FC: News and events from Cato, EPIC, and Stanford Univ. law school

[Declan McCullagh <declan () well com>]

---

Date: Wed, 06 Nov 2002 11:46:20 -0500
To: Declan McCullagh <declan () well com>
From: Chris Hoofnagle <hoofnagle () epic org>
Subject: EPIC P2P letter

Dear Declan,

Wanted to give you and perhaps Politechbot a heads up: EPIC is sending an 
open letter to the college and university community today on P2P 
monitoring.  We've advised colleges and universities not to take on any 
obligation to monitor P2P usage, as such monitoring can chill free speech, 
impinge upon academic freedom, and invade privacy.

The full text of the letter is pasted below, and is online at 
http://www.epic.org/privacy/student/p2pletter.html

Regards,
Chris

November 6, 2002

Dear College or University President,

We are writing in regard to a series of letters you recently received on 
issues of copyright infringement and peer-to-peer (P2P) file trading 
networks. [1]  The Electronic Privacy Information Center (EPIC) is a 
not-for-profit research center that focuses on the right to privacy and 
emerging civil liberties issues. We believe these issues require a 
circumspect analysis of the impact of network monitoring on privacy and 
academic freedom. While network monitoring is appropriate for certain 
purposes such as security and bandwidth management, the surveillance of 
individuals' Internet communications implicates important rights, and 
raises questions about the appropriate role of higher education 
institutions in policing private behavior.

We recommend that your institution carefully consider the issues recently 
detailed in a report by the National Science Foundation Logging and 
Monitoring Project (LAMP). [2]  The LAMP report examines the intersection 
of network logging, privacy issues, and security risks. It also recognizes 
the unique environment of higher education institutions, and recommends 
caution when engaging in monitoring.

While the Recording Industry Association of America (RIAA) has legitimate 
interests in protecting against infringement, it is worth noting that 
copyright law sets limits on the exclusive rights of content owners, making 
some uses of protected material legal. [3]  The copyright trade association 
approach has not always been sensitive to these different types of uses, 
while raising significant privacy and speech concerns. [4]  Now, the RIAA 
wishes to involve colleges and universities in the process of policing the 
communicative activities of students, staff, and faculty in a way that is 
significantly outside institutional missions. For this reason, and the 
considerations listed below, we urge caution in adopting network monitoring 
and other similar methods to address concerns about infringement.

Network monitoring can have a chilling effect on the marketplace of ideas. 
It is critical that higher education institutions set policies that foster 
open-mindedness and critical inquiry. As Chief Justice Earl Warren noted in 
Sweezy v. New Hampshire, "Teachers and students must always remain free to 
inquire, to study and to evaluate, to gain new maturity and understanding; 
otherwise our civilization will stagnate and die." [5]

Monitoring the content of communications is fundamentally incompatible with 
the mission of educational institutions to foster critical thinking and 
exploration. Monitoring chills behavior, and can squelch creativity that 
must thrive in educational settings. Furthermore, in order to monitor at 
the level desired by the copyright industry--to detect file transfers 
"without authorization"institutions would have to delve into the content 
and intended uses of almost every communication. Such a level of monitoring 
is not only impracticable; it is incompatible with intellectual freedom.

Monitoring individuals' network usage leads to data protection 
responsibilities. Monitoring of individuals' network usage habits generates 
records subject to a system of protections under the Federal Educational 
Rights and Privacy Act (FERPA). [6]  In addition to the protections 
provided by FERPA, a 1997 report by CAUSE (Association for Managing and 
Using Information Resources in Higher Education) recommends a full system 
of Fair Information Practices (FIPs) for the treatment of these student 
records. This framework includes notification of policies; minimization of 
collection of data; limits on secondary use; nondisclosure and consent; a 
need to know before granting third parties access to data; data accuracy, 
inspection, and review; information security, integrity, and 
accountability; and education. [7]

Network monitoring appliances can be systems of general surveillance. The 
RIAA has recommended widespread use of network monitoring to manage P2P 
file sharing. These technical approaches can become systems of 
surveillance. Once installed on an institution's network, they could be 
used for copyright control today, and the control of ideas tomorrow. 
Institutions should not build in a network infrastructure that facilitates 
monitoring because "[w]hat may begin as logging activity to protect the 
efficient and effective functioning of one system can become targeted data 
collection and surveillance of a specific individual." [8]

Free environments shun technological controls on behavior. Because 
individuals at institutions of higher education must always remain free to 
inquire, colleges and universities are not the place for technological 
restrictions on communication. Institutions of higher education should not 
practice content monitoring, an approach that the controlled environments 
of corporate workplaces and kindergartens have adopted.

