April 16, 2014

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Software Customer Bill of Rights

Cem Kaner has written a Software Customer Bill of Rights. His general approach is to require that customers have roughly the same rights when they buy software as when they buy other products.

Much of what Kaner says makes sense. But at least one of his principles seems awfully hard to implement in practice:

2. Disclose known defects. The software company or service provider must disclose the defects that it knows about to potential customers, in a way that is likely to be understood by a typical member of the market for that product or service.

This is hard to implement because software products have so many defects – big mass-market software products typically have thousands of known defects. And this is not just the practice of one or two companies; it’s standard in the industry. If a vendors waited until all the defects were removed from a product, that product would never be finished and would never ship.

Some of the defects in software products are serious, but most are relatively minor. There is simply no way to explain them all to consumers. And sometimes it can be hard to tell in advance which defects will prove to be critical to customers.

Still, Kaner seems to be on the right track. It would be helpful if vendors disclosed the most serious known defects to their customers, so that customers could weight their impact in deciding which product to buy.

[Link credit: Dan Gillmor.]

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Business Week Interview

Business Week Online is running an interview with me, done by reporter Heather Green.

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Comments

I’m thinking about turning on the Comments feature, so that readers can react to my postings right here on the site. So far I haven’t allowed comments, because I prefer to get reader input by email; and I’m happy (at least in theory) to write followup posts that incorporate and react to reader comments. Lately, though, I have come to appreciate the comments feature on other blogs, so I’m thinking about using it myself.

Please give me your input on this issue. I have turned on Comments for this posting so you can do so.

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Trade Secrets and Free Speech

Yesterday the California Supreme Court issued its ruling in DVDCCA v. Bunner, a case pitting trade secrets against freedom of speech. The court ruled that an injunction against disclosure of a trade secret is valid, even though it restricts some speech.

The case relates to CSS, the encryption scheme used to scramble the data on DVDs. CSS was developed in secret, and an outfit called the DVD Copy Control Association (DVDCCA) claims that the details of CSS are its trade secret. Andrew Bunner posted DeCSS, a program that unscrambles CSS-encrypted content, on his web site. DVDCCA sued Bunner for misappropriating its trade secret. A lower court issued an injunction, ordering Bunner not to publish DeCSS. Bunner appealed, arguing that the injunction violated his free speech right.

The lower court ruled that Bunner knew (or should have known) that CSS was a trade secret, and that Bunner knew (or should have known) that the original source of DeCSS had gotten the trade secret improperly. I think these factual findings were highly questionable, but the Court accepted them for the purposes of its decision. So the issue before the state Supreme Court was merely whether an injunction against publishing a trade secret violates freedom of speech. The Court ruled that it does not, at least not when the speech is software code.

Why does it matter that the speech is software code? As Seth Finkelstein points out, the Court seemed to say that software code cannot be of public concern, because only experts can read it:

DVD CCA’s trade secrets in the CSS technology are not publicly available and convey only technical information about the method used by specific private entities to protect their intellectual property. Bunner posted these secrets in the form of DeCSS on the Internet so Linux users could enjoy and use DVD’s and so others could improve the functional capabilities of DeCSS. He did not post them to comment on any public issue or to participate in any public debate. Indeed, only computer encryption enthusiasts are likely to have an interest in the expressive content– rather than the uses–of DVD CCA’s trade secrets. (See Tien, Publishing Software as a Speech Act, supra, 15 Berkeley Tech. L.J. at pp. 662-663 ["Programming languages provide the best means for communicating highly technical ideas–such as mathematical concepts–within the community of computer scientists and programmers"].) Thus, these trade secrets, as disclosed by Bunner, address matters of purely private concern and not matters of public importance. …

This seems like a pretty odd position to take. Information about Enron’s finances is of public concern, even though only accountants can interpret it in its raw form. Information about the Space Shuttle wing structure is of public concern, even though only a few engineers understand it fully. CSS is a controversial technology, and information about how it works is directly relevant to the debate about it. True, many people who are interested in the debate will have to rely on experts to explain the relevant parts of DeCSS to them; but the same is true of Enron’s accounting or the Shuttle’s engineering.

Odder still, in my view, is the notion that because DeCSS is directly useful to members of the public, it is somehow of less public concern than a purely theoretical discussion would be. It seems to me that the First Amendment protects speech precisely because the speech may have an effect on what people think and how they act. To suppress speech because of its impact seems to defeat the very purpose of the free speech guarantee.

