LuminousVoid

Today I went to see the oral arguments at the D.C. Circuit Court in American Library Association v. FCC. This case has been described as “just as important as Grokster” to the future of technology and information. Several groups are trying to stop the FCC broadcast flag rules.

Background.

A “broadcast flag” is basically a switch or encoding in a digital television signal that tells the receiver of the signal some features of the rights that the broadcaster is claiming, particularly the right to copy or rebroadcast the signal. The FCC issued a ruling that all consumer electronic devices, including PC’s, would have to respect a digital broadcaster’s flag settings when it came to redistribution — though not copying — of content.

The ALA is concerned that this will stifle the use of broadcast works — like normal TV shows, in distance learning programs over the internet. More broadly, this scheme makes an end run around fair use: if it were legal for you to send a sample of a TV program to a friend in order to discuss it, you wouldn’t be able to. It also captures the public domain, as public domain materials that had a broadcast flag wouldn’t be able to be rebroadcasted. Lastly, everyone is concerned that this scheme could mean the regulation — and requirement of prior governmental approval — of any consumer device that reads digital TV signals: including PC’s and even open-source/free software.

The ALA’s lawyers make 3 arguments against the FCC’s action:

• The FCC doesn’t have the power to regulate these technologies.
• The FCC is crossing over into copyright law.

Public Knowledge describes these 2 issues as:


In the absence of an express mandate from Congress, the FCC does not have the power under the Communications Act to adopt the flag scheme. The Communications Act of 1934 and its amendments govern what the FCC can and cannot regulate, and nothing in that Act permits the FCC to a) impose broad product design mandates on consumer electronics devices and computers and b) adopt what is, for all intents and purposes, copyright policy

• The problem that the FCC is trying to solve hasn’t been properly shown to exist, and the broadcast flag rules haven’t been shown to be a solution to them. This is known as saying that the rulemaking was “arbitrary and capricious” and not based on “substantial evidence” — terms of art in administrative law.

The Oral Argument

NOTE: I’m not a skilled reporter, my notes are not polished quotes, so please don’t assume that anything here is more than a paraphrase. I’m using quotation marks to make it easier to read, not to mark actual quotes.

ALA
The ALA’s lawyer had barely finished introducing himself when J. Sentelle interrupted him to ask how the ALA has standing to sue the FCC in this case. The ALA pointed to the two-fold harm of the increased cost of equipment and the preclusion of copyright law that the FCC’s rule would cause. J. Sentelle pressed on, because standing requires a particularized harm to your clients, and not a general harm to the public — the latter is known as being something non-justiciable. Relief for general harms comes from Congress, not the courts. J. Rogers stepped in to save the ALA and asked if they are requesting that the court assume that the number and nature of members of the ALA is such that they will want to use materials that the rule would affect. The ALA replied that it doesn’t have to assume, and later pointed to parts in the record of particular plans that would be affected by the rule, such as the distance learning programs.

After almost 10 minutes of the 20 minute argument spent on standing, the ALA got the merits of its argument. They pointed out that the FCC is interpreting previous Congressional limitations of the FCC’s power as being limited to specific grants of power — in effect turning the limitations around into implicit grants of broad power. They repeated their argument that the FCC does not have ancillary jurisdiction to make the rules in this case.

J. Edwards was concerned about where the line should be drawn on the FCC’s power to regulate equipment. The ALA replied that it was at receipt , and that this regulation affects the post-receipt handling of signal — the modulation phase. J. Sentelle asked for a clarification: “post antenna, there can be no regulation?” The ALA answered yes, and mentioned that this reading of the FCC’s power would open the floodgates of regulation to a wide class of products.

The ALA added that the FCC has not shown how this regulation is ancillary to the FCC’s power to regulate wire and radio transmissions, but did not elaborate, instead moving on to their second point: this is an intrusion into copyright law. They pointed out that the rulemaking used to be about “copy protection” but now is about “content protection”. The judges and the ALA discussed how in the digital world, every distribution is a copy, but not every copy is a distribution.

