The mathematics of legislation

A couple years ago a former high U.S. govenrment official — one whose job required meeting with nearly every member of Congress — made the best argument I have yet heard against any regulation of the Net. Or of anything technical. Though not veratim, this is essentially what he said: I can tell you that there are two things nearly every congressperson does not understand. One is economics. The other is technology. Now proceed.

That line comes to mind when I read House vote on illegal images sweeps in Wi-Fi, Web sites, by Declan McCullagh in CNet. It begins,

The U.S. House of Representatives on Wednesday overwhelmingly approved a bill saying that anyone offering an open Wi-Fi connection to the public must report illegal images including “obscene” cartoons and drawings–or face fines of up to $300,000.

That broad definition would cover individuals, coffee shops, libraries, hotels, and even some government agencies that provide Wi-Fi. It also sweeps in social-networking sites, domain name registrars, Internet service providers, and e-mail service providers such as Hotmail and Gmail, and it may require that the complete contents of the user’s account be retained for subsequent police inspection.

In a follow-up post which includes an email dialog between Declan and one of the bill’s defenders, Declan added,

So what exactly does the SAFE Act do? It doesn’t mandate ongoing network surveillance. What it does require is that anyone providing Internet access who learns about the transmission or storage of information about illegal image must (a) register their name, mailing address, phone number, and fax number with the National Center for Missing and Exploited Children’s “CyberTipline” and (b) “make a report” to the CyberTipline that (c) must include any information about the person or Internet address behind the suspect activity and (d) the illegal images themselves. (Note that some reporting requirements already apply to Internet access providers under current law.)

The definition of which images qualify as illegal is expansive. It includes obvious child pornography, meaning photographs and videos of children being molested. It also includes photographs of fully clothed minors in unlawfully “lascivious” poses, and certain obscene visual depictions including a “drawing, cartoon, sculpture, or painting.”

So, would this be obscene to a Phillies fan? How about a Mets fan? Can we even tell if the subject is a minor? It’s not like you can count the rings.

By the way, I’m looking for hard data on how much Net traffic, including search requests, is for junk, porn or both. I’ve heard many different numbers, including some that say the percentage of porn search requests alone is north of 70%. But I dunno.

For a sample, however, watch the scroll at Then imagine how much filtering you have to do if you’re Technorati or Google Blogsearch.

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16 Responses to The mathematics of legislation

  1. Mike Taht says:

    I note that only two congresscritters voted against SAFE. (from the article): Wednesday’s vote caught Internet companies by surprise: the Democratic leadership rushed the SAFE Act to the floor under a procedure that’s supposed to be reserved for noncontroversial legislation. It was introduced October 10, but has never received even one hearing or committee vote. In addition, the legislation approved this week has changed substantially since the earlier version and was not available for public review.

    Not one Democrat opposed the SAFE Act. Two Republicans did: Rep. Ron Paul, the libertarian-leaning presidential candidate from Texas, and Rep. Paul Broun from Georgia.

    As for your Phillies photo, it sure made me want to get out to a ballgame! The day pics like that become banned, I’ll lose my enthusiasm for the sport entirely.

  2. Mike Warot says:

    A proactive step might be to point out that this requires all of the Senator’s Crackberries and web surfing to be monitored by the executive branch 24/7 to comply with the law.

    They might not understand technology, but they understand the power of coercion.

  3. Hanna Cohen says:

    Somehow related (at Western Digital):

    Q: What files cannot be shared by WD Anywhere Access?

    A: Due to unverifiable media license authentication, the following file types cannot be shared by different users using WD Anywhere Access.

    If these file types are on a share on the WD My Book World Edition system and another user accesses the share, these file will not be displayed for sharing. Any other file types can be shared using WD Anywhere Access.

  4. horoscop says:

    Great post. and yes..
    @Mike Warot
    I agree with you!

  5. Keith Dick says:

    No, all that would accomplish is that they would go exempt Congressional communications from the law. They already do that with a lot of legislation. They might already have that exemption in the current bill.

    Your thought is a good one — find some sort of jujitsu to turn some aspect of this into a manifestly undesirable result. I can’t think of something off the top of my head, but the proposal is so ludicrous that there must be some completely insane consequence that would serve.

