John Palfrey

The General Counsel of Microsoft, Brad Smith, is here in Ames Courtroom
at Harvard Law School tonight.  He offers a wide range of
insights, geared fittingly to the many students here thinking about how
their careers will unfold over the next half-century, about the future
of the Internet, software, and innovation.  Three jump out in
particular:

* INNOVATION: After praising the historic role of the patent system in
the United States, he called for patent reform to improve the quality
of the USPTO review of prospective patents and restriction of abuses of
the patent litigation system.  He notes that MSFT spends $100+ on
defending against patent lawsuits.

* CONSUMER CONFIDENCE:  He’s called for fundamental privacy
legislation.  He’d like to see a national law that ensures
transparency for consumers as to information collected about them,
allows for access to that information, and puts consumers in control of
what’s done with it.  (These things tie up with the work that
we’ve been doing with the Identity Metasystems project, led by John
Clippinger and part and parcel of the Identity Gang.  Mr. Smith
also calls for security standards for consumer data.  A fine
lawyer himself, he cites MacPherson v. Buick,
a 1916 case which established product liability in the automobile
industry as part of the trajectory toward consumer confidence in their
industry.

* INDUSTRY COLLABORATION: He notes that the industry has come to a
stage in its development where collaboration is essential across
firms.  The history of the railroad provides a nice illustration,
he argues.  Individuals need to be able to communicate in a much
more seamless way.  Interoperability has become essential to the
computing industry, and to Microsoft in particular.  “Change we
have,” he says.  Coop-etition, is the new watchword.  Firms
should still differentiate themselves, but should also find ways to
collaborate.  He’s got the chops to make this statement, as the
man who has negotiated an end to many of the anti-trust hassles the
company has faced and corresponding protocol-related collaboration
schemes.  He sees a bridge that will be built between the open
source and proprietary software development communities — both of
which, he says, are here to say.

I’m eager to ask him what he thinks of the great news announced by his colleague Ray Ozzie.

We’ve got the great fortune of Microsoft’s General Counsel, Brad Smith,
visiting with us today.  Tonight, (Monday, November 28, 2005), Mr.
Smith is offering a public lecture
from 5:00 - 6:30 p.m. in Ames Courtroom on the Harvard Law School
campus.  “Lecture” is the wrong word for it — he’s eager to have
an open session to discuss the future of the Internet, software, and
all good things with students, faculty, fellows, and staff alike. 
We’re delighted to be co-sponsoring this event with our friends from
the Harvard Journal of Law and Technology.  It is rare to have
such terrific access to one of the top technology lawyers in the
world.  Please join us tonight and bring your questions.

Scripting News’ Dave Winer and Microsoft’s Ray Ozzie have today co-announced what promises to be a huge innovation in the RSS and OPML space, called SSE.   Here is Ray Ozzie’s introduction to the announcement.  In his blog-post, he describes a calendaring problem that certainly resonates.  The spec is here. 

To my lawyer’s mind, best of all, they’ve used a Creative Commons license under which to release the SSE spec, just as with the RSS 2.0 spec itself, (formerly held in copyright by Userland).  Bravo, Microsoft, and Dave, no doubt their guiding light in getting there.

A generally good, clear piece
by Fortune senior writer Marc Gunther tackling the important question
of the ethics of companies and
their involvement in the world’s most repressive regimes from an
informational policy standpoint.  There are many subtleties
between the types of involvement of the companies named in the article,
though.  We need a reliable framework through which to assess and
discuss the nature and extent of US technology firms in the censorship
practices of other states around the world.

I’m sitting between Jack Balkin and Mark McKenna, and across from
Jonathan Zittrain’s face on a television screen, at a
beautifully-organized conference at the Washington University School of
Law in St. Louis.  The topic is the First Amendment and the
Rehnquist Court.  JZ is giving a cool variant of his generativity
story. 

If you haven’t seen it, check out the new draft of JZ’s paper on SSRN; it is a must
read and will be appearing in 2006 in the Harvard Law Review.  To me, just as we refer to Lessig’s Code, and Benkler’s
layers model and peer production riff, and Balkin’s democratic culture
pieces, we will look to JZ’s generativity model in cyberlaw as a
critically important next step in the scholarship.

Tom Nachbar of Virginia is responding to our presentations with an
argument about how “end-to-end is deceptively free.”  If e2e is
really about choice, he says, we should be more concerned about the
“how” of where decision-making related to information policy (Balkin’s
term) than about the specific decisions (or the codification of any
specific policy, even e2e itself).  It’s more a matter of process,
he contends, than it is of substantive policy.

