new spam tactics

I just got a call from someone claiming to be a “domain notification server”. They had pulled our contact information off our domain record, and had a highly deceptive pitch, something like:

We are calling you to alert you that you will be receiving a notification regarding your domain, blah blah blah information from our domain record. Please give us your fax number…

Only, more misleading. I was like, Is this really about my domain? Is this a DMCA notice of some sort? Is this a spammer? To the direct questions: “Do we have an existing business relationship?” the person was confused and couldn’t really answer off-script. To be fair, “Alex” wasn’t speaking in his native language — clearly Indian, so could have been US-based or outsourced. Eventually I got enough information that I determined with 98% certainty that this was spam, and told them to take us off the call list. He said he would, which confirmed that it was indeed spam.

wtf? We’re on the do-not-call list. Is this a racket anybody else has encountered?

network throttling detection?

linkblogging: A while back there was flurry of discussion about possible applications to help you tell if your ISP was throttling, shaping, filtering or in some other way being non-neutral about the Internet access you’re paying them for. See
* Mathew Honan series in Macworld, Feb 2008: parts 1, 2, 3)
* azureuswiki includes a list of ISPs that do various kinds of filtering, and what kinds they do.
* speakeasy has one speed test that just gives you flat rates. Could be useful in DIY comparison tests.

roommates.com: no 230 safe harbor for discriminatory housing ads

Just saw that the 9th Circuit has issued its en banc opinion finding that Roommates.com is not eligible for Section 230 immunity for discriminatory postings. Haven’t read it yet.

Decision at up at the 9th Circuit website. Opinion by Kozinski, who usually gets this stuff so maybe it’s not too bad.

link from eric goldman

(more…)

mostly information law news round-up

* Judge White withdrew his order requiring the shutdown of wikileaks.org. See also 3/1 bits blog. (NYT 3/1)

* The music industry has yet to pay artists any of the money it has received in settlements and lawsuits; the artists are pissed. NY Post 2/27)

* The owners of the game scrabble are pissed off at Scrabulous. (NYT 3/2)

* Daniel Solove’s new book, The Future of Reputation, is available online with a creative commons license, thanks to Yale University Press. Annoyingly it’s chapter-by-chapter. badgerbag read it and promises a scathing review, so I’m looking forward to seeing what she has to say.

* Clay Shirky’s new book, Here Comes Everybody, has a hold list at least 3-deep at the Boston Public Library. )-8

* Paul Cash, the principal of Burleson High School in Burleson, Texas, is censoring the school yearbook’s article about students who are also parents, in part because it conflicts with the school’s “abstinence-only” education program. A program that was, umm, manifestly not successful. As illustrated by the kind of head-in-the-sand attitude that seems to think that if only the principal can censor the yearbook, he can change reality, or lie to the community about it. “I believe that as principal of the school it is my obligation to make sure that whatever our students put into press accurately reflects the ideals and values of the community.” Apparently the students think that the press should reflect reality. I guess the teachers have been doing their jobs. Student Press Law Center has the scoop (2/13). (link from pharyngula, 3/2)

* Schwarzenegger’s administration is defending California’s gay marriage ban before the California Supreme Court; a ruling is due by June. There’s a certain gross irony in this: A couple of years ago, Schwarzenegger vetoed a gay marriage act passed by California’s legislature, saying that this was something that should be left to the courts. That was itself yet another proof that the so-called federalist style of conservatism is really just window-dressing outcome-based politicking as principled ideological opposition to particular forms of government. (SJ Mercury, 3/2)

* Some people in Namibia are worried that schools and libraries are getting away with too much using information, so they’re starting a new copyright enforcement body just to go after the lucrative school and library market. Watch out for the Namibian Reproduction Rights Organization (NamRRO), which isn’t enforcing any rights to reproduce that I’d like to see enforced: The rights to reproduce for fair use, the rights to reproduce or not to reproduce biologically …. The organization is being started by “Moses Moses”, whose name seems a little reproductive itself. Good idea, Moses; way to start killing creativity at the most upstream possible place. (All Africa, 2/29)

