The last five stops will be made in Evans, GA on October 30th; Lexington, SC on October 31st; Mount Pleasant, SC on November 2nd; Savannah, GA on November 3rd and Jacksonville, FL on November 4th.
DATA ACCOUNTABIITY; P2P USERS:THOMAS D. SYDNOR II
Congressional Testimony May 5, 2009
Congressional Testimony 05-05-2009 Statement of Thomas D. Sydnor II Senior Fellow and Director Center for the Study of Digital Property, Progress & Freedom Foundation Committee on House Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection May 05, 2009 Chairman Rush, Ranking Member Radanovich, and members of the Subcommittee, I am Tom Sydnor, a Senior Fellow and the Director of the Center for the Study of Digital Property at the Progress & Freedom Foundation, a non-profit research foundation dedicated to studying the public-policy implications of technology. I am also the lead author of two empirical studies that focus on the causes of what has been called “inadvertent file-sharing.“ See Both studies seek to answer one simple question: “Why do so many users of certain types of `peer-to-peer` file-sharing programs end up `sharing` types of files that no informed user would ever deliberately `share`?“ I would like to thank the Subcommittee for holding this hearing, and I would like to thank the sponsors of H.R. 1319, The Informed P2P User Act, for proposing a thoughtful and moderate solution to the serious and protracted problem of inadvertent file-sharing. My support for the Act is based upon my analysis of three critical questions that it seems to raise. First, should Congress legislate to deter inadvertent sharing, or can Congress assume that inadvertent sharing will be remediated because distributors of file-sharing programs like LimeWire can be trusted to abide by the Voluntary Best Practices developed in mid-2008 by the Distributed Computing Industry Association? Here, I think that the answer is clear:
“No“: This approach was tried in 2003; multiple distributors violated their own self-regulatory Code of Conduct repeatedly, and the consequences were disastrous for consumers, for commerce and for the country. Second, could the Act`s substantive requirements improve upon existing legal mechanisms for deterring inadvertent sharing? Here, I think that the answer is “yes“:
the Informed P2P User Act improves upon existing law because its substantive requirements can narrowly and rather gently target the critical problem:
because certain file-sharing programs are used almost exclusively for unlawful purposes, we should ensure that their users-many of whom are preteen or teenage children-must once again act deliberately before they “share“ files that might be dangerous for them to distribute. Third, can the Act`s requirements be targeted narrowly toward the appropriate subset of the technologists who have deployed peer-to- peer networking technologies?
In other words, should legislators again try to devise some definition of “peer-to-peer“ that will target problematic conduct without needlessly burdening legitimate, law-abiding uses of this particular networking technology?
Here, I think that the answer is “yes, but. . ..“ The Subcommittee should attempt such efforts. In the past, such efforts have not succeeded, but given the gravity of the stakes, and the lessons taught by the Supreme Court`s decision in the Grokster conclude, I believe that another attempt would be worthwhile. In particular, I believe that a combination of both technological and result-focused constraints might enable the Subcommittee and the sponsors of H.R. 1319 to devise a broadly acceptable compromise.
But because such efforts might not succeed, I believe that the Subcommittee might also wish to consider a back-up strategy. The Informed P2P User Act improves upon existing law because it narrowly and rather gently targets critical root causes of inadvertent sharing. Nevertheless, Congress has long provided federal law-enforcement agencies with both criminal and civil enforcement authority that, while neither gentle nor narrowly targeted, can surely punish and deter the worst of the abuses that distributors of certain file-sharing programs have-for far too long-inflicted upon children, families, lawful commerce, national security and the rule of law. The Informed P2P User Act seeks to end years of inexcusable conduct by devising a precision instrument that would narrowly target root causes of inadvertent sharing. web site programs like limewire
But if a precision instrument cannot be made broadly acceptable to law-abiding technologists and thoughtful consumer advocates, then the Committee could, instead, urge federal law enforcement agencies to use their existing hammers to send a message. And should this back-up strategy be accepted, and resort to it required, the rest of my testimony may suggest why the message to be sent must be both forcefully delivered and unequivocal in content. Given my background, I believe that I may best assist the Subcommittee`s legislative efforts by focusing the rest of my written testimony on the first of the three questions that outlined above. Last year, the Distributed Computing Industry Association (DCIA) published a set of Voluntary Best Practices (VBPs) that were intended to help developers of programs and services that use peer-to-peer technologies avoid causing inadvertent sharing. In recent weeks, DCIA`s member company, LimeWire LLC, has been telling both the public and Congress that its implementation of the DCIA VBPs in the most recent versions of its program, LimeWire 5 “put the final nail in the coffin of inadvertent sharing of sensitive files.“ Such reports could suggest that the Committee should forego resort to legislation and rely, instead, upon further implementation of “voluntary self-regulation“ by distributors of file-sharing programs like LimeWire 5. For the following reasons, I cannot advise any Committee of Congress to make another attempt to rely on voluntary self-regulation by distributors of certain types of file-sharing programs. Voluntary Self-Regulation Has Been and Should Be a Critical “First-Resort“ Component of Sound Technology Policy. I believe that voluntary self-regulation should be the policy option of first resort when we encounter problems relating to computer, software, and internet technologies. Simply put, innovation is an inherently uncertain process in which missteps and mistakes are inevitable. Were Congress and regulators to react to each misstep by imposing stringent, prescriptive laws and regulations, the innovation that could drive our Information- Age economy toward recovery could be seriously impeded by constraints that could quickly become outdated, ineffectual, or market-distorting. But precisely because voluntary self-regulation must be central to our innovation policy, entities who pledge to voluntarily self- regulate must take their self-imposed duties seriously. Consequently, voluntary self-regulation has three important components: 1) credible self-regulators;
