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Divining the Future of Internet Law

Posted by michael on from the he-who-has-the-gold-makes-the-rules dept.

Mansing writes: "In his last Cyber Law Journal (New York Times, registration required, etc.), Carl Kaplan has captured a collection of insights from the like of Dr. Larry Lessig and Dr. James Boyle. Each one of these correspondents brings a slightly different, and sometimes humorous, view of what legal challenges and legal decisions may face the users of technology in the next year."

81 comments

  1. Shouldn't that be "Defining"? by Uttles · · Score: 1, Offtopic

    Just curious. Also, anyone with a NYT reg post the text, pretty please!

    --

    ~ now you know
    1. Re:Shouldn't that be "Defining"? by Proaxiom · · Score: 1

      No, "divining". It means "predicting".

      ----

      When I was commissioned to write Cyber Law Journal in 1997, I thought that the best way to cover my beat would be to plop myself down at the intersection of law and cyberspace and watch the litigants, lawyers, cases, professors and judges pass by. That turned out to be as good a method as any, with the added benefit that parades are fun to watch. But now after four and a half years and well over 200 columns I'm leaving my seat. Today's column is the final Cyber Law Journal.

      I want to thank the many experts who shared their insights and humor over the years. To my e-mail correspondents: I have been impressed by the depth of your concern about cyberlaw issues. To the members of the legal parade -- march on. It's been a privilege writing this column.

      Of course the legal puzzles created by the realm of cyberspace haven't ended. So it's appropriate that this last installment is about the future.

      What are the 2-3 major Internet law and policy issues that are likely to crop up in 2002? A group of legal mavens took up that challenge, and their edited predictions appear below.

      Larry Lessig
      Professor, Stanford Law School

      Microsoft and Disney will become the most important allies in defending the core values of the Internet.

      Cass Sunstein
      Professor, University of Chicago Law School

      It's hard to predict the future. But let's look closely at (a) efforts to use to Internet to track terrorism and other crimes, (b) the possible diminution of privacy rights, and (c) efforts to censor apparently dangerous speech on the Internet.

      Ivan Fong
      Senior Counsel, E-Commerce and Information Technology, General Electric

      1. The USA Patriot Act [the anti-terrorism measure that, among other things, includes new rules about the government's access to information on the Internet] will largely survive constitutional challenges in the courts.

      2. The Supreme Court will strike down, on First Amendment grounds, those portions of the Child Pornography Prevention Act that effectively criminalize the generation of digital images of fictitious children engaged in imaginary but explicit sexual conduct. The high court will urge Congress to draft a narrower prohibition.

      3. Congress will pass legislation to encourage companies to share cyber-security data with the government, by exempting such data from disclosure under the Freedom of Information Act and by providing antitrust protection for companies that collaborate on cyber-security matters.

      James Boyle
      Professor, Duke University Law School

      The year 2002 will see the first real chance for the Supreme Court to signal, through its consideration of a number of cert petitions, what kind of constitutional restraints, if any, it will impose on the new expansions of intellectual property law: the range wars of the Internet.

      While the most dangerous of these expansions -- the so-called database bill that gives property rights over unoriginal compilations of facts -- has not yet become law, there will be continued and intense pressure to pass it, with equally strong resistance from the science, research and civil liberties communities. If the Supreme Court signals some willingness to apply the First Amendment to intellectual property rules in a serious way, or to take seriously the restrictions of the Constitution's intellectual property clause, then the database bill will be in trouble. As a result it may be drafted in a less sweeping way. The converse is also true. Dismissive treatment from the Supreme Court will merely embolden the proponents of maximalist intellectual property protection. And in the long run, it is the property rules that will shape the Internet's future more thoroughly than the rules on censorship or filtering or taxation.

      Dan L. Burk
      Professor, University of Minnesota Law School

      First, I expect to see increasingly sophisticated attacks against the constitutionality of the Digital Millennium Copyright Act's anti-circumvention provisions [which prohibit the use of, or trafficking in, a computer code the circumvents the encryption scheme protecting certain digital content]. The courts in 2001 addressed some First Amendment issues, but ducked the really hard question: whether Congress in passing the DMCA exceeded the constitutional power given to it under the Intellectual Property clause. The Supreme Court has held that Congress' power under the IP clause is limited -- copyright cannot be extended to unoriginal or factual works, and patents cannot be extended to obvious inventions. But the DMCA's anti-circumvention rules make no differentiation between protectable and unprotectable material. This exceeds Congress' power under the IP clause.

      I expect to see lawsuits filed during the next year that put that question front and center, and since it is the kind of question that the Supreme Court has shown an interest in, I would expect that the Court would like to take that kind of case.

      Second, and perhaps ultimately more important to Internet law, will be the resolution to the negotiations on the Hague Convention on Jurisdiction and Foreign Judgments. This is a treaty negotiation that has been going on for several years; during 2000 and 2001 it became clear that it is likely to shape the future of international e-commerce. The treaty deals with transborder enforcement of legal judgments. U.S. businesses initially pushed for this treaty, hoping to get more of their judgments enforced abroad, but apparently forgetting that it would work both ways judgments obtained in other countries could be enforced here. This has broad implications for, among other things, intellectual property, defamation, and the kind of situation Yahoo! got into regarding Nazi memorabilia in France.

      David Post
      Professor, Temple University Law School

      Predictions are too difficult . . . though I think you can bet on the following headline: "Music Iindustry Fails in Attempts to Get Users to Patronize Sponsored Music Services."

      Barry Steinhardt
      American Civil Liberties Union

      1. The upcoming decision of the U.S. Supreme Court in ACLU v. Ashcroft, which challenges the constitutionality of the Children's Online Protection Act -- Congress's second attempt to restrict all speech on the Internet to only that which is suitable for minors. The decision may test whether Internet speech continues to enjoy the highest constitutional protection.

      2. The inevitable abuses of the free speech and privacy rights of law-abiding Americans under the USA Patriot Act. These abuses will occur under a cloak of national security and it will be years before they come to light.

      3. The trial before a special U.S. Court in Philadelphia, which will test the constitutionality of the Children's Internet Protection Act, which forces libraries to install crude Internet filtering programs that will block lawful and valuable speech from their patrons -- children and adults alike.

