June 18, 2004

FBI asks US Congress to repeal laws of physics

In our world, we are very conscious of the natural order of life. First comes physics. From physics is derived economics, or the natural costing of things. And finally, law cleans up, adding things like dispute resolution (us techies call them edge cases). Notwithstanding that this ordering has been proven over any millenium you care to pick, sometimes, more often than one would merit, people ask for lawmakers to ignore the reality of life and to regulate certain inevitable behaviours into some sort of limbo of illegal normality.

Such it is with Internet telephony, also known as VOIP (voice over IP): Internet machines are totally uncontrollable, at a basic fundamental physical level. It was designed that way, and the original architects forgot to include the flag for legislative override. Further, Internet machines can do voice communications.

From those two initial assumptions, we can pretty much conclude that any attempt to regulate VOIP will fail. And that all the perks now enjoyed by large dominating parties of power (e.g., governments) will fade away.

Yet, the US Department of Justice is asking Congress to regulate wire taps on VOIPs [1]. This looks like a repeat of the crypto wars in the 90s. Almost lost and definitely bungled by the FBI, the crypto wars were won by the NSA and its rather incredible sense of knowing when to ease off a bit.

Reading the below article, one of two by Declan McCulloch, it is at least hopeful to see that Congressmen are starting to express a bipartisan skepticism to the nonsense dished up in the name of terrorism. Why doesn't the DoJ and its primary arm, the FBI "get it?" It's unsure, but when a police force decides that protection of the faltering revenues of Hollywood is its 3rd biggest priority [2], another unwinnable battle against physics, one can only expect more keystone cops action in the future [3].

Here's the pop quiz of the week - what technologies can be thought to "aid, abet, induce, counsel or procure" violation of copyright? There is no prize for photocopying, laser printers, cassette recorders, CD and DVD burners, PCs, software, cameras, phones, typewriters ... Surely we can come up with something that is an innovative inducer of the #3 crime - copyright violation?

[1] Declan McCullagh, Feds: VoIP a potential haven for terrorists
[2] http://www.financialcryptography.com/mt/archives/000072.html does record where:
FBI weighs into anti-piracy fight
[3] Declan McCullagh, Antipiracy bill targets technology

Feds: VoIP a potential haven for terrorists
By Declan McCullagh CNET News.com June 16, 2004, 10:54 AM PT

WASHINGTON--The U.S. Department of Justice on Wednesday lashed out at Internet telephony, saying the fast-growing technology could foster "drug trafficking, organized crime and terrorism."

Laura Parsky, a deputy assistant attorney general in the Justice Department, told a Senate panel that law enforcement bodies are deeply worried about their ability to wiretap conversations that use voice over Internet Protocol (VoIP) services.

"I am here to underscore how very important it is that this type of telephone service not become a haven for criminals, terrorists and spies," Parsky said. "Access to telephone service, regardless of how it is transmitted, is a highly valuable law enforcement tool."

Police been able to conduct Internet wiretaps for at least a decade, and the FBI's controversial Carnivore (also called DCS1000) system was designed to facilitate online surveillance. But Parsky said that discerning "what the specific (VoIP) protocols are and how law enforcement can extract just the specific information" are difficult problems that could be solved by Congress requiring all VoIP providers to build in backdoors for police surveillance.

The Bush administration's request was met with some skepticism from members of the Senate Commerce committee, who suggested that it was too soon to impose such weighty regulations on the fledgling VoIP industry. Such rules already apply to old-fashioned telephone networks, thanks to a 1994 law called the Communications Assistance for Law Enforcement Act (CALEA).

"What you need to do is convince us first on a bipartisan basis that there's a problem here," said Sen. Ron Wyden, D-Ore. "I would like to hear specific examples of what you can't do now and where the law falls short. You're looking now for a remedy for a problem that has not been documented."

Wednesday's hearing was the first to focus on a bill called the VoIP Regulatory Freedom Act, sponsored by Sen. John Sununu, R-N.H. It would ban state governments from regulating or taxing VoIP connections. It also says that VoIP companies that connect to the public telephone network may be required to follow CALEA rules, which would make it easier for agencies to wiretap such phone calls.

