ARTS & FARCES internet

The Obama administration has authorized—in secret, of course—ongoing warrantless wiretaps of network segments operated by AT&T, CenturyLink, and several other telecommunications companies, cable companies, and internet service providers. AT&T, of course, was one of the largest participants in the National Security Agency’s (NSA) warrantless wiretapping program. According to Declan McCullagh, writing for CNET, the program started with a pilot project in which the US military would monitor defense contractor internet activity but has since been expanded to “cover all critical infrastructure sectors including energy, healthcare, and finance starting 12 June.”

The Electronic Privacy Information Center (EPIC) obtained more than 1,000 pages of internal Justice Department documents through a Freedom of Information Act (FOIA) request and Marc Rotenberg, EPIC’s executive director, tells McCullagh, “The Justice Department is helping private companies evade federal wiretap laws. Alarm bells should be going off.”

McCullagh reports that the warrantless wiretapping effort is being performed under 18 USC 2511, a section of the Wiretap Act that prohibits the interception of wire, oral, or electronic communications without a warrant. A primary exception of the prohibition is what’s known as the Provider Exception (18 USC 2511(2)(a)(i)) allowing telecommunications companies to intercept and monitor communications on their networks in a limited capacity to combat fraud and theft of service.

The Justice Department provided the telecommunications companies with written assurances—commonly known as “2511 letters” in reference to the USC section—acknowledging the companies would not be prosecuted for overstepping the statutory limitations of the Provider Exception.

McCullagh reports that in March 2013, the Congressional Research Service published a report (.pdf; 270.4KB) finding “the executive branch likely does not have the legal authority to authorize more widespread monitoring of communications unless Congress rewrites the law.”

It’s important to note that proposed legislation currently under consideration, including the Cyber Intelligence Sharing and Protection Act (CISPA) and Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act (SECURE IT), would authorize this warrantless wiretapping program precluding the necessity of the “2511 letters.”

The Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act (SECURE IT)—first introduced in 2012 by US Representative Mary Bono Mack (R-California) and reintroduced in 2013 by US Representative Marsha Blackburn (R-Tennessee) includes a very disturbing technical amendment that would create a new exemption to the Freedom of Information Act (FOIA).

Section 107 of the technical amendments would allow the government to withhold information shared with the cybersecurity centers created by the proposed legislation.

Additionally, language in the proposed legislation appears to define any information shared with the cybersecurity centers as “voluntarily shared information” and therefore exempt from FOIA. The language specifically preempts any state, local, or tribal law from requiring FOIA disclosure by actually creating a new FOIA (b)(3) exemption for the shared information.

The proposed legislation’s language is consistent with similar proposals such as the Cyber Intelligence Sharing and Protection Act (CISPA). The intent is to encourage corporations to share information with the government by giving them overly broad protections regarding the public release of the information they provide. What few realize is that really, truly sensitive corporate information already enjoys FOIA exemption under one or more of the existing nine FOIA exemptions:

1. Exemption 1: Information that is classified to protect national security and classified under an Executive Order.
2. Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
3. Exemption 3: Information that is prohibited from disclosure by another federal law.
4. Exemption 4: Information regarding business trade secrets or other confidential commercial or financial information.
5. Exemption 5: Information that concerns communications within or between agencies which are protected by legal privilege (e.g., attorney-work product, attorney-client, deliberative process).
6. Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
7. Exemption 7: Law enforcement information if one of the following harms would occur:
• 7(A). Could reasonably be expected to interfere with enforcement proceedings.
• 7(B). Would deprive a person of a right to a fair trial.
• 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy.
• 7(D). Could reasonably be expected to disclose the identity of a confidential source.
• 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions.
• 7(F). Could reasonably be expected to endanger the life or physical safety of any individual.
8. Exemption 8: Information that concerns the supervision of financial institutions.
9. Exemption 9: Geological information on wells.

Because the various FOIA exemptions are adequate, any move to broaden the existing exemptions or add new ones without considering the public interest is simply bad public policy.

In 2010, the United States District Court for the Southern District of New York in Viacom v. YouTube, ruled against Viacom finding that YouTube was protected by the “safe harbor” provisions of Section 512 of the Digital Millennium Copyright Act (DMCA) from copyright infringement liability resulting from the actions of its users.

