Teen who battled Microsoft donates defense fund to charity

VICTORIA, British Columbia (AP) — A teenager who tangled with Microsoft over his Internet domain name has donated most of his legal defense fund to a hospice for terminally ill children.

Mike Rowe said Monday the $7,000 (US$5,250) he gave to Canuck Place came from scores of people around the world after Microsoft threatened him with legal action over his Internet domain name, www.mikerowesoft.com.

Supporters donated about $8,000 (US$6,000). Rowe kept $1,000 (US$750) to apply to his university education and received $1,300 (US$975) from an eBay auction of his legal papers.

Most of those who responded to an Internet poll favored giving the leftover money to charity over making refunds.

The battle was joined briefly in January when Microsoft sent Rowe a 25-page letter that accused him of copyright infringement and threatened legal action.

Rowe and Microsoft settled amicably with the software giant agreeing to provide the teen with an Xbox and other gifts, help him get Microsoft certification training and cover the cost of changing the domain name and of redirecting traffic from the old site.

As of Wednesday morning his Web site could be accessed at either the old domain name or at www.mikeroweforums.com.

Rowe said he hopes to attend the University of Victoria this fall.

Cable taps into wiretap law

At least one cable operator is starting to comply with a federal law that has long required telecommunications carriers to help police conduct electronic surveillance, according to a source familiar with the company's plans.

Time Warner Cable is the first cable company to begin trying to adhere to the Communications Assistance For Law Enforcement Act, the source said. Cable companies are not yet required to comply with the 1994 wiretap law, but they see the writing on the wall.

Vernon Irvin, executive vice president at security vendor VeriSign, said during a recent interview that his company had signed a deal with a "major cable operator" in the United States to help it follow CALEA. He did not identify the provider, but the source tagged Time Warner as the company. A Time Warner representative did not have an immediate comment.

Irvin, however, did assert that other cable companies are sure to follow. That's because the FBI has made public a far-reaching proposal to require all broadband Internet providers--including cable modem and digital subscriber line (DSL) companies--to restructure their networks to support easy wiretapping by police.

"The cable guys aren’t waiting," Irvin said.

The FBI's proposal would, for the first time, force cable providers that sell broadband to come under the jurisdiction of 1994's CALEA, which further defined the already-existing statutory obligations of telecom carriers to help police conduct electronic surveillance. Telephone companies that use their networks to sell broadband have already been following CALEA rules.

Because the eavesdropping proposal has the support of the Bush administration, the Federal Communications Commission is expected to take it very seriously. Last month, FCC Chairman Michael Powell stressed that "law enforcement access to IP-enabled communications is essential" and that police must have "access to communications infrastructure they need to protect our nation."

Irvin said that details of the VeriSign deal will be announced next week.

FBI adds to wiretap wish list

A far-reaching proposal from the FBI, made public Friday, would require all broadband Internet providers, including cable modem and DSL companies, to rewire their networks to support easy wiretapping by police.

Bottom line:
If approved as drafted, the proposal could dramatically expand the scope of the agency's wiretap powers, raise costs for cable broadband companies and complicate Internet product development.

More stories on this topic
The FBI's request to the Federal Communications Commission aims to give police ready access to any form of Internet-based communications. If approved as drafted, the proposal could dramatically expand the scope of the agency's wiretap powers, raise costs for cable broadband companies and complicate Internet product development.

Legal experts said the 85-page filing includes language that could be interpreted as forcing companies to build back doors into everything from instant messaging and voice over Internet Protocol (VoIP) programs to Microsoft's Xbox Live game service. The introduction of new services that did not support a back door for police would be outlawed, and companies would be given 15 months to make sure that existing services comply.

"The importance and the urgency of this task cannot be overstated," says the proposal, which is also backed by the U.S. Department of Justice and the Drug Enforcement Administration. "The ability of federal, state and local law enforcement to carry out critical electronic surveillance is being compromised today."

Because the eavesdropping scheme has the support of the Bush administration, the FCC is expected to take it very seriously. Last month, FCC Chairman Michael Powell stressed that "law enforcement access to IP-enabled communications is essential" and that police must have "access to communications infrastructure they need to protect our nation."

The request from federal police comes almost a year after representatives from the FBI's Electronic Surveillance Technology Section approached the FCC and asked that broadband providers be required to provide more efficient, standardized surveillance facilities. Such new rules were necessary, the FBI argued, because terrorists could otherwise frustrate legitimate wiretaps by placing phone calls over the Internet.

"It is a very big deal and will be very costly for the Internet and the deployment of new technologies," said Stewart Baker, who represents Internet providers as a partner at law firm Steptoe & Johnson. "Law enforcement is very serious about it. There is a lot of emotion behind this. They have stories that they're very convinced about in which they have not achieved access to communications and in which wiretaps have failed."

Broadband in the mix
Broadband providers say the FBI's request would, for the first time, force cable providers that sell broadband to come under the jurisdiction of 1994's Communications Assistance for Law Enforcement Act (CALEA), which further defined the already existing statutory obligations of telecommunications carriers to help police conduct electronic surveillance. Telephone companies that use their networks to sell broadband have already been following CALEA rules.

"For cable companies, it's all new," said Bill McCloskey, a BellSouth spokesman.

Several cable providers, including Comcast, Time Warner Cable and Cablevision Systems, had no immediate comment on the FBI's request.

The FBI proposal would also force Vonage, 8x8, AT&T and other prominent providers of broadband telephone services to comply with CALEA. Executives from these companies have said in the past that they all intend to comply with any request law enforcement makes, if technically possible.

Broadband phone service providers say they are already creating a code of conduct to cover some of the same issues the FBI is addressing--but on a voluntary basis, according to Jeff Pulver, founder of Free World Dialup. "We have our chance right now to prove to law enforcement that we can do this on a voluntary basis," Pulver said. "If we mandate and make rules, it will just complicate things."

Under CALEA, police must still follow legal procedures when wiretapping Internet communications. Depending on the situation, such wiretaps do not always require court approval, in part because of expanded wiretapping powers put in place by the USA Patriot Act.

A Verizon representative said Friday that the company has already complied with at least one law enforcement request to tap a DSL line.

This week's proposal surprised privacy advocates by reaching beyond broadband providers to target companies that offer communications applications such as instant-messaging clients.

"I don't think it's a reasonable claim," said Marc Rotenberg, director of the Electronic Privacy Information Center. "The FCC should seriously consider where the FBI believes its authority...to regulate new technologies would end. What about Bluetooth and USB?"

Baker agrees that the FBI's proposal means that IP-based services such as chat programs and videoconferencing "that are 'switched' in any fashion would be treated as telephony." If the FCC agrees, Baker said, "you would have to vet your designs with law enforcement before providing your service. There will be a queue. There will be politics involved. It would completely change the way services are introduced on the Internet."

As encryption becomes glued into more and more VoIP and instant-messaging systems like PSST, X-IM and CryptIM, eavesdropping methods like the FBI's Carnivore system (also called DCS1000) become less useful. Both Free World Dialup's Pulver, and Niklas Zennstrom, founder of Skype, said last month that their services currently offer no easy wiretap route for police, because VoIP calls travel along the Internet in tens of thousands of packets, each sometimes taking completely different routes.

