Congressmen working on national intelligence and homeland security either don't know how to secure their own home Wi-Fi networks (it's easy!) or don't understand why they should bother. If you live outside the Beltway, you might think the response to this problem would be to redouble efforts to educate everyone about the importance of personal responsibility for data security, starting with Congressmen and their staffs. But of course those who live inside the Beltway know that the solution isn't education or self-help but... you guessed it... to excoriate Google for spying on members of Congress (and bigger government, of course)!

Consumer Watchdog (which doesn't actually claim any consumers as members) held a press conference this morning about their latest anti-Google stunt, announced last night on their "Inside Google" blog: CWD drove by five Congressmen's houses in the DC area last week looking for unencrypted Wi-Fi networks. At Jane Harman's (D-CA) home, they found two unencrypted networks named "Harmanmbr" and "harmantheater" that suggest the networks are Harman's. So they sent Harman a letter demanding that she hold hearings on Google's collection of Wi-Fi data, charging Google with "WiSpying." This is a classic technopanic and the most craven, cynical kind of tech politics--dressed in the "consumer" mantle.

The Wi-Fi/Street View Controversy

Google's Street View allows you to virtually walk down any public street and check out the neighborhood

At Wired, David Kravets has posted LimeWire Begs Music Industry for Second Chance, an interview with the justifiably desperate Zeeshan Zaidi, COO of LimeWire LLC. In the aftermath of Judge Kimba Wood's Order holding that LimeWire intentionally induced mass piracy for a decade, Mr. Zaidi has announced that LimeWire will now generously "consider aggressively filtering out pirated content" if the music industry will agree that LimeWire will be "permitted to live on as a for-pay music download service."

There are three flaws in Mr. Zaidi's plan. Each seems fatal.

Perhaps the only spectacle more gratifying than the sight of rats deserting a sinking ship is the far-more-rare spectacle of the officers of a sinking pirate ship, sitting in the bilge, crying about their wet socks as they obliviously blast more holes into the remains of their hull.

Which brings me to LimeWire. In the aftermath of Judge Wood's Opinion holding Mark Gorton, the Lime Group, and LimeWire LLC liable for intentionally inducing mass piracy for a decade, all sorts of strange shenanigans have ensued. But none tops the campaign of self-destruction waged by the Lime Group's chatty CEO, Mark Gorton.

In court, Gorton's lawyers recently filed a Motion for Reconsideration informing Judge Wood that she misstated both the law and the facts when she held that Lime Group and Mark Gorton personally were both legally liable for the inducement of mass piracy perpetrated by LimeWire LLC, the company that distributed the LimeWire file-sharing program. In this motion, Gorton's lawyers make a mostly perfunctory and error-ridden attempt to argue that Judge Wood was just totally wrong to conclude that poor Mark Gorton should be personally liable for all those bad things done by those bad people at LimeWire LLC.

Meanwhile, back at Lime Group, Mark Gorton had another brilliant idea: While his lawyers argued in court that he was not really involved with LimeWire at all, he would argue the opposite case in the court of public opinion. The result was the aptly-titled New York Times piece, Idea Man of LimeWire at the Crossroads. In it, Gorton explains how he was always the driving vision behind the program that Judge Wood just held to have been a deliberately crafted piracy machine.

That may help further clarify the proper disposition of the Motion for Reconsideration arguing that the "Idea Man of LimeWire" had no idea what was going on in his corporate basement.

Meanwhile, back in the basement, LimeWire LLC CEO George Seale decided to find a friendly journalistic outlet to vent his own tale of woe. Naturally, he picked Billboard magazine. There, reporter Anthony Bruno broke with technology-journalist convention and asked some hard questions, including one that prompted the CEO of LimeWire LLC to explain that for the last ten years, neither he nor anyone else at LimeWire has had the slightest clue as to why people use their program:

Rather than address each point of evidence, let's focus on the most important one--that more than 98% of files requested on LimeWire infringe on copyrights.
LimeWire considers this an open issue still in litigation. I can't say that I agree with any of the expert reports that were submitted. Whatever the numbers of files authorized for sharing versus those that are not, LimeWire does not know those numbers. It did not in 2000 and it does not now. LimeWire's searching and sharing functions are entirely decentralized. After downloading and installing LimeWire on their computers, we currently have no visibility into what types of content users seek, send and receive with the software.

I was interviewed this morning by NPR's Joel Rose on the FCC's broadband reclassification / "Third Way" proceeding (see more here & here) kicked off just today. Listen here to the NPR interview.

The following are some notes I prepared for our talk.

In an alert entitled Widespread Data Breaches Uncovered by FTC Probe, the Federal Trade Commission has warned the public that the FTC has had to notify "almost 100 organizations that personal information, including sensitive data about customers and/or employees, has been shared from the organizations' computer networks." FTC Chairman Jon Leibowitz warned, "we found health-related information, financial records, and drivers' license and social-security numbers--the kind of information that could lead to identity theft."