  6. Havagan says:

    Ignoring how this law would cause so many free wi-fi access points to shut down due to liability concerns or cost of implementing the scanning/data retention, and ignoring the privacy/oversight/enforcement concerns, doesn’t a $1000 SSL certificate completely negate the effect of this law? If you can’t analyze my encrypted traffic, you can’t know I’m sending “obscene” material.

    A useless law that smells of political grandstanding while benefiting corporations which supply wi-fi equipment and services. But that may just be my cynicism talking.

  7. Doc, you got taken by an infamous wolf-crier.


    We need to calm down over the SAFE act

    SAFE Act won’t turn mom-and-pop shops into WiFi cops

  8. Doc Searls says:

    Seth, how was I “taken”? Here’s a bill that says —


    “(a) Duty To report.—

    “(1) In general.—

    “Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances described in paragraph (2) shall, as soon as reasonably possible—


    “complete and maintain with current information a registration with the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center, by providing the mailing address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider; and


    “make a report of such facts or circumstances to the CyberTipline, or any successor to the CyberTipline operated by such center.

    Well, wtf is an “electronic communication service” or a “remote computing service provider”? This language is so broad that eager enforcement can be made to include anything, and you’ll get chilling effects out the wazoo.

    Back in 2002, getting an open access point in the U.K. was almost a matter of opening your laptop. Now the open signals are all but gone, victims of anti-terrorist lawmaking that does not, as I understand it, make open wi-fi illegal outright, but might as well.

    The language of the SAFE Act doesn’t seem that far away, to my old eyes, from the language of the Communications Decency Act, way back in ’96.

    In any case, my argument here is against people who don’t know tech making laws regulating tech that contain huge loopholes through which unintended consequences can drive like trucks.

  9. Daithí says:

    I love the phrase on technology and economics. So true…

    However, I think the criticism of the original Cnet coverage (which I joined here, although not really adding anything all that new) is more to do with the tone and how the focus of criticism is on this particular bill. As I argued, the failure of this bill will not change the definition of the ‘provider of an electronic communications service or a remote computer service’, nor the fact that they already have a silly reporting obligation (the bill makes it sillier and increases the fine, but there already are big fines for non-compliance) , nor the overbroad definitions of what is considered illegal under US law. All of these things are already law so even if a well-meaning lawmaker was to heed the call to abandon this law, the trucks can still drive right through the loopholes – and that’s my biggest fear. Yes, this particular proposal does continue the march towards CDAism in US tech law but it is not a wild power-grab, rather a reflection of the state we are in…

  10. Doc, the writer of that article has a very long history of misrepresenting laws by taking passages out of context, giving them the most scary and alarmist spin imaginable, and when called on this, retreat back to talking about being concerned and it’s possible and we don’t want this scary and alarmist (WOLF WOLF! WOLF!) possibility to happen. That’s how you were tricked. Here’s you taking the bait:

    “Well, wtf is an “electronic communication service” or a “remote computing service provider”? This language is so broad that eager enforcement can be made to include anything …”

    No, that’s wrong. There’s extensive case law on both points.

    “The language of the SAFE Act doesn’t seem that far away, to my old eyes, from the language of the Communications Decency Act …”

    Because you’re being taken by a yellow journalist who is misrepresenting the context. The CDA was argued over for months and months where it was very clear it was intended to impose a far-reaching regulatory regime. This law was a minor reporting change, and the sponsor has been clear on that. In fact, that’s even addressed in the article, where the hype-monger dismisses that aspect in favor of his own fantasy as to the impact of the law. I would say that’s a very significant difference.

    I’ve said this before, but these common examples of sensationalism winning out over rational thought should show just how nonsensical is all the web-evangelism.

  11. Doc Searls says:


    If we subtract out concerns about senationalism, web evangelism, yellow journalism and various forms of bad behavior, a couple questions remain: 1) is this a good bill? 2) do we need it?

    What think ye?

  12. Mike Noone says:

    I believe that there may be some requirements for regulating the internet but they are minor by comparison to the damage that may be done to our rights to access information.

    Freedom of speech is enshrined in the constitution of the USA an dunfortunately much of that has already been eroded by the patriot act and other onerous legislation…

    At the end of the day, the public will be herded and rounded up in much the same way that they always have been

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