      Marc Rotenberg
      Executive Director, Electronic Privacy Information Center

      1. The Hague Convention on Jurisdiction and Foreign Judgments will grind to a halt. The already beleaguered effort to establish international rules for enforcement of private judgments still faces strong opposition from ISPs and consumer groups.

      2. Consumer groups pressed the Federal Trade Commission in 2001 to look closely at the privacy and security implications of Microsoft's Passport -- a universal log-on service. Now that the Department of Justice's "Let-Us-Trust" Division has taken a pass on the long-running lawsuit and the private litigants seem ready to settle, the focus could quickly shift back to the FTC. Will the FTC act?

      3. The copyright industry was on a roll in the past year, knocking out Napster and defending the Digital Millennium Copyright Act. Now the question is whether consumers are ready for digital products that track users, report to manufacturers and shut down when licenses expire.

      Jack Balkin
      Professor, Yale Law School

      Certainly one of the most important developments this year will be the continuing struggle between free speech and intellectual property in the courts. Civil libertarians will try to push for recognized First Amendment defenses against copyright and paracopyright. At the same time, businesses will continue to try to invoke the First Amendment as a defense against government regulation of the telecom industry.

      Although these two trends both invoke the First Amendment, they actually represent very different philosophies and, indeed, mutually opposed visions of what free speech is all about.

      Jessica Litman
      Professor, Wayne State University Law School

      Some things I'll be watching in 2002: (1) What sorts of Internet privacy measures, those to enhance and those to diminish or prevent privacy and anonymity, will be acceptable in the wake of the September 11 terrorist attacks, and what will fly under the radar using prevention of terrorism as an excuse? (2) Whether a variety of government and business initiatives to respond to threats of cyber-terrorism will advance or undermine the adoption of open source software as an alternative to popular and currently vulnerable commercial computer programs.

    2. Re:Shouldn't that be "Defining"? by Uttles · · Score: 1

      Oh, thanks!

      (I was afraid they were trying to make the internet Godly or something)

      --

      ~ now you know
    3. Re:Shouldn't that be "Defining"? by DarkZero · · Score: 3, Informative

      "Divining" means to predict, or to tell/guess the future. Since it's a list of assumptions and predictions regarding the future year, "divining" is the correct word. (You might have heard of this from the term "divining rod", a piece of wood used to guess the position of water hidden under the earth via supposedly supernatural power)

  2. The Good News Is... by iGawyn · · Score: 5, Interesting

    At least most of the law professors interviewed by the NYT haven't lost all touch with reality. They predict things such as users not patronizing RIAA-run music services (no suprise there), the government abusing its powers under the new USA-Patriot act (again, no suprise), more court cases being brought up to fight the Constitutionality of the DCMA and predictions that the Supreme Court will hear them, internet privacy battles being fought over how much the government can regulate what we do.

    None of it's really suprising, if you pay attention to the news, but the good news is that prominent law professors realize that this is happening, and many of them at least appear to be siding with sanity.

    Perhaps in the next few years, we'll see either the DMCA being revoked, or at least heavily amended, and if we're really lucky, some of those quoted law professors will mean what they say and go to bat for the public against the government, protesting the invasions of privacy.

    Gawyn

    --
    Freedom of Speech?
    1. Re:The Good News Is... by cez · · Score: 1

      When dealing with the government and large corporations, when has sanity ever been an issue?

      --
      Walk with Music;
  3. Now this sounds Depressing.... by bihoy · · Score: 5, Insightful

    "Microsoft and Disney will become the most important allies in defending the core values of the Internet."

    Because, to me, this means further commercialization of the Internet to the exclusion of those with smaller bankrolls. I think what's at stake here is the use of the Internet as an equalizing factor between the Mega-Companies and small companies and individuals. This is precisely what the Open Source community must fight tooth and nail.

    1. Re:Now this sounds Depressing.... by ThePilgrim · · Score: 1

      This depends on how you define core values.

      Microsoft and Disney would like the core values of the Internet to be include the ability to sell their products unhindered to as many people as possible.

      Where most /. users would like the core values of the Internet to include the abilaty to bash Microsoft and Disney every day :-)

      --
      Wouldn't it be nice if schools got all the money they wanted and the army had to hold jumble sales for guns
    2. Re:Now this sounds Depressing.... by ch-chuck · · Score: 1

      That's like saying "Fred the Fox and Wally the Wolf will become the most important allies in defending the core values of the henhouse".

      --
      try { do() || do_not(); } catch (JediException err) { yoda(err); }
    3. Re:Now this sounds Depressing.... by Flower · · Score: 2
      I think this was meant as a joke. I've just started reading Lessig's latest book where he talks about how the Internet having an e2e architecture makes it an innovation commons. Microsoft and especially Disney would like to put restrictions on that e2e design by limiting what an attached device could do.

      Either that or our favorite legal scholar has become addicted to crack and we then need to quickly get an intervention meeting in order. Anybody have the number to Betty Ford? :)

      --
      I don't want knowledge. I want certainty. - Law, David Bowie
    4. Re:Now this sounds Depressing.... by ToLu+the+Happy+Furby · · Score: 5, Insightful

      I think this was meant as a joke. I've just started reading Lessig's latest book where he talks about how the Internet having an e2e architecture makes it an innovation commons. Microsoft and especially Disney would like to put restrictions on that e2e design by limiting what an attached device could do.

      It's not a joke. If you pay attention to Lessig's recent pronouncements on the subject, he's decided that the biggest threat to the Internet comes from those who would change it from its current topology--i.e. a dumb network with smart terminals--into a smart network with dumb terminals. The companies Lessig figures are trying to do this are, not surprisingly, the ones that own the network (or parts thereof): AOLTW and the rest of the cable co.'s. Since most of these companies are either connected with the copyright cartels or in the business of making distribution deals with them, they would like nothing more than to be able to control what content passes over their section of "the Internet".

      MS and Disney, on the other hand, and for all the horrible things which can rightfully be said about them, do *not* want a switch to a smart network with dumb terminals...because they don't control the network, and would thus be at the mercy of those who do. Indeed, Lessig is apparently quite optimistic about .NET from this standpoint, as it most certainly involves a way to increase the power terminals get from communicating over the Internet without changing the rules of the network itself (even to the point of exploiting the few restrictions already part of those rules, but I digress). Yes, you might need to sell your credit cards, pets, soul, mortgage, etc. to MS in order to access any Passport-enabled websites, but at least in order for .NET to work it will require leaving the Internet intact for non-.NET websites to talk to non-MS computers quite happily.