* In Illinois, reproductive rights are being upheld: A very silly law that attempts to mandate good parent-child relationships and communications, specifically requiring that pregnant minors must tell their parents if they are having an abortion, continues to be enjoined. A “pro-life” group described the decision as, “a major defeat for the people of Illinois,” apparently forgetting that teenagers are people too. (AP 3/1)

* Heather Morrison at her awesome blog “Imaginary Journal of Poetic Economics” has pointed out that plagiarists should avoid open access like the, ah, plague, since it’s so much harder to catch them without open access. Peter Suber at Open Access News gathered several of her related posts in one excellent introduction to Morrison’s concept, “aiming for obscurity”. Read it or wish you had.

* Rebecca MacKinnon reviews the latest round of lawsuits against Yahoo! by Chinese dissidents who, among other things, got screwed over by Yahoo!’s release of their information. (RConversation, 3/3)

WSJ editorial page embarrassment

The WSJ editorial page is not something I ordinarily frequent, but they recently wrote an editorial on the DMCA. Aside from a reflexive and simplistic “intellectual property is good so don’t bother me with nuance or details” attitude, this paragraph struck me:

Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have the legal right to hop over your neighbors’ fence and swim in their pool — unless they complain.

WSJ 2006/12/1 (it’s the editorial page so the person who actually penned this embarrassment doesn’t have to sign his or her name)

I realize that editorial pages don’t require fact-checking, but getting the law this wrong is embarrassing. Readers of this blog probably are very familiar with the DMCA, but a couple of quick pointers:

  1. The DMCA doesn’t “allow[] Internet firms to provide a thumbnail of copyrighted material.” I believe the hopelessly inept WSJ editor was probably thinking about the Kelly v. Arriba 9th Cir. decision, supported recently by the 2d Cir. decision in Dorling-Kindersley. Both of those interpreted fair use (17 USC 107) to include offering thumbnails for a different purpose.
  2. “… without permission as long as it promptly stops the trespass if the copyright owner objects.” Presumably here they’re talking about the DMCA notice-and-takedown provisions, 17 USC 512. Of course, these provisions don’t apply to original infringement — reproduction and distribution — but to the responsibility of ISPs and other intermediaries when their networks are used for reproduction and distribution. That is, at best, secondary infringement (contributing to or vicariously responsible for someone else’s infringement), and it’s really not at all clear that ISPs would be liable for it even in the absence of the safe harbor provisions. Which aren’t “claimed” by Google et al but ”given” to them by Congress.

Since they can’t be bothered to do even the barest minimum of fact checking, and don’t understand what they’re talking about, it’s hard to actually take them seriously. Are they this bad all the time?

Gigi Sohn of Public Knowledge probably very wisely didn’t bother correcting their extremely shoddy fact-checking but responded to the overall tenor of their arguments; the WSJ published their letter – and because the WSJ puts their content behind passwords, the full-text of the letter is available at PK’s blog by Alex Curtis.

A failure of the public interest tech law community

From my perspective, the Section 230 (qualified by dicta) victory in Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist (PDF), is fine, unsurprising, but a relief. But more importantly, to me, the case demonstrates a significant and ongoing failure of the public interest tech law community: Explaining to people outside our community why it is in the best interests of progressives and folks fighting discrimination to enable a robust sphere for communications.