Further, institutions that simply install a network monitoring application 
circumvent deliberative academic policymaking. All stakeholders of the 
university--including students--must be involved in a process that 
recognizes the legitimate concerns of the copyright industry without unduly 
hindering academic freedom, privacy, and fair use rights. As Professor 
Virginia Rezmierski and Aline Soules have noted:

For a policy to be effective in guiding community behaviors, it must 
reflect the full range of the community's values, must be understood and 
embraced by community members, and must reinforce the most important values 
and the mission of the institution as a whole. An effective policy requires 
campus-wide discussion and the involvement of each of the major 
constituencies of the community. [9]

The purported privacy and security risks of P2P are largely red herrings. 
The copyright industry alleges that P2P programs jeopardize network 
security and privacy. While all network-enabled applications raise security 
concerns, P2P systems are not uniquely vulnerable and do not warrant 
special treatment on these grounds. Far more damage to data integrity and 
privacy results from exploits of Microsoft Outlook than from P2P 
applications. Academic institutions have not responded to Outlook-based 
security threats with prohibition or surveillance; instead, measures are 
put in place to limit entry of known threats and educate network users 
about appropriate protection measures.

Network surveillance and enforcement is likely to lead to an escalating 
network "arms race," potentially harming overall network integrity and 
performance. While P2P traffic currently travels over easily identifiable 
TCP ports, if these ports are blocked or unreasonably throttled, it is 
likely that this traffic will move to less easily filtered modes. Certain 
P2P clients already use port 80 (usually reserved for Web browsing) when 
they detect the presence of a firewall blocking other ports. [10] 
Furthermore, file sharing applications utilizing sophisticated encryption 
already exist, [11] and are likely to become widely deployed in response to 
efforts to limit these systems. Academic institutions should not adopt a 
confrontational role with respect to these technologies. By permitting 
reasonable use of these applications, they can ensure that the traffic 
remains identifiable for purposes of efficient bandwidth allocation without 
the use of needlessly privacy-invasive techniques.

Under current law, educational institutions are required to take down 
infringing content hosted on a university Web server. These provisions 
provide an adequate remedy to address online infringement. But this new 
proposal would shift the burden to colleges and universities to devote 
scarce resources to monitoring online communications and to identifying and 
"prosecuting" individuals suspected of using P2P networks to commit 
copyright violations. This is neither a reasonable nor an appropriate 
burden to place on institutions of higher education. Refusing to accept 
this burden will not leave the copyright trade associations without 
recourse in cases of infringement via P2P networks; instead, the power to 
authorize policing and adjudicate guilt or innocence will remain where it 
belongs, in the courts. If a copyright owner suspects such infringement, it 
can initiate a lawsuit against the suspected wrongdoer.

We recommend that institutions take a careful approach to addressing the 
legitimate concerns of the copyright industry. We also recommend that 
institutions not adopt privacy-invasive technologies or policies that 
impinge upon academic freedom and privacy in order to address those 
concerns. Network monitoring for bandwidth management is appropriate, but 
monitoring of individuals' activities does not comport with higher 
education values.

Sincerely,

Marc Rotenberg
Executive Director

Chris Hoofnagle
Legislative Counsel

Adam Kessel
IPIOP Fellow

Ruchika Agrawal
IPIOP Fellow

Cc:

Mary A. Burgan, American Association of University Professors
Judith Boettcher, Corporation for Research and Educational Networking
Alan Charles Kors, Foundation for Individual Rights in Education
Robert Paterson, SIGUCCS, Americans for Computing Machinery
Julie Beatty, United States Student Association
Jackie Tyson, National Association of Graduate-Professional Students




[1] Letter from Hillary Rosen, Chairman and CEO, Recording Industry 
Association of America, to College and University Presidents (Oct. 3, 
2002), at http://www.riaa.com/pdf/Universityletter.pdf; Letter from David 
Ward, President, American Council on Education, to College and University 
Presidents (Oct. 9, 2002), at http://www.riaa.com/pdf/Copyrightletter.pdf.

[2] Virginia E. Rezmierski & Nathaniel St. Clair, II, Identifying Where 
Technology Logging and Monitoring for Increased Security Ends and 
Violations of Personal Privacy and Student Records Begin, Final Report of 
the National Science Foundation Logging and Monitoring Project (2001), at 
http://www.aacrao.org/publications/catalog/NSF-LAMP.pdf.

[3] See 17 U.S.C. §§ 107-122, 1008.