      Microsoft and especially Disney would like to put restrictions on that e2e design by limiting what an attached device could do.

      Perhaps they would, but they don't control the network, so they can't. Instead, they need to push for the network to stay open in order to allow their attached devices to do whatever they want them to do. The cable companies, on the other hand, do control the network, and have been itching for years and years to limit what an attached device can do in order to eliminate competition for their own attached devices, or in order to extort content providers for the privilige of getting their stuff on the "approved list".

      Lessig argues that these sorts of issues of telecommunications law are in fact the most dire threat posed to the Internet in the near future, and that most politechies misplace their energies by not realizing this fact. Dunno if he's at all right about this, but he's certainly proved insightful in the past.

    5. Re:Now this sounds Depressing.... by RazzleFrog · · Score: 3, Informative

      I think that he sees them as lesser of several evils. Would you rather see an internet controlled by AOLTW? Remember, Microsoft may control a good amount of the software infrastructure but they control little (if any) of the hardware and even less of the content. Disney has tons of content but no hardware and little software.

      AOLTW on the other hand has huge control over hardware, software and content. Add to that the fact that they have significant influences within the US Government (see President's Council of Advisors, Bush's appointment of AOLTW President Richard Parsons as US Trade Representative., and the fact that Colin Powell was on the AOL Board ) and you have a pretty good picture of why Microsoft is not as damaging to the internet when compared to other companies.

    6. Re:Now this sounds Depressing.... by medcalf · · Score: 3, Interesting

      That may well be true, but I suspect that the Internet is alive. What I mean by that, is that the Internet is capable of growing and evolving.

      Let's say that the Internet begins to evolve in such a direction that content and access are heavily controlled - geographically, by companies, whatever. The Internet is just a series of connected networks, and you don't have to be part of the Internet to be networked. I suspect that Internet2 and freenet would grow, and that other networks with (small 'l') libertarian principles would grow as well. I certainly would be willing to get a leased line network set up between my friends and I, and have a gateway or two to the Internet at large, in order to preserve my ability to communicate freely.

      It can be argued that I would then be unable to access the content of the Internet at large, but that is bunk. I would be able to, should I choose, but I would not be forced to use the (putatively bad) protocols and such in order to email friends and family.

      Would this be expensive? Yes. Is it impossible to do or to afford? No.

      --
      -- Two men say they're Jesus. One of them must be wrong. - Dire Straits
    7. Re:Now this sounds Depressing.... by jacoplane · · Score: 2, Informative

      I agree with you that Lessig definitely did not mean this to be a joke. Microsoft could be an ally of freedom of the internet, but only if the remedy in the MS vs DOJ case steers them in this direction. Professor Lessig himself makes this point clearly in his testimony on the issue.

    8. Re:Now this sounds Depressing.... by Flower · · Score: 2
      Yeah, you're right. I didn't remember those remarks. My brain has been elsewhere. For that, I apologize.

      But I have to ask. What is the difference between controlling the network or controlling the end device in this model? The key to e2e is that the end device is "smart" or more to the point flexible in it's ability to be configured.

      Disney would much rather see devices like the PC be lobotomized and I'm sorry but, while I agree with Lessig that MS isn't the Great Satan, MS is a convicted monopolist that is currently getting what I can only consider positive reinforcement for its anti-competitive behavior. Unlike the people at Ximian, I don't have much faith that .Net will be open enough to accommodate non-MS platforms. It makes sound business sense to leverage proprietary extensions on .Net desktops which 95+ percent of the population will use to get MS .Net servers into the ISPs.

      We then get left with a "Do it the MS way or the highway" commons not an innovation commons imho. Add to that, Disney's desire to make it illegal to bypass any hardware or software controls on the PC and now you don't get to try things which are out of the box. I'm not saying that the end result wouldn't be useful for people but I do think it would curtail the commons he initially describes in his book.

      I guess what I'm arguing is while MS and Disney don't control the backbone they can control the front-end. Under those circumstances, what's the difference?

      --
      I don't want knowledge. I want certainty. - Law, David Bowie
    9. Re:Now this sounds Depressing.... by an_mo · · Score: 1

      I think that was a joke. It sounded like one at least.

    10. Re:Now this sounds Depressing.... by Anonymous Coward · · Score: 0

      Come on...

      When was the last time the Open Source community defeated *ANY* large companies at *anything*?

      Barring DeCSS of course... I'm talking about *legally* beating large companies at their own game.

      Honestly - corporations rule America. Period. I hate Microsoft and AOL-TW as much as anyone else (many people would say *more* than most people), but let's be realistic - for OSS to be successful, it's gonna have to fight fire with fire.

      OSS needs big corps capable of (and more than willing) to fight bigger corps like MS and AOL-TW in court on every possible issue. And the OSS companies have to *win*. Every _single_ time.

      Probably the best candidates for this are Apple, Sun, and Redhat. In that order.

      And what's funny is this: once the OSS companies get too big, they'll wind up as powerful and arrogant as MS. Then a new company will have to form to take on the old OSS company -- it's a cycle of killing off those who become too powerful...

      Oh - and this is from somebody who runs Slackware on a daily basis for everything except most gaming... And I rarely do any gaming.

  4. Hardware vs content by pjones · · Score: 5, Interesting

    bipolar companies such as Sony who make great profits off of consumer electronics -- walkman say -- and from content -- their music holdings -- will be engaged in strong internal battles over intellectual property rights (hardies going for lesser protection so as to get more content and more demand for hardware at a lower price point; content protectors the opposite). since Sony and others make much more from hardware look for the challenge to IP to come from them as they turn on the RIAA and MPAA

    --
    Certified Black Helicopter Pilot *** Unwitting Dupe of One World Gov'ment
  5. Heres the text for the article by Zara2 · · Score: 3, Redundant
    CYBER LAW JOURNAL Divining the Future of Law and Technology By CARL S. KAPLAN

    Carrie Boretz Carl S. Kaplan is a New York-based lawyer and journalist. Cyber Law Journal: The Year in Internet Law (December 28, 2001)

    when I was commissioned to write Cyber Law Journal in 1997, I thought that the best way to cover my beat would be to plop myself down at the intersection of law and cyberspace and watch the litigants, lawyers, cases, professors and judges pass by. That turned out to be as good a method as any, with the added benefit that parades are fun to watch. But now after four and a half years and well over 200 columns I'm leaving my seat. Today's column is the final Cyber Law Journal.