Skype has become a hot button in the debate by automatically encrypting all calls that take place through the peer-to-peer voice application.

The origins of this debate date back to when the FBI persuaded Congress to enact the controversial CALEA. Louis Freeh, FBI director at the time, testified in 1994 that emerging technologies such as call forwarding, call waiting and cellular phones had frustrated surveillance efforts.

Congress responded to the FBI's concern by requiring that telecommunications services rewire their networks to provide police with guaranteed access for wiretaps. Legislators also granted the FCC substantial leeway in defining what types of companies must comply. So far, the FCC has interpreted CALEA's wiretap-ready requirements to cover only traditional analog and wireless telephone service, leaving broadband and Internet applications in a regulatory gray area.

Under the FBI's proposal, Internet companies would bear "sole financial responsibility for development and implementation of CALEA solutions" but would be authorized to raise prices to cover their costs.

By FCC standards, Oprah more dangerous than Stern

'I've seen the future and it is John Tesh ... music. Pre-recorded.'' -- Sandra Tsing Loh, a 42-year-old mother of two, who was fired from her weekly public radio gig after an engineer forgot to bleep the f-word from a recorded bit about Bette Midler.

This is how insane things have become: One morning last week, the general manager for the flagship station of Howard Stern's radio show told Stern not to play an excerpt from ''Oprah'' because the salacious content could result in a massive fine from the FCC.

Again: Oprah was deemed too racy and risky for Stern.

I've studied the transcripts of the ''Oprah'' show in question, and the sad thing is that the GM made the correct call, given the current reactionary environment. In fact, Stern has just been hit with a $27,500 fine from the FCC for a three-year-old show in which he discussed the same subject matter that came up on a rebroadcast of ''Oprah'' last week.

In both cases, the hosts were talking in graphic detail about creative slang terms for unusual sexual activity. If anything, the ''Oprah'' stuff was more ''obscene.''

So why is the FCC targeting Stern but leaving Oprah alone?

In the meantime, John Tesh, the former ''Entertainment Tonight'' anchor, was being interviewed on TV recently about crackdowns on ''offensive'' material on the airwaves.

''I'm very excited [about the crackdowns]!'' said Tesh.

Tesh would have been a big fan of Russia circa 1955 as well.

You want to talk about offensive material? Have you heard the schmaltzy crap Tesh composes and performs? I think we should ban all Tesh music before it turns us into a nation of candle-lighting, zombified wimps.

Freedom of choice

Ah, but if I don't want to hear Tesh's music (or his radio show), I don't have to rely on Congress to be my Big Brother. All I have to do is make the choice to avoid it. Tesh and his ilk just don't get that they can make the same choices regarding programming THEY consider offensive.

Good for Mancow for suing that obsessed guy who seems to be devoting his life to filing FCC complaints about the Cow's radio show. But whether you have a Mancow tattoo on your arm or you'd rather eat dirt than listen to him, shouldn't that be up to you?

I'm a Howard Stern fan, but I know people who can't stand him. Somehow, without government ''assistance,'' they've managed to avoid Stern in the same way that others evade the sound of Rush Limbaugh's voice.

Not that the debate should be about individual tastes. I'd rather hear Freddy Krueger drag his nails across a chalkboard than listen to the lunatic ravings of Ann Coulter -- but if there was a government-endorsed movement to silence Coulter, I'd be the first in line to protest on her behalf. This is America, and even a stick-thin harridan with an irrational hatred of liberals deserves to be heard! Life in America in 2004 shouldn't be so different from life in America in 2003 just because Janet Jackson's nipple-shielded breast flopped out on TV for a second.

As for the standard counter-argument that the airwaves ''belong to the public'' -- I couldn't agree more, and there's already a device in place to keep track of such things. It's called the ratings book, and a hell of a lot more people prefer Howard Stern to the likes of John Tesh.

The FCC won't let me be

Now that the FCC has the power to levy fines of up to A HALF MILLION DOLLARS for a single indecency infraction, adult-oriented hosts are engaging in self-censorship, lest they be hit with career-ending fines. Already the FCC has proposed a $247,000 fine for ''Elliot in the Morning,'' a Washington, D.C., jock, for his ''graphic and explicit'' comments about porn star Ron Jeremy.

Jeez. You can plead guilty to a variety of felonies in this country and you might be able to avoid jail time by doing community service and paying fines -- but the fines are nowhere near as huge as the suggested financial penalties for talking about sex on the radio.

Yet even some journalists are applauding the New Dark Ages. Syndicated columnist Kathleen Parker wrote: ''As a big fan of the 1st Amendment, I'm as reluctant as anyone to urge curbs on speech'' -- and then she urged curbs on speech.

''In the free marketplace, you're welcome to say whatever you like, but if the people don't want to buy what you're selling, no whines,'' wrote Parker.

Huh? Who are these ''people'' who don't want to buy what Stern, Mancow, et al, are selling? Certainly not the millions of listeners who made these guys so popular.

''As long as the airwaves remain in the public domain, the public has a right through the government to stifle the profane rants and juvenile outbursts of our lesser-evolved brethren,'' wrote Parker. ''Ain't democracy grand?''

Yes. It is. That's why we're fighting for it. Now please explain to me how the FCC's draconian actions fit into any working definition of democracy.

Oregon county bans all marriage

PORTLAND, Oregon (Reuters) -- In a new twist in the battle over same-sex marriage roiling the United States, a county in Oregon has banned all marriages -- gay and heterosexual -- until the state decides who can and who cannot wed.

The last marriage licenses were handed out in Benton County at 4 p.m. local time (7:00 p.m. EST) Tuesday. As of Wednesday, officials in the county of 79,000 people will begin telling couples applying for licenses to go elsewhere until the gay marriage debate is settled.

"It may seem odd," Benton County Commissioner Linda Modrell told Reuters in a telephone interview, but "we need to treat everyone in our county equally."

State Attorney General Hardy Myers said in a statement that he was "very pleased" with Benton County's decision. "It is my sincere hope that the legal process will provide clarity for each of Oregon's counties."

The three County commissioners had originally decided to start handing out gay marriage licenses this week but on Monday reversed that decision amid a growing firestorm of lawsuits across the country, and decided instead to put a temporary halt to all marriages.

Rebekah Kassell, a spokeswoman for Basic Rights Oregon, a pro-gay marriage group, told Reuters; "It is certainly a different way for county commissioners to respect their constitutional obligation to apply the law equally to everyone.

"We appreciate that they are willing to say they are not going to participate in discrimination."

Tim Nashif, the spokesman for the Defense of Marriage Coalition, said; "Oregon not only has the only county in the nation issuing illegal (same-sex) marriage licenses, we probably have the only county in the nation refusing to issue marriage licenses at all."

"We are happy Benton County is not going to violate the law by issuing illegal marriage licenses, but we are perplexed as to why they would not issue legal licenses," he added.

Benton County, whose county seat is Corvallis, is home to Oregon State University and is seen as a bastion of liberalism.