This probe represents a welcome change in both the attitude and the approach of the FTC. This probe shows that the FTC is now taking the risks created by distributors of file-sharing programs seriously, and it is assessing them by doing what distributors themselves refuse to do: by actually studying what is happening on file-sharing networks. Had the FTC adopted the attitude and the approach now taken by Chairman Leibowitz back in 2004--when Congress first asked the FTC to investigate whether distributors of file-sharing programs had actually eliminated defects in their programs that were known to cause inadvertent sharing--years of misery, national-security violations, leaked risk-assessments that could increase the lethality of terrorist attacks on American cities, corporate data-breaches, gross breaches of personal privacy, widespread piracy, identity theft, and medical identity theft could have been avoided.

I thus congratulate Chairman Leibowitz, the new Administration, and the FTC for their new attitude and new approach towards the serious problem of inadvertent sharing. As they build upon this initial success, I hope that they will keep the following points squarely in mind:

First, inadvertent sharing is a far more serious threat to ordinary families than it has ever been to "organizations." As Chairman Leibowitz correctly noted "health-related information, financial records, and drivers' license and social-security numbers" are "the kind of information that could lead to identity theft." They are also the kind of information likely to be stored on most ordinary home computers. Indeed, there is no way to contain the threat that inadvertent sharing poses to both sensitive governmental and corporate data unless ordinary consumers and families are also protected--the recent disclosure of ongoing investigations by the House Ethics Committee makes this brutally clear.

Second, inadvertent sharing of sensitive personal files is but the most obvious manifestation of a far larger problem: inadvertent sharing of any type of file--including copyrighted music, movies, images, games, or software--that would be illegal or dangerous to "share" with thousands or millions of anonymous strangers. Right now, far too many families are inadvertently sharing not only more than the 1,700 copyrighted songs that put Jammie Thomas-Rasset on the wrong end of a 1.9-million-dollar jury verdict, but also entire collections of family photos that file-sharing pedophiles are using to identify and target attractive children (p.11).

Third, historically, inadvertent sharing has been "inadvertent" only from the perspective of users of file-sharing programs--and those who suffer as a result of their mistakes. By contrast, from the perspective of many distributors of file-sharing programs, inadvertent sharing appears to be frighteningly deliberate: for example, the distributors of the file-sharing program LimeWire have repeatedly deployed "features" that were known to dupe many users of such programs into inadvertently sharing tens of thousands of personal files--including their entire collections of music and movies.

The FTC's new probe into inadvertent file-sharing should be welcomed and applauded. It could turn out to be the beginning of the end of a seemingly deliberately created crisis that should have been remediated eight years ago--when the computer-science study Usability and Privacy first warned all competent developers of file-sharing programs about reality and the consequences of inadvertent sharing.

A philosopher of my misspent youth, one Mr. William Idol, opined that it is best to be British because you can get away with more than the citizens of other English-speaking nations. While I cannot disclose the best proofs of Mr. Idol's theorem, (naming names is rude), its second-best proof is surely the always-interesting and often-funny British technology-news website The Register. An example: Only by actually writing with a British accent can you get away with calling those who brainlessly but militantly oppose the enforcement of copyrights "freetards."

I thus note that today, The Register bravely reported on the shocking results of some media research conducted by some Canadian sociologists:

Research by the University of Alberta has chillingly revealed that kids' TV show Thomas and Friends may be engendering a "conservative political ideology" in future generations--a repressive mindset which "punishes individual initiative, opposes critique and change, and relegates females to supportive roles."

Shauna Wilton and friends from the uni's Department of Social Sciences analyzed 23 episodes of the programme, and noted that while it "conveys a number of positive political values...", there is a dark side to Thomas the Tank Engine.

Fortunately, in this case, the learned sociologists from the University of Alberta are dead wrong. If leftist ideologies fail, it will not be because Thomas the Tank Engine brainwashed Canadian tots into adopting a "conservative political ideology."

Adam Thierer and I will be participating in two separate panels at the FTC's December 7 "Exploring Privacy" workshop discussing, respectively, surveys & expectations and online behavioral advertising. Below is the cover letter I filed as part of my comments (PDF & Scribd), along with four past PFF publications and a working paper on the benefits of online advertising.

Privacy Trade-Offs: How Further Regulation Could Diminish Consumer Choice, Raise Prices, Quash Digital Innovation & Curtail Free Speech

• Privacy is "the subjective condition that people experience when they have power to control information about themselves and when they exercise that power consistent with their interests and values."^[1]


• As such, privacy is not a monolith but varies from user to user, from application to application and situation to situation.


• There is no free lunch: We cannot escape the trade-off between locking down information and the many benefits for consumers of the free flow of information.


• In particular, tailored advertising offers significant benefits to users, including potentially enormous increases in funding for the publishers of ad-supported content and services, improved information about products in general, and lower prices and increased innovation throughout the economy.


• Tailored advertising increases the effectiveness of speech of all kinds, whether the advertiser is "selling" products, services, ideas, political candidates or communities.

1. What exactly is the "harm" or market failure that requires government intervention?


2. Are there "less restrictive" alternatives to regulation?


3. Will regulation's costs outweigh its supposed benefits?


4. What is the appropriate legal standard for deciding whether further government intervention is required?

Finally, the courts are starting to take notice of the growing ease with which we all share information online: "Twenty-somethings have a much-reduced sense of personal privacy," as an NYU law professor put it. Unfortunately, this slow realization of the utterly obvious is happening in the narrow area of legal ethics: Courts are punishing young lawyers who say unkind things about the court on social networking sites or say something inconsistent with what they've told the court. It's a must-read for all young lawyers!