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April 11, 2006, Alert No. 1,347.
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Former Bush Administration Official Lauds Virtues of Governments' Censorship of Internet Communications

4/10. The American Enterprise Institute (AEI) hosted a program on the just published book titled Who Controls the Internet? Illusions of a Borderless World [Amazon]. The thesis is that national governments can and do effectively control the internet. For example, the internet is becoming bordered by the erection of national firewalls that filter content.

The book argues that those who believe that the internet is a free, open, ungovernable and borderless medium are mistaken. And, former President Clinton was naively confused when he asserted "There's no question China has been trying to crack down on the Internet -- good luck. That's sort of like trying to nail Jell-O to the wall." (See, Who Controls the Internet, at page 90.) See also, Clinton's speech of March 8, 2000, and TLJ story titled "Clinton Says Trade Deal and Internet Will Reform China", March 9, 2000.

The book argues that "the First Amendment does not reflect universal values; to the contrary, no other nation embraces these values" (page 157). Moreover, government censorship has "virtue" because it enables governments to regulate in a manner that "can better reflect differences among people". The book singles out for praise Australia's successful assertion of authority over the content of Dow Jones news published on web servers in the U.S.

It adds that people who advocate democracy online in communist China get "nailed to the wall" (page 91), but that China's internet based repression "does not undermine the case for territorial control of the Internet" (page 153).

Two of the participants in the AEI program were co-authors Jack Goldsmith and Timothy Wu. Goldsmith was, until recently, Assistant Attorney General in charge of the Office of Legal Counsel, a small, secretive and powerful unit within the Department of Justice (DOJ) previously headed by William Rehnquist and Antonin Scalia. Goldsmith is now a professor at Harvard Law School and a scholar at AEI, while Wu is a professor at Columbia Law School.

The other speakers were Alan Davidson (Google lobbyist), David Gross (Department of State), and Sebastian Mallaby (Washington Post writer).

The book is a quick, easy, one sitting read. The body is 186 pages, but much of this is blank pages, white space, pictures, and simple diagrams. While the authors are law professors, this book is not legalistic. While it deals with new technologies, it is not technical. Many facets of internet technology are described by metaphor, rather than by explanation.

Most of the book is a collection of journalistic descriptions of episodes in the history of the internet, and its regulation, in the last ten years.

There is a chapter on the French government's successful censorship of the content on Yahoo's servers located in the U.S. There is chapter largely devoted to the Australian government's subjugation of Dow Jones and its news services. There is a chapter on the communist Chinese government's construction of the great firewall of China, with help from U.S. companies, and the subordination of U.S. internet companies to the role of enforcers of its censorship laws.

There are also chapters on the role of the U.S. government in combating eBay fraud and peer to peer file sharing networks.

The chapter that offers the most technical, and perhaps the most significant, contribution to the literature on the subject is an explanation of the operation and importance of internet naming and numbering and the internet root. It provides a history of the U.S. government's assertion of authority over the root.

This book knows no morality. There is no right and wrong in the description of recent developments. There are only participants, government laws and regulation, and outcomes.

The book does, however, articulate a notion of virtue -- not of personal virtue, but of virtue of government control and censorship.

The authors assert that "A bordered internet is valuable precisely because it permits people of different value systems to co-exist on the same planet" (page 152). Here, and throughout the book, Goldsmith, who was previously a senior government official, confuses the preferences and values of citizens of a nation with the preferences and values of its government officials.

One of the episodes addressed in detail is the Gutnick case, a defamation case in which an Australian court held that personal jurisdiction exists where the allegedly defamed party is located. The consequence was that an Australian plaintiff was able to extract a huge settlement from Dow Jones, and censor the content of its news stories published in the U.S., on U.S. servers. But more broadly, since any news content published on the web is available anywhere in the world, if not blocked, news publishers are subject to suit and censorship pursuant to the laws and procedures of any nation. This does not trouble Goldsmith and Wu. Rather, they defend and praise this case.

On December 10, 2002, the High Court of Australia issued its opinion in Dow Jones v. Gutnick. This case is Dow Jones & Company, Inc. v. Joseph Gutnick, [2002] HCA 56, an appeal from the Supreme Court of Victoria. See also, story titled "High Court Rules Australia Has Jurisdiction Over Dow Jones Based on Web Publication" in TLJ Daily E-Mail Alert No. 564, December 10, 2002.

Critics of this case have argued that this approach subjects internet speakers to the lowest common denominator of censorship. Goldsmith and Wu dismiss criticism of the Australia's Gutnick case as a "chorus of sky is falling rhetoric".

