Topic: Telecom, Internet & Information Policy

China’s REAL ID Program

China is implementing its “toughest-ever” mobile phone real-name registration system, according to the Want China Times. The effort seeks to get all remaining unregistered mobile phones associated with the true identities of their owners in the records of telecommunications firms. Those who do not register their phones will soon see their telecommunications restricted.

This policy will have wonderful security benefits. It will make identity fraud, anonymous communication, and various conspiracies much easier to detect and punish—including conspiracies to dissent from government policy.

The United States is a very different place from China—on the same tracking-and-control continuum. We have no official policy of registering phones to their owners, but in practice phone companies collect our Social Security numbers when we initiate service, they know our home addresses, and they have our credit card numbers. All of these are functional unique identifiers, and there is some evidence that the government can readily access data held by our telecommunications firms.

We have no national ID that would be used for phone registration, of course. The Department of Homeland Security says it will begin denying travel rights to people from states that do not comply with the REAL ID Act beginning in 2016.

Should NSA Be Immune from Constitutional Scrutiny?

Today the Court of Appeals for the DC Circuit issued a ruling in NSA v. Klayman that has almost no practical effect, but is a potent illustration of how excessive secrecy and stringent standing requirements effectively immunize intelligence programs from meaningful, adversarial constitutional review.

Contrary to some breathless headlines, today’s opinion does not “uphold” the NSA’s illicit bulk collection of telephone records—which, thanks to the recent passage of the USA Freedom Act, must end by November in any event. Rather, the court overturned an injunction that only ever applied specifically to the phone records of the plaintiffs. And they did so, not because the judges found the program substantially lawful, but because the plaintiff could not specifically prove that his telephone records had been swept into the database, even though the ultimate aim of the program was to collect nearly all such records.

Together with other similar thwarted challenges to mass government surveillance—most notably the Supreme Court case Clapper v. Amnesty International—the decision sends the disturbing signal that mass scale surveillance of millions of innocent people by our intelligence agencies is, for all practical purposes, immune from meaningful constitutional scrutiny. Even when we know about a mass surveillance program, as in the case of NSA’s bulk telephony program, stringent standing rules raise an impossibly high barrier to legal challenges. Perversely, the only people with a realistic chance of challenging such programs in court are actual terrorists who the government chooses to prosecute. The vast, innocent majority of people affected by bulk surveillance—those with the strongest claim that their rights have been violated—are effectively barred from ever having those rights vindicated in court.

Given the routine refusal of courts to step in to protect our Fourth Amendment rights, it is fortunate that Congress has already acted to bring this intrusive and ineffective program to a halt.

Internet Industry More Popular Than Ever-60% Have Favorable View

New polling from Gallup finds that more Americans view the internet industry favorably than any time since Gallup began asking the question in 2001. Today, 60% of Americans have either a “very positive” or “somewhat positive” view of the industry, compared to 49% in 2014.

Favorability toward the Internet industry has ebbed and flowed during the 2000s, but today marks the most positive perception of the industry. Compared to other industries, Gallup found that the Internet industry ranks third behind the restaurant and computer industries.

Perceptions have improved across most demographic groups, with the greatest gains found among those with lower levels of education, Republicans and independents. It is likely these groups are “late adopters” of technology and have grown more favorable as they’ve come to access it. Indeed, late adopters have been found to be older, less educated and more conservative. Pew also finds that early users of the Internet have been younger, more urban, higher income Americans, and those with more education. Indeed, as Internet usage has soared from 55% to 2001 to 84% in 2014, many of these new users come from the ranks of conservative late adopters.

These data suggest the more Americans learn about the Internet the more they come to like it and appreciate the companies who use it as a tool to offer consumer goods and services.

Please find full results at Gallup.

Research assistant Nick Zaiac contributed to this post.

A Transparency Milestone

This week, I reported at the Daily Caller (and got a very nice write-up) about a minor milestone in the advance of government transparency: We recently finished adding computer-readable code to every version of every bill in the 113th Congress.

That’s an achievement. More than 10,000 bills were introduced in Congress’s last-completed two-year meeting (2013-14). We marked up every one of them with additional information.

We’ve been calling the project “Deepbills” because it allows computers to see more deeply into the content of federal legislation. We added XML-format codes to the texts of bills, revealing each reference to federal agencies and bureaus, and to existing laws no matter how Congress cited them. Our markup also automatically reveals budget authorities, i.e., spending.

Want to see every bill that would have amended a particular title or section of the U.S. code? Deepbills data allows that.

Want to see all the bills that referred to the Administration on Aging at HHS? Now that can be done.

Want to see every member of Congress who proposed a new spending program and how much they wanted to spend? Combining Deepbills data with other data allows you to easily collect that imporant information.