2) meaningful self- regulations; and 3) reasonable implementations of the self- regulations. When the circumstances of this situation are compared against the requirements for viable self-regulation, none appear to be clearly satisfied: 1) one critical self-regulator seems to have repeatedly proven itself to be untrustworthy; 2) in critical respects the VBPs provide only vague or inappropriate guidance; and 3) the implementation of the VBP`s by the distributors of the LimeWire file-sharing program seem to reflect flaws so serious as to-again-raise questions about the integrity of its implementation process. Under such circumstances, those of us who favor voluntary self- regulation should concede that the only question remaining is which branch of the government should act, and how. I will address each of these concerns-credibility, regulations, and implementation-in that order. Few potential self-regulators are less credible than LimeWire LLC: generally, questions about voluntary self-regulation arise only after a problem has occurred. Consequently, sound public policy dictates that even entities and industries that have made serious errors should be able to qualify as potentially viable self-regulators. Nevertheless, at some point, misconduct can become so seemingly culpable, so egregious, or so frequent as to preclude further rational reliance on self-regulation. Some cases may present fine questions about whether these lines have been crossed.
But this is not one of them. The entity whose behavior is probably most critical to the efficacy of the DCIA VBPs is LimeWire LLC. I have described in detail aspects of LimeWire`s previous conduct in my two prior papers on inadvertent sharing. Today, I only wish to highlight one episode to illustrate a larger pattern of conduct that should tend to discredit this potential self regulator. As a result, I want to describe the history of the deployment of a feature called a “search wizard“ in the file-sharing programs KaZaA and LimeWire. A “search wizard,“ as that term is used here, activates only the first time that a given program is installed on a given computer. When activated, it scans a computer`s hard drive(s) and “recommends“ that the new user recursively share certain folders identified by the distributors of the program as folders that a new user might want to share. Search-wizards actually deployed tended to “recommend“ that new users should share all, or almost all, of the files in their “My Documents“ folder and all of its subfolders. Users accepting this “recommendation“ would thus share almost all of their personal files-including their entire music collection: all of the audio files ripped from purchased CDs. In retrospect, the existence of search wizards seems difficult to explain for two reasons. First, search wizards target new users- and new users of file-sharing programs will tend to be preteen and teenage children. site programs like limewire
Second, a search wizard that urges children to recursively share the “My Documents“ folder of the family computer seems inexcusable. No one who understood the probable consequences should agree to share all the files in their My Documents folder and all of its subfolders. Consequently reasonable program developers should never have released programs that delivered such “recommendations“ to their most vulnerable users. But they did. Search wizards were deployed in many popular file- sharing programs, and some distributors of some file-sharing programs (like LimeWire) actually began deploying search-wizards after their self-evident consequences had been confirmed and condemned by computer-science research, by both Houses of Congress, and by the Code of Conduct developed by distributors of file-sharing programs including LimeWire LLC. The following search-wizard chronology makes this point: June of 2002: In Usability and Privacy, A Study of KaZaA Peer-to- Peer Filesharing, computer-science researchers from HP Labs conclude that two “features“ in the KaZaA file-sharing program, including a search-wizard, were causing users to share so many sensitive files inadvertently that identity thieves had begun data-mining file-sharing networks for inadvertently shared credit- card numbers. Distributors responded by continuing to deploy search wizards. June of 2003: A year later, hearings on inadvertent sharing held by the House Committee on Oversight and Government Reform and the Senate Committee on the Judiciary caused the distributors of KaZaA., (who were members of DCIA), to belatedly recognize Usability and Privacy as “intelligent research,“ and to promise to remove both of the dangerous features it had criticized. July of 2003: The distributors of KaZaA did remove the dangerous features condemned by Usability and Privacy and the hearings, but they did so in an almost inexplicable way: both features, including the search wizard were removed in a way that perpetuated all of the consequences of the catastrophic inadvertent sharing that they had already caused. September of 2003: The distributors of LimeWire and other programs responded to the congressional hearings on Usability and Privacy by promulgating a self-regulatory Code of Conduct that should have precluded use of KaZaA-like search wizards. They declared, “[Our] software and associated user instructions . . . shall be designed to reasonably prevent the inadvertent designation of the content of the user`s . . . principal data repository . . . as material available to other users.“
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