In 2012, the Second Circuit Court of Appeals allowed a narrow part of Viacom’s case to proceeed, finding that YouTube was protected from copyright infringement liability in all cases except where it specifically knew of infringing material but also found that YouTube was not required to monitor its users’ activities. The appeals court kicked the case back to the district court asking it to consider the specific issue of whether YouTube was aware of alleged infringement of Viacom’s copyright.

The district court most recently required both Viacom and YouTube to provide evidence of the latter’s knowledge regarding the allegedly infringing video clips at issue in the case. YouTube submitted a list of more than 63,000 video clips for which it said it never received DMCA takedown notices, challenging Viacom to explain. Viacom couldn’t, so it attempted to deflect, bizarrely claiming YouTube had to prove its lack of knowledge about the allegedly offending video clips.

The US has had an oligopoly problem for the entire adult lives of most baby boomers like me. It started in the 1980s and has been refined by US corporations during the intervening timeframe. The problem, reduced to its essence, is that three outsized options from three outsized corporations for just about everything is just not enough.

Tim Wu writing for the New Yorker, has identified and brilliantly articulated yet another problem with oligopolies. “To state the obvious, when companies act in parallel, the consumer is in the same position as if he were dealing with just one big firm,” writes Wu. “There is, in short, a major blind spot in our nation’s oversight of private power, one that affects both consumers and competition.”

Wu points to T-Mobile’s break from AT&T, Sprint, and Verizon extortive norms of termination fees and overage charges. Because the mobile telephone racket market in the US is relatively transparent, customers aren’t confused—they readily know they’re getting screwed and have no problem differentiating by whom. Most other cases of oligopoly in the US are more carefully hidden. “Consumers, easily misled by product labelling, often don’t even notice that products like sunglasses, pet food, or numerous others come from just a few giants,” Wu writes.

The wireless telecommunications companies are a special case because they are allowed to use public spectrum specifically to serve “the public interest, convenience, and necessity.”

A big part of the problem for some time, as Wu also notes, is that corporate media in the US regularly confuses oligopoly and monopoly. Wu reports that in the 1950s the US Justice Department regularly reigned in “oligopolistic cartels in the tobacco industry and Hollywood with the same vigor it chased Standard Oil, the quintessential monopoly trust.” In the 1970s, the oligopoly enforcement of the day seemed to focus almost exclusively on price-fixing investigations by the Federal Trade Commission.

While the 1970s investigations and prosecutions probably went too far, that’s no reason for the federal government to throw up its collective hands and take a nap. “As part of a general retreat from prosecution of all but the most extreme antitrust violations, the United States has nowadays nearly abandoned scrutiny of oligopoly behavior, leaving consumers undefended,” writes Wu. “That’s a problem, because oligopolies do an awful lot that’s troubling.”

Wu proposes a simple solution:

“The rise of the American oligopoly makes it an important time to reexamine how antitrust enforcers and regulators think about concentrated industries. Here’s a simple proposal: When members of a concentrated industry act in parallel, their conduct should be treated like that of a hypothetical monopoly. Of course, that doesn’t make anything necessarily illegal, but abusive or anticompetitive conduct shouldn’t get a free pass just because there are three companies involved instead of one. (I have co-authored a detailed academic paper, with former New York antitrust bureau chief Scott Hemphill, about how this should play out.)”

Medium, the unfortunately siloed publishing platform from Biz Stone and Ev Williams, recently added a collaborative writing tool. The new feature allows authors to privately solicit (and subsequently incorporate) feedback from others in their work. Changes that are incorporated into an author’s work on Medium are automatically added and credited in an acknowledgements section of the work. Authors and collaborators can remove acknowledgements section credits.

Williams, in his “Don’t Write Alone” piece for the About Medium section of Medium, refers to the new feature as “pre-publish collaboration.” When an author initially saves a draft of her work, she’ll see a “Invite Collaborators” button in the top right area of her browser. Clicking it reveals a private link to the article which the author can then email to would-be collaborators. Invited collaborators are then able to provide feedback using Medium’s notes feature.

This is an important step forward for Medium as a publishing platform. Too bad that many authors—including me—remain hesitant to use it until it’s un-siloed, decentralized, and we’re able to run our own instances of Medium on our own servers.

In another interesting development, Medium has acquired Matter, a Kickstarter-backed science and technology journalism startup focused on long-form reporting. Matter raised just over US$140,000 and publishes one 5,000+ word article each month, selling them for US$0.99 apiece.