Meanwhile, the American Civil Liberties Union said it would file a lawsuit Wednesday against Oregon or an unnamed state entity over the state's failure to register the more than 2,550 marriage licenses issued by Portland's Multnomah County to gay couples since March 3.

Multnomah County, the state's most populous, is the only jurisdiction in the United States that continues to issue same-sex marriage licenses. Local governments from San Francisco to New Paltz, New York, have halted the practice amid lawsuits and protests.

Your Privacy vs. Their Profit

Computer spyware is noxious and harmful and must be stopped as soon as people can figure out exactly what it is, members of a Senate subcommittee said on Tuesday.

Programs that secretly track computer users' activities are becoming an online scourge rivaling spam and should be outlawed before they prompt consumers to abandon the Internet, members of the Senate communications subcommittee said.

But a bill sponsored by committee members will need to define the problem precisely to avoid outlawing pop-up ads and other annoying but essentially harmless technologies, consumer and business advocates said.

"We really have to spend a little time, take a deep breath and define what we're after here," said Jerry Berman, president of the Center for Democracy and Technology, a consumer-advocacy group.

Like last year's congressional debate about spam, much rests on the definition of what constitutes legitimate marketing activity and what should be outlawed.

Some online advertisers and song-swapping networks like Kazaa place programs on users' computers to monitor their activity, or harness their processors for other activities.

Other programs secretly track users' keystrokes to lift passwords and credit-card numbers, or sell "fixes" for software problems they create.

At least one state legislature has already passed an anti-spyware bill, prompting a business group to call for a national law to avoid conflicts.

"There should be a single federal standard that preempts existing state laws," said Robert Holleyman, president of the Business Software Alliance.

A bill sponsored by Sen. Conrad Burns would require companies to obtain permission before installing a piece of software on a consumer's computer, and provide an easy way for the consumer to remove the software if he wished.

"It's my computer; it's my private property," the Montana Republican said. "I bought it and paid for it for my use only, not some leech."

One purveyor of pop-up ads said his software was actually less intrusive than traditional advertising methods because it does not rely on databases that amass personal details about consumers.

Consumers know when WhenU.com's pop-up software has been installed and can uninstall it easily -- as 80 percent of those who downloaded it have done, said company president Avi Nader.

Burns seemed convinced by Nader's testimony, and said business groups would need to define unacceptable behavior to pinpoint the problem.

"Mr. Nader is in a legitimate business," Burns said.

Fast Pass at Airport Security

Business travelers may soon have one more item to stuff in their carry-on: a trusted-traveler card to speed them through security lines.

The Transportation Security Administration plans to start testing a registered-traveler identification program in June, which will let those who volunteer for a background check avoid tight screening at the airport.

While civil liberties groups have questioned the plan's merits, travel industry groups have welcomed it, calling the proposal a way to expedite travel and increase security without the costs and privacy concerns associated with CAPPS II, the TSA's ongoing attempt to create a new computerized passenger-screening program.

Currently, passengers who book one-way flights, pay with cash or buy their tickets close to their departure date are flagged by a computerized passenger-screening system as potential terrorists. Those passengers, along with a random selection of other travelers, have the code "SSSS" printed on their boarding passes, which leads to intensive scrutiny that can cause them to miss their flights.

Despite the tight June deadline, few details of the program have been ironed out, said TSA spokeswoman Amy Von Walter.

The pilot project, which will be free for participants, is expected to last 90 days and will take place at four or five major airports, according to congressional testimony last week by TSA chief David Stone.

The cards likely will include a biometric identifier, such as a fingerprint or iris scan. Participants also will have their backgrounds checked against commercial or government databases. However, the TSA has not yet decided which airports, vendors, databases or identifiers will be involved, Von Walter said.

"Frankly, the pilot is still in the planning phase," she said. "But we are hoping, between the technology and the security assessments, that we will expedite the security process for qualified participants."

Von Walter stressed that the card is not a "get out of security checks" card, and that those who register will still have to go through metal detectors. The program may, however, create designated lanes to speed registered travelers past long lines.

Doug Wills, a spokesman for the airline industry's trade group, the Air Transport Association, said he was "surprised but pleased" by last Wednesday's announcement. He said he thinks the program should be easy to set up since the government already runs three similar projects: one for Mexican agricultural workers, another for the trucking industry and another, called INSPASS, that speeds some international air travelers through customs.

"The Air Transport Association's position is that the TSA should start with a registered-traveler program before pursuing CAPPS II, since there are far fewer privacy and operational concerns," Wills said.

Nancy Holtzman, executive director of the Association of Corporate Travel Executives, also welcomed the test project, but hinted that her group thinks the program would be better as a replacement for background checks on all passengers.

"From the start, our membership has always favored a registered-traveler-type alternative to long airport security lines," Holtzman said. "The convenience of not having to stand in a long airport security line has a definite value for business travelers. In at least two surveys, our U.S. membership overwhelmingly preferred the voluntary nature of a registered-traveler program over more invasive programs."

But privacy advocates and civil libertarians say the idea is deeply flawed and may actually be a security risk.

"'Trusted traveler' is a big security problem because unless you have a tremendous amount of confidence in your process, it is easy to abuse -- especially if there is any kind of insider help," said Lee Tien, staff counsel at the Electronic Frontier Foundation. In addition, the program smacks of a national ID program, even if it is voluntary, he said. "It is something we should not do lightly, and it is very easy for this sort of thing to spill over."

Marcia Hofmann, an attorney with the Electronic Privacy Information Center, said the program is hard to evaluate since so little is known about it.

"First of all, like with many of the Department of Homeland Security's initiatives, if we don't know how it works, how can we know it will work?" asked Hofmann.

Hofmann also pointed out that the TSA has yet to issue the required privacy notices and reports, which TSA spokeswoman Von Walter said may not apply since the program is voluntary.

Barry Steinhardt, director of the American Civil Liberties Union's technology and liberty program, said the trusted-traveler program offers the illusion of security but really just unnecessarily "creates a second class of travelers for security purposes."

"The attacks in Spain illustrate what a lot of security people have been saying for a long time: Terrorists adapt, and they have gone beyond airplanes," Steinhardt said. "We still have a massive infrastructure in the United States -- from rail transportation to hazardous material sites -- (that) are essentially unprotected.

"It has worked fairly well to go after things, things that people carry or pack away into the cargo hold," Steinhardt said. "It is not an accident that we have not had a horrible terrorist attack on an airplane post-Sept. 11. It doesn't make sense to do background checks on 100 million Americans, knowing, as we do, there will be an incredibly high false-positive rate."

After the program's three-month trial this summer, the TSA will take 30 days to evaluate its efficacy before deciding whether to expand the project and whether to charge passengers for the card in the event of a widespread rollout, according to TSA officials.

Congress Moves to Criminalize P2P

Congress appears to be preparing assaults against peer-to-peer technology on multiple fronts.

A draft bill recently circulated among members of the House judiciary committee would make it much easier for the Justice Department to pursue criminal prosecutions against file sharers by lowering the burden of proof. The bill, obtained Thursday by Wired News, also would seek penalties of fines and prison time of up to ten years for file sharing.

