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

From: Declan McCullagh (declanat_private)
Date: Fri Nov 08 2002 - 06:09:52 PST

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    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 
    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.
    Marc Rotenberg
    Executive Director
    Chris Hoofnagle
    Legislative Counsel
    Adam Kessel
    IPIOP Fellow
    Ruchika Agrawal
    IPIOP Fellow
    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 
    [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 
    [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
    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.
    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 
    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 
    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
    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.
    Post questions for Mr. Garbus online at: 
    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.
    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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