For those not in the know, the CLCCRUL fights housing discrimination. One way they do it is by using laws that prevent the publication of discriminatory housing ads in, for instance, newspapers. The CLCCRUL filed suit against Craigslist for discriminatory housing ads that were posted on its website. Craigslist lets users post their own ads, and lets users “flag” other user-oriented content that is illegal for whatever reason, like the Fair Housing Act. It’s a largely automated and user-driven moderation process like many others on the Internet. In 1996, Congress passed Section 230 which protects Internet service providers (called “Online Content Services” or OCS’s) from liability as a “publisher” for their users’ content. Courts have pretty much uniformly read Section 230 as Congress exempting ISPs/bulletin boards and the like from any liability for their users’ messages (except IP which is explicitly exempted from S.230′s “safe harbor”). Legally, there isn’t much to the case, because Section 230 squarely applies. Emotionally, as a matter of justice, it seems to some to be a different matter.

Section 230, like copyright law, clickwrap clauses, reverse engineering, WIPO, Internet jurisdiction, and other such issues can seem pretty bloodless when you’re fighting for the right to housing, reproductive decision-making, and healthcare, or to end race discrimination, the death penalty, or torture. Social-change activists may humor us occasionally, but they don’t see those of us in the information activist community as really, truly, fighting for something that they should care about. They just don’t get it.

To me, these issues are fundamentally free expression issues — which, as Emma Goldman saw, underpin the right to advocate for every other right.

For Section 230, for instance: The Internet is the largest and most open platform for human communications that has ever existed. The technology needed to gain access to every other person on the Internet is increasingly affordable to everyone, with cell phone networks, free wireless municipal networks, cheap computers, and so on. People and “society” more generally are now learning to navigate and contribute to and draw from the increasingly vaster floods of knowledge. I believe that the transformative power of that access to knowledge offers humans the best opportunity yet to transcend the petty powers of principalities, the tyranny of learned prejudice, the prison of ignorance. The pen is mightier than the sword–it has the power to destroy fascism at its root.

And Section 230 is a critical piece of that. If you can’t speak because a gatekeeper controls the speech, and the gatekeeper could be subjected to liability under someone else’s local rules, then your ability to speak and access speech is set to the lowest common denominator available to all. A race to the bottom in terms of what’s allowed.

Permitting people to speak in untrammelled ways leads to offensive and arguably harmful speech. But if you create a chokepoint for speech on the greatest speech platform yet to exist, then others will be only too happy to use that chokepoint for their own agendas.

And it’s not just speech. The people that CLCCRUL is representing–anybody seeking housing, because everybody benefits from a non-discriminatory housing market–are the primary beneficiaries of an open, user-controlled housing information market. They have access to more postings and information. They don’t have to go through rental agents who may have secret or subconscious prejudices. They have the ability to flag biased postings and police the community, themselves. (It’s the ultimate form of community policing, and it works a hell of a lot better than any attempt at governmental regulation ever can.) And for a myriad of other reasons, an open, responsible-to-the-community, speech platform is better, both in the short-term and in the long-term, for people seeking housing and for people seeking an end to invidious discrimination of all kinds.

I haven’t even gotten to the real and qualitative differences between printing-press and broadcast media, and the Internet. But it’s a worthwhile exercise to look at the best arguments for regulating print and broadcast media, and assess how those arguments play out on the Internet. Defamation, for instance. One good reason for regulating print publishers of libel (defamation) more harshly than spoken publishers of libel (slander) is that print publishers have a powerful tool at their disposal that the victim of defamation may not: the ability to reach a mass audience relatively cheaply. How does that map to the Internet? Well, it turns out that in terms of being able to respond to the libelous speech, the Internet is a lot more like spoken word (slander) than it is like printing press or broadcast (defamation): It’s pretty easy to get access to the same forums & the ability to respond to the libelous speech. So, one could argue, libelous speech on the Internet is less harmful than libelous speech made on the radio station or in the local newspaper. The rationales for restricting publication in print newspapers may likewise apply differently in the Internet. This is a case that our community should be making, persuasively and directly, to communities that are seeking, for very good reasons, to regulate speech on the Internet.

