any answers for Dan

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "Baker, Stewart" <SBaker () steptoe com>
Date: Mon, 04 Nov 2002 11:55:42 -0500
To: "'Michael Froomkin - U.Miami School of Law'" <froomkin () law miami edu>,
Dave Farber <dave () farber net>
Cc: "Gillmor, Dan" <dgillmor () sjmercury com>, "Albertazzie, Sally"
<SAlbertazzie () steptoe com>
Subject: RE: <[IP]> any answers for Dan

I think you guys may be hobbled by a lack of imagination -- or maybe an
unstated assumption that the US government is usually The Bad Guy.

Why aren't French, or Chinese, or Saudi, intelligence authorities
"government agenc<[ies]> of competent jurisdiction"?  Any of them probably
have legal authority to order changes to the Microsoft products sold within
their borders.  Or maybe even outside their borders, although I am
reasonably hopeful that Microsoft would not acquiesce in that.

Taking your question on its own terms, though, in the US, there are some law
enforcement provisions that prevent disclosure of "cooperate-with-us" orders
served on third parties.  Classified information is also legally protected
from disclosure, occasionally even if the disclosing party never received a
clearance.  And, of course, when Michael says "contractual" he's said a
mouthful -- every government agency is authorized to enter into contracts
and (probably) to insist that the contract and its performance not be made
public.

All that said, I don't see why this is especially exciting in context.  This
is an exception from an API disclosure provision that is unlikely to ever
seriously inconvenience Microsoft, which is after all mostly in the business
of disclosing -- hell, touting -- its APIs, not hiding them.  For the few it
wants to keep secret, the settlement provides many ways to do so.  This
provision probably could have been left out without changing the competitive
effect of the order.

To my mind, what's more interesting is that Judge Kollar-Kotelly's opinion
actually does tweak the settlement in a few ways -- but only in the
proceeding brought by the non-settling states.  (The settlement itself is
entirely unchanged except for a provision about the court's power to act on
its own.)  Which means that those nonsettling states are in a privileged
position to insist on enforcement of the tweaks.  Which means that the
interest of the computer industry in who gets elected attorney general of
Connecticut just got a lot higher.  Maybe somebody should be gathering
campaign contribution data.

------ End of Forwarded Message

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