[4] Jessica Litman, War Stories, 20 Cardozo Arts & Entertainment Law 
Journal 337 (2002) (forthcoming), at 
http://www.law.wayne.edu/litman/papers/warstories.pdf; John Markoff, 
Scientists Drop Plan to Present Music-Copying Study That Record Industry 
Opposed, New York Times, Apr. 27, 2001; Legal Concerns Delay Publication of 
Research on 'Digital Watermarks,' Chronicle of Higher Education, Feb, 9, 2001.

[5] 354 U.S. 234 (1957).

[6] 20 U.S.C. § 1232g.

[7] Privacy and the Handling of Student Information in the Electronic 
Networked Environments of Colleges and Universities, CAUSE, April 1997, at 
http://www.educause.edu/ir/library/pdf/pub3102.pdf.

[8] Rezmierski & St. Clair at 1.2. Further, "College and university 
communities are vulnerable to unwitting as well as purposeful abuses of 
network and information systems." Id. at 1.1.

[9] Virginia E. Rezmierski & Aline Soules, Security vs. Anonymity: The 
Debate over User Authentication and Information Access, EDUCAUSE Review 
(March/April 2000), at http://www.educause.edu/ir/library/pdf/ERM0022.pdf

[10] http://www.groove.net/.

[11] http://www.freenetproject.org/.


---

Subject: FW: Cato event: "Broadband Policy After the Market Meltdown"
Date: Fri, 25 Oct 2002 11:19:23 -0400
From: "Adam Thierer" <athierer () cato org>
To: <declan () well com>


-----Original Message-----
From: Adam Thierer
Sent: Thursday, October 03, 2002 9:53 AM
To: Adam Thierer
Subject:

Dear TechKnowledge reader:
    Hope you will be able to join us for Cato's 6th Annual Technology & 
Society conference on Thursday, November 14th. This year's topic: "Telecom 
and Broadband Policy After the Market Meltdown." The event is free of 
charge and open to the public. Conference details and registration 
information follow.
_______________________________________________


http://www.cato.org/events/techconf02/index.html





Telecom and Broadband Policy
After the Market Meltdown
The Cato Institute's Sixth Annual
Technology & Society Conference

Thursday, November 14, 2002
8:00 a.m.-2:30 p.m.

Cato Institute
F.A. Hayek Auditorium
1000 Massachusetts Avenue, N.W.
Washington, D.C. 20001

The American telecommunications sector went into a freefall in 2002. 
Telecom stocks tanked as once proud industry giants and smaller carriers 
alike were financially decimated. Numerous providers were forced to declare 
bankruptcy. And the reverberations were felt well beyond the boundaries of 
the telecom sector as upstream and downstream industries took a hit as well.

What were the causes of this market meltdown? Was it driven purely by 
misguided corporate decisionmaking and bad business models, or is public 
policy more to blame? The Telecommunications Act of 1996 was supposed to 
rejuvenate this sector by encouraging increased competition, innovation and 
investment, but most industry watchers have been dissatisfied with the 
sluggish pace of change.

This conference will explore recent developments in the telecommunications 
sector and feature a set of balanced debates over the future of both 
wireline and wireless public policy.

This conference is free of charge. For more information, call (202) 
218-4633 or e-mail techandsociety () cato org. Registrations must be received 
by Tuesday, November 12, 2002.

Conference Agenda:
8:00-8:30 a.m. Registration-F.A. Hayek Auditorium Foyer

8:30-8:40 a.m. Welcoming Remarks
Adam D. Thierer
Director of Telecommunications Studies, Cato Institute

8:40-9:30 a.m. Morning Keynote Address

Hon. William J. "Billy" Tauzin*
Chairman, House Commerce Committee

Introduction: Adam D. Thierer, Cato Institute

  Part One: Wireline
9:30-10:30 a.m. Panel 1
The Telecom Market Meltdown:
Causes and Consequences

Moderator: Adam D. Thierer
Cato Institute

Larry Darby
Founder and President, Darby Associates

Robert Gensler
Vice President, Portfolio Manager and Investment Analyst, T. Rowe Price

Anton Wahlman
Research Analyst in Broadband Access Technology, Needham & Co.

John Wohlstetter
Senior Fellow in Technology Deregulation, Discovery Institute

10:30-10:45 a.m. Break

10:45 a.m.-12:00 p.m. Panel 2
What Vision Will Govern Broadband? Deregulation, Open Access, or Structural 
Separation?

