--- Date: Wed, 06 Nov 2002 11:46:20 -0500 To: Declan McCullagh <declanat_private> From: Chris Hoofnagle <hoofnagleat_private> 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" <athiererat_private> To: <declanat_private> -----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 techandsocietyat_private 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: declanat_private From: Lauren Gelman <gelmanat_private> 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. gelmanat_private 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 ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? 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