In addition, on Thursday, Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont) introduced a bill that would allow the Justice Department to pursue civil cases against file sharers, again making it easier for law enforcement to punish people trading copyright music over peer-to-peer networks. They dubbed the bill "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004," or the Pirate Act.

The bills come at a time when the music and movie industries are exerting enormous pressure on all branches of government at the federal and state levels to crack down on P2P content piracy. The industries also are pushing to portray P2P networks as dens of terrorists, child pornographers and criminals -- a strategy that would make it more palatable for politicians to pass laws against products that are very popular with their constituents.

In defending the Pirate Act, Hatch said the operators of P2P networks are running a conspiracy in which they lure children and young people with free music, movies and pornography. With these "human shields," the P2P companies are trying to ransom the entertainment industries into accepting their networks as a distribution channel and source of revenue.

"Unfortunately, piracy and pornography could then become the cornerstones of a 'business model,'" Hatch said in a statement. The illicit activities of file sharers "then generate huge advertising revenues for the architects of piracy."

The Recording Industry Association of America and the Motion Picture Association of America welcomed the Pirate Act.

"I commend Senators Patrick Leahy and Orrin Hatch for their vision and leadership in combating the theft of America's creative works," said Jack Valenti, MPAA's chief executive.

"This legislation provides federal prosecutors with the flexibility and discretion to bring copyright infringement cases that best correspond to the nature of the crime," said RIAA chairman and CEO Mitch Bainwol.

So far in 2004, Leahy has received $178,000 in campaign contributions from the entertainment industries -- the second-biggest source of donations to Leahy behind lawyers. Hatch has received $152,360.

The draft bill obtained by Wired News circulated among intellectual property subcommittee members in the House of Representatives. The document, titled "Closing the P2P loophole in 17.U.S.C. Section 506," was drafted in coordination with the Justice Department in response to concerns that federal prosecutors lack sufficient legal powers to go after serious abusers, people close to the matter said. They also said they believe Lamar Smith (R-Texas) is willing to propose the bill if he can find co-sponsors.

If the draft becomes law, anyone sharing 2,500 or more pieces of content, such as songs or movies, could be fined or thrown in jail. In addition, anyone who distributes content that hasn't been released in wide distribution (for example, pre-release copies of an upcoming movie) also would face the penalties. Even a single file, determined by a judge to be worth more than $10,000, would land the file sharer in prison.

Whether the leaked draft will be put forth as legislation remains unclear, and Smith's press secretary Christopher Chichester declined to comment.

Smith has received almost $25,000 this year from the music, movies and TV industries.

"This was not put together by our staff," said House Judiciary Committee spokesman Jeff Lungren. "But the intellectual property subcommittee is working on text to address the problem of digital piracy prosecutions, and it looks like this was one suggested iteration."

In response, P2P United, an organization that represents software companies that run file-sharing networks, asked the subcommittee in a letter hand-delivered to Smith on Friday to put off enacting new laws aimed at punishing file sharers and instead explore ways in which copyright holders can be paid through P2P networks.

"It's unfortunate that the entertainment industry devotes so much energy to supporting punitive efforts at the federal and state level, instead of putting energy into licensing their content for P2P distribution so those same people could be turned into customers," said Philip Corwin, an attorney with Butera and Andrews in Washington D.C., and who represents Kazaa distributor Sharman Networks. "The Pirate Act effectively gives government the authority to use taxpayer dollars to bring civil actions against file sharers on behalf of copyright holders."

All these efforts by Congress to impose severe penalties are misguided, said P2P United Executive Director Adam Eisgrau.

"As the 40 percent increase in downloads over the last year makes alarmingly clear, like it or not file sharing is likely to (continue) on a massive scale no matter how many suits are brought and what the fine print of copyright or criminal law says," Eisgrau said. "Second, putting a tiny percentage of tens of millions of American file sharers behind bars or in the poorhouse won't put one new dime in the deserving pockets of artists and other copyright owners."

T-Shirt Slight Has West Virginia in Arms

WASHINGTON, March 22 — Last year it was social conservatives and women's groups. This year, it is the state of West Virginia.

Abercrombie & Fitch, the youth-oriented apparel retailer that stirred controversy in December with a magazine filled with photographs of nude and partially clad women, has now managed to outrage the governor of West Virginia with a T-shirt.

The shirt, which is selling on the company's Web site for $24.50, is emblazoned with a map of West Virginia and the words, "It's all relative in West Virginia."

Gov. Bob Wise, a Democrat, contends that the shirt is a not-so-subtle play on the stereotype of West Virginia as a haven for incest. In a letter sent Monday to Abercrombie & Fitch's chairman, Michael Jeffries, Mr. Wise demanded that the company stop selling the shirt and destroy its entire stock of it.

"By selling and marketing this offensive item, your company is perpetuating an inaccurate portrayal of the people of this great state," Mr. Wise wrote. "Indeed, such a depiction of West Virginians undermines our collective efforts to communicate a positive representation of the spirit and values of our citizens."

Thomas D. Lennox, the company's director of communications, said it had no plans to stop selling the shirt, calling it a popular product. He issued a statement that said, "We love West Virginia."

"We love California, Florida, Connecticut, Hawaii and Nebraska, too," the statement said. "Abercrombie & Fitch was born and raised in the U.S.A., and we honor all 50 states of the union."

The company drew a storm of protest last year from groups angry about the Christmas issue of A&F Quarterly, which contained provocative photographs and references to group sex.The company withdrew the issue, then killed the magazine altogether.

Abercrombie & Fitch's T-shirt is the second well-publicized insult against West Virginia this year. In January, an anonymous prankster initiated an auction of the entire state on eBay. The item drew 56 bids, reaching $99 million before eBay halted the auction.

Aides said Mr. Wise was considering taking his protest to Abercrombie & Fitch's headquarters, in New Albany, Ohio, if the company did not stop selling the shirt.

"I was hired to respond to just this kind of thing," said Joseph Carey, Mr. Wise's director for strategic communications. "It really hinders our ability to market the state."

Attempt to extradite online 'pirate' blocked

An Australian judge on Wednesday rejected an attempt by U.S. prosecutors to extradite a man accused of helping lead a high-profile Internet piracy group.

U.S. federal attorneys want to bring Hew Raymond Griffiths, a 42-year-old computer programmer who lives in New South Wales, to the United States to face criminal copyright charges. If extradited and convicted of his alleged role in leading the DrinkorDie group, Griffiths would face up to 10 years in prison and $500,000 in fines.

The Australian magistrate blocked the move, ruling in part that the extradition attempt did not provide enough information about specific instances of Griffiths' alleged copyright infringement.

"It was a major problem for how he was being prosecuted," said Antony Townsden, the Legal Aid Commission solicitor who represented Griffiths. "I don't know how anyone would be able to represent themselves if they were to face such a general charge."

The ruling could be a significant setback for U.S. prosecutors, who have invested considerable resources into tracking down elements of DrinkorDie and other Net "warez" groups who distributed pirated versions of software, music and movies online, often before they were released commercially.

