Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices?

This is new story art for my article examining when the proprietors of technology with criminal 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, file-sharing services, and anonymity networks like Tor.

Wired Profile of Cory Booker

Cory BookerLove him, or hate him,  Senator Cory Booker seems to be genuinely interested in promoting a more tech-savvy version of government.

In a new Wired interview,  he talks about his efforts to ask for reforms to Senate procedures, including “streamlining the requirements for email newsletters, letting Senate offices use analytics services to track social media, and adapting the Congressional Record to a more accessible XML format.”

Booker suggests that there should be “an app that alerts you every time legislation that’s important to you is being marked up in committee and when it makes it to the floor for a vote—and what poison pills might be slipped into it.” He also argues that the Senate should adopt cloud-based technology, that the FAA shouldn’t slow down  exploration of drones, and that the patent office needs a better process for cranking through its large backlog of patents.

New Podcast on Criminal Liability of Tech Companies

There’s a new discussion up at “The Law Review,” a podcast run by legal research company Fastcase, discussing some of the ideas in my recent article, Technology and the Guilty Mind, about the potential criminal liability of technology providers for aiding and abetting their users. The guest for the conversation is Fastcase CEO Ed Walters.

The part that addresses the article starts around the 12-minute mark with a dialogue on Judge Posner’s hypothetical (discussed in the paper) about a dress seller who knows his client is using his dresses in her prostitution business. The  conversation then focuses on how doctrine about knowing assistance of criminals may apply to tech companies in the communications industry (like Fastcase).  Thanks to Fastcase for highlighting the article!

Quote: Nate Anderson on “Internet Police”

Internet Police by Nate Anderson[Y]ou really can’t differentiate between good and bad techniques on the Internet. What you get are techniques, and they can be used by anyone, for any purpose.

Nate Anderson, deputy editor for Ars Technica, in an interview yesterday with NPR’s Fresh Air promoting his new book “Internet Police: How Crime Went Online, and the Cops Followed.” Anderson went on to discuss how police are using tools developed by hackers to catch criminals.

Criminal enforcement of copyright

Kim Schmitz cropped and edited
Kim Dotcom, head of Megaupload.com, indicted for copyright infringement

My perspicacious coauthor and I recently accepted an offer from the North Carolina Journal of Law and Technology to publish our article “Criminal Copyright Enforcement Against Filesharing Services,” which I mentioned here last week. In honor of that, I’d like to share the introduction of the article, sans footnotes:

In January 2012 an elite squad of New Zealand anti-terrorism officers, under the direction of the United States Department of Justice, stormed Kim Dotcom’s lavish $24-million mansion. Equipped with body armor, tactical firearms, dog units, and a helicopter, the squad uncovered Dotcom hiding in a specially designed saferoom. As he was whisked to a police van, Dotcom asked the charges against him. The answer was two words: “Copyright infringement.”

The indictment of Dotcom and his infamous filesharing service, Megaupload, marked the start of a new battle in what reporters have christened the “copyright wars.” Yet it is not the federal government’s only recent foray into the fight against online filesharing services, which, viewed as hotbed for copyright infringement, have been under a decade-long siege of civil litigation from media companies. In 2010, for example, the Department of Homeland Security mounted “Operation in Our Sites” to seize the domain names of websites providing access to infringing content, and the operation has since resulted in the seizure of more than 400 domain names. The issue more recently caught the attention of Capitol Hill, where bills were introduced in both the House and Senate to target foreign websites that link to or host infringing content.

But these efforts have not always been effective. For many of the domain names seized by the Department of Homeland Security, the same infringing content quickly appeared on sites with only slightly modified web addresses, and a few sites even grew in popularity. And the backlash against the two new bills was fierce: many popular websites staged a “blackout” in protest, including the online encyclopedia Wikipedia, citing fears that they would face sanctions merely for linking to controversial sites, even in informational articles.

Meanwhile, other countries have seen some success in directly prosecuting the operators of filesharing services. First, Japan convicted Isamu Kaneko, a computer-science researcher who developed Winny, an early peer-to-peer filesharing system. Kaneko arguably fostered dubious uses of his service by collecting feedback and announcing updates through an anonymous Internet forum dedicated to filesharing. But although Kaneko was convicted by a Japanese district court, the Osaka High Court reversed the conviction after concluding that Winny was “value neutral”—essentially, capable of non-infringing uses—and that Kaneko did not offer Winny primarily to promote infringement, even if he knew that it was probably being used for that purpose. This decision touches on a key question in this article: if a filesharing service is known to have rampant infringing uses, at what point do the service’s operators open themselves to criminal sanctions?

