Tuesday, January 31, 2006

Blogs, the FEC, and campaign finance reform: is general blogging really at risk?


In early 2005 there surfaced reports that bloggers could be creating complications for campaign finance reform. Bloggers and news organizations, according to some pundits, could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines. There is talk that it would be illegal to link to a candidate’s site, send campaign material to a list, or include campaign material on a site. The legal technicality refers to the extension of the 2002 McCain-Feingold Campaign Finance Law (or Bipartisan Campaign Finance Reform Act of 2002) to the Internet in 2005. This had been blocked in 2002 by a 4-2 vote at the FEC but in the fall of 2004 a Court ruled the exemption illegal and an appeal of that decision (effectively preventing an extension) failed this year because three Democrats would not go along with it. Obviously, there is a problem with determining the “value” of a free link to a candidate’s site, or of a home blogger’s own analysis of a candidate’s position.

It would seem to me off hand that this would present a tremendous First Amendment problem, because ordinary conventional activism for candidates goes on without being considered “campaign contributions.” It is very difficult to separate issues from candidates, and it is not possible to separate issues from each other in an intellectually honest fashion, as I have shown repeatedly with the “family values,” “don’t ask don’t tell,” national security, social security and health care issues. Topologically, it’s all a big web where everything is connected to everything else (or is this a “homology”?).

Arguably, a clever blogger could have “influence” out of proportion to his ordinary means, so at least there is a ”paradigm” issue. The Center for Democracy and Technology (cdt.org) and Electronic Frontier Foundation (eff.org) have provided constructive materials. There heva been suggestions that some establishment press companies have more protection from the proposed rules than to amateur bloggers. There are also questions about whether an amateur blogger can incorporate for liability protection. There are also many concerns about how FEC rules will define “express advocacy.”


There was a bill “The Online Freedom of Speech Act,” H. R. 1606 introduced by Rep.Jeb Hensarling (R-TX), to amend the Federal Election Campaign Act of 1971 to exclude the Internet from the definition of public communications as defined by McCain-Feingold. There is a similar bill from Sen. Minority Leader Harry Reid, S 678.

The Washington Post wrote an editorial against the bill, “Cyber Loophole,” on Oct. 11, 2005; The Washington Times responded with its own on Oct 12., 2005: “Suffocating the First Amendment.” The Times fears that McCain-Feingold could make it impossible for anyone without a lot of money to set up a blog because of unknown legal liability. The Times views the newer bill as essentially giving amateur bloggers the same media exemption enjoyed by the formal press (and, again, freedom of the press is a separate First Amendment guarantee). The Times also make the point that money has very little to do with the effectiveness of blogs compared to other media; they are mostly run by people without large resources and develop an audience only when they really have sufficient content quality.

The FEC is supposedly rewriting the rules to give amateur bloggers some reassurance that they will not be dragged in to this law. It would seem sensible to regard any online communication done for free or not done for hire from another party (and not containing paid political advertising) as not imputed under the law.

The FEC voted 6-0 on March 27, 2006 to regulate only paid poltical advertisements on blogger websites. Presumably companies that generate ads for bloggers (like Google adsense) would have to be careful not to include ads for politicians or elections. Here is the link. The AP story is by David Pace, "FEC Won't Regulate Internet Politics," March 27, 2006

Update: June 25, 2007

The Supreme Court rules 5-4 that political advocacy groups may issue ads mentioning candidates as long as they don’t say “vote for …” without restriction on campaign finance. This pokes a hole in McCain-Feingold but protects political bloggers. See CNN story. The case is Federal Election Commission v. Wisconsin Right to Life. Slip opinion is here.

Student profiles, teacher blogs, and schools

Media reports have recently presented concerns of school systems about student profiles on various sites such as myspace.com and facebook.com. These are webpages that students maintain at home with their own time and resources, not school resources. Students, sometimes desiring to use the Internet to maintain popularity or to “meet people,” have sometimes presented very personal information and images that, even when often legal, may attract unwanted attention from certain adults to the students and maybe even to the families and schools. (In fairness, NBC News reports that facebook.com, which is particularly popular with college students as opposed to high school, restricts access to students with valid school email addresses.) Students have sometimes made unfavorable comments about certain teachers or other students, and sometimes comments are offensive according to mainstream social standards of behavior in public.

The same concerns can occur with Internet content in any format, such as blogs and personal domains. Because the content is self-published into a public space, in principle anyone on the planet can find it, unless specific measures (like login screens and visitor verification) are taken to restrict the audience. Apparently, some colleges are already asking admissions-applying students to inform them about any Internet profiles or other websites, and some employers are starting to check for them.