… Anyway, rather than castigating or calling for Rule 11 sanctions against the CLCCRUL attorneys as a number of folks have done, I’d rather see us try to reach out to them to explain why it’s in the best interests of their clients to support Section 230 and craigslist, instead of attacking it. (I don’t mean CLCCRUL directly, btw; once you’re in litigation it’s difficult to shift gears. But other social-change activists.) Others, no doubt, can make different, better, or more persuasive arguments than I have. I hope they do. We in the public interest tech community have an affirmative responsibility to lay out these arguments, not just to ourselves, but to our activist allies, whoever they might be.

net neutrality provision fails in the House

we knew this, right? that legislative attempts to do something positive for consumers were likely doomed? [nyt 6/9]

consumers, if you get Internet service from a phone or cable company, do you think you pay enough to have service already? do you think your broadband provider ought to be able to charge you more for getting email from a non-corporate-licensed listserve, or using Google? you might want to consider calling & explaining that you already pay them to deliver a particular service–not to spend millions of dollars in lobbying to ensure their “right” to double-bill you for Internet access.

Save the Internet and Public Knowledge are the places to go on this one. Go now, while you’re not being charged double for the privilege.

changed hosts!

I’ve changed hosts for this website & blog, to dreamhost. We’ll see how it goes. It can’t be any worse than my former server, with its outsourced-to-a-FSU* tech support and its 90% uptime.

Already I like the way dreamhost sets up administration for multiple domains. It seems very logical & straightforward to me. It’s open source (linux/apache) based software. Shell access, running scripts, and the like, all seem pretty straightforward. The bells and whistles are also available.

Tech support is not outsourced — which I appreciate both practically and politically.

I also like the option for referral discounts. I’m looking into setting it up such that referral discounts end up getting (at least partially) donated to public interest tech/IP groups (EFF, Public Knowledge, Creative Commons, EPIC, public interest law clinics, and the like). Theoretically, anyway, I should be able to split the discount between people who want to join Dreamhost, the charities, and other purposes (supporting the project’s domain, for instance).

So so far, so good.

There may yet be little things not working that were working previously on the websites or the blog — for instance I discovered that some of the image files for this blog for some reason didn’t transfer correctly. That’s fixed now, but I anticipate a few other minor problems migrating. If anybody sees something not working the way it should be sure to let me know.

update 12/18 3:30 pm Referral codes. Okay, I *think* I have this figured out. If you use this link to go to dreamhost and then sign up, you are doing so using rewards.cgi?lquilter, which will then “credit” my account with a referral if you sign up. The referral is $97.00. Likewise, if you just go to dreamhost and sign up, and during the signup process list lquilter or lquilter.net as your referrer, then I get the $97 referral credit.

Alternatively, I have now created a discount referral code that does what I was looking for when I was trying to sign up. This code, DERIVATIVESWORK, gives the new sign-up 50% of the total available discount. The other 50% is credited to me, and I will donate half of it (25% of the total available discount) to public interest tech/IP groups. My first inclination is to donate in $100 batches to EFF, Public Knowledge, Creative Commons, EPIC, Samuelson Law Technology & Public Policy Clinic (Boalt Hall UC Berkeley) in that order. The other 25% I’ll use to support this blog. If anything comes in beyond the server costs of this blog I’ll probably funnel them back into donations. (But I reserve the right to change my mind about that.) Whatever I do I’ll post it publicly on this blog with an accounting, and if any funds actually come through this system, then I’ll account for them publicly as well. Something for everyone that way, I guess.

The discount in case one is curious is: $25 discount (plus $25 referral credit that I will split up) on a monthly L1 plan, $30 discount (plus $30 referral credit that I will split up) on a monthly L2 plan, $40 discount (plus $40 referral credit that I will split up) on a monthly L3 plan, and $48.50 discount (plus $48.50 referral credit that I will split up) on all the other plans (yearly, two-year, and monthly L4 plans).

So we’ll see what happens!

update 2006/11/1: donations report


* FSU = former Soviet Union republic