The U.S. and British governments have brought charges against other individuals targeted in the long-running piracy sweep dubbed "Operation Buccaneer," leading to more than 20 convictions and guilty pleas.

A representative for the U.S. Attorney's office in the eastern district of Virginia, which is leading the extradition proceedings, could not immediately be reached for comment.

According to the indictment, filed by U.S. Attorney Paul McNulty, Griffiths helped oversee DrinkorDie operations that resulted in the unauthorized distribution of copyrighted software, games, music and movies worth more than $50 million. The group was founded in Russia in 1993, the legal documents alleged, but was run by computer hackers worldwide.

Townsden said the U.S. government's attempts to extradite Griffiths, who did not have resources to defend himself overseas adequately, were unfair. All other defendants in the DrinkorDie cases have been charged in their home countries, he noted.

Australian authorities, acting on behalf of the United States, have 15 days to appeal the verdict to that country's federal courts.

Plug'n'Pray

Meet the homeland security blimp, flying high by 2006

Being oversize has its advantages. Just ask researchers at the U.S. Missile Defense Agency, which recently dished out $40 million to arms maker Lockheed Martin to design what could soon be the world's largest pilotless airship. Measuring 500 feet long, with a volume of 5.2 million cubic feet, the prototype high-altitude airship, or HAA, will be 25 times larger than the Goodyear blimp.

From a military perspective, such an XXL craft may seem like an inviting target, especially since its top speed is only 80 mph. However, parked 12 miles up, it will be immune to most ground-launched missiles, and its onboard sensor systems will "see" at least 350 miles in any direction, allowing it to spy most incoming military threats. A fleet of 10, says the MDA, could provide an early-warning curtain for the continental United States.

Compared to high-altitude unmanned aerial vehicles, such as NASA's ill-fated Helios, the airship should be able to carry a heavy payload; its 4,000-pound capacity makes it ideal for toting heavy surveillance and communications equipment. Another big advantage: HAA's solar panels and fuel cells will allow it to loiter above the jet stream in a geostationary position for up to a year, something no drone or spy plane can do.

1. POWER SUPPLY
The helium airship will generate enough electricity from thin-film photovoltaic solar cells to power the engines and generate at least 10kW for the payload. On the prototype, batteries keep the juice flowing at night, but production airships will use lightweight fuel cells.

2. ENGINES
Four electrically powered engines, each driving two 30-foot-wide blade propellers, will provide forward thrust. The "steerable" propellers will help keep the airship within a mile of its assigned location.

3. PAYLOAD
The missile-defense airship might carry laser radars for pinpointing ballistic missiles or relay mirrors to extend the range of the 747-derived airborne laser. Other possible payloads: radar systems to detect low-flying cruise missiles, weather sensors, communications relays and cellphone base stations.

OK, P2P is "piracy." But so was the birth of Hollywood, radio, cable TV, and (yes) the music industry.

If piracy means using the creative property of others without their permission, then the history of the content industry is a history of piracy. Every important sector of big media today - film, music, radio, and cable TV - was born of a kind of piracy. The consistent story is how each generation welcomes the pirates from the last. Each generation - until now.

The Hollywood film industry was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early 20th century in part to escape controls that film patents granted the inventor Thomas Edison. These controls were exercised through the Motion Pictures Patents Company, a monopoly "trust" based on Edison's creative property and formed to vigorously protect his patent rights.

California was remote enough from Edison's reach that filmmakers like Fox and Paramount could move there and, without fear of the law, pirate his inventions. Hollywood grew quickly, and enforcement of federal law eventually spread west. But because patents granted their holders a truly "limited" monopoly of just 17 years (at that time), the patents had expired by the time enough federal marshals appeared. A new industry had been founded, in part from the piracy of Edison's creative property.

Meanwhile, the record industry grew out of another kind of piracy. At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph; Fourneaux the player piano), the law gave composers the exclusive right to control copies and public performances of their music. Thus, in 1900, if I wanted a copy of Phil Russel's 1899 hit, "Happy Mose," the law said I would have to pay for the right to get a copy of the score, and I would also have to pay for the right to perform it publicly.

But what if I wanted to record "Happy Mose" using Edison's phonograph or Fourneaux's player piano? Here the law stumbled. If I simply sang the piece into a recording device in my home, it wasn't clear that I owed the composer anything. And more important, it wasn't clear whether I owed the composer anything if I then made copies of those recordings. Because of this gap in the law, I could effectively use someone else's song without paying the composer anything. The composers (and publishers) were none too happy about this capacity to pirate.

In 1909, Congress closed the gap in favor of the composer and the recording artist, amending copyright law to make sure that composers would be paid for "mechanical reproductions" of their music. But rather than simply granting the composer complete control over the right to make such reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, after the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. So, by limiting musicians' rights - by partially pirating their creative work - record producers and the public benefit.

A similar story can be told about radio. When a station plays a composer's work on the air, that constitutes a "public performance." Copyright law gives the composer (or copyright holder) an exclusive right to public performances of his work. The radio station thus owes the composer money.

But when the station plays a record, it is not only performing a copy of the composer's work. The station is also performing a copy of the recording artist's work. It's one thing to air a recording of "Happy Birthday" by the local children's choir; it's quite another to air a recording of it by the Rolling Stones or Lyle Lovett. The recording artist is adding to the value of the composition played on the radio station. And if the law were perfectly consistent, the station would have to pay the artist for his work, just as it pays the composer.

But it doesn't. This difference can be huge. Imagine you compose a piece of music. You own the exclusive right to authorize public performances of that music. So if Madonna wants to sing your song in public, she has to get your permission.

Imagine she does sing your song, and imagine she likes it a lot. She then decides to make a recording of your song, and it becomes a top hit. Under today's law, every time a radio station plays your song, you get some money. But Madonna gets nothing, save the indirect effect on the sale of her CDs. The public performance of her recording is not a "protected" right. The radio station thus gets to pirate the value of Madonna's work without paying her a dime.

No doubt, one might argue, the promotion artists get is worth more than the performance rights they give up. Maybe. But even if that's the case, this is a choice that the law ordinarily gives to the creator. Instead, the law gives the radio station the right to take something for nothing.

Cable TV, too: When entrepreneurs first started installing cable in 1948, most refused to pay the networks for the content that they hijacked and delivered to their customers - even though they were basically selling access to otherwise free television broadcasts. Cable companies were thus Napsterizing broadcasters' content, but more egregiously than anything Napster ever did - Napster never charged for the content it enabled others to give away.

Broadcasters and copyright owners were quick to attack this theft. As then Screen Actors Guild president Charlton Heston put it, the cable outfits were "free-riders" who were "depriving actors of compensation."

Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing. The debate shifted to Congress, where almost 30 years later it resolved the question in the same way it had dealt with phonographs and player pianos. Yes, cable companies would have to pay for the content that they broadcast, but the price they would have to pay was not set by the copyright owner. Instead, lawmakers set the price so that the broadcasters couldn't veto the emerging technologies of cable. The companies thus built their empire in part upon a piracy of the value created by broadcasters' content.

