January 13, 2025

Obama's CTO: two positions?

Paul Blumenthal over at the Sunlight Foundation Blog points to a new report from the Congressional Research Service: “A Federal Chief Technology Officer in the Obama Administration: Option and Issues for Consideration”.

This report does a good job of analyzing both existing positions in federal government that have roles that overlap with some of the potential responsibilities of an “Obama CTO” and the questions that Congress would want to consider if such a position is established by statute rather than an executive order.

The crux of the current issue, for me, is summed up well by this quote from the CRS report’s conclusion:

Although the campaign position paper and transition website provide explicit information on at least some of the duties of a CTO, they do not provide information on a CTO’s organizational placement, structure, or relationship to existing offices. In addition, neither the paper nor website states whether the president intends to establish this position/office by executive order or whether he would seek legislation to create a statutory foundation for its duties and authorities.

The various issues in the mix here lead me to one conclusion: an “Obama CTO” position will be very different from the responsibilities of a traditional chief technology officer. There seem to be at least two positions involved: one visionary and one fixer. That is, one person to push the envelope in a grounded-but-futurist style in terms of what is possible and then one person to negotiate the myriad of agencies and bureaucratic parameters to get things done.

As for the first position, I’d like to say a futurist would be a good idea. However, futurists don’t like to be tethered so much to current reality. A better idea is, I think, a senior academic with broad connections and deep interest and understanding in emerging technologies. The culture of academia, when it works well, can produce individuals who make connections quickly, know how to evaluate complex ideas and are good at filling gaps between what is known and not known for a particular proposal. I’m thinking a Felten, Lessig, etc. here.

As for the fixer, this desperately needs to be someone with experience negotiating complex endeavors between conflicting government fiefdoms. Vivek Kundra, the CTO for the District of Columbia, struck me as exactly this kind of person when he came to visit last semester here at Princeton’s CITP. When Kundra’s name came up as one of two shortlisted candidates for “Obama CTO”, I was a bit skeptical as I wasn’t convinced he had the appropriate visionary qualities. However, as part of a team, I think he’d be invaluable.

It could be possible that the other shortlisted candidate, Cisco’s Padmasree Warrior, would have enough of the visionary element to make up the other side of the team; I doubt she has (what I consider to be) the requisite governmental fixer qualities.

So, why not two positions? Does anyone have both these qualities? Do people agree that these are the right qualities?

As to how it would be structured, it’s almost as if it should be a spider position — a reference to a position in soccer that isn’t tethered by role. That is, they should be free from some of the encumbrances that make government information technology innovation so difficult.

Please participate in research project — requires only one click

As part of a research project on web browser security we are currently taking a “census” of browser installations. We hope you’ll agree to participate.

If you do participate, a small snippet of JavaScript will collect your browser’s settings and send them to our server. We will record a cryptographic hash of those settings in our research database. We will also store a non-unique cookie (saying only that you participated) in your browser. We will do all of this immediately if you click this link.

(If you want to see in advance the Javascript code we run on participants’ machines, you can read it here.)

[I revised this entry to be more clear about what we are doing. — Ed]

New Site Tests Crowd-Sourced Transparency

Some of my colleagues here at CITP have written about the importance of open data formats for promoting government transparency and achieving government accountability. Another leading thinker in this area is my friend Jerry Brito, a George Mason University scholar who contributed a post here at Freedom to Tinker last year. Jerry wrote one of the first papers on the importance of mashups using government data. Now, Jerry and a few collaborators have put his ideas into action by building a site called Stimulus Watch that will facilitate crowd-sourced analysis of the hundreds of billions of dollars of deficit spending that President Obama has made a centerpiece of his economic agenda.

Jerry and his collaborators parsed a report containing more than 10,000 “shovel ready” spending proposals from the nation’s mayors. Many of these proposals will likely be funded if Congress approves Obama’s spending bill. Using the site, ordinary Americans across the country can review the proposals in their own metropolitan areas and provide feedback on which proposals deserve the highest priority. As the site grows in popularity, it may prove extremely valuable for federal officials deciding where to allocate money. And if there are turkeys like the “Bridge to Nowhere” among the mayors’ requests, the site will allow citizens to quickly identify and publicize these proposals and perhaps shame government officials into canceling them.

