Author Archives: Michael Froomkin

Based on some of the comments elsewhere I guess I was too terse in my earlier post on the battle between free speech via technology and the counter-urge to monitor it (a technique which may not be designed to censor but enables censorship). [Good Defense Is Not A Victory. It Just Means You Haven't Lost Yet.]I agree there have been some good (lower) court decisions in the US, although I remain very nervous about what the Supreme Court will do to them. The problem is, though, that I don't think that the courts are the major battlefield here. The significant facts, to me, are in the legislature and the executive.

Perhaps the biggest worry is that the fix is in to try to do a CALEA to VOIP: just as they did with old fashioned phones, so now the governments of the world intend to require the service provides to build in the ability to wiretap large numbers of simultaneous internet-based phone conversations. Of necessity, that technology will also work for all other internet-based methods of communication. That’s major. (The cybercrime convention is just a warm-up exercise.)

A secondary issue is the move towards tightening screws on Internet access – more countries are showing an interest following Pakistan and China’s lead in requiring internet cafes and other kiosks to record who uses the service and when so that if something is traced back to that place and time the user can be identified. These are in effect speech licenses.

And, there’s stuff to worry about in the para-copyright realm. We can deal with copyright (trademark, other than famous mark rights expansion, and patent, other than process patents, I generally support more or less as applied). DMCA itself continues to throw an ugly shadow. And I am also concerned about intellectual property style protections for data compilations (databases).