on the first amendment, and rejected suggestions that just because speech has side effects it somehow loses its protected status:

"the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The first Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution."

If the government appeals, the issue is very likely to go to the Supreme Court for resolution given the government's claim that national security might be affected. It is likely that the government will request and receive a stay order if it chooses to appeal. (An appeal to an en banc panel of the 9th Circuit is also possible.)

Congratulations to Cindy Cohn and the rest of the Bernstein legal team!

More information on Cryptography and the Constitution

More information on government regulation of cryptogragpy

More information on the link between cryptography, e-cash, and privacy
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

The Ninth Circuit's decision in the Bernstein case is a major victory for the First Amendment in the computer age. It confirms that just because you use specialized tools to speak, like a computer, or a specialized language to communicate, like a programming language, you do not therefore put yourself outside the scope of the First Amendment. These propositions are fundamental to free speech, and to freedom of association, in the computer age. And while it is wonderful that the Court of Appeals ruled as it did, it is a pity that the Justice Department's stonewalling on this issue made such a ruling necessary in the first place.

Today the Ninth Circuit-the court of appeals with jurisdiction over Silicon Valley-holds that cryptographic source code is protected speech. The court held, correctly, that the US Government's unconstitutionally prevents the export of cryptographic source code with a system of speech licenses. The court held that preventing cryptographers such as Daniel Bernstein from using the Internet to share their work with colleagues around the world is an unconstitutional prior restraint on speech, one hedged with completely inadequate procedural safeguards.

This decision is especially important because U.S. government representatives openly admit that they have been using the export control laws to retard the domestic use of cryptographic software. This decision, which I hope will be upheld by the Supreme Court, will be the first step towards greatly increased use of cryptography in domestic products, and enhanced personal privacy for all Americans.

Perhaps the most important aspect of this decision is that the appeals court recognizes the critical connection between the regulation of cryptography and our modern lives:

"we note that the government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately."

The court was thus right on target when it noted that the regulation of cryptography "touches on the public interest broadly defined.".

A second important aspect of this decision is that the court recognized the effect of technical change on the first amendment, and rejected suggestions that just because speech has side effects it somehow loses its protected status:

"the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The first Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution."

If the government appeals, the issue is very likely to go to the Supreme Court for resolution given the government's claim that national security might be affected. It is likely that the government will request and receive a stay order if it chooses to appeal. (An appeal to an en banc panel of the 9th Circuit is also possible.)

Congratulations to Cindy Cohn and the rest of the Bernstein legal team!

More information on Cryptography and the Constitution

More information on government regulation of cryptogragpy

More information on the link between cryptography, e-cash, and privacy
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

The Ninth Circuit's decision in the Bernstein case is a major victory for the First Amendment in the computer age. It confirms that just because you use specialized tools to speak, like a computer, or a specialized language to communicate, like a programming language, you do not therefore put yourself outside the scope of the First Amendment. These propositions are fundamental to free speech, and to freedom of association, in the computer age. And while it is wonderful that the Court of Appeals ruled as it did, it is a pity that the Justice Department's stonewalling on this issue made such a ruling necessary in the first place.

Today the Ninth Circuit-the court of appeals with jurisdiction over Silicon Valley-holds that cryptographic source code is protected speech. The court held, correctly, that the US Government's unconstitutionally prevents the export of cryptographic source code with a system of speech licenses. The court held that preventing cryptographers such as Daniel Bernstein from using the Internet to share their work with colleagues around the world is an unconstitutional prior restraint on speech, one hedged with completely inadequate procedural safeguards.

This decision is especially important because U.S. government representatives openly admit that they have been using the export control laws to retard the domestic use of cryptographic software. This decision, which I hope will be upheld by the Supreme Court, will be the first step towards greatly increased use of cryptography in domestic products, and enhanced personal privacy for all Americans.

Perhaps the most important aspect of this decision is that the appeals court recognizes the critical connection between the regulation of cryptography and our modern lives:

"we note that the government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately."

The court was thus right on target when it noted that the regulation of cryptography "touches on the public interest broadly defined.".

A second important aspect of this decision is that the court recognized the effect of technical change on the first amendment, and rejected suggestions that just because speech has side effects it somehow loses its protected status:

"the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The first Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution."

If the government appeals, the issue is very likely to go to the Supreme Court for resolution given the government's claim that national security might be affected. It is likely that the government will request and receive a stay order if it chooses to appeal. (An appeal to an en banc panel of the 9th Circuit is also possible.)

Congratulations to Cindy Cohn and the rest of the Bernstein legal team!

More information on Cryptography and the Constitution

More information on government regulation of cryptogragpy

More information on the link between cryptography, e-cash, and privacy
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

The Ninth Circuit's decision in the Bernstein case is a major victory for the First Amendment in the computer age. It confirms that just because you use specialized tools to speak, like a computer, or a specialized language to communicate, like a programming language, you do not therefore put yourself outside the scope of the First Amendment. These propositions are fundamental to free speech, and to freedom of association, in the computer age. And while it is wonderful that the Court of Appeals ruled as it did, it is a pity that the Justice Department's stonewalling on this issue made such a ruling necessary in the first place.