More successful was Sweden’s prosecution of the operators of the Pirate Bay, then one of the Internet’s largest peer-to-peer filesharing services. The operators of the Pirate Bay mocked their contribution to infringing activity, often publishing and ridiculing complaints from copyright organizations. Although Sweden once had a reputation for relaxed copyright laws, the country amended its Copyright Act in 2005 to make it a crime to transfer copyrighted content without permission. When prosecutors then indicted four operators of the Pirate Bay in 2008 for “complicity” in violating the Act, the operators raised the same arguments as Kaneko: that their services had noninfringing uses, and that they were ignorant of any specific infringing activity. But the court found them guilty, emphasizing that they had profited from infringing content by collecting advertising revenue and that knowledge of specific infringing content was unnecessary given that they had created conditions that fostered infringement and ignored notices of infringing content. The defendants were sentenced to one year in prison each and ordered to pay restitution of $4.3 million.

The success of this prosecution has been heralded as harbinger of ones like the action against Megaupload. Yet criminal prosecution of filesharing services is a new development in the United States, and only time will tell whether this new approach proves effective, or under what circumstances it should be used. The future holds many questions: What pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement? We seek to answer these questions in this article. We focus on those online businesses enabling users to share infringing content with others online, and we refer to these businesses simply as “filesharing services,” intending this definition to cover diverse types of technology—including “cyberlockers” like Megaupload, which host files on servers controlled by the service, and “torrent” sites like the Pirate Bay, which provide links to connect users to infringing files stored by their peers.

In the end, we conclude that criminal enforcement actions should be limited to those filesharing-service operators that, in order to profiteer from infringing content, foster infringement by egregiously defying the established boundaries of copyright law and civil means of copyright enforcement.

Google Glass promo showcases potentials for city life

Google released a new promo video for its exciting Glass project, which is essentially augmented-reality glasses. The video focuses on the chat and image-capture features, but there is a shot near the middle of a person diving through a city and getting directions, and another shot near the end of the glasses providing flight information. I see three top uses for this technology in city life: (1) transit info, (2) driving directions, (3) information about nearby attractions and restaurants. Could we also see people walking around video-chatting as they would with a cellphone? Only time will tell.

Patent Office plans first-ever satellite office – in Detroit

I think that this news has flown too far under the radar: The U.S. Patent and Trademark Office is planning to open its first satellite office in Detroit this July. According to AnnArbor.com, the agency expects employ 100 people in its first year; they will operate out of a 31,000 sq-ft building east of downtown.

It’s hard to underscore how awesome this is (and not just because it brings jobs). As the University of Michigan VP for research puts it: “This is great news for the Great Lakes region, the state of Michigan and the University of Michigan.”

Why Detroit? As acting chief communications officer of the USPTO, Richard Maulsby, told Inc.com’s Eric Markowitz, Detroit “fulfilled a number of critical criteria, including a high percentage of scientists and engineers in the workforce; access to major research institutions; a high volume of patenting activity; and a significant number of patent agents and attorneys in the area.”

According to Markowitz, “Detroit also has the highest concentration of industrial and mechanical engineers in the United States—about three times the U.S. average—according to the Bureau of Labor Statistics. In 2009, Michigan ranked 7th in the nation for the total number of patents with 3,516. And The Dice Report, a monthly look at the technology job market, reported last year that Detroit is now the fastest-growing region for technology jobs in America.”

Wow! Gene Quinn, President of IPWatchdog, thinks it also has to do with Michigan being a swing state in the upcoming election.

The Patent Office is opening two more satellite offices this year, and they are seeking input on locations. Quinn outlines the factors identified in the Federal Register as the following:

  1. Will the location increase outreach activities to better connect patent filers and innovators with the USPTO?
  2. Will the location enhance patent examiner retention and provide a strong quality of life;
  3. Will the location improve recruitment of patent examiners;
  4. Will the location decrease the number of patent applications;
  5. Will the location improve quality of patent examination;
  6. Does the location have available office space;
  7. Are there universities with strong engineering programs nearby?
  8. Are there research facilities nearby?
  9. Will there be a positive economic impact to the region?