J. Sentelle seemed unimpressed. His retort to the intrusion into copyright law was basically “so what?” The ALA pointed to Sony ’s decision that sound policy requires deference to Congress in striking the balance between copyright owners and the public. They continued by arguing that Congress had drawn the line at the DMCA, and had wished no further regulation. J. Sentelle asked whether this is more than mere deference, that it is saying that lack of action by Congress is to be read as an action by Congress? “Only Congress has the power to act” was the reply. J. Sentelle wondered whether this isn’t like a claim for a dormant copyright clause, similar to the dormant commerce clause. The ALA reinforced that the FCC has no ancillary jurisdiction to regulate apparatuses like this.

FCC

As the FCC barely got started, J. Sentelle asked why the FCC didn’t challenge the lack of standing of the ALA. J. Edwards pointed to a case where a broad but concrete harm could justify standing, as opposed to a broad but abstract one. The FCC didn’t seem interested in having the case tossed on this ground, and when pressed for its official position on standing, the lawyer said that all he could offer was that the FCC did not challenge it. J. Sentelle reminded everyone that standing doesn’t need to be challenged and can’t be waived — the court can toss a case on its own for lack of standing.

The FCC moved on to the merits of their argument. They are concerned that content would move to cable and satellite and away from broadcast digital TV, and thus are implementing this to protect broadcast TV. J. Edwards asked if this means that cable and satellite offer more content protection already, and the FCC answered yes.

The discussion moved on to whether broadcaster encryption would solve this problem. The FCC noted that encryption was problematic, because it would cause obsolescence of existing equipment, whereas with a flag regime, existing equipment simply ignores the flag.

J. Edwards then asked about the extent of the FCC’s ancillary authority. He was curious about when they ever have exercised authority to regulate apparatus after transmission. The FCC replied that it has never done so, but has always had the power to do so. J. Edwards asked why the All Channels Act, which gave the FCC the authority to regulate that TVs have the capability to receive both UHF and VHF signals, was necessary given the FCC’s reading of its broad ancillary authority. The FCC replied that the cases that settled the FCC’s ancillary authority were decided after the All Channels Act was passed, and therefore they are consistent.

In the middle of that discussion, J. Sentelle asked whether the FCC had the power to regulate to “increase content.” The FCC replied that no, they had the power to promote the transition to digital. J. Sentelle later pressed further, asking whether the FCC could promote the transition with price controls, or mandating coupon sales. The FCC replied that it didn’t know. J. Edwards asked how the FCC gets the power to encourage hardware sales. The FCC replied that it is removing a difference between 2 hardware systems, in order to facilitate the transition to digital broadcasting.

The argument concluded with J. Edwards making the point that if it is the view of Congress that the law gives the FCC ancillary authority over these devices, then the FCC will be able to very quickly get legislative authority to make this rule if the courts don’t find it in the current statute.

Sources/Follow up

American Library Association.
Public Knowledge.
Electronic Frontier Foundation.

UPDATE: Declan McCullagh’s coverage hits the web. Court questions FCC’s broadcast flag rules. He’s got some of the juicier quotes, including the “washing machines” line.

The EFF has just produced a neat guide to some of the more onerous terms in software EULAs (End User License Agreement). Thats the stuff you see pop up before you click “ok”.
EFF: Dangerous Terms: A User’s Guide to EULAs

One aspect that they left out, which I’m guessing is in a lof of EULA’s, is a waiver of your rights to sue. Instead your rights would be replaced with a requirement of binding arbitration — perhaps at your expense, perhaps at an arbitrer the software maker chooses, and perhaps even forcing you to not disclose the results of arbitration.

Most people agree that ubiquitous and promiscuous RFID chips are coming to the market. Some say they’re going to stay out of the consumer market, operating just for supply chains. While others say that it will reach consumers and thus the general population.

As I’ve mentioned before, a lot of the discussion of RFID threats to privacy and information safety are premised on a certain hierarchy of the RFID landscape: Ubiquitous chips being watched by fewer readers in the hands of ‘larger’ institutions — retailers, marketers, government entities.