David Gross, the senior Department of State official responsible for internet and telecommunications issues, also spoke at this event. He may share Goldsmith's and Wu's regard for freedom of speech, or of the press. He proclaimed that his speech was "off the record".

The AEI hosted this program. The AEI also once hosted a program devoted to exposing and condemning the communist Chinese government's censorship of internet communications, and the role of certain U.S. companies in supporting the Chinese government's efforts. See, stories titled "AEI Panel Advocates ``Freeing the Chinese Internet´´" and "Technology of Internet Censorship" in TLJ Daily E-Mail Alert No. 416, April 23, 2002.

State Department Official Addresses IPR and Trade in Brazil

4/6. Anthony Wayne, the U.S. Department of States' Assistant Secretary for Bureau of Economic and Business Affairs, gave a speech in Sao Paulo, Brazil, in which he discussed, among other topics, intellectual property rights (IPR), digital television standards, and Doha trade negotiations.

Anthony WayneIPR. Wayne (at right) made the argument, as U.S. government officials frequently do when addressing audiences in countries with weak IPR protection, that IPR protection is in the self interest of that country. For example, he argued that "intellectual property protection regime is one of the key economic indicators investors look to when considering whether to invest in another country".

He praised Brazil for certain recent advances, but added that "IP concerns still remain, however. Despite the important progress made on the copyright front, copyright piracy remains high and more work remains to be done, especially in the area of prosecutions. Likewise, strong patent protection is key to fueling innovation in high-technology development. The U.S. recognizes and appreciates the significant progress Brazil has made in improving IP protection. We applaud these important efforts and look forward to working with your government to facilitate continued improvements."

Doha Round. Wayne stated that "WTO members, including Brazil and the United States, are working hard to achieve a successful Round. However, negotiations have reached a critical juncture, and we need to see significant progress in the next few weeks if we are to conclude an agreement by the end of this year that truly delivers on the goal of opening markets and fostering global economic growth and opportunity."

He continued that "the EU must table a more ambitious proposal in agriculture. At the same time, advanced developing countries, such as Brazil and India, need to agree to reduce tariffs on manufactured goods and increase market access in services."

He also addressed trade in services. He said that "in the area of services, the United States has consistently advocated the biggest possible package of openings -- this includes areas such as financial services, telecommunications, computer related services, and express delivery. Liberalization of the services sector has injected greater competitiveness into developing countries that have opened their services markets. It produces needed improvements in terms of infrastructure, efficiency, and modernizing their economies. So it's not just something that's important to the developed countries. It's also critical to the development objectives of the Round."

He added that "the trade promotion authority that the U.S. Administration needs to implement trade agreements expires next summer and is not likely to be renewed in the near future".

Digital Television. Wayne said that "I understand that President Lula is going to announce the selection of the Brazilian digital TV standard soon. Of the several options on the table, we believe the ATSC standard [Advanced Television Systems Committee (the North American standard for digital TV, including high-definition)] offers the best combination of economic, social, and technical advantages. It has been adopted by the U.S., Canada, Mexico and South Korea. These countries that have adopted the ATSC standards are seeing a rapid increase in the sales of high definition television products. Brazil’s adoption of the ATSC standard will ensure a hemispheric standard, creating a market of 800 million people for DTV products and services." (Parentheses and brackets in original.)

More News

4/7. The Progress and Freedom Foundation (PFF) and the La Escuela Superior de Economía y Administración de Empresas (ESEADE) cohosted a one day conference in Buenos Aires, Argentina, titled "Intellectual Property and Innovation in the Digital World". See, PFF's web page for this event, and presentation [PDF] of the PFF's Tom Lenard titled "Issues in the Economics of Patents".

4/10. Kyle McSlarrow, P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech in Atlanta, Georgia, in which he discussed pending internet and telecommunications legislation. He said that "We support streamlining the video franchise process and reducing any unnecessary regulation to a minimum with the rules applied to us and our competitors equally. By contrast, the Bell monopolies want a different result. They don't want to play by the rules. They want a different and more advantageous set of rules for them. And rather than debate the merits of the video franchising process, they are putting millions of dollars behind false and negative attacks on the cable industry with the same old tired rhetoric in order to get their way. It is undoubtedly one of the most expensive negative campaigns seen in years in Washington, D.C."

Washington Tech Calendar
New items are highlighted in red.
Tuesday, April 11

The House will not meet on Monday, April 10, through Friday, April 21. See, Republican Whip Notice and Whip's calendar.

