Archive for category Blogosphere
The Regulation Room: Public Participation Online
Posted by Steve in Blogosphere, lamp, open access on April 5, 2010
We here at MFIA clearly do a lot of work holding agency’s accountable on the back end – that is, we target information that will reveal how the government has acted by filing FOIA requests and litigating denials. But I think it’s also important to remember that there’s a lot people can do to hold agency’s accountable before they take action. That’s what a group at Cornell Law School and the DOT have in mind with their new site Regulation Room.
This article on NextGov.com (a great site for information on government and technology) provides the background on the initiative; I recommend reading it. The Cornell Law-led Regulation Room attempts to use technology to increase public participation in notice-and-comment rulemaking. (Regulations.gov is the government’s central hub for online participation). E-rulemaking has also received substantial academic attention – if you’re interested, Beth Noveck, an ISP Fellow and the Deputy Chief Technology Officer and Director for the White House Open Government Initiative, has written numerous articles on the subject, focusing in particular on the importance of structuring technology in order to encourage collaboration and participation.
The Regulation Room makes at least three important contributions to the E-rulemaking process: (1) it digests the proposed rule, providing natural language summaries of a rule’s most salient features; (2) it provides a space for deliberation on the rule’s components via commenting, allowing users to react to each other and the moderators; and (3) the moderators cull the comments, combining them into an effective summary that is sent to the agency.
I have two main questions about the site as designed:
Public or Private? As the NextGov.com article says, “Regulation Room stresses it is not a government site and CeRI owns all comments and e-mail addresses collected for authentication purposes.” At the same time, the article notes that DOT is “allow[ing]” Cornell Law to launch the site. It certainly helps that the DOT is on board (so they can provide more information to Cornell), but is it necessary? Presumably, any private group could set up a similar site, post a proposed rule, solicit comments, and then combine the comments into a summary that is then sent to the agency. The question then is should this site be run by the agency or private actors. Or is this hybrid model perhaps best? An agency-run site could probably have the most significant impact on agency action, insofar as the agency-run site would be more fully incorporated into the decision-making process. The hybrid model, however, might still command the attention of the agency, while allowing people to organize and gather their suggestions without taxing agency personnel.
Blog format? Both the article and the site’s own About page call the Regulation Room a “blog,” and the article notes the advantages of the “blog format.” The Regulation Room mirrors a blog in certain respects (at its most basic level, the site offers some main text and then invites comments from the public, which is certainly blog-like). But that’s where the comparison ends for me. The layout is not nearly as intuitive as a typical blog (you have to click on two non-obvious links before you can view actual comments, and then the user faces multiple scrolling windows and multiple panels that appear and disappear as she moves her mouse across the screen). I actually think that the site would be better if it were more like a traditional blog – at least then, I would know exactly where to go for the text and the comments. Regardless, the underlying point is Noveck’s: technological design matters. Anything that makes it harder to post a comment increases the costs to the would-be public participant. Unfortunately, as it currently is, I think the Regulation Room’s format may inhibit some from participating.
These are just a couple of observations, none of which dampen my overall enthusiasm for the project and what it stands for. Agencies should be thinking about ways to build a digital relationship with the public, and Cornell Law and DOT are at the forefront of the experimentation. Time will tell whether projects like this can compete for the public’s attention alongside the vast amounts of other information and entertainment online.
Anti-Counterfeiting Trade Agreement: Analysis
Posted by Margot in Blogosphere, Privacy, Surveillance, first amendment, lamp on March 25, 2010
I’ve written up in detail my comments on the new acta text.
The text reads like a debate between countries. Most of the more salient issues are still up in the air; I’ve tried to pinpoint those issues along with the varying takes on them by different negotiators.
Recurring themes include: 1) regulatory capture by private industries of government resources such as courts and border officials; 2) significant privacy concerns sparked by “sharing” information with rights holders and other countries during investigations; 3) expansion of US law internationally despite contradicting decisions in other jurisdictions; and 4) blatant disregard for existing international IP institutions and norms.
