InfoTech & Public Policy

In our last class on television, we briefly discussed “Canadian Content” rules and their relevance with respect to new technologies like Slingbox and internet broadcasting. The following explores this issue in more detail, describing content rules promulgated by the Canadian equivalent of the FCC, and what impact such rules can have on new ways of watching TV or listening to the radio.

First, a quick look at the rules. Of the music radio stations with a Canadian broadcasting license play, at least 35% must be Canadian. In this respect, “Canadian” doesn’t mean just a Canadian artist; the song must be produced there as well. French language stations must ensure that 65% of the songs they broadcast are sung in French. Satellite radio broadcasters (essentially Sirius and XM) must also obey certain content rules, but only in aggregate over all the stations being aired over their systems. International (i.e. US) stations can be broadcast, but a given number of Canadian stations must also be included in any satellite service.

Television stations licensed in Canada must ensure that 60% of their programming between 6am and midnight is “Canadian.” In this case, the producer and other key staff must be Canadian and 75% of the post-production costs must be paid to Canadians. Broadcasters can earn special credits in this system by running Canadian dramas during prime-time hours.

Canadian content (or “CanCon”) rules have often been the target of sarcasm. Sometimes referred to as “Beaver Hour” on Canadian stations, the rules also led to the creation of a couple of ironic Canadian icons. The comedy program SCTV (when first aired out of Edmonton) was required to include some Canadian content; in response, the Second City troupe came up with “Bob and Doug McKenzie.” These characters satisfied the content rules, all while poking fun at Canadian idiosyncrasies such as our national speech impediment (“eh?”) and our fondness for drinking too much beer.

CanCon rules for the radio seem to have been more successful than those for TV. For every mediocre musical act like Celine Dion or Bryan Adams that CanCon has fostered, there are acts like Sarah Feist or Arcade Fire that are worth listening to. We have yet to see similar success for television programming; I can’t think of one Canadian TV show that has made a significant mark in the US market.

The Canadian Radio-television and Telecommunications Commission (CRTC) has made some strides in keeping up with technology. For example, the rules for satellite radio discussed above are a reflection of the regulator’s ability to stay on top of the latest advances in broadcasting. That said, CRTC CanCon rules can only be applied over broadcasters seeking a Canadian license. For years TV stations in the US have intentionally broadcast into major Canadian markets like Vancouver and Toronto (selling time to Canadian advertisers) thus getting around CanCon requirements. US satellite radio service is often purchased by Canadians as well (though this requires a billing address in the US). Given the CRTC’s inability to regulate what it cannot control, it is unlikely that we will see new rules on Slingbox anytime soon (indeed, a search of the CRTC website revealed no results for “slingbox”). Should the technology become widespread, the CRTC may have no choice but to find some new way to “protect” Canadians from the scourge of Desperate Housewives.

This post discusses recent missives on wireless internet access at Princeton, and the ubiquitous Blackberry in office environments.

Anon’s interesting April 18 post on wireless internet use asserts that – and I am paraphrasing – our university would be a better place without student web access during class. More specifically, Anon is of the view that it would be nice if instructors could limit wireless access with “the flip of a switch.” Anon’s post refers to an article in the Prince that Avi penned. He too is against the use of laptops (to access the net) in class, describing them as distracting. It seems that Princeton has been too generous in providing students with easy internet access in the classroom.

Nonsense. A simpler fix to this dilemma is to leave the laptop at home. If you are spending too much time on your computer and ignoring the lecture you are supposedly attending, then the consequences should be on your shoulders. I am not bothered if you spend time in class messaging your friends; this activity in no way detracts from what I am getting out of a given lecture. Instructors are a different question. They can, and should, be able to ask their students to leave their laptops at home if computer use during class is disruptive. Asking students to come prepared, to participate in class, and not be disruptive can hardly be considered burdensome in a university setting. By the way, those who assume that instructors don’t know who is surfing or messaging (versus who is listening and taking notes) are fooling themselves.

As technology advances and we acquire new gadgets we need to adapt to their use. Public policy has a role, but oftentimes common sense does too. The Blackberry, for example, has changed the way colleagues interact electronically (especially in the evening and on weekends). Sometimes it is appropriate to check your e-mail messages on your “crackberry,” and other times it is not. Too many workplace meetings feature one person speaking and all others consulting their Blackberrys. But this is more of an etiquette issue than a policy question. Banning Blackberrys from meetings might focus the group, but can also detract from sessions that depend on the latest information. The responsibility for appropriate use should rest with the user, not with the chair of a meeting. Likewise, the use of a laptop in class to either take notes or surf should be the decision of the user.

Anon also frets about drivers checking their e-mail. In this instance, I believe public policy does have a role. Some jurisdictions do not allow driver cell phone use (presumably this also applies to the Blackberry) though it must be said that these laws are not well enforced. New Jersey apparently has a law banning driver cell phone use, but also widely encourages (through freeway signs) the reporting of aggressive driving by dialing a number available only to cell phone users. Distracted drivers are a much bigger threat to society than the distracted students discussed above.