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It’s Ten O’Clock. Do You Know What Your Computer is Doing?

Last week saw a scary story about a British man who was acquitted of the charge of possessing child pr0n. [Deliberate misspelling to keep dumb censorware tools from blocking this site. But some censorware programs will block this anyway. Heavy Sigh.] The illegal material was on the man’s computer, but he argued that an intruder had put it there, and he presented evidence to support that defense.

Although I have no special knowledge of his particular case, I know the kind of scenario he described does really happen. At least two innocent people I know have had their computers turned by intruders into pr0n distributors.

The lesson of these incidents is that we have less control over our computers than we have over our physical territory. Nobody would turn a file drawer in your office into a distribution center for contraband; but they might do that to your computer. Inevitably, innocent people will be accused of crimes, and they will suffer, even if they are eventually acquitted. And of course, some real bad guys will get away with crimes by blaming them on nonexistent intruders.

The best way to address this kind of problem is to make sure that people retain control – in practice as well as in theory – over their own computers. When we erode that control, whether we do so by technical or legal means, we are making the bad guys’ jobs easier.

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Bizarro Compliments

To a technologist, law and policy debates sometimes seem to be held in a kind of bizarro world, where words and concepts lose their ordinary meanings. Some technologists never get used to the bizarro rules, but some us of do catch on eventually.

One of the bizarro rules is that you should be happy when the other side accuses you of lying or acting in bad faith. In the normal world, such accusations will make you angry; but in bizarro world they indicate that the other side has lost confidence in its ability to win the argument on the merits. And so you learn to swallow your outrage and smile when people call you a scoundrel.

Which brings us to Brigid Schulte’s electronic voting article in this morning’s Washington Post. The article reports that the computer scientists’ campaign for more secure (and less secret) electronic voting technology is getting some real traction, especially in light of the recent Johns Hopkins report detailing severe flaws in a Diebold e-voting product. The computer scientists’ progress is certified, bizarro style, by none other than the head of the Federal Election Commission’s Office of Electrion Adminstration:

“The computer scientists are saying, ‘The machinery you vote on is inaccurate and could be threatened; therefore, don’t go. Your vote doesn’t mean anything,’ ” said Penelope Bonsall, director of the Office of Election Administration at the Federal Election Commission. “That negative perception takes years to turn around.”

You can’t buy that kind of bizarro endorsement!

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Guided Voting

Eugene Volokh offers an interesting post on “guided voting,” a simple idea with important implications.

Voters often rely on the recommendations of others, such as political parties, interest groups, or well-informed individuals. For example, if I have a friend on the local school board and I trust her judgment about school-board matters, I might follow her advice about how to vote in the next school board election. This may be a perfectly rational decision for me to make – my friend’s choices may advance my beliefs more than my own decisions would, if the differences between her political views and mine are outweighed by her superior understanding of school board issues. Many voters would probably feel the same way about taking voting advice from political parties or interest groups.

Prof. Volokh suggests that if voting is done over the Net, then some centralized web site could provide guided voting services to users. The user would tell the site how his vote should be determined, and the site would then prepare a little computer program designed to cast the user’s votes in accordance with his preferences. A voter might choose to accept advice from several sources, with some procedure for resolving disagreements among those sources.

From a purely technical standpoint, guided voting could be used with any voting technology. With non-electronic technology, a guided voting service could print out a sort of checklist that the voter could take into the voting booth. With electronic voting technology, the guided voting service could print out some kind of bar code, which the voter might feed into a scanner in the voting booth.

This might seem at first like a questionable idea, but it doesn’t differ much from what many people already do. Most people make up their minds before they reach the polling place. And most people, I would expect, rely heavily on the recommendations of others in deciding how to vote. Guided voting is just another step down a well-trodden road.

The more problematic aspect of Prof. Volokh’s post is in his suggestion that recommenders collect and use statistics about how many votes they are influencing.

Moreover, guided voting would for the first time let groups actually measure exactly how influential its recommendations are. The [system’s] organizers can tell each group how many voters in each district followed its recommendation. They can even count the votes in which this group’s recommendation made the difference, rather than just being redundant of the other recommendations that the voter was following.

So when group X comes to a legislator to lobby him about some issue, it won’t just say “We have 2000 members in your district” or “We’ll spend $30,000 in your district on this issue.” Rather, it will for the first time be able to say “Our recommendation last election changed 15,000 votes in your district. What will you do to make sure that we recommend you next time?”

