May 23, 2022

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.

What's in the Secret VEIL Test Results?

I wrote last week about how the analog hole bill would mandate use of the secret VEIL technology. Because the law would require compliance with the VEIL specification, that spec would effectively be part of the law. Call me old-fashioned, but I think there’s something wrong when Congress is considering a secret bill that would impose a secret law. We’re talking about television here, not national security.

Monday’s National Journal Tech Daily had a story (subscribers only; sorry) by Sarah Lai Stirland about the controversy, in which VEIL executive Scott Miller said “the company is willing to provide an executive summary of test results of the system to anyone who wants them.”

Let’s take a look at that test summary. The first thing you’ll notice is how scanty the document is. This is all the testing they did to validate the technology?

The second thing you’ll notice is that the results don’t look very good for VEIL. For example, when they tested to see whether VEIL caused a visible difference in the video image, they found that viewers did report a difference 29% of the time (page 4).

More interesting, perhaps, are the results on removability of the VEIL watermark (page 2). They performed ten unspecified transformations on the video signal and measured how often each transformation made the VEIL watermark undetectable. Results were mixed, ranging from 0% success in removing the watermark up to 58%. What they don’t tell us is what the transformations (which they call “impairments”) were. So all we can conclude is that at least one of the transformations they chose for their test can remove the VEIL watermark most of the time. And if you have any experience at all in the industry, you know that vendor-funded “independent” studies like this tend to pick easy test cases. You have to wonder what would have happened if they had chosen more aggressive transformations to try. And notice that they’re refusing to tell us what the transformations were – another hint that the tests weren’t very strenuous.

The VEIL people have more information about all of these tests, but they are withholding the full testing report from us, even while urging our representatives to subject us to the VEIL technology permanently.

Which suggests an obvious question: What is in the secret portion of the VEIL testing results? What are they hiding?

Analog Hole Bill Would Impose a Secret Law

If you’ve been reading here lately, you know that I’m no fan of the Sensenbrenner/Conyers analog hole bill. The bill would require almost all analog video devices to implement two technologies called CGMS-A and VEIL. CGMS-A is reasonably well known, but the VEIL content protection technology is relatively new. I wanted to learn more about it.

So I emailed the company that sells VEIL and asked for a copy of the specification. I figured I would be able to get it. After all, the bill would make compliance with the VEIL spec mandatory – the spec would in effect be part of the law. Surely, I thought, they’re not proposing passing a secret law. Surely they’re not going to say that the citizenry isn’t allowed to know what’s in the law that Congress is considering. We’re talking about television here, not national security.

After some discussion, the company helpfully explained that I could get the spec, if I first signed their license agreement. The agreement requires me (a) to pay them $10,000, and (b) to promise not to talk to anybody about what is in the spec. In other words, I can know the contents of the bill Congress is debating, but only if I pay $10k to a private party, and only if I promise not to tell anybody what is in the bill or engage in public debate about it.

Worse yet, this license covers only half of the technology: the VEIL decoder, which detects VEIL signals. There is no way you or I can find out about the encoder technology that puts VEIL signals into video.

The details of this technology are important for evaluating this bill. How much would the proposed law increase the cost of televisions? How much would it limit the future development of TV technology? How likely is the technology to mistakenly block authorized copying? How adaptable is the technology to the future? All of these questions are important in debating the bill. And none of them can be answered if the technology part of the bill is secret.

Which brings us to the most interesting question of all: Are the members of Congress themselves, and their staffers, allowed to see the spec and talk about it openly? Are they allowed to consult experts for advice? Or are the full contents of this bill secret even from the lawmakers who are considering it?