    I want to thank the many experts who shared their insights and humor over the years. To my e-mail correspondents: I have been impressed by the depth of your concern about cyberlaw issues. To the members of the legal parade -- march on. It's been a privilege writing this column.

    Of course the legal puzzles created by the realm of cyberspace haven't ended. So it's appropriate that this last installment is about the future.

    What are the 2-3 major Internet law and policy issues that are likely to crop up in 2002? A group of legal mavens took up that challenge, and their edited predictions appear below.

    Larry Lessig Professor, Stanford Law School

    Microsoft and Disney will become the most important allies in defending the core values of the Internet.

    Cass Sunstein Professor, University of Chicago Law School

    It's hard to predict the future. But let's look closely at (a) efforts to use to Internet to track terrorism and other crimes, (b) the possible diminution of privacy rights, and (c) efforts to censor apparently dangerous speech on the Internet.

    Ivan Fong Senior Counsel, E-Commerce and Information Technology, General Electric

    1. The USA Patriot Act [the anti-terrorism measure that, among other things, includes new rules about the government's access to information on the Internet] will largely survive constitutional challenges in the courts.

    2. The Supreme Court will strike down, on First Amendment grounds, those portions of the Child Pornography Prevention Act that effectively criminalize the generation of digital images of fictitious children engaged in imaginary but explicit sexual conduct. The high court will urge Congress to draft a narrower prohibition.

    3. Congress will pass legislation to encourage companies to share cyber-security data with the government, by exempting such data from disclosure under the Freedom of Information Act and by providing antitrust protection for companies that collaborate on cyber-security matters.

    James Boyle Professor, Duke University Law School

    The year 2002 will see the first real chance for the Supreme Court to signal, through its consideration of a number of cert petitions, what kind of constitutional restraints, if any, it will impose on the new expansions of intellectual property law: the range wars of the Internet.

    While the most dangerous of these expansions -- the so-called database bill that gives property rights over unoriginal compilations of facts -- has not yet become law, there will be continued and intense pressure to pass it, with equally strong resistance from the science, research and civil liberties communities. If the Supreme Court signals some willingness to apply the First Amendment to intellectual property rules in a serious way, or to take seriously the restrictions of the Constitution's intellectual property clause, then the database bill will be in trouble. As a result it may be drafted in a less sweeping way. The converse is also true. Dismissive treatment from the Supreme Court will merely embolden the proponents of maximalist intellectual property protection. And in the long run, it is the property rules that will shape the Internet's future more thoroughly than the rules on censorship or filtering or taxation.

    Dan L. Burk Professor, University of Minnesota Law School

    First, I expect to see increasingly sophisticated attacks against the constitutionality of the Digital Millennium Copyright Act's anti-circumvention provisions [which prohibit the use of, or trafficking in, a computer code the circumvents the encryption scheme protecting certain digital content]. The courts in 2001 addressed some First Amendment issues, but ducked the really hard question: whether Congress in passing the DMCA exceeded the constitutional power given to it under the Intellectual Property clause. The Supreme Court has held that Congress' power under the IP clause is limited -- copyright cannot be extended to unoriginal or factual works, and patents cannot be extended to obvious inventions. But the DMCA's anti-circumvention rules make no differentiation between protectable and unprotectable material. This exceeds Congress' power under the IP clause.

    I expect to see lawsuits filed during the next year that put that question front and center, and since it is the kind of question that the Supreme Court has shown an interest in, I would expect that the Court would like to take that kind of case.

    Second, and perhaps ultimately more important to Internet law, will be the resolution to the negotiations on the Hague Convention on Jurisdiction and Foreign Judgments. This is a treaty negotiation that has been going on for several years; during 2000 and 2001 it became clear that it is likely to shape the future of international e-commerce. The treaty deals with transborder enforcement of legal judgments. U.S. businesses initially pushed for this treaty, hoping to get more of their judgments enforced abroad, but apparently forgetting that it would work both ways judgments obtained in other countries could be enforced here. This has broad implications for, among other things, intellectual property, defamation, and the kind of situation Yahoo! got into regarding Nazi memorabilia in France.

    David Post Professor, Temple University Law School

    Predictions are too difficult . . . though I think you can bet on the following headline: "Music Iindustry Fails in Attempts to Get Users to Patronize Sponsored Music Services."

    Barry Steinhardt American Civil Liberties Union

    1. The upcoming decision of the U.S. Supreme Court in ACLU v. Ashcroft, which challenges the constitutionality of the Children's Online Protection Act -- Congress's second attempt to restrict all speech on the Internet to only that which is suitable for minors. The decision may test whether Internet speech continues to enjoy the highest constitutional protection.

    2. The inevitable abuses of the free speech and privacy rights of law-abiding Americans under the USA Patriot Act. These abuses will occur under a cloak of national security and it will be years before they come to light.

    3. The trial before a special U.S. Court in Philadelphia, which will test the constitutionality of the Children's Internet Protection Act, which forces libraries to install crude Internet filtering programs that will block lawful and valuable speech from their patrons -- children and adults alike.

    Marc Rotenberg Executive Director, Electronic Privacy Information Center

    1. The Hague Convention on Jurisdiction and Foreign Judgments will grind to a halt. The already beleaguered effort to establish international rules for enforcement of private judgments still faces strong opposition from ISPs and consumer groups.

    2. Consumer groups pressed the Federal Trade Commission in 2001 to look closely at the privacy and security implications of Microsoft's Passport -- a universal log-on service. Now that the Department of Justice's "Let-Us-Trust" Division has taken a pass on the long-running lawsuit and the private litigants seem ready to settle, the focus could quickly shift back to the FTC. Will the FTC act?