In sum, policy can have a role in moderating public behavior when it comes to the latest gadget. But unless there is an over-riding and demonstrable need for explicit written rules or guidelines, then etiquette should guide the user.

Say you live in Minnesota, and you are looking to buy a house. You enter the name of a local realtor in a better-known search engine, and the results returned to you feature a competing realtor at the top of the list. The one you were looking for appears second. No big deal, right?

Well, not if you are the local realtor. In a recent case, Edina Realty of Minnesota is suing TheMLSonline.com for trademark infringement. The latter has paid some search engines to appear at the top of the page in search results, including when a search is conducted on the trademarked name of their competitor “Edina Realty.” In other words, TheMLSonline.com owns the key words “Edina Realty” on both Google and Yahoo. In fact, they own the key words for the name of at least one other Minnesota realtor as well.

This note reviews some of the broader legal implications of this case for search engines, and for Internet users. After reviewing why search engines are important, and the issues in the Edina case, we can turn to (and ultimately reject) a possible public policy solution: more regulation.

Search engines are an essential part of navigating the web simply and easily. The popularity of some engines over others is based on things like (1) efficiency, (2) accuracy, (3) speed, and (4) design. And search engines are now a big business (illustrated by the recent Google IPO). New revenue models for squeezing more dollars out of advertisers seem to appear on a regular basis. Google has been spectacularly successful through the sale of key words and the use of “sponsored links.” Indeed, TheMLSonline.com appears at the top of results for a search on Edina Realty, but with distinct blue shading; at the left of the screen, in dull text, the phrase “sponsored link” appears. So it is clear to the user that gives results more than just a cursory glance that TheMLSonline.com is paying for the privilege of being at the top of the list.

Edina’s suit holds that their competitor is using the phrase Edina Realty for commercial purposes, which is contrary to trademark protection. On the face of it, this is a logical argument. The owners of Edina Realty should have the right to the full use of the name of their business, just as other companies have been able to evict “cyber-squatters” who registered Internet domain names in order to flip them for profit. But this logic breaks down when you ask the question “are people searching for Edina Realty (the company), or are they seeking realty in Edina (the town in Minnesota)?” If everyone using a search engine to locate Edina Realty was indeed interested only in that company, then the Edina suit will be easy to adjudicate. But since it is difficult to know what consumers are looking for when they use a search engine, the case is not so simple.

One possible way round this whole problem would be to allow companies the exclusive right to use their names as key words. In other words, legislation (or more likely, regulation) could be employed to avoid situations like the one described above. Consumers might be happy, as they would not have to check to see if the link they are clicking on is “sponsored” or not. Then again, common sense would dictate that most Internet users should be able to differentiate between a sponsored link and regular search results. Companies that own search engines, on the other hand, may not be all that thrilled, because they would be losing a source of revenue.

Weighing the possible benefits (better informed consumers, better company control over corporate names) against probable costs (more regulation of the net, chilling effect on search engine revenue) in a value judgment is a subjective call. For me, the costs outweigh the benefits. Consumers are sophisticated enough to decide for themselves which link to click on when considering search results; more regulation is not the answer.

We’ve had some interesting class discussion and posts about online gambling, a subject that was back in the news this week. This note is an attempt to summarize (and offer a few opinions on) the recent US decision to ignore a WTO deadline to change federal legislation regulating online gambling.

Background
The tiny Caribbean island nation of Antigua and Barbuda challenged a perceived US ban on cross-border Internet gambling several years ago. I say “perceived” as it is not entirely clear to me when online gambling is legal or illegal in the US; some states have regulated against the activity, and the Justice Department interprets the 1961 US Federal Interstate Wire Act as prohibiting gambling over phone lines. Despite this lack of clarity, Antigua and Barbuda decided to assert their rights under World Trade Organization dispute settlement procedures.

A WTO panel ruled (November 2004) that US laws banning gambling over the Internet were in violation of the General Agreement on Trade in Services (GATS). The US Trade Representative responded that the US would withdraw gambling as a sector from its GATS commitments if this verdict was not overturned. Such a withdrawal is not a simple matter: all other parties to the GATS are entitled to compensation (GATS Article 21) for business lost as a result of a withdrawal. A later ruling (by the WTO Appellate Body, April 2005) altered some aspects of the November 2004 panel findings, but not the requirement of the US to change its laws. More specifically, the US was ordered by the WTO to amend the Interstate Horseracing Act — the Appellate Body ruled that the US ban on remote gambling was not applied to equally to off-track bettors and customers of Internet casinos. April 3, 2006 was the deadline for an amendment, a date that has come and gone without US action.

Options
The US now seems to have three policy options to choose from. The US can (1) make good its threat to remove gambling from its commitments under the GATS (and compensate countries that claim the withdrawal causes lost business), (2) change its laws and practices so that they conform with GATS rules (though some would claim this violates states’ constitutional rights to legislate), or (3) do nothing. It is this last option that is the most appealing, as both others have large downside costs and risks associated with them. Furthermore, Antigua and Barbuda is an unlikely economic threat, even though they are allowed under the WTO to retaliate against the US with new tariffs. Congress is currently debating the reform of the Federal Interstate Wire Act. Presumably, the legislative drafters working on the bill will try to make it GATS compliant. But if they don’t, new legislation means that Antigua and Barbuda would have to consider a further WTO challenge to press for compliance with the original ruling. In sum, the international aspects of regulating online gambling are far from resolved. Poker, anyone?