Teachers would face comparable concerns with any material that they put in a public space. Common sense would exclude teacher and student publication of illegal or patently offensive content, and that need not be belabored here. What concerns me is the problems that may result from speech that seems legitimate to the speaker and that is normally protected by the First Amendment. Teachers could, for example, present material on their own that would have been prohibited by school board approved curricula but that could be found by students anyway. Substitute teachers who do not grade students may believe that they should have more freedom to publish what they want, and school administrators are likely to disagree with them.

Generally, the law gives schools quite a bit of control over what is published with school resources, and less control of what is published with personal resources, but schools may intervene when there is a substantial risk that the material can disrupt instruction at the school. Some private schools have already taken substantial steps to limit student blogging and self-profiling on line, even from home. Public schools may not have the same legal right to suppress speech as do private and parochial schools. But there is quite a body of case law involving how the lines may be drawn (regarding public individual speech by both students and teachers), including Pickering-Connick, Tinker, Ubriaco, Emmet v. Kent, Beussink v. Woodland, Bethlehem, Porter v. Ascension, Ginsberg v. New York. Teachers may be expected to show good judgment and deference to public sensitivity to their suitability to work, somewhat intimately at times, with less mature minors, even with public individual speech that is otherwise lawful and protected by the First Amendment. Some kinds of "public service" work (like military service as well as teaching) sometimes require that an individual keep a lower profile than usual.

One paradigm problem concerns the effect of “personal stuff” when put in a public space. Political issues generally are debated by lobbying and political interest groups that collect dues from constituents to advocate the constituents’ interests. This makes political debate, while “professional,” adversarial in tone and seems to impart some intellectual dishonesty, or at least lack of objectivity, that is disarming to someone trained in the academic world. Personal narratives can give a richness and subtlety to both sides of any issue (for example gay and lesbian issues) that is obviously needed. Nevertheless, many people feel that self-publication of personal narratives or scenarios (on the Internet) and calling the material “literature” is inappropriate, because of the unwanted attention it can draw to others. In extreme cases such materials might be construed as violations of solicitation laws. This is a new and poorly understood area, but also a likely emerging area of intellectual property practice and law.

The potential controversies of student and teacher self-publication of their own materials on the Internet parallel a wider concern about the workplace in general. Persons who have direct reports or who represent their employers to the public obviously must use great care in using a public space like the World Wide Web, however sincere are their intentions. As with students, one wonders whether employers will gradually adopt the practice of "skip tracing" job applicants with search engines, although name synonyms could make such practices even more questionable than would the usual concerns about off the job activities and personal autonomy.

Monday, January 23, 2006

Parsing grownups and kids on the Web: COPA, The Child Online Protection Act of 1998

One of the most troublesome problems with the Internet has been the fact that it is one reconciled space. Companies and individuals can post any material about any subject matter, and without some sort of intervention, any child can find material inappropriate for his age, especially through search engines. Inappropriate material is definitely not limited to pornography, as "adult content" is usually perceived. Many parents do not believe that their kids should not see materials about certain subject matter until they are older teens. This runs into ethical questions because some parents want their kids to grow up to ratify their own beliefs.

This is particularly troubling for new writers or content providers who may want to promote themselves and have material that is appropriate only for more mature audiences. Books can be segregated, and even mainstream books with somewhat adult materials must be thumbed through and read manually for the material to be found. Movies can be audience-screened according to MPAA rating. But web content is often free and typically can be viewed by anyone. This is a great opportunity for newbies, who might be accused of promoting themselves in front of children.

An important legal point is that the First Amendment protects the right of adults to produce and see material that is not legally obscene (and is not visual child pornography, and is not illegal for some other specific reason such as copyright infringement). But children clearly should not have easy access to some materials.

It is no surprise that there has been a flood of federal and state laws to deal with the issue. In 1996, Congress tried to protect minors with the Communications Decency Act, which tried to ban “indecency” (as opposed to obscenity) on the web. That was quickly struck down, but in 1998 Congress tried to pass the Child Online Protection Act (COPA) which defined a concept of “harmful to minors” as essentially “obscene with respect to minors” and then banned commercial websites from display HTM materials where they could be found and viewed by minors without credit cards or adult-id cards. A number of states followed suit with similar copycat laws.

COPA has been through some complicated challenges and made it to the Supreme Court twice. Right now, enforcement is enjoined, and there will be a trial on the merits of the claims of its unconstitutionality (in late 2006). But rather than belabor the legal points, what matters here is a survey of the various ways in which different audiences can see content that is appropriate for them.