These kinds of statistics are not a necessary consequence of guided voting. Although Prof. Volokh’s centralized-website system would gather these statistics, a less centralized guided voting system need not do so. And in my view, it’s important to maintain the secrecy of each vote, so that nobody can tell for sure who is voting for which candidate.

In any case, some kind of guided voting seems inevitable, given the complexity of many ballots and the advance of technology.

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Email Redesign Not Helpful

Some have argued that we can address the spam problem by redesigning SMTP, the basic email-handling protocol used on the Net. Eric Rescorla rebuts that argument with a clear and cogent explanation of why the real problems lie elsewhere. Required reading for those who want to understand what can be done about spam.

The case for replacing SMTP (which Eric rebuts) reflects a general fallacy about the Internet. The fallacy goes like this: the Internet was not originally designed with security in mind; the Internet as designed fails to provide some desired security guarantee; therefore if we redesign the Internet we can achieve the desired guarantee. The error, of course, is in the hidden assumption that the desired guarantee is achievable at all. In the case of spam, there doesn’t seem to be a technical solution.

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Revisionism

Seth Finkelstein points to a rather sloppy analysis by Peter Davies of the Felten v. Recording Industry lawsuit. There is enough of this sort of thing going around that I feel compelled to rebut it.

[Background on the lawsuit: In 2001, recording industry organizations threatened to sue me and seven of my colleagues if we published a paper we had written that discussed certain technology. They argued that publishing the paper would violate the Digital Millennium Copyright Act. We filed a lawsuit, asking the court to rule on the question of whether our publication of the paper would be legal.]

For starters, Davies gets basic facts wrong. He says that the International Information Hiding Workshop, at which we wanted to publish our paper, was organized by the recording industry. In fact, it was an independent, refereed scientific conference.

Amazingly, Davies also misstates the final resolution of our case, saying that “[t]he case was settled in the end without a result.” In fact, no settlement was agreed to by the parties. After we filed our lawsuit, the recording industry parties conceded our right to publish our paper, which was the main result we sought. Once we had the right to publish the paper, our constitutional challenge to the DMCA was dismissed as moot.

Davies appears to think that we should just have gone ahead with publishing our paper, daring the recording industry to sue us. Seth Finkelstein rightly criticizes him for this.

To people like Davies, the Felten case is just an abstract topic for speculation. Let me assure you cases like this look much different if you are Felten (or any of the other would-be defendants: Bede Liu, Scott Craver, Min Wu, Dan Wallach, Ben Swartzlander, Adam Stubblefield, and Drew Dean).

I am happy to admit that if we had gone ahead and published the paper without any lawsuit, the odds were only 50/50 that we would have been sued, and we probably would have won the lawsuit.

Probably, I would have kept my house.

Probably, I would have kept my job.

When it’s not your house on the line, when it’s not your job, then probably may be enough. To people like Davies, who had nothing personally at risk, a lawsuit would have been no more than a scholarly conversation piece.

For me and my colleagues, probably wasn’t enough. Even a 99% chance of getting to keep our houses and savings wasn’t enough. Nor should it be. I am still outraged when people like Davies suggest that it’s not a problem if researchers have to put so much at risk just to write or speak on certain topics of public interest.

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Bring on the Subpoena-Bots!

A few years ago I was summoned for jury duty. The summons was an old-fashioned computer-printed document spit out by an IBM mainframe computer down at the county courthouse. Procedural rules required that prospective jurors be chosen by an officer of the court, so a judge had apparently deputized the mainframe as an officer of the court. For some reason I found this concept, of a computer as deputized legal officer, endlessly amusing.

Now the same concept is being applied at the Federal level. But in this case the computer isn’t even owned and run by the court. It’s run by the recording industry.

The recording industry, you see, is barraging the Federal courts with requests for subpoenas to compel Internet Service Providers to identify their customers who are alleged to be offering copyrighted music for download. Seth Schoen has read many of these subpoenas and he reports that “they’re obviously generated by a script”, that is, by a computer program.

Congress created the special subpoena provision that the RIAA is using here, a provision that requires the court to rubber-stamp any subpoena request made by a copyright holder who claims to have a good-faith belief that its copyrights are being infringed. Given this relatively low standard for issuance of a subpoena, the advent of subpoena-bots should come as no surprise.

Of course, big copyright owners aren’t the only people allowed to use subpoena-bots. Virtually everything that anybody writes is copyrighted, so this subpoena power is available to every writer or artist, even down to the humblest newbie blogger. Want to know who that anonymous critic is? No problem; send your subpoena-bots after them.