February 18, 2019

Archives for May 2009

A Modest Proposal: Three-Strikes for Print

Yesterday the French parliament adopted a proposal to create a “three-strikes” system that would kick people off the Internet if they are accused of copyright infringement three times.

This is such a good idea that it should be applied to other media as well. Here is my modest proposal to extend three-strikes to the medium of print, that is, to words on paper.

My proposed system is simplicity itself. The government sets up a registry of accused infringers. Anybody can send a complaint to the registry, asserting that someone is infringing their copyright in the print medium. If the government registry receives three complaints about a person, that person is banned for a year from using print.

As in the Internet case, the ban applies to both reading and writing, and to all uses of print, including informal ones. In short, a banned person may not write or read anything for a year.

A few naysayers may argue that print bans might be hard to enforce, and that banning communication based on mere accusations of wrongdoing raises some minor issues of due process and free speech. But if those issues don’t trouble us in the Internet setting, why should they trouble us here?

Yes, if banned from using print, some students will be unable to do their school work, some adults will face minor inconvenience in their daily lives, and a few troublemakers will not be allowed to participate in — or even listen to — political debate. Maybe they’ll think more carefully the next time, before allowing themselves to be accused of copyright infringement.

In short, a three-strikes system is just as good an idea for print as it is for the Internet. Which country will be the first to adopt it?

Once we have adopted three-strikes for print, we can move on to other media. Next on the list: three-strikes systems for sound waves, and light waves. These media are too important to leave unprotected.


Recovery Act Spending: Getting to the Bottom Line

Under most circumstances, government spending is slow and deliberate—a key fact that helps reduce the chances of waste and fraud. But the recently passed Recovery Act is a special case: spending the money quickly is understood to be essential to the success of the Act. We all know that shoppers in a hurry tend to get less value for their money. But, ironically, the overall macroeconomic impact of the stimulus (and hence the average stimulative effect per dollar spent) may be maximized by quick spending, even if the speed premium does increase the total amount of waste and abuse.

This situation creates a paradox for transparency and oversight efforts. On the one hand, the quicker pace of spending makes it all the more important to provide for public scrutiny, and to provide information in ways that will rapidly enable as many people as possible to take advantage of the stimulus opportunities available to them. On the other, the same rush that makes transparency important also reduces the time available for those within government to design and build an infrastructure for stimulus transparency.

One of the troubling tradeoffs that has been made thus far involves information about stimulus funds that flow from the federal government to states and then from states to localities. This pattern is rarer than you might think, since much of the Recovery Act spending flows more directly from federal agencies to its end recipients. But for funds that do follow a path from federal to state to local officials, recent guidance issued April 3 by the Office of Management and Budget (OMB) makes clear that the federal reporting infrastructure being created for Recovery.gov will not collect information about what the localities ultimately do with the funds.

OMB says that it does have the legal authority to require detailed reporting on “all levels of subawards,” reaching end recipients (Acme Concrete or whomever gets a contract or grant from the municipality at the end of the governmental chain). But in the context of its sprint to get at least some system into place as soon as possible (with the debut date for the Recovery.gov system already pushed back to October), OMB has left this deep-level reporting out of its immediate plans. The office says that it “plans to expand the reporting model in the future to also obtain this information, once the system capabilities and processes have been established.”

On Monday, ten congressmen sent a letter to OMB urging it to collect this detailed information “as early as possible.” One reason for OMB to formulate detailed operational plans in this area, as I argued in recent testimony before the House Committee on Oversight and Government Reform, is that clarity from the top will help states make competent choices about what if anything they should do to support or supplement the federal reporting. As the members of Congress write:

While it is positive that OMB goes on to reserve the right in the guidance to expand this reporting model in the future, it would seem exercising this right and requiring this level of reporting as early as possible would help entities prepare for the disclosures before projects begin and provide clarification for states as they begin investing in new infrastructure to track ARRA funds.

In the end, everyone agrees that this detailed information about subawards is important to have—OMB “plans to collect” it and the signatories to yesterday’s letter want collection to start “as soon as possible.” But how soon is that? We don’t really know. The details of hard choices facing OMB as it races to implement the Recovery.gov reporting system are themselves not public, and making them public might (or might not) itself slow down the development of the site. If no system were permitted to launch without fully detailed reporting of subawards, we might wait longer for the web site’s launch. How much longer? OMB might not itself be sure, since software development times are notoriously difficult to forecast, and OMB has never before been asked to build a system of this kind. OMB asserts that it’s moving as fast as it can to collect as much information as possible, and without slowing it down to ask for explanations, we can’t really check that assertion.

Transparency often reduces the degree to which citizens must trust public officials. But in this case, ironically, it seems most reasonable to operate on the optimistic but realistic assumption that the people working on Recovery Act transparency are doing their jobs well, and to hope for good results.

Breathalyzer Source Code Secrecy Endangers Minnesota Drunk Driving Convictions

The Minnesota Supreme Court ruled recently that defendants accused of drunk driving in the state are entitled to have their experts inspect the source code for the software in the Intoxilyzer breath-testing machines used by police to gauge the defendants’ blood alcohol levels. The defendants argued, successfully, that they were entitled to examine and challenge the evidence against them, including the design and functioning of devices used to generate that evidence.

The ruling puts many of the state’s drunk driving prosecutions on thin ice, because CMI, the Intoxilyzer’s maker, is withholding the source code and the state apparently has no way to force CMI to provide the code.

Eric Rescorla argues, reasonably, that breath testers have many potential failure modes unrelated to software, and that source code analysis can be labor-intensive and might not turn up any clear problems. Both arguments are valid, as far as they go.

I’m not a lawyer, so I won’t try to guess whether the court’s ruling was correct as a matter of law. But the ruling does seem right as a matter of policy. If we are troubled by criminal convictions relying on secret evidence, then we should also be troubled by convictions relying on evidence generated by a secret process. To the extent that the Intoxilyzer functions as a secret process, the state should not be relying on it in criminal prosecutions.

(Though I haven’t thought carefully about the question, I might potentially draw a different policy conclusion in a civil case, where the standard of proof is preponderance of evidence, rather than guilt beyond a reasonable doubt.)

The problem is illustrated nicely by a contradiction in the arguments that CMI and the state are making. On the one hand, they argue that the machine’s source code contains valuable trade secrets — I’ll call them the “secret sauce” — and that CMI’s business would be substantially harmed if its competitors learned about the secret sauce. On the other hand, they argue that there is no need to examine the source code because it operates straightforwardly, just reading values from some sensors and doing simple calculations to derive a blood alcohol estimate.

It’s hard to see how both arguments can be correct. If the software contains secret sauce, then by definition it has aspects that are neither obvious nor straightforward, and those aspects are important for the software’s operation. In other words, the secret sauce — whatever it is — must relevant to the defendants’ claims.

As in electronic voting, where we have seen similar secrecy arguments, one can’t help suspecting that the real “secret” is that the software quality is not what it should be. A previous study of source code from New Jersey breath testers did appear to find some embarrassing errors.

Let’s hope that breath tester companies can do better than e-voting companies. A rigorous, independent evaluation of the breath tester source code would either determine that the code is sound, or it would undercover problems that could then be fixed, to restore confidence in the machines. Either way, the police in Minnesota would end up with a reliable tool for giving drunk drivers the punishment they deserve.