The Justice Department's objection to the bill is twofold: Its wording leaves too much discretion with the Federal Communications Commission, Parsky argued, and it does not impose wiretapping requirements on Internet-only VoIP networks that do not touch the existing phone network, such as Pulver.com's Free World Dialup.

"It is even more critical today than (when CALEA was enacted in 1994) that advances in communications technology not provide a haven for criminal activity and an undetectable means of death and destruction," Parsky said.

Sen. Frank Lautenberg, D-N.J., wondered if it was too early to order VoIP firms to be wiretap-friendly by extending CALEA's rules. "Are we premature in trying to tie all of this down?" he asked. "The technology shift is so rapid and so vast."

The Senate's action comes as the FCC considers a request submitted in March by the FBI. If the request is approved, all broadband Internet providers--including companies using cable and digital subscriber line technology--will be required to rewire their networks to support easy wiretapping by police.

Wednesday's hearing also touched on which regulations covering 911 and "universal service" should apply to VoIP providers. The Sununu bill would require the FCC to levy universal service fees on Internet phone calls, with the proceeds to be redirected to provide discounted analog phone service to low-income and rural American households.

One point of contention was whether states and counties could levy taxes on VoIP connections to support services such as 911 emergency calling. Because of that concern, "I would not support the bill as drafted and I hope we would not mark up legislation at this point," said Sen. Byron Dorgan, D-N.D.

Sen. Conrad Burns, R-Mont., added: "The marketplace does not always provide for critical services such as emergency response, particularly in rural America. We must give Americans the peace of mind they deserve."

Some VoIP companies, however, have announced plans to support 911 calling. In addition, Internet-based phone networks have the potential to offer far more useful information about people who make an emergency call than analog systems do.

Antipiracy bill targets technology

By Declan McCullagh Staff Writer, CNET News.com

A forthcoming bill in the U.S. Senate would, if passed, dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.

A bill called the Induce Act is scheduled to come before the Senate sometime next week. If passed, it would make whoever "aids, abets, induces (or) counsels" copyright violations liable for those violations.

Bottom line:If passed, the bill could dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.

The proposal, called the Induce Act, says "whoever intentionally induces any violation" of copyright law would be legally liable for those violations, a prohibition that would effectively ban file-swapping networks like Kazaa and Morpheus. In the draft bill seen by CNET News.com, inducement is defined as "aids, abets, induces, counsels, or procures" and can be punished with civil fines and, in some circumstances, lengthy prison terms.

The bill represents the latest legislative attempt by influential copyright holders to address what they view as the growing threat of peer-to-peer networks rife with pirated music, movies and software. As file-swapping networks grow in popularity, copyright lobbyists are becoming increasingly creative in their legal responses, which include proposals for Justice Department lawsuits against infringers and act
ion at the state level.

Originally, the Induce Act was scheduled to be introduced Thursday by Sen. Orrin Hatch, R-Utah, but the Senate Judiciary Committee confirmed at the end of the day that the bill had been delayed. A representative of Senate Majority Leader Bill Frist, a probable co-sponsor of the legislation, said the Induce Act would be introduced "sometime next week," a delay that one technology lobbyist attributed to opposition to the measure.

Though the Induce Act is not yet public, critics are already attacking it as an unjustified expansion of copyright law that seeks to regulate new technologies out of existence.

"They're trying to make it legally risky to introduce technologies that could be used for copyright infringement," said Jessica Litman, a professor at Wayne State University who specializes in copyright law. "That's why it's worded so broadly."

Litman said that under the Induce Act, products like ReplayTV, peer-to-peer networks and even the humble VCR could be outlawed because they can potentially be used to infringe copyrights. Web sites such as Tucows that host peer-to-peer clients like the Morpheus software are also at risk for "inducing" infringement, Litman warned.

Jonathan Lamy, a spokesman for the Recording Industry Association of America, declined to comment until the proposal was officially introduced.