These, in shorter form, are some of the important features to note:
1. ACTA imposes mandatory statutory damages in civil copyright law. Australia, Mexico, and New Zealand do not want this provision, as their law does not include statutory damages (which have been shown in the US to often be grossly disproportionate to the harm done).
2. Privacy in civil cases: accused infringers must produce evidence of the “means of production and distribution” during civil proceedings. The EU proposes that this mandate be subject to data privacy protections.
3. Smaller de minimis exception in border measures: TRIPS provides an exception for the import of “small quantities of goods of a non-commercial nature”. ACTA would further limit this exception to quantities “reasonably attributable to personal use of the traveler”, exempting gifts for other people rather than tying de minimis to non-commerciality as TRIPS does.
4. Ex officio action at the border: Under TRIPS, countries may optionally mandate ex officio action (customs-official-initiated action, rather than by a party) only once a prima facie case of infringement has been shown. ACTA as proposed by the US mandates such ex officio action by all countries (”shall” instead of “may”), and refers to “suspected” counterfeit goods rather than goods for which a prima facie case of infringement has been shown. The government is doing the work of private parties before a substantial case has been established.
5. Privacy: Releasing personally identifying information of border crossers to rights holders without process: TRIPS stated that identifying information be disclosed to rights holders only after a determination that goods were infringing “on the merits of a case”. ACTA as proposed by the US allows release of such information as part of an investigation, once the goods have been confiscated rather than once guilt has been at least initially established.
6. Demands on the court and on border officials: ACTA proposes a fast turn around by the courts in these cases, and encourages governments to absorb storage and application fees to avoid burdening rights holders.
7. Expanding the definition of criminal copyright infringement internationally. TRIPS had a “commercial scale” requirement for criminal copyright infringement. The United States understands “commercial scale” in its domestic law to include acts done for “private financial gain”- which rights holders argue includes downloading pirated music for no cost. The US wants “private financial gain” included in ACTA, and also wants a category of “significant willful infringements that have no direct or indirect motivation of financial gain”- again targeting music and movie filesharing.
8. ACTA enlarges the scope of international criminal law sanctions to mandate imprisonment. TRIPS allowed countries to chose between criminal fines and prison terms, and set no minimum standards for either. ACTA mandates “penalties that include actual sentences of imprisonment” and includes a negotiator’s note requiring countries to “encourage competent authorities” to “impose penalties… including imposition of actual terms of imprisonment.”
9. ACTA exports the Digital Millenium Copyright ACT (DMCA), which includes the US’s understanding of third party liability for copyright infringement, inconsistent with other jurisdictions. New Zealand, for example, notes that it does not find search engine activity to be copyright infringing, and therefore questions why this provision regarding third party liability exists in reference to search engines. Mexico notes that takedown must be requested “by a competent authority”, not a party. Japan also notes that these provisions are not currently consistent with its jurisdiction.
10. Exceptions and limitations, and fair use: The US asks for a note including reference to exceptions and limitations (at the discretion of countries according to the Berne Convention and TRIPs) and fair use (a US concept); the EU wishes to include exceptions and limitations in the actual text of the agreement.
11. DMCA technological circumvention measures. The US wants to expand DMCA criminalization of technological circumvention (”hacking” digital rights management (DRM)). The EU wants to striek the criminalization aspect of this, limiting to civil remedies. Japan explicitly notes that its laws currently allow for circumvention in certain cases; New Zealand notes that circumvention of noncopyrighted works is not a crime, and access control is not a right given to copyright holders.
12. International cooperation: ACTA mandates cooperation between countries in criminal IP infringement cases. The EU proposes “particular attention… to infringing goods detrimental to… health and safetly.” This potentially targets the distribution of generic medicines.
13. Information sharing between countries: parties are debating whether countries “may” or “shall” share information during investigations. This could be extremely problematic for countries with different standards of privacy norms and laws.