This article on RFID adoption expectations in the UK contains an interesting quote:

“Nokia for example are making significant progress in the area of Near Field Communications and can already produce cheap mobile RFID readers for around $700, but prices will inevitably come down quickly as they move this technology into the mass product market. This will enable you to “touch” a poster of Kylie with your RFID enabled phone to download information and music. People will be able to use their phones in many more ways from checking whether an item is in a shop stockroom to using web services to finding more information about products.”

While 700 bucks is a lot of money, that clearly is going to drop. And these people at least are expecting RFID readers to reach the consumer level. So we can expect that it’s not going to be just institutions that are going to be capturing the data given off by an individual’s RFIDs, but other individuals as well. Thus concerns about RFID privacy aren’t going to be properly addressed simply by regulating or watchdogging business privacy policies and practices.

This article gives a brief overview of some of the current and possible legal protections afforded to consumers in an RFID infested environment. They recommend amending the wiretap act, to cover interceptions of RFID transmissions:

In essence, this act prohibits any person from intentionally intercepting, or endeavoring to intercept wire, oral or electronic communications by using an electronic, mechanical or other device unless the conduct is specifically authorized or expressly not covered.
Although wiretapping is not identical to RFID, it shares an abundance of similarities that may carry over to RFID technology.

Another source of protection they point to is contract law. Consumers with tags will generally be entering into contractual relations with the merchants/providers of the tags. This probably does not protect consumers from third-party use of the tags though. I’m not too sure about this, but I believe that the privacy torts and protections only protect people where they have a ‘reasonable expectation of privacy’ and this ‘reasonable expectation’ can’t be formed solely by contracting for privacy. I’ll have to double check that.

The article also points to the Federal Trade Commission’s Fair Information Practice Principles. I don’t think these have legal force, or even if they create a private cause of action (rather than simply being something that only the FTC will enforce).

Lastly the article points to the law enfocement/search uses of RFID. They don’t say much here, but my belief is the law is guided by the ‘reasonable expectation of privacy’ standard.

I have heard that in general the EU has stronger privacy laws than here in the US. Some regimes hold that consumer data belongs to the consumer, the subject of the data, rather than to the corporate entitity that has collected the data. I don’t know exactly how that plays out, but looks to be an interesting topic for a future post.

They do seem to be looking closely at RFID: The European Union Works Out RFID Privacy Legislation. Two concerns appear to be individual geographic tracking and proper security of environmentally promiscuous technology, and they seem to be placing some of the responsibility for these features with the manufacturers and researchers.

The new working group says it has found other issues with regard to RFID that need to be addressed. RFID technology increases the potential for direct marketing with item-level tagging, since shoppers could be recognized and their movements tracked while in stores, according to the group.
Another concern for the EU working group is the use of applications that link an RFID-enabled plastic card with a consumer’s bank-account number to enable payment processing, similar to a credit card, without having to swipe the magnetic strip.
Manufacturers of RFID equipment and applications should be held equally responsible for building tags, readers, and printers that protect consumers’ right to privacy, the document states.

They reference other potential issues in the article.

The article also discusses an EU Working Paper. The English PDF is here.

There’s been a tiff lately between Juan Cole, Middle Eastern Studies Professor, and Jonah Goldberg, uh, pundit. They’ve been going back and forth. The latest salvo has been from Cole. Without getting into all the details, I want to give kudos to Cole for this bit, tangential to his argument:

Cranky rich people hire sharp-tongued and relatively uninformed young people all the time and put them on the mass media to badmouth the poor, spread bigotry, exalt mindless militarism, promote anti-intellectualism, and ensure generally that rightwing views come to predominate even among people who are harmed by such policies. One of their jobs is to marginalize progressives by smearing them as unreliable.

Earlier I wrote about the DC Metro Smartrip Cards. WMATA responded that their entry/exit data is by time/date/location. They also responded that they do associate credit card data with a given Smartrip card when it is used to add value to the card.

They said they keep their data for 12 months in an active format, after which it is archived. It thus appears that they know who you are and where you have gone. Forever.