District Court Ruling in MDY v. Blizzard

Today, an Arizona District Court issued its ruling in the MDY v. Blizzard case, which involves contract, copyright, and DMCA claims. The claims addressed at trial were fairly limited because the Court entered summary judgment on several claims last summer. In-court comments by lawyers suggest that the case is headed toward appeal in the Ninth Circuit. Since I served as an expert witness in the case, I’ll withhold comment in this forum at this time, but readers are free to discuss it.

The Supreme Court and Software Patents

I’m very excited that Doug Lichtman, a sharp law professor at UCLA, has decided to take up podcasting. His podcast, Intellectual Property Colloquium, features monthly, in-depth discussions of copyright and patent law. The first installment (mp3) featured a lively discussion between Lichtman and EFF’s inimitable Fred von Lohmann about the Cablevision decision and its implications for copyright law. November’s episode focused on In Re Bilski, the widely-discussed decision by the United States Court of Appeals for the Federal Circuit limiting patents on abstract concepts like software and business methods. The podcast featured two law professors, John Duffy (who argued the Bilski case before the Federal Circuit) and Rob Merges.

As I noted at the time it was decided, people care about Bilski largely because of what it says about legality of software patents. Software patents are intensely controversial, with many geeks arguing that the software industry would be better off without them. What I found striking about the conversation was that both guests (and perhaps the host, although he didn’t tip his hand as much) took it as self-evident that there needed to be patents on software and business methods. As one of the guests (I couldn’t tell if it was Merges and Duffy, but they seemed to largely agree) said around minute 47:

The easiest criticism of the [Bilski] opinion is that it invites this kind of somewhat pointless metaphysical investigation. What you say is “look, I’ve got an invention, I wrote some code, I’d like to a patent for that.” Why do we have to play this kind of sophomoric philosophical game of “well, what changes in the real world when my code runs?” The [Supreme Court] case law arose fairly early in the information technology revolution. We’re kind of stuck with this artifactual, residual overhang of physicality. It’s just the price we have to pay to get a software patent these days. Someday maybe it will drop away or wither away, but that’s where we find ourselves now.

On this view, the Supreme Court’s historical hostility toward patents on software is merely an historical accident—a “residual overhang” that we’d do well to get beyond. Guided by a strong policy preference for the patentability of software and business methods, Duffy and Merges seem to feel that the Federal Circuit should give little weight to Supreme Court decisions that they regard as out of touch with the modern realities of the software industry. After all, this is “just the price we have to pay to get a software patent these days.”

I don’t agree with this perspective. I’ve long sympathized with software patent critics such as Ben Klemens who argue that the Supreme Court’s precedents place clear limits on the patenting of software. But I thought it would be interesting to take a closer look at the Supreme Court’s classic decisions and talk to some patent scholars to see if I can understand why there are such divergent opinions about the Supreme Court’s jurisprudence. The result is a new feature article for Ars Technica, where I review the Supreme Court’s classic trilogy of software patent cases and ponder how those cases should be applied to the modern world.

Like most Supreme Court decisions, these three opinions are not the clearest in the world. The justices, like most of the legal profession, seem slightly confused about the relationships among mathematical algorithms, software, and computer programs. It’s certainly possible to find phrases in these cases that support either side of the software patent debate. However, a clear theme emerges from all three cases: mathematics is ineligible for patent protection, and software algorithms are mathematics. The high court struggled with what to do in cases where software is one part of an otherwise-patentable machine. But it’s hard to avoid the conclusion that many of the “pure” software patents that have generated so much controversy in recent years cannot be reconciled with the Supreme Court’s precedents. For example, it’s hard to read those precedents in a way that would allow Amazon’s famous “one-click” patent.

I also argue that this result is a good one from a public policy perspective. Software has several important properties that make it fundamentally different than the other categories of now-patentable subject matter. As Klemens points out, almost every significant firm has an IT department that creates software. That means that every significant firm is a potential target for software patent lawsuits. This is a very different situation than, say, pharmaceutical patents which only affect a tiny fraction of the American economy. Second, software is already eligible for copyright protection, rendering software patents largely redundant. Most important, we now have 15 years of practical experience with software patents, and the empirical results have not been encouraging. I don’t think it’s a coincidence that the explosion of patent litigation over the last fifteen years has been concentrated in the software industry.

As the Federal Circuit struggles to craft new rules for patent-eligible software patents, it should take a close look at the far more restrictive rules for patent eligibility that were applied in the 1970s and early 1980s.