November 18, 2018

Analog Hole Bill Requires "Open and Public" Discussion of Secret Technology

Today I want to return to the Sensenbrenner-Conyers analog hole bill, which would impose a secret law – a requirement that all devices that accept analog video inputs must implement a secret technical specification for something called a VEIL detector. If you want to see this specification, you have to pay a $10,000 fee to a private company and you have to promise not to tell anyone about the technology. It’s pretty disturbing that our representatives would propose this kind of secret law.

But what is really odd about the secret technology is that the bill itself seems to assume that it is not secret. Consider, for example, Section 105:

If, upon the petition of any interested party, the Director of the Patent and Trademark Office determines that [VEIL] has become materially ineffective in a way that cannot be adequately remedied by existing technical flexibility in the embedding functions of [VEIL], then the Director may by rule adopt commercially reasonable improvements to the detection function of [VEIL] in order to maintain the functionality of the rights signaling system under this Act. Any such improvements shall be limited to adjustments or upgrades solely to the same underlying VEIL technology …

In [the above-described rulemaking], the Director … shall encourage representatives of the film industry, the broadcast, cable, and satellite industry, the information technology industry, and the consumer electronics industry to negotiate in good faith in an effort to reach agreement on the … improvements to [VEIL] to be adopted in the rule. The Director shall ensure that such negotiation process is open and public and that all potentially affected parties are invited to participate in the process through public notice. The Director shall cause any agreement for which there is substantial consensus of the parties on all material points to be published and shall take such agreement into account in any final rule adopted.

This process cannot be “open and public”, and an agreement on how the VEIL technology should be changed cannot be published, if the VEIL technology is secret. You can’t have a negotiation about how VEIL might be fixed, if the parties to that negotiation have promised not to disclose how VEIL works. And you can’t meaningfully invite members of the public to participate in the negotiation if they aren’t allowed to know about the subject being negotiated.

But that’s not all. The rulemaking will happen if somebody files a petition that convinces the Patent Office that VEIL “has become materially ineffective in a way that cannot be adequately remedied by existing technical flexibility in the embedding function” of VEIL.

The embedding function of VEIL is the gizmo that puts VEIL watermarks into video that is going to be distributed. It is separate from the detection function, which detects the presence or absence of a VEIL watermark in video content. The bill mandates that all analog video devices must include the detection function, so it is the detection function that one could learn about by paying the fee and taking the secrecy pledge.

But the embedding function of VEIL is entirely secret, and is not being revealed even to people who pay the fee and take the pledge. As far as I know, there is no way at all for anyone other than the VEIL company to find out how the embedding function works, or what kind of “existing technical flexibility” it might have. How anyone could petition the Patent Office on that subject is a mystery.

In short, the rulemaking procedure in Section 105 is entirely inconsistent with the secrecy of VEIL. How it got into the bill is therefore a pretty interesting question. Reading the bill, one gets the impression that it was assembled from prefab parts, rather than reflecting a self-consistent vision of how a technology mandate might actually work.

Comments

  1. shall encourage representatives of the film industry, the broadcast, cable, and satellite industry, the information technology industry, and the consumer electronics industry to negotiate in good faith

    What’s also telling is that consumer advocates, librarians and archivists, and other people with an interest in fair use access to copyrighted material are immediately relegated to a second class of participant whose invitation is not guaranteed. As a TV viewer with a custom-built PVR that I hope to use for years to come, should I be watching my mailbox so I can RSVP in time? Or, more importantly, will organizations and people that represent my interests (like EFF, Consumers Union, Ed Felten, or maybe even a MythTV Users Group) be invited to the party?

  2. Not to mention that if VEIL becomes a national standard DRM, it will become an immediate target for piracy. What qualifies as “ineffective”? Nobody browsing this page is naive enough to believe that any DRM will hold under that kind of scrutiny. VEIL, and any other DRM granted a national monopoly, will be reverse engineered and remedied with a widely distributed piece of software very shortly after its release. And it’s likely that this software will NOT be illegal either.

    I have a friend who does work in video using Pinnacle Studio, a CONSUMER PRODUCT that can export video from ANALOG CAMERAS, and is subject to the VEIL requirement. In order to work, that software will need a way to circumvent implementing VEIL, as will any other consumer video software that was designed for homemade work. The same workarounds could rip analog video or audio, and would could wind up in any piece of software that used to convert analogue content beforehand.

    I doubt anyone has the nerve to prosecute a person for circumventing DRM on content they own, so ownership of such software is justified.

  3. It might be interesting to contrast this with the process leading to the adoption of the AES encryption standard.

  4. the zapkitty says:

    Karl-Friedrich Lenz Says:

    “It might be interesting to contrast this with the process leading to the adoption of the AES encryption standard. “

    An interesting comparison, but the media companies that have purchased this law from our congress want their snake oil implemented and shoved down the government’s throat NOW… not after 5 years of review and standardization.

    Because, of course, it did not withstand even 5 days of review here in a blog commentary and because, of course, this ill-conceived hodgepodge cannot be standardized in any sense applicable to the real world .

    But “sense”, “applicable”, and “real world” go out the window when millions in campaign contributions are dangled in front of congresscritters’ noses…

  5. If this law comes from the “best government money can buy”, then someone is getting royally ripped off.

  6. It’s not what’s in the legislation that matters. It’s what’s in the brown envelopes.

  7. More importantly, why is the Patent and Trademark Office handling an issue for which they have no experience. This is an FCC matter, pure and simple. The PTO does not have any mechanism for this type of rulemaking, and is already swamped. In fact, I don’t believe that 37 U.S.C. gives the PTO any of the authority necessary for this type of rulemaking, since the PTO is expressly restricted from making rules on anything except its own policies and procedures.

  8. the zapkitty says:

    Because the FCC would have been required to give expert technological advice…?

    Such advice, if honestly given, would have done this particular brand of snake oil no good at all…

  9. wvhillbilly says:

    Yikes! Sounds like media moguls’ wet dreams to me.

    Unfortunately with the present system of lobbying and campaign contributions, I see little hope of stopping this sort of thing.

    The only way I can think of to get rid of this sort of undue corporate influence would be to have all campaign contributions go into a non-partisan, independently administered fund which would then be distributed equally to all candidates. However given the corrupt nature of the present system, I see little likelihood of this or any thing remotely resembling this happening.