The Senate will not meet on Monday, April 10, through Friday, April 21. See, 2006 Senate calendar.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.II (Radiocommunication including Broadcasting) meetings on June 20-23, 2006, in Lima, Peru, and on October 17-20, 2006, in San Salvador, El Salvador. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

11:30 AM. Eileen O'Connor (Assistant Attorney General in charge of the Department of Justice's Tax Division) and Mark Everson (Commissioner of the IRS) will host an event titled "Pen and Pad Session". The DOJ notice states that the two will "discuss tax enforcement and the upcoming income tax filing deadline". It adds that "ALL media MUST PRESENT GOVERNMENT-ISSUED PHOTO ID (such as driver's license) as well as VALID MEDIA CREDENTIALS. Media must enter the Department at the center entrance on Constitution Avenue, between Ninth and Tenth Streets. No cameras or recording devices will be permitted. Press inquiries regarding logistics should be directed to the Office of Public Affairs at (202) 514-2007." The notice does not state whether or not the two officials will respond to questions regarding technology related tax issues. There will also be telephonic access. The call in number is 202-353-0881. The pass code is 6110. Location: Tax Division Conference Room, Room 4141, 950 Pennsylvania Ave., NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.I (Telecommunication) meetings on May 23-26, 2006 in San Domingo, Dominican Republic, and on September 12-15, 2006, in Washington DC. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Subcommittee will host a continuing legal education (CLE) seminar titled "After The Auction: Relocation Issues in the AWS Spectrum". The speakers will be Gary Patrick (National Telecommunications and Information Administration) and Mark Gibson (Comsearch). See, registration form [PDF]. The price to attend ranges from $50 to $125. Registrations are due by 12:00 NOON on Friday, April 7. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

Wednesday, April 12

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The Securities and Exchange Commission's (SEC) Advisory Committee on Smaller Public Companies will hold a public meeting by webcast and teleconference. See, notice [PDF]. For more information, contact Kevin O’Neill at 202-551-3260.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "USTR’s ``Top-to-Bottom´´ Review of U.S.-China Trade Policy: Where Do We Go From Here?". The speakers will include Timothy Stratford (Assistant U.S. Trade Representative for China Affairs), Angela Ellard (Staff Director and Counsel, Subcommittee on Trade, House Ways and Means Committee), Timothy Reif (Chief Democratic Trade Counsel, House Ways and Means Committee), Patricia Mears (National Association of Manufacturers), Erin Ennis (US-China Business Council), and Mary Patricia Michel (McKenna Long & Aldridge). The price to attend ranges from $5-$25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for a meeting of the ITU Council. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

Thursday, April 13


2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the 33rd meeting of Asia-Pacific Economic Community Telecommunications and Information Working Group (APEC TEL) in Calgary, Canada, on April 23-28, 2006. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: Verizon Communications, 1300 Eye St., NW.

Deadline to submit written statements to the Senate Judiciary Committee to supplement the record of its April 7, 2006, hearing on the Copyright Office's report [133 pages in PDF] titled "Report on Orphan Works". Sen. Orrin Hatch (R-UT) requested further statements regarding what would constitute a "diligent search".

Friday, April 14

Good Friday.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [52 pages in PDF] regarding the assessment and collection of regulatory fees for fiscal year 2006. This NPRM is FCC 06-38 in MD Docket No. 06-68. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17410-17433.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277.

Sunday, April 16


Monday, April 17

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch. The topic will be "Impact of Broadband on Telecommunications Relay Service (TRS)". The speakers will be Karen Strauss, Ed Bosson (Texas TRS Administrator), Kelby Brick (National Association of the Deaf), Joe Douglas (NECA), Claude Stout (TDI Executive Director). RSVP to Colin Sandy at 202-682-2496 or csandy at neca dot org. Location: Reed Smith, 1301 K Street, NW, Suite 1100- East Tower 11B.

5:00 PM. Deadline to submit comments to the Library of Congress's (LOC) Section 108 Study Group in response to the LOC's notice in the Federal Register regarding, among other topics, expanding the scope of 17 U.S.C. § 108. See, notice in the Federal Register, February 15, 2006, Vol. 71, No. 31, at Pages 7999-8002.

Tuesday, April 18

9:00 AM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, notice in the Federal Register, April 3, 2006, Vol. 71, No. 63, at Pages 16578-16579. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Managing and Protecting Digital Data: Part II -- Getting Paid for Content: Legal Questions in Digital Rights Management (DRM) for Online Distribution". The speakers will include Fritz Attaway (Motion Picture Association of America), David Sohn (Center for Democracy & Technology), and Jack Goodman (Wilmer Hale). The price to attend ranges from $10-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

6:00 - 8:00 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a reception titled "Meet FCC Commissioner Deborah Taylor Tate". The price to attend ranges from $10-$15. For more information, call 202-626-3463. See, notice. Location: The Westin Embassy Row Hotel, 2100 Massachusetts Ave., NW.

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