February 28, 2017

Archives for July 2003

Conflict of Interest

Several readers have asked about the big project that has kept me from blogging much this summer. The “project” involved expert witness testimony in a lawsuit, Eolas Technologies and University of California v. Microsoft. I testified as an expert witness, called by the plaintiffs. (The case is ongoing.)

In some alternative universe, this lawsuit and my work on it would have provided fodder for many interesting blog posts. But, as so often happens here in this universe, I can’t really talk or write about most of it.

It’s depressing how often this kind of thing happens, with direct knowledge of a topic serving to disqualify somebody from talking about it. Many conflict of interest rules seem to have this effect, locking out of a discussion precisely those people who know the topic best.

The same thing often happens in discussions with the press, where people who are connected to an issue has to speak especially carefully, because their words might be attributed indirectly to one of the participants. The result can be that those unconnected to the events get most of the ink.

Now I understand why these rules and practices exist; and in most cases I agree that they are good policy. I understand why I cannot talk about what I have learned on various topics. Still, it’s frustrating to imagine how much richer our public discourse could be if everybody were free to bring their full knowledge and understanding to the table.

[I remember an interesting old blog post on a related topic from Lyn Millett over at uncorked.org; but I couldn’t find her post when I was writing this one.]

Here We Go Again

Rep. John Conyers has introduced the Author, Consumer, and Computer Owner Protection and Security (ACCOPS) Act of 2003 in the House of Representatives.

The oddest provision of the bill is this one:

(a) Whoever knowingly offers enabling software for download over the Internet and does not–

(1) clearly and conspicuously warn any person downloading that software, before it is downloaded, that it is enabling software and could create a security and privacy risk for the user’s computer; and

(2) obtain that person’s prior consent to the download after that warning;

shall be fined under this title or imprisoned not more than 6 months, or both.

(b) As used in this section, the term `enabling software’ means software that, when installed on the user’s computer, enables 3rd parties to store data on that computer, or use that computer to search other computers’ contents over the Internet.

As so often happens in these sorts of bills, the definition has unexpected consequences. For example, it would apparently categorize Microsoft Windows as “enabling software,” since Windows offers both file server facilities and network search facilities. But the original Napster client, lacking upload and search facilities, would not be “enabling software.”

Note also that the mandated security and privacy warnings would be misleading. After all, there is no reason why file storage or search services are inherently riskier than other network software. Misleading warnings impose a real cost, since they dilute users’ trust in any legitimate warnings they see.

The general approach of this bill, which we also saw in the Hollings CBDTPA, is to impose regulation on Bad Technologies. This approach will be a big success, once we work out the right definition for Bad Technologies.

Imagine the simplification we could achieve by applying this same principle to other areas of the law. For example, the entire criminal law can be reduced to a ban on Bad Acts, once we work out the appropriate definition for that term. Campaign finance law would be reduced to a ban on Corrupting Financial Transactions (with an appropriate exception for Constructive Debate).

Back in the Saddle

I haven’t been posting much lately, due to a high-intensity project that has sucked up all of my time. But now that’s over, so I should return to normal posting pace soon.