January 17, 2008
TWC To Test Bandwidth Caps for Heavy Users
Time Warner Cable has confirmed that it is planning to test bandwidth caps for residential Internet access customers. From Time Warner's perspective, the cap will affect only 5% of customers. These individuals are most likely to use P2P services at high levels. Time Warner hasn't given any details about the size of the limits. Most U.S. ISPs have a flat fee for access arrangement, with pricing based on speed tiers rather than use. Network operators have always worried about whether file sharing (illegal or otherwise) will overwhelm the network, though it seems not to have done this so far. One question this test will raise is how caps will affect legitimate movie download services now that a trend is developing for low cost subscription models. And what happens when high definition downloads become the norm when files can get as large as 20 gigs or more. The tier idea raises another sticky issue. Will caps become another way to place a toll on preferred entertainment sources via the web?
There is another issue that comes out of this. If this is an attempt to cut down illegal file trades over the network, then does charging for the over and above bandwidth for this purpose somehow raise an argument that the P2P use becomes legitimate? Copyright infringement is copyright infringement, of course. But will paying more for additional bandwidth suggest that Time Warner will not ask questions once they get their money? And what will the FCC do about this model now that they've surprisingly shown interest in Comcast's network management practices? Stay tuned.
RIAA Faces Potential Class Action Over Tactics
The RIAA wins some (Jammie Thomas) and sometimes loses, though their legal strategy is to walk away from cases where it looks as if they are going to lose. They tried that with one Tanya Andersen, a disabled Oregon mother who was accused of sharing gangster rap via KaZaA. She not only denied the charges, but filed counterclaims. The main case was dismissed and later the counterclaims were dismissed without prejudice. She wanted attorney fees as the prevailing party and won. Now her counterclaims are going forward as a separate action that is seeking class-action status. That should make all of those lawsuits the RIAA files even less cost-effective. Some of the tactics in this case are quite heartwarming, such as the alleged attempts to contact Andersen's eight year old daughter without permission. It's right up there with the case where the RIAA felt the decent thing to do was to give the children of a dead defendant time to grieve before it took their depositions in the ongoing case. That action was dismissed by the RIAA after withering criticism in the press. It's not as if the organization doesn't have legitimate issues it needs to confront. It's just that it seems to do it with such a monomaniacal approach which destroys most sympathy for its cause. The story of this case is in Ars Technica.
January 16, 2008
Enycryption In Child Porn Case Raises Constitutional Issues
The Washington Post is reporting on the Case of In Re Boucher, 2007 WL 4246473, decided November 29th 2007. Approximately a year before, on December 17, 2006, Boucher and his father crossed from Canada into the United States at a border station in Derby Line, Vermont. Boucher's car was subjected to inspection and the border agent viewed the contents of a laptop in the back seat of the car. The agent found suspected child pornography while viewing the contents of the laptop. The border agent contacted Special Agent Mark Curtis to continue the examination and questioning of Boucher.
Boucher made statements to the effect that he downloaded adult pornography and sometimes came across child pornography but promptly deletes it when he realizes its contents. Some of the files Agent Curtis saw in the directory were named in a manner that strongly suggested the content was, indeed, child pornography. He then asked Boucher to show him where his downloads were located on the laptop. Boucher navigated to drive Z where Agent Curtis located and viewed content that appeared to be adult and child pornography. After more examination, Boucher was arrested.
This would be a pretty straightforward case but for the fact that when government forensic experts examined the laptop, they could not get into drive Z because it was encrypted by Pretty Good Privacy (PGP) encryption software. The issue in the case was whether Boucher could be compelled to give up the password that allowed access to the drive. The obvious problem for the government and the court was the bar to self-incrimination as stated in the Fifth Amendment.
The government argued that it could compel Boucher to enter the password when no one was looking and give him immunity for the act of entering the password, which is different from using the underlying unencrypted content against him. The court rejected this argument by stating that by entering the password Boucher would be admitting that he knows what it is. This would be testimonial and barred by the Fifth Amendment.
There were variations on this argument of separating the act of providing the password to the production of the documents, but, with analysis, the court ultimately rejected all of them. The result was that court quashed the motion to compel. The government must get access to the hard drive without Boucher's involuntary cooperation.
Two lessons emerge. One is that PGP software is likely as good as the name implies in that government witnesses testified that there are no back doors or other hacks into encrypted material without the password. One assumes that having the laptop and mirrors of the drive in their possession that the government has made more than a casual attempt at cracking the encryption. On the other hand, the government may be attempting to establish a legal precedent before using hardened methods at gaining access. Why waste the effort when a court will give access.
This still has to go to the Second Circuit and possibly to the U.S. Supreme Court. The charged issue of child pornography and the possibility of terrorists using encryption are in the underlying context of an appeal. One point worth noting, however, is that PGP encryption software isn't exactly new compared to these "threats" of criminal activity. In fact, the government uses encryption for its own purposes, and would probably object if there were cracks that would leak its own documents. Banks and other entities that are required by law to protect sensitive documents have the same concern. The question is how to keep those levels of security available without compromising the Fifth Amendment when individuals are involved. I don't think that's possible. The Supreme Court can always surprise us. You never know, waterboarding may be an option when tortured logic is involved.
January 15, 2008
Mac Cleaner Program is a Fake According to Reports
Reports indicate that a software program designed to clean Mac computers from spyware and the like is a scam. See the details about MacSweeper at the CNET News blogs.
News From the FCC
The FCC announced yesterday that 214 bidders have qualified to participate in the 700 MHz band auction. Among the obvious - AT&T, Verizon, Google - are the not so obvious. Chevron? The press release is here and Attachment A (the list of qualified bidders) is here, and Attachment B (the list of non-qualified bidders) is here.
Speaking of the FCC, the Commission is soliciting public comments on the petition complaining of certain networks slowing or degrading their services, particularly in regard to peer-to-peer transmissions. The press release with relevant docket numbers and links to the comment system is here. Press releases that announce and seek comments on related issues are here (carriers may not degrade traffic for lawful content as petitioned by a video service) and here (non-discrimination in sending text messages).
January 14, 2008
Patent Suit Hits Sony, Nintendo Over Game Remotes
Another patent suit has crawled out of the woodwork. This time it's over how wireless game controllers identify themselves to the game host. Cooper Innovation Group holds a patent on this, issued in 1996. They claim Sony and Nintendo violate this patent in their respective gaming systems. More in Ars Technica.
Microsoft Targeted in Another EU Competition Investigation
The EU is following up on complaints by Opera and others that Microsoft is stifling competition by tying Internet Explorer to Windows and not following standards by opening a formal investigation. The investigation merely means that the EU is looking into the issue. A scant more information is on CNET.