As the history of film, music, radio, and cable TV suggest, even if some piracy is plainly wrong, not all piracy is. Or at least, not in the sense that the term is increasingly being used today. Many kinds of piracy are useful and productive, either to create new content or foster new ways of doing business. Neither our tradition, nor any tradition, has ever banned all piracy.

This doesn't mean that there are no questions raised by the latest piracy concern - peer-to-peer file-sharing. But it does mean that we need to understand the harm in P2P sharing a bit more before we condemn it to the gallows.

Like the original Hollywood, P2P sharing seeks to escape an overly controlling industry. And like the original recording and radio industries, it is simply exploiting a new way of distributing content. But unlike cable TV, no one is selling the content that gets shared on P2P services. This difference distinguishes P2P sharing. We should find a way to protect artists while permitting this sharing to survive.

Much of the "piracy" that file-sharing enables is plainly legal and good. It provides access to content that is technically still under copyright but that is no longer commercially available - in the case of music, some 4 million tracks. More important, P2P networks enable sharing of content that copyright owners want shared, as well as work already in the public domain. This clearly benefits authors and society.

Moreover, much of the sharing - which is referred to by many as piracy - is motivated by a new way of spreading content made possible by changes in the technology of distribution. Thus, consistent with the tradition that gave us Hollywood, radio, the music industry, and cable TV, the question we should be asking about file-sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes artists.

The question is one of balance, weighing the protection of the law against the strong public interest in continued innovation. The law should seek that balance, and that balance will be found only with time.

eBay scamming teen faces 40 years jail

A teenager from Gainsville, Georgia, faces a possible 40 years in jail for ripping off eBay customers.

Grogory Klimeck, 19, is accused of advertising non-existent goods and pocketing more than $4,500 in payments.

In one instance, he advertised ATI Technologies All-in-Wonder video card and took 20 payments ranging from $20 to over $250. Police say he never had the video card in the first place.

The net closed on the evil criminal genius when complaints to the FBI's Internet Fraud Complaint Center were forwarded to local police. Klimeck now faces a date with the judge on 21 counts of theft by deception and one of racketeering. If convicted, he could be fined $20,000 or be breaking rocks for a sobering 40 years.

Which begs the question: what on earth happens to you down in Georgia if you do something really bad? We suspect it involves a gurney, straps, needles and a viewing gallery packed with enraged relatives. You have been warned.

< Does 40 years seem a bit much for $4,500 to anyone? >

Privacy fears erode support for anticrime network

Matrix, a controversial multistate program that hoped to find criminals or terrorists by sifting through databases of public and private information, has lost more than two-thirds of its member states and appears to be withering under its critics' attacks.

The Matrix program--the name is derived from Multistate Anti-Terrorism Information Exchange--was originally developed for the state of Florida by Seisint, a Florida company, in response to the Sept. 11 terrorist attacks. At its peak, 16 states were members, and the program received pledges of $12 million from the federal Department of Homeland Security and the Department of Justice.

Supporters of Matrix envisioned it as a powerful computer-driven program that could integrate information from disparate sources--like vehicle registrations, driver's license data, criminal history and real estate records--and analyze it for patterns of activity that could help law enforcement investigations. Promotional materials for the company put it this way: "When enough seemingly insignificant data is analyzed against billions of data elements, the invisible becomes visible."

This kind of system has long been the stuff of dreams for high-technology companies, which saw in it both a valuable service to society and a chance to recapture profits after a long technology downturn. But it also drew strong opposition from civil liberties organizations, which found Orwellian overtones in the collection and analysis of database information that would include people who have committed no crime. The American Civil Liberties Union filed Freedom of Information Act requests to uncover the inner workings of the system, and other high-tech policy groups, including the Electronic Privacy Information Center and the Electronic Frontier Foundation, have voiced concerns.

The announcements made last week by New York and Wisconsin that they were withdrawing from Matrix means that only five states remain actively involved--Florida, Michigan, Pennsylvania, Connecticut and Ohio.

Utah has suspended its participation, and in January Gov. Olene S. Walker appointed an oversight committee to evaluate security and privacy issues.

Supporters of Matrix, including the Florida officials who have worked with it from the beginning, say that it merely gives law enforcement agencies quicker access to data that they already have the legal authority to see. "It's an extremely valuable tool," said Mark Zadra, the chief of investigations for the Florida Department of Law Enforcement.

States provide information like arrests and convictions, Social Security numbers, driver's license data and birth and marriage records. Seisint, the company that created Matrix, then adds what the company has described as "in excess of 7 billion public records from thousands of locations on U.S. individuals and businesses, including information about neighbors, relatives and associates."

Matrix officials have declined to describe all the data that goes into the system, but they insist that nothing goes into Matrix that police would need a subpoena or other judicial order to obtain, like full credit reports or library lending records.

Officials in Florida point to success stories like a hit-and-run accident involving a white, 2000-2002 Chevrolet Avalanche that left the scene. The system was able to provide a list of all the vehicles fitting that description within a 10-mile radius of the accident. Investigators were able to find the Chevrolet, according to Florida officials.

But opponents of the program say the ability of computer networks to combine and sift mountains of data greatly amplifies police surveillance power, putting innocent people at greater risk of being entangled in data dragnets. The problem is compounded, they say, in a world where many aspects of daily life leave online traces.

In a recent report on the program, the ACLU called Matrix "a body blow to the core American principle that the government will leave people alone unless it has good reason to suspect them of wrongdoing."

The same critics have called Matrix a state-run version of Total Information Awareness, a program that was being developed in the Pentagon to search an even broader array of databases for patterns of terrorist activity. Congress froze financing for that program last year in response to a public outcry over the privacy implications of the system.

Opponents of the Pentagon program regarded the development of Matrix as a sign that the bubble was simply moving under the wallpaper: with the federal program blocked, some surveillance functions were being shifted to the states. And as Matrix started to draw attention, member states began to drop out.

"When these programs get exposed to the light of day, they get shut down," said Barry Steinhardt, director of the technology and liberty program at the ACLU.

Steinhardt said that his organization was worried that other, similar programs might be operating more stealthily. "While we're gratified by the demise of TIA and the continuing collapse of Matrix, there's a much larger phenomenon of widespread surveillance that still occurs out there," he said. "What we're not sure about is what's still operating underground."

In leaving the program, New York said the network's shrinking size was a deciding factor. A March 9 letter from Steven F. Cumoletti, the assistant deputy superintendent of the New York State Police, to Commissioner Guy Tunnell of the Florida Department of Law Enforcement and chairman of the Matrix executive committee, said, "Unfortunately, instead of increasing the number of participating states over time to improve the potential benefits of the pilot, to date nearly two-thirds of the initial states have opted out of the project."

James W. McMahon, director of the New York State Office of Public Security, said in an interview that the program "seemed to be going backwards instead of going forward." New York, he said, had never provided information on its own citizens to the program.

Matrix has been especially controversial because its technology was developed by Seisint, a private company whose founder, Hank Asher, was involved in the 1980s with a group of cocaine smugglers, according to court records. He was not charged, and became an informant. Asher resigned from the company last year.