    3. The copyright industry was on a roll in the past year, knocking out Napster and defending the Digital Millennium Copyright Act. Now the question is whether consumers are ready for digital products that track users, report to manufacturers and shut down when licenses expire.

    Jack Balkin Professor, Yale Law School

    Certainly one of the most important developments this year will be the continuing struggle between free speech and intellectual property in the courts. Civil libertarians will try to push for recognized First Amendment defenses against copyright and paracopyright. At the same time, businesses will continue to try to invoke the First Amendment as a defense against government regulation of the telecom industry.

    Although these two trends both invoke the First Amendment, they actually represent very different philosophies and, indeed, mutually opposed visions of what free speech is all about.

    Jessica Litman Professor, Wayne State University Law School

    Some things I'll be watching in 2002: (1) What sorts of Internet privacy measures, those to enhance and those to diminish or prevent privacy and anonymity, will be acceptable in the wake of the September 11 terrorist attacks, and what will fly under the radar using prevention of terrorism as an excuse? (2) Whether a variety of government and business initiatives to respond to threats of cyber-terrorism will advance or undermine the adoption of open source software as an alternative to popular and currently vulnerable commercial computer programs.

    --

    Pithy, yet ultimately meaningless, phrase expressed with gusto!

    1. Re:Heres the text for the article by yobbo · · Score: 1

      You could've just copied the headline of the article to make the point.....

    2. Re:Heres the text for the article by Zara2 · · Score: 1, Offtopic

      Actually I just wanted to stop the whining of "I cant be bothered to spend the time to make a fake password" posts that always go with a NYT article and the karma helps ;)

      --

      Pithy, yet ultimately meaningless, phrase expressed with gusto!

    3. Re:Heres the text for the article by medcalf · · Score: 2
      Cass Sunstein Professor, University of Chicago Law School It's hard to predict the future. But let's look closely at (a) efforts to use to Internet to track terrorism and other crimes, (b) the possible diminution of privacy rights, and (c) efforts to censor apparently dangerous speech on the Internet.

      The scary part about this is that virtually all speech (at least, any that expresses a preference or point of view) is dangerous to someone. Just witness the fact that the famous picture of three firemen (all white males) raising the flag at the WTC site was turned into a statue ... where two of the firemen have been replaced with firemen of other races in order to "show the diversity" of firefighters in NYC. How many countries and companies would like to ban the opinions of their critics?

      --
      -- Two men say they're Jesus. One of them must be wrong. - Dire Straits
  6. Re:Legal scmegal by iGawyn · · Score: 5, Interesting

    Actually, if you think that legal battles don't matter, you're sadly mistaken. The major changes to the internet and "life as we know it" will happen in the courtrooms, far from most of us. That is what the EFF is here for, to fight for the rights of, well, people like us. Those of us who use computers, the internet, DVDs, what have you. Legal issues are often underlooked in the online community, but they are very important.

    Gawyn

    --
    Freedom of Speech?
  7. The Year of PKI by Proaxiom · · Score: 4, Insightful
    I'm sure 2002 will be the year of PKI.

    Just like 2001, 2000, 1999, 1998...

    But seriously, while they seem to focus on civil liberties and privacy, there is a big cyberlaw issue that wasn't addressed: Digital Signatures.

    How many American states will finally wake up and pass comprehensive digital signature laws, to complement the framework provided in the federal E-Sign law?

    The west coast seems to be coming along well, but the east is really lagging, with most states not even having anything on the books.

    Once again, Europe is leaving America in the dust on technology legislation...

    1. Re:The Year of PKI by Anonymous Coward · · Score: 0

      I'm sure 2002 will be the year of PKI.
      Maybe 2002 will be the year of PKD!

  8. I predict... by hubbabubba · · Score: 5, Funny

    ...the NYT is gonna get all steamed up about copyright infringement by people who post their entire articles at Slashdot. ;-)

    --
    Fried ice cream is a reality. - George Clinton
    1. Re:I predict... by AnalogBoy · · Score: 0, Offtopic

      Butbutbut.. Information wants to be anthropomorphize..err, free..

      Though i have to wonder how many hits the NYT lose on a daily basis because of their log-in policy. I don't go there, i'd rather get my news from CNN or ABCnews. Not because im morally opposed to the prospect of logging into a news site.. lets be honest, im just lazy.

      From the bibliodot:
      Book of the Wisdom of the Penguins

      2:15 Learn this, young pedowan. Slashdot respects not law, nor power, nor those who wish to make money from their works, nor the good that intrensically comes from evil.

      2:16 Slashdot is the counterculture. Feel with your heart, don't think with your head. Abolish 5,000 years of civilizations evolution to justify thyself as right.

      2:17 Slashdot is the temple. The zealots and the faithful gather regularly and converse, yea, the zealots lead. Sensasionalism is their call, and welcome it they do;

      2:18 Remove thyself from the restrictions of thy laws you see as unjust. For some laws will be unjust; yet, some laws will be just, and good for the many; yet those who wish not to let go of their purse in persuit of their gratification will call these laws evil, and unjust.

      2:19 Thy enlightened ones shall have their posts marked as "offtopic", "Flamebait", or even "troll". These posts, which make thy brain spark, are against this new order; yet they are the basis of this new order.

      So writes the penguin.

  9. core value? by asmithmd1 · · Score: 3, Insightful

    So what are the core values of the internet? Where are they written? Did he mean to say Microsoft and Disney will become the most important allies in Defining the core values of the Internet. This I can believe

    --
    Free cell phone tracking
    1. Re:core value? by Masem · · Score: 3, Insightful
      IMO, the essence of the internet, post-ARPANET but pre-commericalization, was that "There are no barriers". Barrier in the geographical sense, in language, in publication, etc. This in part was due to the unquested peering agreements between backbones, open standards on network protocols, and that anyone could publish without having to get a license or pay large fees to do so. Many in that time likened the Internet to the Gutenburg printing press, as both inventions allows the mass distribution of information more than the previous tech allowed.