First, what is wrong with an adult-id system? For one thing, that would drive away readers who fear loss of anonymity. Most adult-id cards as such are sold by true pornography sites. The other vehicle for identification in COPA was to be the credit card. But banks generally offer cards for financial transactions, not for identification. If many small companies (and especially pornography operations) were to store credit card information themselves, that would increase the risk of identity theft. And most pornography sites actually do require credit cards or memberships to see most of their content. The concern over pornographic teasers has been overblown in practice, and there are many forms of non-pornographic content that raise age-suitability issues.

Another issue was community standards, well known from obscenity law. With Internet content, a prosecutor from the country’s most conservative jurisdiction could set the rules for everybody. Some companies, such as quova.com, have developed systems that could limit access by geographical area. These systems are expensive and may not be suitable for small webmasters.

What is more appropriate is to give parents the ability to filter content that they don’t want their kids to see. Participation in a pluralistic, technological society requires more responsibility from parents than in the past. So that brings us to several more techniques.

The simplest technique is for parents to set up kids-only accounts. AOL and various other larger ISPs offer accounts graded by several age ranges. AOL will allow separate levels for different screennames with different passwords on the same master account. Some domains are excluded, or “blacklisted” for some age categories. For the youngest children, only domains on an approved “whitelist” can be viewed. For example, when I tried the young teen account, I found that Yahoo! was blocked but the CNN was allowed. My own domains were allowed when probably they shouldn’t be.

A second technique is to use any one of a number of content filters, such as Netnanny, on a kid’s account. These filters work in a similar way with white and black lists, and screen content for inappropriate content. They are far from foolproof. Some filtering companies allow companies to submit themselves to be blacklisted.

But the most promising concept is probably content rating. This approach considers a variety of reasons that content may be inappropriate for younger viewers, including violence, drugs, and psychological tension as well as sexually explicit materials (what we usually call “pornography”). A participating webmaster rates a site and can rate individual pages on a site differently. The parent installs hooks into the browser for his kid’s accounts to disallow content with various combinations of ratings. This effectively makes Internet content selectable in a manner conceptually similar to movie ratings.

There are presently two main players in this approach. ICRA, the Internet Content Rating Association, has the most comprehensive setup. The webmaster places an xml file in his root directory that points to various content labels, and then places links statements on the metatags of each file to get the rating for that file. There are some difficulties with this approach. ICRA requires every file (even files without troublesome content) to have an individual html link statement, which may not be practical for older websites that were pieced together manually without a template, or which have many files that are updated frequently. Microsoft now offers the ability to generate ICRA labels with FrontPage; however, html files derived from Word lose their links when maintained in Word (the link statement would have to be copied back in with Notepad), and labels for sites edited only with FrontPage or some other modern templating tool might be easier to maintain. Some kinds of files, such as pdf files, can be rated only with server-based labeling, which is not available to all webmasters. ICRA does have a technique, called Digimarc, for labeling images with watermarks.

Once a site is certified by the ICRA, the webmaster may use its label publicly, which provides a visual label for the visitor and provides the webmaster with some public evidence of good faith. It is clear that labeling could be useful in identifying other kinds of content, for example, separating fiction from non-fiction narratives. In certain situations, a writer’s intention in placing certain materials in a public space could be clarified by a label (for example, a disclaimer label that maintains that a screenplay script is fiction and should not be presumed, if accessed directly by a search engine, to represent real events). There is much more that could be done with the content labeling concept, but it is clear that some of the potential problems come from the ease with which content on the Internet can be found (especially by search engines) compared to physical media which presume that someone will pay for content and experience the whole work, and not just self-selected pieces.

Safesurf.com has a somewhat simpler system for labeling individual files, with similar capabilities for parents to place hooks into browsers.

I have labeled my own doaskdotell.com home page and some other files with both Safesurf and ICRA, and set up the Content under Internet Options in Internet Explorer (when logged on to AOL), and I have found that subordinate directories are blocked by the Safesurf labels.

Content rating is probably the most promising concept to address this whole issue. There would be many development problems to address, such as having major software vendors provide labeling utilities in their products. Content rating will hopefully become a growth area that could generate jobs.

You can find a lot more details at this link . I certainly welcome comments as this is an ongoing issue.

Sunday, January 22, 2006

Sensible policies to solve the spam problem

The Internet, when it opened up to the general public in 1992, tended to attract bad actors, because it seemed at first to demand so little accountability. One of the largest temptations to people who have trouble succeeding in legitimate forms of business competition was spam, to make easy money by sending out tens of millions of unsolicited advertisements for no postage. Many of these ads were for questionable products or activities, and some of them offered easy get-rich overseas money laundering scams.

The largest cost of spam is probably born by ISPs, which must deal with the bandwidth that is consumed. Until about 2003, it was common for most email users to get large amounts of spam in their home accounts. Even children’s accounts and often work accounts would receive emails with inappropriate topics. Since about 2003 larger ISPs have become much more skilled at filtering out inbound spam, and have sued (or prosecuted, under new laws) and won court judgments against some spammers who consume enormous bandwidth resources.