14. Paternalistic crafting of domestic legislation: Countries must work with countries not party to ACTA to craft domestic legislation that brings them in line with ACTA. Canada wishes to strike this provision.
15. Officially fostering dialogue with private party righs holders: The US wants to establish formal mechanisms for authorities to hear the view of rights holders. Again, this looks like the government doing work on behalf of private entities.
16. Transparency of process- with major discretional exceptions: Exceptions to transparency of ACTA-mandated investigations include whether they would be “contrary to … domestic laws or policy” or “the public interest”- extremely vague, governmentally discretionary terms.
17. A new IP institution to Preserve ACTA? The ACTA “Committee” would oversee disputes, amendments to ACTA, and supervise implimentation. This disadvantages those devleoping countries who are not original signatories to the agreement.
18. Only five states are required for ratification. Effectively, the five most powerful can rush to sign on to terms everybody else will have to take on later.
Gaining Access to ICE’s Varick Detention Center
Posted by Steve in Blogosphere, first amendment, lamp, open access on February 13, 2010
Just wanted to flag a MFIA victory – journalist Jacqueline Stevens, who writes for the Nation, will be given a tour of the Varick Detention Center in NYC next week (ICE had denied her previous requests for access). Approval came a day after the ACLU and the New York Civil Liberties Union sent a letter to ICE on behalf of the Nation, the Nation Institute, and Ms. Stevens, requesting that Ms. Stevens be granted access to the center in accordance with ICE’s own regulations and First Amendment access principles. We here at the MFIA practicum helped gather the information and write the letter, so we’re all very excited about the recent developments.
This is an important step in better understanding what goes on in detention centers around the country. Check out more details here on Ms. Stevens’ blog.
Jimmy Wales of Wikipedia, on newsgathering
Posted by Margot in Blogosphere, business models, first amendment, lamp on October 8, 2009
I had the pleasure of attending a talk by Jimmy Wales, co-founder of Wikipedia, yesterday. I took the opportunity to ask him about Wikipedia’s relationship to legacy journalism, and his thoughts about the decrease in newsgathering, and what systems might take its place.
Because of its system of cross-references to “reliable” outside sources, Wikipedia depends on the continuation of newsgathering journalism or its equivalent.
Wales affirmed that Wikipedia has no intention of replacing newsgathering. He posits, however, a reimagination of the role of newspapers, splitting what he sees as the current “hybrid system of journalism” into parts. Some of these parts may be better (or at least more cheaply) handled by non-legacy media. Wales believes that opeds, for example, could be dropped out of newspapers and left to the blogs, since the papers (according to him) serve only a distributive function. Wales also cites sports journalism as something that could be taken over by citizen writers, due to the publicly accessible nature of the events, and the high nonmonetary incentives for writer-fans. (It’s of course debatable whether the editorial and accreditation functions of newspapers could be adequately replicated in the blogosphere…)
However, Wales emphasizes the need for certain kinds of traditional journalism to continue: the day-to-day gruntwork of political reporting, for example. The question is not just one of motivation or resources– Wales also sees a need for objectivity, rather than cause-motivated reporting.
This reflects a general consensus that even at the basis of the newest of new media, there’s still a real need for objective newsgathering– whether by newspapers or by reliable freelancers in all sorts of media forms. These are the resources that form the basis for informed political discussion– resources that a democracy can’t afford to lose.
Cyberbullying bill on the horizon
Posted by Margot in Blogosphere, first amendment on October 5, 2009
A cyberbullying bill introduced after a federal judge nullified the jury verdict in the MySpace suicide case has thankfully not been well received. The bill calls for up to two years in prison for electronic speech meant to “coerce, intimidate, harass or cause substantial emotional distress to a person”.
One of the bill’s opponents, R-Texas Gohmert, joked that the bill could target mean-spirited liberal bloggers who harass him and his family regularly.
Joking aside, there’s no question that the proposed bill treads on dangerous, probably unconstitutional, first amendment grounds. Journalists of both old and new media should take notice, and take offense.