A breaking report from on the ground in Tunisia on the filtering topic at the World Summit on the Information Society: the Expression under Repression session and a phalanx of secret police who showed up.

In case you missed it, here is the freshly-released, extensive ONI report on Internet filtering in Tunisia. The short form is, as expected, the filtering regime is extensive and sophisticated, and includes political speech, blogs, and many other forms of online content, each replaced in the user experience with a misleading 404 error block page.

Clark Boyd of the BBC has an excellent report today, citing ONI’s Derek Bambauer and Nart Villeneuve.

I am here in Hammamet, Tunisia for the World Summit on the
Information Society.  On many levels, it’s lovely to be here –
beautiful, temperate, a gathering of all manner of interesting,
public-spirited people from around the world who care about
information and communications technologies.  Inside the enormous
function hall where the world’s telecomms/technology regulators have
gathered for the ITU’s Global Symposium for Regulators, I’m on a
terrific, open wi-fi network — sort of.

But the Net that I’m on
is not open.  It is filtered, rather heavily.  The method in
which it is being filtered is hardly transparent.  Try accessing http://www.tunezine.com from wherever you are reading this.  I can’t see that.  Try http://anonymizer.com. 
Nope, I can’t see that either.   And what is accessible
is changing, as I type: yesterday, one could access http://www.citizens-summit.org/.  Today, no dice.  Also blocked: everything on this site: http://www.stupidcensorship.com/.

Instead, I get a block page, en francais, which misleadingly suggests that there’s a 404 error.  If you want to see what I’m seeing, click here to
see the block page.  That means, to most users, that the
page can’t be found — not that it was found and blocked by the state
for political (or other) reasons.  Nart Villeneuve and the Citizen
Lab keep up a terrific gallery of block pages.  You can get a sense there of the various options that those who filter have availed themselves of.

Our
hosts here are very gracious.  It is very important for such a
substantial event to take place on the African continent.  But the
topic of Tunisia’s filtering regime, and regimes like it, ought to be
on the agenda for WSIS, and it’s not.  That’s one of the big
problems of this event — that important, but diplomatically tricky,
topics such as the balkanization of the Internet, in ways that often
mislead citizens and visitors alike, are left aside.  

If I were in charge here, we’d start — not, NOT, with the future of ICANN — but rather here:

* * *

In dozens of nations around the world, the state takes part in
censoring what their citizens can see and do on the Internet. 
This practice is increasingly widespread.  Filtering regimes
are becoming more sophisticated and more commonplace around the world
as the Internet assumes greater importance as a means of communication,
as a forum for doing business, and as a hotbed of political
activism.  There’s a cat-and-mouse game being played between
states that seek to control the information environment and citizens
who seek to speak and read and interact freely online.

The OpenNet Initiative — a joint research project of the University
of Cambridge, the University of Toronto, and Harvard Law School — has
found and documented extensive filtering regimes in place in China,
Iran, Burma (Myanmar), Uzbekistan, and, yes, Tunisia, among many other
countries (many reports and bulletins here).  
Censorship using technological filters is often coupled with harsh laws
related to what the press can publish, opaque surveillance practices,
and severe penalties for people who break the state’s rules of using
the Internet. 

At the same time as Internet censorship grows, heads of state and
their representatives are gathered here in Tunisia for a World Summit
on the Information Society.  The widespread practice of blocking
citizens from accessing certain information on the Internet from within
a given state offers a point of engagement for the Internet governance
debate that takes place at this summit.  The World Summit on
Information Society’s planners, the members of the United Nations ICT
Task Force, the members of the United Nations’ Working Group on
Internet Governance and others at the center of the Internet governance
debate should help to establish a set of principles and best practices
related to Internet filtering. 

The Internet filtering problem, on one level, is an unattractive
candidate for the Internet governance decision-makers and others here
at WSIS to take up.  Diplomatic niceties make hard conversations
about divisive issues unpleasant.  A serious discussion of
Internet filtering would dredge up thorny topics like free expression,
privacy, national security, international enforcement, and state
sovereignty – issues on which states are likely to disagree
vehemently. 

But in so doing, the Internet governance debate might
take on new life.  It could focus discussion on the core problems
related to the divergence of views among states as to what a “good”
Internet looks like.  It would put in relief the jurisdictional
issues related to every country in the world sharing a single, unitary,
public network of networks, far more powerful than any such network
that has come before, with the power to bring people together and to
divide them – while also acknowledging the fact that states can and do
exert power over what their citizens do on this network — much as
Jonathan Zittrain, Tim Wu, Jack Goldsmith, and others have
argued.  It would prompt an examination of whether any single set
of rules might serve to address concerns related to content on the
Internet.  And, in the process, it would encourage states to come
clean about the lengths they are willing to go to block their citizens
from accessing information online.  At best, such a discussion
would bring the issue of state-based Internet censorship into the
spotlight and might, in the process, lead some states to reform their
Internet filtering practices so as to become more open and transparent.