      Commercialization changed all that. While there are still places where there are no barriers, there are definitely barriers in various places to be had, both from executive choices, governement regulation, or otherwise. For any major ISP or software company, specifically AOLTW, Microsoft, and now Comcast/AT&T Broadband, they would make the most to gain by creating the walled garden where there is no barriers to information that they control, but it's impossible to get information outside of it or for outsiders to get information from it; at best, a walled garden with toll booths at the entrances would be a prime money-making model. This is not to say they are going this way, but certainly, if they suddenly found themselves with a walled garden, legally, they would be overjoyed to continue running it as such. However, achieving a walled garden from today's Internet structure would require not only changing the technology the Internet runs on, but also government restrictions and consumer outlashing. They'll try to put up more barriers (MSN restricted to IE only, online music ventures with propriatary formats, etc), and may sneak their way to this ideal condition, but I doubt they'll ever achieve it.

      --
      "Pinky, you've left the lens cap of your mind on again." - P&TB
      "I can see my house from here!" - ST:
  10. Happy 50'th, Lawrence Lessig! by Tsar · · Score: 3, Insightful

    This is the 50th /. story about Lessig since the first one three years ago. As court appointed master in the MS-DOJ case, he'd sworn that he had no personal bias or prejudice, even though he'd sent an email to a lawyer friend at Netscape saying that having installed IE was equivalent to selling his soul. An appellate court kicked him off the case shortly thereafter.

    He continues to be a voice of reason and intelligent debate in an arena where both are often sorely lacking. Our community is richer for his presence.

    1. Re:Happy 50'th, Lawrence Lessig! by Tsar · · Score: 1

      This is the 50th /. story about Lessig since the first one [slashdot.org] three years ago.

      Oops, sorry, that was four years ago. (2002 - 1998 = 4, right?)
      I'm still not used to 2K2 math.

    2. Re:Happy 50'th, Lawrence Lessig! by Fjord · · Score: 1

      even though he'd sent an email to a lawyer friend at Netscape saying that having installed IE was equivalent to selling his soul

      This is really taken out of context. By saying this he meant installing IE, like selling his soul, was a fairly natural thing for him to do. He is a lawyer after all.

      --
      -no broken link
  11. Read my lips... by ZoneGray · · Score: 5, Interesting

    Geez, I read through the article quickly, but nobody seemed to mention taxes.

    All other Internet issues will take a back burner on the congressional agenda, although it may not happen in an election year. Watch out in 2003, though. This year, they'll probably appease the special interests, such as RIAA and MPAA, which can generate some campaign cash before the elections.

    They're no fools, they want money to spend, and the Internet is a source of it. A money grab coming on the heels of the bursting bubble would have been too tacky even for politicians. But expect them to take it up again as e-commerce growth starts to recover.

    Then, of course, they'll claim credit for the recovery.

    (on a related note why do you think they wanted to pass a "economic stimulus package"? They know the economy is going to recover this year, and they wanted to take credit for it. Thankfully, they also wanted to make sure the opposing party didn't take credit for the recovery... so each party blocked the other's initiatives, and nothing happened. So now, if it doesn't recover, they can each blame the other side. I used to try to analyze these initiatives on their merits, until I realized what was really going on.)

    1. Re:Read my lips... by Anonymous Coward · · Score: 0

      I'm curious where you see taxes being applied to the internet. Do you see them as a federal sales tax?

    2. Re:Read my lips... by ZoneGray · · Score: 2

      I really don't know... and as I think about it more, a federal sales tax might be the only constitutional way, and that's unlikely to get the signature of a Republican President. (especially one whose father got bounced from the job after raising taxes!)

      But they see the Internet, they see a lot of money, and politicians rarely pass up an opportunity like that. Could be that they'll just pass more and more regulations, and thereby benefit from campaign contributions by interests they're protecting.

      Eventually, though... they'll eventually find a constitutional way to extract some money directly. For example, they could help the states collect their "unpaid sales taxes" and rig it so the fed gets a kickback from what they help collect.

  12. Defining the Future of Cyborg Law by Mentifex · · Score: 0

    Internet law is about to become a bi-species law of both robots and human beings as we approach the Technological Singularity.

    There are now Artificial Minds evolving towards full civil rights on a par with human beings and towards superintelligence beyond any human IQ. All of previous human law is about to become terribly outdated and unable to deal with robots and cyborgs that exist immortally with the attendant civil and cyborg rights.

  13. The Greedy Try Harder by Alien54 · · Score: 3, Insightful
    Strangely enough, this ties in well with The earlier Slash Story on Punishing Freeloaders.

    Corporations will try harder to freeload. and people will try to stop them. Of course, the corporations would argue that it is the other way around.

    But that is why we have courts, I think.

    --
    "It is a greater offense to steal men's labor, than their clothes"
  14. obligatory NYTimes link by Negative_Earth · · Score: 2, Informative


    http://archives.nytimes.com/auth/login?URI=http:// www.nytimes.com/2002/01/11/technology/11CYBERLAW.h tml

    Since Kaplan is leaving, I'm wondering who will take over the job, of anybody? Has there been anything else out there like this?

    ______________________

    --
    [insert humourous sig here]
  15. OT: Dissociative Identity Disorder, maybe by schmelter_tim · · Score: 1, Offtopic

    Sorry, personal interest topic. Mental health issues are not widely understood, so let me say that I'm not sure Sony (or any other company, for that matter) would be classified as "bipolar". In psychological terms, "bipolar" means

    a major affective disorder in which an individual alternates between states of deep depression and extreme elation.

    In other words, "manic-depressive". I don't see Sony as ever being depressive in its actions against Aibo hackers... :-)

    You probably want some variation of: Dissociative Identity Disorder, or "Multiple Personality Disorder".

    --
    "Do not meddle in the affairs of wizards, for you are crunchy and good with ketchup." --/usr/games/fortune
    1. Re:OT: Dissociative Identity Disorder, maybe by Anonymous Coward · · Score: 0

      He may be offtopic but he has a good point. Slashdotters throw around words like they were napkin spitballs. I think there should be a mod for people who are offtopic but call people out on blatant misuse of the English language.

    2. Re:OT: Dissociative Identity Disorder, maybe by pjones · · Score: 2

      Guilty as charged. i shoulda used orwell's "doublethink" perhaps.

      --
      Certified Black Helicopter Pilot *** Unwitting Dupe of One World Gov'ment
    3. Re:OT: Dissociative Identity Disorder, maybe by RedWizzard · · Score: 2

      Bipolar is not just a mental health term. According to Merriam-Webster bipolar means "having or marked by two mutually repellent forces or diametrically opposed natures or views" which pretty much does describe Sony's hardware vs content divisions. I think there should be a mod for people who call people out on blatant misuse of the English language when they clearly don't know what they're talking about.