TSA’s Classified “Risk-Reduction Analysis”

Last month, our friends at the Competitive Enterprise Institute filed suit against the TSA because the agency failed to follow basic administrative procedures when it deployed its notorious “strip-search machines” for use in primary screening at our nation’s airports. Four years after being ordered to do so by the U.S. Court of Appeals for the D.C. Circuit, TSA still hasn’t completed the process of taking comments from the public and finalizing a regulation setting this policy. Here’s hoping CEI’s effort helps make TSA obey the law.

The reason why federal law requires agencies to hear from the public is so that they can craft the best possible rules. Nobody believes in agency omniscience. Public input is essential to gathering the information for setting good policies.

But an agency can’t get good information if it doesn’t share the evidence, facts, and inferences that underlie its proposals and rules. That’s why this week I’ve sent TSA a request for mandatory declassification review relating to a study that it says supports its strip-search machine policy. The TSA is keeping its study secret.

In its woefully inadequate (and still unfinished) policy proposal on strip-search machines, TSA summarily asserted: “[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.”

A Bitcoin Constitutional Amendment

Some influential developers of the software that runs Bitcoin have proposed an important amendment to the functioning of the leading cryptocurrency. It’s a development as important to Bitcoin as a constitutional amendment aimed at the Fed would be to the dollar.

The debate has been characterized in some headlines as “existential,” and one write-up called it a “constitutional crisis.” Both are probably overstating the situation. But it’s worthwhile to dig in and see what we should make of the debate. Doing so can tell us how things might go for lots of things in the world of cryptocurrency, including potential future proposals to alter Bitcoin’s embedded monetary policy.

The Patent Case that Threatens the Internet

The Court of Appeals for the Federal Circuit heard oral arguments today in a case about dental retainers that could threaten the free flow of information over the Internet.  The question is whether the U.S. International Trade Commission has the authority to bar the “importation” of digital transmissions.  The case has serious implication for the future of 3D printing, internet service providers’ liability for copyright piracy, and the internet’s global infrastructure. 

The ITC has the power to ban imports to prevent “unfair competition” and has become a popular venue to enforce U.S. patents.   A Cato Policy Analysis from 2012 details how the ITC’s patent enforcement powers are unnecessary, protectionist, and inconsistent with U.S. trade obligations

The case before the appeals court today involves products that are manufactured inside the United States based on schematics generated by a computer in Pakistan.  The production of those schematics is covered by a patent owned by Align Technology, who successfully petitioned the ITC to issue an order barring its competitor ClearCorrect from transmitting the data from Pakistan to the United States.

An editorial in yesterday’s New York Times explained the dangers of allowing the agency to have power over digital transmissions:

The I.T.C. has long had the power to forbid companies from importing physical goods like electronics, books and mechanical equipment that violate the patents, copyrights and trademarks of American businesses. It does so by ordering customs officials to seize items at the border or by issuing cease and desist orders to importers. The commission’s order to ClearCorrect was the first time it had sought to bar the transfer of digital information. If the appeals court upholds this decision, it could set a precedent that would allow businesses to seek to block all kinds of data transmissions.

Of course businesses should be able to protect their patents and copyrights. But there are far better ways to do so. In this case, for example, Align could sue ClearCorrect and seek damages for patent infringement. Or the company could ask a judge to order ClearCorrect to stop selling products made using the information contained in the files.

It is not even clear that the commission has the authority to restrict international data transfers. Congress has given it authority to block the import of “articles,” which for decades has been understood to mean physical goods. In last year’s ruling, a five-member majority of the commission ruled that the word “article” includes data.

Groups like the Motion Picture Association of America and the Recording Industry Association of America are supporting the commission’s view. They argue that, as trade increasingly becomes digital, the definition of “article” should include data. The Internet Association, which represents companies like Facebook, Google and Twitter, is asking the court to reverse the decision.

We already know from leaked documents that the MPAA plans to use the ITC’s potential jurisdiction over data transmissions  as a way to block Americans from accessing foreign websites that host copyrighted movies.

The purpose of the ITC’s patent enforcement power is to make sure that U.S. companies have a remedy against foreign infringers who are otherwise unreachable by a domestic court.  That’s why the ITC’s remedy is a ban on future imports rather than money damages for past infringement like you would get in federal district court.  But the bulk of the ITC’s caseload, including the Align case, involves disputes between parties that can and do sue each other in U.S. courts. 

In today’s global economy, it’s particularly pointless to have a specialized IP court for imports, digital or otherwise.  The fact that an article is imported from outside the United States or a piece of information travels through a foreign computer server has no bearing on whether that product infringes a U.S. patent or copyright. 

Giving the ITC power to bar cross-border data transmissions invites mischievous litigation without serving any legitimate public policy goal.

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