The irony of Tunisia’s role in this summit, as both host and
as one of those states that filters the Net (and not just to keep
out pornography, but political speech, blogs, anonymizer services, and
other — to me — socially important speech), without a great deal of
transparency to citizens (or guests!) about what the state is doing,
brings this problem into sharp relief this week.  That’s what we
should be talking about in terms of Internet governance, though it’s
unlikely to take place, except here in the blogosphere. 

Look to the ONI for more on this topic, very soon.  As always, Ethan Zuckerman is an amazing resource.  Also, the AP is running a story on this general topic.

(Drawn in part from “Local Nets: Filtering and the Internet
Governance Problem,” John G. Palfrey, Jr., (chapter in Jack Balkin et
al., The Global Flow of Information, forthcoming 2006).  For the
full paper, please click here.)

The US Department of State’s Bureau of Democracy, Human Rights, and Labor released its International Religious Freedom 2005 report.

The post about Rebekah Gewirtz’s upset victory over the incumbent of 22 years in the race for Ward 6 Alderman in Somerville, MA, on a local website has garnered 82 comments.  Wild.

Ward 6 of Somerville, Massachusetts, has been a hot-bed of political activism this Fall. Election day tomorrow involves tough choices. I thought I’d vote out loud, or at least weigh the options out loud.

* A young, progressive woman, Rebekah Gewirtz, with a background in community activism, is challenging 22-year incumbent Jack Connolly for Ward 6 Alderman. Ms. Gewirtz has visited our street more than a dozen times, easily, leaving fliers and ringing everyone’s bell — working incredibly hard. Mr. Connolly has not come by once (at least that I’ve noticed), but he’s sent a great deal of mail to make the case for his candidacy. Gewirtz and Connolly have gone “comparative,” with almost-negative statements about one another (OK, some people would definitely call it negative) in the mail that hits every few days from each of them. Signs in the ward seem about evenly split. Mr. Connolly has served the neighborhood for a very long time, has a local business, and local endorsements, so will be hard to unseat. I give Ms. Gewirtz a great deal of credit for the race she has run — energetic, serious, and tough. No matter what, her candidacy has stirred up a number of issues and has made a long-time incumbent take re-election seriously. (Here’s what Ms. Gewirtz said in response to the Somerville Dog Owners’ Group’s questionnaire, in case you were wondering. Isn’t the Internet great?)

* For School Committee in Ward 6, there’s a man named Paul Bockelman who has come by our house, running against Jim Thomas, whom I have not met. They are after a seat that the previous incumbent has relinquished. I am voting for Mr. Bockelman, since one of our neighbors brought him by our home, he seemed smart and capable, and his qualifications — as a long-time town manager — seem excellent. In addition to our neighbor, many of the local publications and officials have backed Mr. Bockelman. (I haven’t been able to learn much about his challenger, Mr. Thomas, beyond what his website says.)

* For Alderman-at-Large, we vote for four of the seven candidates (straight-up, not proportional representation, like Cambridge). I’ve heard in particular from Marty Martinez, a challenger with a celebrated background in youth services, and a young attorney, Kim Foster-Hirsch, who has lived in Somerville her whole life and has been articulate in what I’ve read and seen about the challenges facing the City (I couldn’t find a website for her, despite her raising and spending about $15,000, but got a fair amount of mail and found some responses to a questionnaire on affordable housing of hers are here). I’m not certain of my last two votes yet, but Mr. Martinez and Ms. Foster-Hirsch will certainly get two of the four. Denise Provost’s Sierra Club endorsement may sway me in her favor for vote number 3.

(If I were living in neighboring Cambridge, MA, I would vote a number 1 for my friend Brian Murphy and for Ben Lummis, a candidate for School Committee, who is a colleague of the incomparable Chris Gabrieli’s at Mass2020. For other Massachusetts election news, check out Blue Mass. Group and others sure to cover it.)

I am glad that it’s hard work to figure out how to vote tomorrow in Somerville. I find that I’m deciding mostly based on who made the effort to reach out to me in person, by phone (not robo-calls, of which there are 5 on the voice-mail tonight), or via the web with a good web presence (but not exclusively) — in no small part because there are many good candidates from which to choose, a great sign for our local democracy. Huge thanks to all who have put their names on a ballot this year.