  16. re: he-who-has-the-gold-makes-the-rules by LinuxParanoid · · Score: 4, Interesting

    Regarding "he-who-has-the-gold-makes-the-rules," remember that the American consumer is the one with the gold, and we give it to record companies and we make the rules. The gold isn't the issue; it's who cares most and who acts most effectively upon it.

    Best to do something yourself, but if not, haven't you at least helped support the EFF who is speaking out on this?

    --LP (no EFF connection other than as a supporter and fan)

  17. Honest answer by PowerTroll+5000 · · Score: 2, Interesting

    From the article, David Post suggests:

    Predictions are too difficult . . . though I think you can bet on the following headline: "Music Iindustry Fails in Attempts to Get Users to Patronize Sponsored Music Services

    It is difficult to predict what will happen in the next year, especially given the events of last year. But it's dead on to say people will not pay for things they can currently get for free.

    FYI, Napster is giving free previews of their membership service, and from the reaction on boards frequented by ex-Napster users, Mr. Post's prediction will most likely ring true.

    --

    I'm not afraid of falling, it's the sudden stop at the end that frightens me.

    1. Re:Honest answer by onShore_Jake · · Score: 1

      But it's dead on to say people will not pay for things they can currently get for free.

      You mean like cable TV and MS OSs?
      Not true. Depends on if they are the EXACT same thing or not. Cable and MS are paid for because they offer (at least in the minds of the purchaser) something the free alternative does not.

  18. as ever.... by posmon · · Score: 0

    if you dont want to register then replace 'www.' with 'college.' in the url

    --

    update comments set karma=-1, reason='offtopic' where sid=26315

  19. Effect on the Bono Act by yerricde · · Score: 3, Interesting

    All of previous human law is about to become terribly outdated and unable to deal with robots and cyborgs

    At least this'll get Congress to reduce the copyright term from life + 70, as if "life" can be perpetual, a copyright term longer than "life" flies in the face of the "for limited times" limitation of the Copyright Clause even more than repeated copyright term extensions do.

    --
    Will I retire or break 10K?
  20. Moderators on Crack ??? by Anonymous Coward · · Score: 0

    How did the above get moderated "Troll??"

  21. More divination: by Proaxiom · · Score: 2, Funny
    Inevitably the MPAA and RIAA will argue that robot-written scripts and music must be protected for the life of the robot + 70.

    They will defend the constitutionality of it by arguing no robot will survive the theoretical end of the universe, and so the copyrights will expire 70 years after that, and are therefore of limited time.

    Myself, I intend to make a lot of money off my AI project that composes rudimentary musical scores...

  22. Re: he-who-has-the-gold-makes-the-rules by dltallan · · Score: 1

    "Regarding "he-who-has-the-gold-makes-the-rules," remember that the American consumer is the one with the gold, and we give it to record companies and we make the rules".

    After we give the gold to the record companies, it's the record companies who has the gold.

    The total gold held by consumers may be greater than that of record companies, but consumers are not pooling that gold and using it to speak with one voice. The record companies thus have a heck of a lot more gold than any of their opponents and can (and do) use it to make the rules through much better funded lobbying.

    If you really think that the American consumer is making the rules, you haven't been paying a lot of attention to the rules being made (by the legislators or in the courts).

    Or so it seems to me. YMMV, of course.

    --
    Respectfully, David Tallan
  23. Re: he-who-has-the-gold-makes-the-rules by cez · · Score: 1

    ummmm...yeah, we have the gold for about what???? 3 secounds, then the corps have my gold, his gold, and my neighbors' gold...gee where did all the gold go? They are melting it down and making gold toilet seats from it.

    --
    Walk with Music;
  24. Interesting mix of lawyers by f00zbll · · Score: 1
    The article used quotes from an interesting mix of lawyers. I find it curious that more than half of them addressed copyright issues. It would have been nice for a more extended article, but it was interesting none the less.

    One in particular got me thinking. How will libraries deal with increased restrictions of copyright laws and the possible implication in illegal behavior. If the record industry goes ahead with encrypted CD's, does it mean libraries will be forced to remove the old (non-encrypted) cd's off their shelves and invest in thousands of dollars of new CD's and equipment?

    Considering how many libraries have old, out of print books, cd's and tapes, how does the law impact the institution of libraries? It would seem libraries are also under threat. I see no difference in a library lending out a Metallica cd and some guy hosting MP3 files.

    1. Re:Interesting mix of lawyers by RazzleFrog · · Score: 1

      I don't think that the record industry intends to re-release every cd ever created with encryption. Therefore, The question of whether libraries will have to remove old copies of CD's is moot. Libraries are also not a popular target for IP holders. Even the record industry recognizes that taking away content from libraries (which are very popular with the middle and lower income families) would not be a politically correct decision.

    2. Re:Interesting mix of lawyers by f00zbll · · Score: 1

      True, they won't re-release every CD, but what about so called classics? There are plenty of CD's that are considered classics, which they would encrypt. You're probably right it's will probably be a limited selection, but what about people donating to the library? If I donate a 2 year old cd that was popular when it came out, and there are new encrypted versions, will the library reject them? I don't know much about library policies, but I have donated books in the past.

    3. Re:Interesting mix of lawyers by RazzleFrog · · Score: 2

      Like I said, I don't think that the RIAA (or any other IP holder) will go after libraries. I also don't see libraries rejecting donations or tossing old copies. Maybe some more well-funded libraries will make an effort but the small town library can't afford to pass up much of anything.

    4. Re:Interesting mix of lawyers by f00zbll · · Score: 1

      I sure hope you're right. It would be terrible for libraries to have to start turning down donations because they're afraid of violating copyright laws. Here's hoping for common sense and clear thinking with copyright laws. Luckily most people are on the side of libraries on this particular issue.

  25. No reason by Faile · · Score: 0

    "For full access to our website, please complete this simple registration form..." or dont.

    http://college.nytimes.com/2002/01/11/technology/1 1CYBERLAW.html

    --
    Anataka suki desu. Itsumo. Itsumademo.
  26. Patriot Act in the rest of the world... by tobe · · Score: 4, Insightful

    .. well, it doesn't apply does it. Remember that the DMCA, Patriot Act, Child protection Act etc only apply within the U.S.

