The Benefits of Cities Using LEDs for Street Lighting

Ucilia Wong has a great piece up online today at Forbes about cities adopting LEDs for street lighting. They are more expensive, but last longer and more energy efficient, especially since they can be controlled digitally to dim when appropriate. LEDs also decrease light pollution, as Wong demonstrates with some interesting before-and-after pictures.

Near the end, Wong makes this interesting observation:

For all of LEDs’ energy savings and anti-light-pollution potential, their real promise may be in hastening the arrival of the smart grid. Forward-thinking cities are using retrofit programs to turn lamp housings into intelligent hubs with microprocessors, cameras, sensors and wireless radios. Streetlights can feed the system with information about traffic, weather, air quality, sudden noises and unexpected crowds.

It looks as if LEDs will be a key component of the data-driven cities of tomorrow.

Technology and the Guilty Mind

Please check out my new article, “Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices?,” which was recently posted to SSRN. Here’s the abstract:

The creators of today’s most successful technologies share an important willingness to push the envelope — a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuant of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers.

This Article focuses on one type of criminal liability — accomplice liability — that can act as a dragnet on technology that lends itself to criminal use. In particular, a violation of the federal statute for aiding and abetting, 18 U.S.C. § 2, can be implied in every charge for a federal substantive offense, and there is a potentially troubling strain of cases holding that knowing assistance can be enough to deem someone an aider and abettor, even without stronger evidence of a shared criminal purpose.

This Article examines when proprietors of technology with both legal and illegal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. The Article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, filesharing services, and anonymity networks like Tor. Ultimately the article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized — and future rulings on liability for new technologies best predicted — by looking to the existence of “substantial unoffending uses” for the product or service provided by the technologist accused of aiding and abetting.

Review: The Internet Police

Internet Police by Nate AndersonI recently finished “The Internet Police: How Crime Went Online, and the Cops Followed” by Nate Anderson, who writes for Ars Technica, and I loved it. I found his writing compelling and the stories fascinating. I’m sure that my being a lawyer influenced the book’s appeal for me, as Anderson has a particular focus on legal proceedings. In chapter 8, for example, he discusses being the only reporter to sit through the entire retrial of a lady sued for copyright infringement. Anderson’s familiarity with the law shows throughout the book. He was generally spot on in his discussion of legal topics, and I especially appreciated how he highlighted the important role for federal judges in shaping society’s approach to technology. In fact, federal legal proceedings or decisions take center stage in roughly half of the book’s chapters.

The chapters are helpfully broken down based on topics, and each one tracks a major story throughout the whole chapter.  I particularly enjoyed the discussion of the federal takedown of the child-pornography website “The Cache” (chapter 2), and the efforts to take out Sanford “Spamford” Wallace (chapter 7). Further, the story of “Sealand” and HavenCo, which I had not been familiar with, was very entertaining (chapter 1). The section on copyright infringement also interested me because it touched on many of the same issues discussed in my upcoming article about Megaupload.

As for general themes in the book, one consistent emphasis is how private parties often lobby the federal government to take over efforts to police online activity because of the government’s perceived greater resources. Another is how the tools developed by online criminals are the same tools (with the same threat to privacy) law enforcement uses to track criminals down.

Finally, I liked Anderson’s discussion of the balance of chaos versus regulation on the Internet, and the pros and cons of swinging too far in either direction (too much chaos=child porn, credit-card fraud; too much regulation=no innovation, no privacy). His summary of this balance near the end of the book nicely showcases what could be called the book’s thesis: “Life is messy business on the Internet as it is everywhere else, and we’re never going to engineer the mess out of it. That doesn’t mean we ever accept crime, piracy, or boorish behavior, but we tolerate them online just as we tolerate a certain amount of drunk driving, tax fraud, or jaywalking. Many such problems could be nearly eliminated if we just tried hard enough—required breath tests before every car start, conducted audits on every tax return, posted cops at every corner. But the cost of total order is totalitarianism; the real challenge is making prudential judgments about how we weigh risks and rewards, costs and benefits, order and chaos.”

Should Congress authorize incentive auction for underused spectrum?

I have previously written about my support for Congress authorizing the FCC to hold incentive auctions for underused spectrum and giving the FCC broad discretion in doing so.

Today, the New York Times reports that a bill to authorize the auction may be approved this weekend. The Obama administration has said that the auctions could raise $25 million that would go toward wireless infrastructure spending.

I have two concerns.

First, under the current bill, only $7 million is going toward infrastructure spending, compared to $15 million toward extending the payroll tax holiday and jobless benefits. As the title of the NYT article suggests, this now-bipartisan effort to authorize auctions comes about really as an effort to provide these latter benefits. I’m all for extending the benefits, but it’s a bummer that a different revenue source couldn’t be tapped for that purpose, with all of the incentive auction proceeds going toward related spending.