Andrew Kovacs and I have come up with the following draft introduction to class remarks on the FCC Notice of Proposed Rulemaking on the CPNI issue.

We, the students of Professor Edward W. Felten’s Princeton University graduate class Information Technology and Public Policy, respectfully submit the following comments concerning enhanced security and authentication standards for access to Customer Proprietary Network Information (CPNI). We are responding to the request for comments outlined in the FCC’s Notice of Proposed Rulemaking (FCC 06-10).

Recently several news outlets and the Electronic Privacy Information Center (EPIC) have drawn public attention to the sale of CPNI. The advertisements of several data brokers suggest that personal phone records are readily available for purchase online. In response, Congress is considering a number of bills to address the issue (for example, see H.R.4657, H.R.4662, H.R.4709, H.R.4714, H.R.4943, S.2177, S.2178). In this context, we believe the FCC’s consideration of measures to protect the privacy of CPNI is both timely and useful.

Our comments are structured around four methods through which CPNI may be obtained illicitly: pretexting, rogue insider, cyberattack, and theft of records. We consider each breach scenario in turn and then discuss specific policy options to protect telecommunications customers.

Breach Scenarios

Our reading of FCC 06-10 and discussion of possible breach scenarios leads us to the conclusion that there are four methods that may be used to gain unauthorized access to CPNI. Note that our analysis of these scenarios is speculative, and that we are not certain of the ease, efficacy, or frequency with which these methods are used.

1. Pretexting
In their submission on CPNI to the FCC, EPIC described pretexting as “the practice of pretending to have access to protected records.” Put another way, pretexting occurs when individuals purporting to be a given customer contact telecom providers and formally request CPNI.

2. Rogue Insider
Another method of gaining unauthorized access to CPNI is acquiring it from dishonest employees of telecom providers. In this instance, we assume that companies selling access to CPNI are offering remuneration to such employees in exchange for privileged information.

3. Cyberattack
Telecom service providers are also vulnerable to assaults on their computer system and the theft of online information. It may be possible to access CPNI through a cyberattack.

4. Theft of records
CPNI also may be accessed through the physical theft of records or the hardware storing electronic records. While regular and ready access to CPNI is unlikely through this method, it is still an area of concern.

Of these four methods, we believe pretexting and rogue insider are the most plausible mechanisms through which data brokers gain access to CPNI. We also consider cyberattack and the theft of records since they are issues about which the commission might still be concerned. Now we address a number of the specific questions and issues raised in the NPRM.

This is the story of an invitation gone wrong, and what its unintended consequences might mean for public policy in the connected world.

Tourism Australia has been trying to run commercials on television stations in other countries, inviting tourists to visit down under. “We’ve poured you a beer. And we’ve saved you a spot on the beach. So where the bloody hell are you?”

As invitations go, it doesn’t sound so bad to me. But censors in Canada didn’t like the use of the word “hell,” given that the ad might be aired prior to 10:00 (after which, you can use any word you want on Canadian network TV). Regulatory authorities in the UK also had a problem with the ad. In their case, however, “hell” was just fine; the word “bloody” was at issue. I should also mention that the ad would also need to be edited to remove clips of people drinking beer if it was to be shown in Canada (where you can not depict people enjoying alcohol on TV).

Sosuime’s March 22 post (on the US Supreme Court and obscenity) and Tourism Australia’s troubles have prompted me to wonder about obscenity rules and guidelines in an ever-increasingly connected world. Sosuime’s post refers to a Supreme Court affirmation of an earlier decision that “community standards” should be applied when judging if a work of art or publication is obscene or not. The old adage of “I know it (pornography) when I see it” seems to be the rule of thumb in this approach.

We can add an extra dimension to the examples above by turning to technological advances. Simply put, the national regulation of broadcasting becomes more difficult now that we can watch TV remotely (via the sling-box demonstrated in class) or over the Internet. How can “community standards” be applied if everyone in the world with a broadband connection is your potential audience? And even if we could figure out how to apply such standards, would we want to?

The creative anarchy of the Internet may therefore have an influence on what is being broadcast, and how regulators censor potentially offensive content. As the web delivers more and more moving images and programming originally meant for television, consumers will have more choice, and are more likely to spend less time in front of their TVs. Networks will try to respond with more relevant content that pushes the boundaries of what is acceptable on commercial television (much as they have already done in trying to fend off Tony Soprano and other pay channel content). Regulators can go along or they can apply their standards rigorously. Personally, I hope that there will be a re-evaluation of how programming is censored. It’s foolish that we can see violence depicted on network TV all the time, while the relatively mild phrase “bloody hell” can still raise hackles.