Most of the states have cited tight budgets in their withdrawal from the program. "Money is always an issue, regardless of who you deal with, even in the most noble of causes," said Clay Jester, the Matrix coordinator for the Institute for Intergovernmental Research, the nonprofit organization that administers the program.

"If you see there's a significant investment you're going to have to make down the road, you may choose not to see the potential benefits," he said. "When it comes down to new cars or this great new database application, it's easier to show somebody a car."

But Liz Krueger, a New York state senator from Manhattan, who opposed Matrix, said that the real issue was privacy. "Even in a time of increased security, we have to be perhaps even more vigilant to make sure that fundamental rights to privacy are protected," said Krueger, a Democrat. "The more people knew about it and thought about it, the more dangerous they thought this exercise was."

Zadra, the Florida investigator, said that the program was intended for fighting crime, not surveillance, and that its creators had included privacy safeguards. "We've gone overboard to put in security, and put in privacy controls," he said. He acknowledged that the system could be abused by some law enforcement officers, but said that every profession had bad actors. Matrix, he said, was too valuable to abandon because of such concerns.

He said that the program was "not quite as effective" if states do not provide their data, but said that there was enough information to be gleaned from other publicly available databases to make the powerful search capabilities of Matrix valuable. He said, for example, that even if a state refused to provide driver's license information to Matrix, that information is often available from private databases.

"If there was no other state data but Florida's, we would want to be continuing the project with no other data but Florida's," he said.

Zadra said proponents of the program were "moving forward, and meeting with other states that have expressed interest." But he acknowledged that no announcements of new states coming into the program were imminent.

McMahon, the New York law enforcement official, said the importance of a program like Matrix could best be shown in the case of a child's kidnapping, when "you've got minutes instead of hours" to prevent a tragedy.

"You might be able to save somebody's life in producing the information you need," he suggested, as in, for instance, quickly finding the names of convicted sex offenders who own a specific model of car.

Zadra also used kidnapping as an example of database use, citing the possibility of a law enforcement official's having to tell the parents of a kidnapped child that "'we did have a tool, but we can't use that tool anymore, and I can't find your daughter.' How sad would that be?"

Others can worry about hypothetical threats to privacy, he said. "Meanwhile, I'm going to go ahead and I'm going to solve crimes with the best technology available."

Ultimately, he said, "It really comes down to trust. Do you trust law enforcement to do what is right?"

P2P in the Legal Crosshairs

Is California's attorney general preparing a legislative assault on peer-to-peer file sharing?

A draft letter purportedly circulated by Bill Lockyer to fellow state attorneys general characterizes P2P software as a "dangerous product" and describes the failure of technology makers to warn consumers of those dangers as a deceptive trade practice.

The draft document, dated Feb. 26, was obtained by Wired News on March 12. Distribution of a revised version to other attorneys general is said to coincide with the spring meeting in Washington, D.C., March 15 to 17 of the National Association of Attorneys General, of which Lockyer is president. The attorney general's office plans to release a final version publicly within the coming month, after obtaining additional signatories.

"We do not wish to make any comment at this time on any document that the office of the attorney general may or may not be developing," said Tom Dresslar, spokesman for Bill Lockyer in Sacramento. "But we remain concerned about the potential dangers posed to the public by peer-to-peer file-sharing technology."

However, the metadata associated with the Microsoft Word document indicates it was either drafted or reviewed by a senior vice president of the Motion Picture Association of America. According to this metadata (automatically generated by the Word application), the document's author or editor is "stevensonv." (The metadata of a document is viewable through the File menu under Properties.)

Sources tell Wired News that the draft letter's authorship is attributed to Vans Stevenson, the MPAA's senior vice president for state legislative affairs. MPAA representatives have issued similar criticisms of P2P technology in the past. Stevenson could not be reached for comment.

The document proposes an unprecedented legal theory with regard to peer-to-peer file-sharing services. If P2P software can be used to violate law, the argument goes, its makers should be obligated to incorporate a warning on the product or face liability for deceptive trade practices.

Here is an excerpt:

As a P2P software developer and distributor, we believe you have the ability and responsibility to better educate consumers about these known risks, and to design your software in a manner that minimizes the risks. We view with grave concern reports that at least some P2P software developers may be adding features deliberately designed to hinder law enforcement in its prosecution of crimes using P2P software. Companies that engage in such conduct, and fail to meet the important responsibilities referenced above, harm the interests of consumers in our States.

It is widely recognized that P2P file-sharing software currently is used almost exclusively to disseminate pornography, and to illegally trade copyrighted music, movies, software and video games. File-sharing software also is increasingly becoming a means to disseminate computer worms and viruses. Nevertheless, your company still does little to warn consumers about the legal and personal risks they face when they use your software to "share" copyrighted music, movies and computer software. A failure to prominently and adequately warn consumers, particularly when you advertise and sell paid versions of your software, could constitute, at the very least, a deceptive trade practice.

In the wake of recent efforts by both the RIAA and MPAA to defend copyright concerns through court action, such a statement from the attorney general would seem to herald a new phase of coordinated efforts by government and private industry to prevent crime through peer-to-peer networks -- and crack down on copyright infringement in the process.

Despite pressure from entertainment industry trade groups, the Department of Justice has shown relative restraint with regard to P2P until now.

"It's one thing for the MPAA to come up with a theory like that," said Electronic Frontier Foundation senior intellectual property attorney Fred von Lohmann, "but it would be quite another for a state attorney general to adopt it. The principle has no limit -- you can use Internet Explorer to violate the law or unintentionally access pornography, so does he want to suggest that Microsoft is also breaking the law? Why stop at the Internet -- should Ford be held liable for failing to warn drivers that exceeding the speed limit will expose them to citations?"

"It's deeply troubling that an industry as monopolistic as this can manipulate the public via top law enforcement officials, as evidenced in this letter," said Grokster spokesperson Hal Bringman. "More than 60 million P2P users, many of whom are voters, will not tolerate this kind of behavior."

Grokster is one of the five companies in the Washington, D.C.-based peer-to-peer technology trade association P2P United. Additional members are Bearshare, Blubster, eDonkey and Morpheus.

In listing the numerous potential hazards associated with P2P, the draft echoes claims previously made by critics of the popular software, including the MPAA:

Whether it is the widespread availability of pornography, including child pornography, the disclosure of sensitive personal information to millions of people, the exposure to pernicious computer worms and viruses or the threat of legal liability for copyright infringement, P2P file-sharing software has proven costly and dangerous for many consumers.

Defenders of file-sharing technology have responded to such allegations in the past with the argument that e-mail clients, Web browsers and instant-message programs can also be ill-used. P2P supporters maintain that the entertainment industry is trying to gain support for its attempt to stamp out unauthorized distribution of copyrighted material by characterizing the technology as disproportionately dangerous.

Adam Eisgrau, Washington, D.C.-based lobbyist for P2P United, says the software group will hand-deliver a letter to the attorney general on March 15 at the NAAG meeting. The association's letter requests factual clarification of whether the leaked letter is a product of Lockyer's office, and if so, the group asks to be included in any process leading to a final version.