"It's simple and it's deadly," said Philip Corwin, a lobbyist for Sharman Networks, which distributes the Kazaa client. "If you make a product that has dual uses, infringing and not infringing, and you know there's infringement, you're liable."

The Induce Act stands for "Inducement Devolves into Unlawful Child Exploitation Act," a reference to Capitol Hill's frequently stated concern that file-trading networks are a source of unlawful pornography. Hatch is a conservative Mormon who has denounced pornography in the past and who suggested last year that copyright holders should be allowed to remotely destroy the computers of music pirates.

Foes of the Induce Act said that it would effectively overturn the Supreme Court's 1984 decision in the Sony Corp. v. Universal City Studios case, often referred to as the "Betamax" lawsuit. In that 5-4 opinion, the majority said VCRs were legal to sell because they were "capable of substantial noninfringing uses." But the majority stressed that Congress had the power to enact a law that would lead to a different outcome.

"At a minimum (the Induce Act) invites a re-examination of Betamax," said Jeff Joseph, vice president for communications at the Consumer Electronics Association. "It's designed to have this fuzzy feel around protecting children from pornography, but it's pretty clearly a backdoor way to eliminate and make illegal peer-to-peer services. Our concern is that you're attacking the technology."

Posted by iang at June 18, 2004 03:56 PM | TrackBack

If it is a law of physics, why worry?

Posted by: Twan at June 20, 2004 08:56 AM

:-) Because society will have to pay the cost of the legislation. All legislation costs. In this case, it sets up a barrier to entry for new innovations, and causes an old uneconomic model to extract more rents from the people.

The cost will be in the lost benefit of the new innovations, and the deadloss of the expenditure in old model rentals.

! Against that should be measured the benefit. I'm unsure I can find a benefit to society in these proposals, so I'll set it to zero.

It's clearly not (for example) better and more widespread entertainment, or better or more telephony, which would be valuable. Instead, this legislation represents the reverse, as they supporters are trying to stop competitors doing precisely that.

It's not the access to 911 emergency services, as that is slowly being provided by the VOIP operators at their own choice.

It might be the jobs of the industry. So it is a transfer scheme or a subsidy.

Posted by: Iang at June 20, 2004 08:58 AM

Hi Ian,

Sure, it is as plausible as it is extended ;-)

But that was not what I intended to imply and you made your point already clear. I meant to say that if it is a law of physics, then in spite of politics, legislation, and/or economics, things will return back to their "natural state". And may be your "law of physics" has a much larger scope, which includes the cost of not-learning.

I think that calling upon law of physics is not a very effective rethorical device. Especially when it doesn't have any bearing on physics as such.

Much to my pleasant suprise, the questioning comments of the politicians, as quoted in the ZDNet article, are a judicious application of the proportionality principle. And that seems to be much more effective in raising doubt over the FBI's and DOJ's lobby, as these questioning comments are quite understandable by everybody. US voters included.

And then the argument invoking the inhibition of innovation sounds much better.



Posted by: Twan at June 20, 2004 09:28 AM

Indeed, things will return to the natural state, so if you consider this just a cost of learning, then I suppose we have to pay the cost.

Your aversion to physics I'll put down to the Dutch predeliction of making water flow up hill... :-) By physics as an image, we more mean the inventions of the day - the phonograph made mass production music a possibility, and it also made copyright a commercial possibility. In contrast, about a century later, the MP3 player and the net made copyright a commercial dead weight.

As to voters, I'm surprised that you bring them up. What have they got to do with it?


Posted by: Iang at June 20, 2004 01:04 PM

You write: 'Why doesn't the DoJ and its primary arm, the FBI "get it?"' Unfortunately, the only correct answer to that would be a political one.

Posted by: Axel at June 21, 2004 10:13 AM

Oh, and just for reference: the German government had plans to have all telecom providers keep their connection data for up to three years and to have them create wiretapping capabilities for the authorities on their own paylist. Funny enough, we have proven more liberal for now.

Posted by: Axel at June 21, 2004 10:21 AM