Today the Ninth Circuit-the court of appeals with jurisdiction over Silicon Valley-holds that cryptographic source code is protected speech. The court held, correctly, that the US Government's unconstitutionally prevents the export of cryptographic source code with a system of speech licenses. The court held that preventing cryptographers such as Daniel Bernstein from using the Internet to share their work with colleagues around the world is an unconstitutional prior restraint on speech, one hedged with completely inadequate procedural safeguards.

This decision is especially important because U.S. government representatives openly admit that they have been using the export control laws to retard the domestic use of cryptographic software. This decision, which I hope will be upheld by the Supreme Court, will be the first step towards greatly increased use of cryptography in domestic products, and enhanced personal privacy for all Americans.

Perhaps the most important aspect of this decision is that the appeals court recognizes the critical connection between the regulation of cryptography and our modern lives:

"we note that the government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately."

The court was thus right on target when it noted that the regulation of cryptography "touches on the public interest broadly defined.".

A second important aspect of this decision is that the court recognized the effect of technical change on the first amendment, and rejected suggestions that just because speech has side effects it somehow loses its protected status:

"the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The first Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution."

If the government appeals, the issue is very likely to go to the Supreme Court for resolution given the government's claim that national security might be affected. It is likely that the government will request and receive a stay order if it chooses to appeal. (An appeal to an en banc panel of the 9th Circuit is also possible.)

Congratulations to Cindy Cohn and the rest of the Bernstein legal team!

More information on Cryptography and the Constitution

More information on government regulation of cryptogragpy

More information on the link between cryptography, e-cash, and privacy
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

The World Intellectual Property Organization's Final Report on "The Management of Internet Names And Addresses: Intellectual Property Issues" is in all but one major respect a substantial improvement on the Interim Report.

• The attempt to define "abusive registrations" represents a good-faith effort to define cybersquatting. While this new definition will no doubt benefit from public comment and discussion, it seems to hew closely to the definitions evolving in the various courts that have considered the issue.
• Unfortunately, the Final Report leaves essentially unchanged the proposals in the Interim Report regarding the proposed treatment of globally famous trademarks. It proposes a baroque ad hoc quasi-judicial procedure based on vague (and in once case prejudicial) criteria to define when a trademark is sufficiently internationally famous to be granted special privileges on the Internet that the mark would not currently have under law. At present there is no agreed definition of a globally famous mark, although WIPO-sponsored panels have been seeking formulate a definition for years. Furthermore, the WIPO proposal rejects imposing any upper limit on the number of trademarks that may be declared "famous," perhaps because it is impossible to predict how many marks will qualify.
• As noted regarding the Interim Report, parties who lose their domain names under the proposed dispute resolution procedure and believe the arbitrator erred may find it difficult to find a court capable of hearing their claim. Because the Final Report restricts the dispute resolution procedure to a much narrower class of cases than did the Interim Report, one can expect that there will be many fewer such cases than initially feared - but not zero.
• In addition, there are a number of relatively minor ambiguities and possible errors relating to material which appears for the first time in the Final Report. This material will benefit from public review; and in some cases some of this material may need minor revision.
• While not strictly an intellectual property issue, and without wishing to minimize the complexity and importance of the real issues that remain to be determined, the Final Report's discussion of new gTLDs and especially the creation of a new privacy-enhanced gTLD for non-commercial uses, is a less ringing endorsement than one might have hoped.

The World Intellectual Property Organization's Final Report on "The Management of Internet Names And Addresses: Intellectual Property Issues" is in all but one major respect a substantial improvement on the Interim Report.

• The attempt to define "abusive registrations" represents a good-faith effort to define cybersquatting. While this new definition will no doubt benefit from public comment and discussion, it seems to hew closely to the definitions evolving in the various courts that have considered the issue.
• Unfortunately, the Final Report leaves essentially unchanged the proposals in the Interim Report regarding the proposed treatment of globally famous trademarks. It proposes a baroque ad hoc quasi-judicial procedure based on vague (and in once case prejudicial) criteria to define when a trademark is sufficiently internationally famous to be granted special privileges on the Internet that the mark would not currently have under law. At present there is no agreed definition of a globally famous mark, although WIPO-sponsored panels have been seeking formulate a definition for years. Furthermore, the WIPO proposal rejects imposing any upper limit on the number of trademarks that may be declared "famous," perhaps because it is impossible to predict how many marks will qualify.
• As noted regarding the Interim Report, parties who lose their domain names under the proposed dispute resolution procedure and believe the arbitrator erred may find it difficult to find a court capable of hearing their claim. Because the Final Report restricts the dispute resolution procedure to a much narrower class of cases than did the Interim Report, one can expect that there will be many fewer such cases than initially feared - but not zero.
• In addition, there are a number of relatively minor ambiguities and possible errors relating to material which appears for the first time in the Final Report. This material will benefit from public review; and in some cases some of this material may need minor revision.
• While not strictly an intellectual property issue, and without wishing to minimize the complexity and importance of the real issues that remain to be determined, the Final Report's discussion of new gTLDs and especially the creation of a new privacy-enhanced gTLD for non-commercial uses, is a less ringing endorsement than one might have hoped.