The other big problem has been sender-id spoofing. Email protocols, developed for Unix when networks were much more private and confined largely to defense and universities, make it very easy for a fraudulent sender to fake the email address of another person. Although this can usually be detected with forensics, this takes effort and a clever spammer might be able to implicate an innocent domain holder. Persons have been banned by recipients because their email id’s are spoofed, and it is not inconceivable that there could be legal consequences sometimes. A major way to avoid spoofing is to not post one’s own email address on a webpage with the proper punctuation (the @ symbol). As things are now, one should not post the email addresses of others on a public web page without permission (and this goes for employers, too).

But industry could buckle down and solve this problem. So far there has not been a consistent approach from ISP’s and vendors. But some of the major opportunities are

∙ Charging a very small “postage” fee for each email sent, to prevent huge volumes from one source; some new registration mechanism would be needed for people who run their own servers. AOL and Yahoo, in early 2006, announced a "voluntary" postage program for approved commercial mailers to (AOL and Yahoo!) subscribers with guaranteed delivery bypassing spam filters.

· Allowing a recipient to charge unsolicited senders through an ISP charge-back mechanism

∙ Providing “opt-in” mechanisms

∙ A challenge response system, that sends a verification email back to the sender. A number of ISPs use this now. I do not have any problem with responding to a verification request when I get one, but some people feel that this system would seem rude or clumsy to customers or business contacts. Search for “challenge response” and Earthlink.

· A sender-id system that verifies that the sender matches an ISP on an approved list at the receiving ISP. Microsoft proposes requiring bulk emailers to use an ADV mark, with an exemption for commercial mailers who demonstrate compliance with a seal of good practice (and this could be difficult for small businesses). This is called “Sender ID” and Pobox.com is a co-sponsor. It would work best in a world with larger ISPs, which would cull lists of approved senders by application. Doaskdotell.com (my main domain), for example, would have to be an approved sender for hotmail, with known sender lists. When an email that purported to be from this domain arrives, hotmail would check the real sending IP against the IP that had been registered for it, and would reject the email if it did not match. Anonymous senders would be stopped by this system. Microsoft has a major explanation on its own server now (search for “sender id” and Microsoft). I think that “sender id” has a major advantage over other proposals in that it would tend to protect persons who are spoofed as senders even in extreme situations.

Congress passed a somewhat wishy-washy “CAN-SPAM” act at the end of 2004, particularly to focus on sender spoofing and fraud, as well as deceptive subject lines, advertisement labeling, and allowing an opt-out method. Some states have proposed draconian laws that could penalize the sending of all unsolicited emails to residents of their states. It is not clear what would happen with such a law when someone is spoofed.

Thursday, January 19, 2006

A Simple Way to Reduce Identity Theft

This blog entry has been moved to a separate blog.

Many any of the important posts on this blog are in the June archive. (Please visit).
The most important is the "Outline of a Broad Strategy...." I am having difficulty making the exact href work. Please visit the archive and eyeball for that string.


There are more details at this link. I certainly welcome comments.

Bill Boushka's Log on Major Internet Issues

Hello, this is Bill Boushka. I am setting up this blog to address a number of technical and legal issues that, over the long run, can affect the freedom of media newbies like me to speak freely on the Internet and other low-cost media that have developed in the past ten years.

We all know that technology has reduced the barrier to entry for persons into finding a readership. The most obvious vehicle is the World Wide Web, but there is also peer-to-peer, desktop publishing, low cost filmmaking, webcasting and many other opportunities. As with any technological change, there will always be concerns that turf and jobs associated with older ways of publishing and distributing media could be affected or eliminated. These concerns could surface with calls for new regulation of the Internet and other media. Conceivably, future regulation (for example, bonding or other accountability requirements) could raise the barrier to entry and keep new persons out.

We have been inundated in the past few years of media reports of the harm done by bad actors. The problems include copyright infringement and piracy, spam, viruses and worms, hacking, identity theft, and the exposure of children to harmful materials (and the abuse of children). More subtle problems include concerns over the effect of the Internet on the fairness of our electoral processes.

On this blog, I would like to explore some of the solutions to these problems, from the dual points of view of protecting the public as well as allowing freedom to the efficient speaker. On this blog, I’m trying to stay away from polarizing issues, such as those that I take up on my free site. This site is about proposing solutions, not just complaining about problems.

I intend to start another blog about retirement issues soon. My blog on "retirement" is at this link.
My blog on safer Internet practices is at http://billsinternetsafety.blogspot.com/