Second, though I haven’t read the bill, it looks like it deprives the FCC of the discretion it needs to run successful auctions. As I wrote before, we don’t want too many rules placed on FCC discretion, or else incentive auctions might, like No Child Left Behind, become a maze of ossified, unworkable regulations. Rather, the FCC needs the flexibility to respond to market concerns and changes in technology, and to use recovered spectrum in a way that serves the public interest. As the article reports, FCC Chairman, Julius Genachowski, though pleased that Congress may authorize auctions, is concerned that some of the bill’s language “could limit the F.C.C.’s ability to maximize the amount and benefits of recovered spectrum.” He is speaking of a provision that prohibits the FCC from barring large spectrum-holding companies, such as AT&T and Verizon, from particular auctions, though the FCC can put limits on how much total spectrum a company has. Many lawmakers don’t trust the FCC with the power to exclude these companies, but I think that distrust is overblown and stands in the way of the FCC being able to serve the American people. Why tie the FCC’s hands? Do we think they are that much more beholden to lobbyists than Congress? It seems AT&T has done a good job of getting the language it wants into the bill. I think the FCC is the better government entity to handle decisions about who gets excluded.

What’s your opinion?


The legal limits on government use of social media

Ad-tech London 2010 (5)What are the limits on government use of social media? If a city has a Facebook page, can it remove distasteful comments? profane ones? racist ones?

Professor Lyrissa Lidsky explains in her recent article, Public Forum 2.0,  that the answers to these questions isn’t always easy. The Supreme Court’s decisions on public forum and government speech are complex., she points out, creating a “maze” of different categories of speech. She breaks them down into five:

1. The traditional public forum, including public streets, parks, and sidewalks. The state is prohibited from imposing content-based restrictions on speech in these forums unless those limits are “necessary to achieve a compelling state interest and . . . narrowly drawn to achieve that end.” Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983). Content-neutral limits (such as time, place, or manner) are allowed if they are “narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.” Id. Lidsky maintains that is unlikely this category applies to social media because the Court “has signaled clearly that the category is defined by the historical use of government property.”

2.The designated public forum, which applies when a government clearly indicates that it is designates the forum for public use. These forums are treated the same as traditional public forums.

3. The limited public forum is one the government designates for use by certain groups or for certain topics. For example, a school district can limit an area for use by students or restrict a meeting to speech about school-board business. The government’s creation and application of these limits must be reasonable and viewpoint neutral. As an example, the Supreme Court upheld a law school’s rule that all student groups, in order to receive school funding, must accept “all comers” to leadership positions, meaning the school could refuse to fund a Christian group that prohibited people with contrary beliefs from being leaders. Christian Legal Society Chapter of the University of California v. Martinez, 130 S.Ct. 2971 (2010). As Lindsky points out, this category becomes murky when courts try to determine whether a government is applying its rules is a reasonable manner. For example, the Supreme Court has also prohibited a university from cutting funding to a Christian newspaper, reasoning that the school could not exclude a group from expressing religious viewpoints because it allowed discussion of religion as a subject matter more generally. Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).

4. The nonpublic forum, including anything that’s not a traditional public forum or designated by the government as a public forum. In these areas, the government may impose time, place, and manner restrictions and exclude speakers as long as the exclusion is “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 49. The distinction between this category and a limited public forum is clear in theory, but difficult to pin down in reality because an area can be “designated” a limited public theory simply because of a pattern or practice of its use in that manner.

5. Government speech is a newly created category that recognizes, in Lidsky’s words, that “the government is permitted to use media to communicate its views to citizens, and when it does so, it need not include opposing viewpoints.” The most-prominent example comes from the Court’s 2009 decision in Summum v. Pleasant Grove City, 129 S.Ct. 1125, allowing a city to refuse to erect a Summon religious monument in a public park, even though there was already a Ten Commandments monument in the park. The Court said that the monument represented the government’s own expression of speech, and the government “is entitled to say what it wishes, and to select the views that it wants to express.”

So what are some take-aways for local governments using social media? It’s a bit unclear. But Lidsky makes these  suggestions. First, “[a] non-interactive Facebook page controlled by a government actor would doubtless be treated as government speech, meaning that private speakers have no First Amendment rights to speak in those forums.” But an interactive site, she says, may be labeled a “designated” or “limited” public forum, thus limiting the government’s ability to police comments made on its site, though the government may retain some ability to limit profanity. Finally, she argues that “if a government actor is very careful in setting up its social media site, it can usually guarantee that the site is either government speech or a nonpublic forum and can therefore retain maximum control over speech that occurs there.”

I encourage you to read the whole article, which is available on SSRN. Lidsky eventually recommends a new approach to free-speech law as it relates to government use of social media.