    Whilst most European governments (for instance) have ISP Log access laws in the case of criminal investigations your rights to online privacy (as most other kinds) are still pretty well protected and legislation has not proceeded further than these basic laws.

    Over here in the U.K. we reacted to September 11th by modifying our own Anti-Terrorism Laws in a manner I suspect was intended to allow the immediate detainment of a small number of specific activists we already knew about but previously had no powers to pull in. Our particular multi-party system and the fact we have a generally liberal, libertarian government tends to mean we avoid laws that in any way could be considered draconian.

    The DMCA would actually be near impossible to implement over here due to our fundamentally different legal treatment of intellectual property rights. You also tend to find that where big business goes up against the individual on this side of the pond that the little guy will often win. Corporations do not have the same rights as individuals over here.

    As for the Child Protection Act.. the fact that we have have no constutionally enshrined rights to free speech might make you think that we're in constant danger of having any freedoms of speech quashed at the whim of our governments but it reality that doesn't happen. Europe, by and large, has left-leaning executive and legistlature so this sort of thing is less likely to occur. And the flip side of not having a freedom of speech act is that we also don't have nutcases bringing suits against the government arguing for their unalienable right to publish (whether manufactured or not) a bunch of kiddie porn.

    And the conclusion.. remember the U.S. has boundaries and that the net doesn't. If you're worried about what's going on simply move your on-line activites elsewhere if not your butt.

    1. Re:Patriot Act in the rest of the world... by xmedar · · Score: 2

      Tony and his cronies write some really attrocious laws that have already limited your freedoms, including RIPA and the Terrorism Act

      Home Office extends online snooping laws

      The Terrorism Act 2000

      Then there is Echelon of course

      This is how we know Echelon exists

      We may have The Magna Carta and the Human Rights Act in theory, however in practice you hang by only a very thin thread, like the student who was arrested for having an interest in the David Shaylor case

      British student arrested under Official Secrets Act

      Now if only I could clone Guy Fawkes...

      --
      Any sufficiently advanced man is indistinguishable from God
    2. Re:Patriot Act in the rest of the world... by Anonymous Coward · · Score: 0

      Our particular multi-party system and the fact we have a generally liberal, libertarian government tends to mean we avoid laws that in any way could be considered draconian.

      Yeah, because having a camera on every corner watching every citizen doesn't resemble an Orwellian, "1984"-ish society AT ALL...

      [mumble] British govn't can do no wrong eh? Sounds like what our American "patriots" like to think of the U.S. govn't, doesn't it? Yet we know *that* is patently wrong!

  27. Who is Carl Kaplan? by Anonymous Coward · · Score: 0

    Is he related to the judge Kaplan that tried to screw DeCSS and 2600 magazine?

    1. Re:Who is Carl Kaplan? by Anonymous Coward · · Score: 0

      That is an interest twist. One Kaplan screws people over with DMCA, the other fight against it. Talk about evil twin (or maybe just a split personality)...

  28. Corporate Freeloading Defined by Catiline · · Score: 2

    Corporations will try harder to freeload.

    I would agree, but what makes you think there's no ground (with current IP law) to say there's not already freeloading?
    Looking at the inserts for the latest Disney DVD release, I see that Snow White was first released in 1937. That means they will have copyright on it until 2032 (Thank you Mickey Mouse Protection Act). I am not arguing that Snow White (barring market saturation) won't still have value in 2032, but instead: how many other movies from 1937 are now "worthless"?

    Let's perform a thought experiment. Assume a constant print expiration rate for a given media (i.e. one year after publishing x amount of all materials are still in print; two years after x^2, etc). What percentage retention is required for 1% of all 95-year old (current copyright length) material to be in print? According to my calculator, an approximate 95.25% rate is required. 1% lower than than and the 95-year rate drops to .36%; at 90% retention the rate is a mere .004 percent. Is that small a possible percentage reason enough to grant the remaining 99+% protection to that age as well?

    --
    Do you like Japanese imports?
  29. Re: he-who-has-the-gold-makes-the-rules by LinuxParanoid · · Score: 1

    You somehow missed quoting my second sentence which seems to me completely consistent with your perspective.

    "The gold isn't the issue; it's who cares most and who acts most effectively upon it. "

    I'm not disputing the perception of reality you describe in your post. Except to add that we can do something about it, if we care enough. Money is not the bottleneck. Interest is. If the American consumer does nothing, he or she is indicating that giving the record companies more control is acceptable. Most consumers do. It's all fine and good for us to whine about corporate money, influence, politicians, etc, but frankly, the power vaccuum is coming from us. Corporations do not vote these guys in office. We do.

    Now every once in a while, ignorance of what to do is the bottleneck. Which is why I recommend people check out the EFF. Or a website like NY Fair Use.

    --LP

  30. Re:Get Some Priorities!!! by Ender7A · · Score: 0

    Some of us want to move on with life and stop mourning the past.

  31. The intersection of security and giveaways by Devout+Capitalist · · Score: 2, Interesting

    The prediction I found most interesting is:

    Congress will pass legislation to encourage companies to share cyber-security data with the government, by exempting such data from disclosure under the Freedom of Information Act and by providing antitrust protection for companies that collaborate on cyber-security matters.

    I think this concept will be extended further. Remember that Congress can grant antitrust and other illegal activity protection by law. (Hence the NBA/Baseball franchises). I expect Congress will start granting such exemptions, and protecting the data that tells consumers about these exceptions. Think about it. What wouldn't Microsoft give up for full protection from most laws? They'd happily give away all the Passport data, as well as anything else they can get their hands on. You could easily couch this as "protection of the Internet" ... because this permits the Feds to catch "evildoers."

    T.

    --
    Profit motivates invention.
  32. My favorite prediction by serutan · · Score: 1
    The guy from Temple University foreseeing the headline, "Music Industry Fails in Attempts to Get Users to Patronize Sponsored Music Services."

    None of the writers seemed inclined toward the one obvious prediction: that law on the Internet, as elsewhere, will continue to serve the interests promoted by the most money.