Quinn doesn’t think that Detroit fares well under this rubric, but I disagree. I guess it depends on how you weight these factors. Number 9 and 6 are obvious wins. Cheap office space abounds (certainly more so than one of Quinn’s suggested Midwestern locations—Chicago). 1, 4, 5 are pretty amorphous. 7 and 8 are met. Detroit is filled with universities, and then Ann Arbor, just a short jaunt away, has University of Michigan, one of the nation’s premier engineering program, and Flint has Kettering University, also a great engineering school.

Quinn suggests the following 10 cities as possible locations: Orange County California; Houston, Texas (or somewhere in Texas); Melbourne, Florida; Syracuse, New York; Denver Colorado; Madison, Wisconsin; Chicago, Illinois; Albuquerque, New Mexico; San Diego, California; Northern California.

It seems obvious that somewhere in California needs to be on the list. What are your thoughts?

Urbanflow’s view of a touchscreen-filled data-driven city – Video Wednesday

This week’s video is a fun one; it’s a concept video about Urbanflow, a collaboration between a NYC-based design company Urbanscale and Finnish designers Nordkapp. They want touchscreens everywhere in Helsinki, so the public can access maps and transit info, interact with each other, and report municipal concerns like potholes. John Pavlus has raised some concerns about their plan—you can read his view here—but for now, just enjoy their beautiful visualization of the data-driven city of the future (after the jump).

Continue reading “Urbanflow’s view of a touchscreen-filled data-driven city – Video Wednesday”

Are cities America’s greatest laboratories of government innovation?

In 1932 Supreme Court Justice Louis Brandeis famously wrote, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” And indeed, the States remain a powerful laboratory, able to innovate constrained only by the U.S. Constitution.

But the quote applies ever more to cities. Although they sometimes lack deep pockets, and their authority to regulate is derived from the state, they offer many advantages over state and federal government. I’ll list four. First, as Benjamin Barber recently argued, cities tend to be more pragmatic and less ideological than other levels of government, meaning real innovation gets done in a practical way. Second, as Edward Glaeser points out in “Triumph of the City,” cities are smaller geographically and dense with human potential, which accelerates the spread of ideas. Third, comparatively minimal bureaucracy allows cities to respond quickly to changing technology. Four, if an initiative fails, it doesn’t affect a whole state (or the whole country).

Put differently, cities are the tech start-ups of government; the federal government is Microsoft. As Arianna Huffington recently wrote, “It’s our cities, not the nation’s capital, that are the real idea factory of our country.”

I’ll give two examples.

First, one many people are familiar with: open-data initiatives. In 2007 Vivek Kundra, then Assistant Secretary of Commerce and Technology for Virginia, became Washington D.C.’s Chief Technology Officer. He created the D.C. Data Catalog, making government data available for open-source application development. He also instituted an app contest, using a pot of money to crowdsource innovation. When Obama became president, he drafted Kundra as Chief Innovation Officer, where he created data.gov, an initiative to provide an accessible online catalog of data from federal agencies. The idea has spread like wildfire, with more and more cities creating open-data sites and sponsoring app contests. And the data.gov model has now caught on in more than 13 countries. The world has been changed, with momentum generated by a city that was willing to embrace new ideas and showcase on a small scale what would eventually become a worldwide movement.

Second, an example from an area of interest to me: vacant-property registration. In 2007 Chula Vista, California, enacted an ordinance that took a novel approach in the fight to maintain vacant properties. Rather than simply requiring property owners to register vacant property, the city required mortgage lenders to register property when it went into foreclosure and then to maintain the property to stringent code guidelines. Chula Vista’s code enforcement officer, Doug Leeper, was particularly vigilant, and during the program’s first year of operation, Chula Vista raised $77,000 in registration fees (at $70 per property) and imposed around $850,000 in administrative citations. The program was such a success that Leeper was called to testify before the House of Representative’s subcommittee on Domestic Policy in 2008 in the wake of the foreclosure crisis. Again, one city’s program spread like wildfire. By my count, nearly 100 municipalities had enacted a similar ordinance by 2009, and that number has continued multiplying ever since. Recently, even Chicago modified its registration ordinance to target lenders.

This type of innovation comes only from local thinkers (and doers) living in communities, seeing local problems, and testing solutions in perhaps America’s greatest laboratories for government innovation—our cities.