Moderator: Clyde Wayne Crews Jr.
Cato Institute

Peter Jew
Vice President of Marketing, Optical Solutions

James K. Glassman
Host, Tech Central Station, and Resident Fellow, American Enterprise Institute

John Ryan
Principal, Chief Analyst, and Cofounder, RHK Telecommunications Industry 
Analysis

Robert W. Crandall
Senior Fellow, Economic Studies, Brookings Institution

Fred L. Smith Jr.
Founder and President, Competitive Enterprise Institute

12:00-12:45 p.m. Lunch-Wintergarden

  Part Two: Wireless
12:45-1:15 p.m. Luncheon Keynote Address

Hon. Kathleen Abernathy
Commissioner, Federal Communications Commission

Introduction: Clyde Wayne Crews Jr., Cato Institute

1:15-2:30 p.m. Panel 3
The Future of Spectrum Governance: Property Rights or a Spectrum Commons?

Moderator: Adam D. Thierer
Cato Institute

Yochai Benkler
Professor of Law, New York University School of Law

David Reed
Systems Designer and Researcher

Thomas W. Hazlett
Senior Fellow, Manhattan Institute

Gerald Faulhaber
Professor of Public Policy and Management, University of Pennsylvania

Rudy Baca
Vice President and Global Strategist, Precursor Group

*invited

http://www.cato.org/events/techconf02/index.html


----

Date: Thu, 7 Nov 2002 09:49:45 -0800
To: declan () well com
From: Lauren Gelman <gelman () stanford edu>
Subject: Martin Garbus to Speak at Stanford




Stanford University Law School
Center for Internet and Society
Lunchtime Speaker Series Presents:

Martin Garbus

Monday, November 11, 2002
12:15 - 2:00 pm
Moot Court Room
Stanford University Law School:
Directions: http://www.law.stanford.edu/directions.shtml
Lunch provided

Martin Garbus will discuss his new book: Courting Disaster: The Rehnquist 
Court and the Unmaking of American Law. He will also recount his 
experiences representing the Gone With the Wind heirs in the Wind Done Gone 
litigation and representing the defendants in District Court in the 
Universal v. Reimerdes (a.k.a. the NY DVD case) challenging the 
constitutionality of the Digital Millennium Copyright Act.

Questions:

Post questions for Mr. Garbus online at: 
http://cyberlaw/events/archives/martin_garbus.shtml

About the Speaker:

Martin Garbus is a founding partner of Frankfurt Garbus Kurnit Klein & 
Selz, PC. One of the country's leading trial lawyers, Mr. Garbus has tried 
complex commercial, intellectual property, estate, and criminal cases, as 
well as media cases in nearly every state in the country. He has appeared 
before the United States Supreme Court as well as the highest state and 
federal courts in numerous states on many occasions. His courtroom work has 
ranged from long jury trials in complex estate cases and securities cases 
to arbitrations and short bench trials.

He has represented most of the major book publishers, movies companies and 
media conglomerates in the United States and abroad in commercial and media 
actions. He has also represented major entities in new media, Internet 
companies, networks and cable television and radio industries, including 
Channel 4, PBS, Pearson and Penguin-Putnam Books in the United States and 
Australia, Fox and Warner Bros., and Michael Bloomberg and his business 
entities, in business transactions as well as litigations. As part of his 
communications and intellectual property practice, he has represented the 
publishers of Salman Rushdie and Henry Miller and has personally 
represented actors such as Spike Lee, Al Pacino, Richard Gere, and Robert 
Redford, and authors such as David Halberstam, as well as such well-known 
political dissidents such as Vaclav Havel, Nelson Mandela and Anatoly 
Sakharov. He has also served as a consultant on the media and 
communications in Canada, England, Australia, the former Soviet Union, 
Czechoslovakia, Poland and Hungary.

Martin Garbus is the author of three books about his commercial and 
criminal trials: Ready for the Defense and Traitors and Heroes, and Tough 
Talk: How I Fought For Writers, Comics, Bigots, and the American Way 
(published in August 1998 by Random House-Times Books) which deals with 
media problems on the Internet including copyright, trademark and libel. 
Mr. Garbus has taught law at Columbia and Yale universities. He is a 
frequent contributor to major newspapers and national magazines, including 
the New York Times, Washington Post and Los Angeles Times, and has been a 
commentator on current legal issues for NBC, ABC, CBS, Time and Newsweek. 
He is a graduate of Hunter College (BA, 1955), New York University (JD, 
1959) and studied economics at Columbia University and studied tax law at 
New York University School of Law.



--
Lauren Gelman, Esq.
gelman () stanford edu

Assistant Director
Program for  Law, Science and Technology
Assistant Director
Center for Internet and Society

Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610

(ph) 650-724-3358
(fax) 650-723-4426




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