"The draft attributed to the attorney general's office contains many significant factual errors, eyebrow-raising metadata, and articulates a very broad expansion in several important respects of product liability and consumer protection law that would have enormous effects," Eisgrau said. "We remain hopeful that the attorney general will say this is not a document of his, or a document in its present form that he intends to send. If any groups are involved in advising him, we should be among them."

But if the conclusion of the leaked draft is an accurate reflection of the attorney general's intent, P2P software makers should brace themselves for what could be a significant legal offensive in the immediate future:

Over the coming months, we will begin focusing more attention on the risks P2P software programs pose to consumers in our States. We hope this inquiry will encourage you to take proactive, concrete and meaningful steps to address the problems we have raised in this letter.... We take seriously our responsibility to protect consumers and ensure that the laws of our States are respected. In the future, we will not hesitate to take whatever actions we deem necessary to ensure that you fulfill your duties as a responsible corporate citizen.

If the MPAA was directly involved in drafting or revising the California attorney general's letter, criticism is likely to come not only from P2P fans. Others might be concerned about the propriety of a commercial organization effectively placing words in the mouth of an elected official.

Europe Considers Harsh Piracy Law

PARIS -- The European Parliament approved a controversial piracy law that would allow local police to raid the homes and offices of suspected intellectual-property pirates, search their financial records and even freeze suspects' bank accounts.

The European Union's directive covers selling everything from pirated CDs and counterfeit toys to fake Chanel and Viagra.

Organizations that suspect their intellectual property has been violated can obtain search-and-seizure orders and injunctions. The measure passed last week by a vote of 330 to 151, but not without some last-minute brokering by European Parliament President Pat Cox. Various industry groups had pushed for a tougher directive that would have included the threat of criminal sanctions. Consumer-rights groups such as the European Consumers' Organization charged that the law was overly broad and would re-create the Digital Millennium Copyright Act in Europe.

As passed, the measure includes civil and administrative penalties for commercial piracy. Criminal penalties were dropped. Individual member countries are still free, however, to punish intellectual-property theft with criminal sanctions.

Parliament was under the gun to pass legislation before its May recess, June Parliament elections and the imminent expansion of the EU from 15 to 25 countries, particularly in Eastern Europe.

Beyond expediency, "some of the new countries have some high degrees of piracy, especially for music, so it's important to have this European framework adopted by all the member states," said Gianluca Monte, European affairs adviser for the Independent Music Companies Association. "Of course, there are also problems now with existing member states and high levels of piracy."

Spain and Poland -- one an EU member, one about to be -- make the International Federation of the Phonographic Industry's list of the top 10 countries with piracy problems, which also includes Russia, Mexico and China.

Some parliament members questioned whether fellow member Janelly Fourtou, who shepherded the bill, had a conflict of interest. Her husband is Jean-Rene Fourtou, head of Vivendi Universal, one of the biggest media companies in the world.

Her assistant, Sarah Cuvellier, dismissed those charges, saying Fourtou's work on intellectual property dates to 1999, before her husband assumed the Vivendi post.

Cuvellier also said the measure doesn't target private use. "It's not the DMCA." Rather, she said, "you have three pillars in intellectual-property rights: how to recognize the right, how to protect the right and how to manage the right. This is only to protect -- not to recognize."

The directive defers rights of the individual to the EU's previous copyright directive, but there's a wrinkle.

"In principle, the proposal adopted this week should not affect existing law, but we don't know so far what existing law is, because the copyright law is not yet implemented," said Victoria Villamar, legal adviser for the European Consumers' Organization. "Less than half the EU has implemented the copyright directive, passed two years ago."

The directive now goes to the Council of Ministers, which is expected to approve it by April.

The debate then shifts to the member states, which technically have 18 months to implement the directive, though observers say twice that long would be likely.

One sticking point is: What constitutes commercial piracy? In the current directive, "even though there were some limitations built into various enforcement provisions to make them apply to only commercial piracy," what's "commercial" isn't defined, said Gwen Hinze, a staff attorney with the Electronic Frontier Foundation. "It's important that members states build in strong procedural safeguards for their citizens."

The International Federation of the Phonographic Industry estimates worldwide music piracy totaled $4.6 billion in 2002, with one in three CDs sold being counterfeit.

Legal experts say the EU directive, as passed, differs little from existing EU legislation. Still, media companies are claiming symbolic victory.

"This directive shows that intellectual-property protection is still on the agenda," said Martin Selmayr, head of the Brussels office of Bertelsmann, one of the largest media companies in the world. In addition, it rearticulates existing intellectual-property law. "The issue is to get it in people's minds that stealing intellectual property is like stealing a shirt."

Industry groups say they will continue to push for criminal sanctions against intellectual-property thieves at the national level.

For Orlando Soto, No Day Is Complete Without Some Spam

Lovers of Unsolicited E-Mail
Keep Industry Afloat;
'It's Like a Treasure Hunt'

NEW YORK -- Orlando Soto looks forward each evening to spending time on his home computer after work. But when he logged on one Wednesday night last month, he was disappointed: There were 17 spam e-mail messages waiting for him.

"Only 17," he lamented, scrolling through them. "That's a very light day."

Mr. Soto routinely comes home to some 150 e-mail pitches, and he loves getting them all. The 45-year-old grandfather opens most of them. He answers spam questionnaires. And he buys stuff pitched in spam e-mail -- again and again. "Everyday people call it spam," says Mr. Soto, who prefers calling it "unsolicited" e-mail. "But I'm open to everything."

If everyone hated spam, it would disappear. But like the traditional direct-mail marketers and telemarketers who came before them, spammers survive public outrage, filters, lawsuits and regulations because innumerable times a day, somebody, somewhere responds with money.

One such somebody is Mr. Soto. He buys spam-pitched aromatherapy oils for his wife and pharmaceuticals for himself. His bookcases are lined with first-edition mystery novels he bought via spam. In a corner of his two-bedroom midtown-Manhattan apartment stands an antique pinball machine bought via spam. He plays Internet bingo at five cents a game on a Web site pitched to him by spam a few weeks ago. He buys stuff via spam for himself and to resell on Web sites he sets up -- a business idea he got from a spam pitch.

Spam helps him "unwind" and "lose the stress of the day," Mr. Soto says.

He's the kind of person spammers love: a serial buyer. He says that he sometimes spends hundreds of dollars a week buying via spam. Most spam responders are one-time customers, e-mail marketers say, so repeaters make all the difference. Scott Richter, who runs a mass e-mailing company called Optinrealbig.com LLC in Westminster, Colo., says about a fifth of those who order his vitamins and other products buy again. "Those repeat buyers help generate a bulk of the revenue," he says.

There must be a lot of Mr. Sotos out there. In a survey by MailShell, a San Francisco antispam company, 8% of respondents said they have bought products via spam. Spammers say that percentage is probably low because many people are too embarrassed to admit responding to spam.

Spammers say they typically need just one buyer per 10,000 spam messages to break even. Mr. Soto recently spent more than $100 on vitamins from a spam pitch that touted: "Buy 1, get 2 free, plus free shipping!" If this particular solicitation was typical, spam experts say, the spammer probably sent it to about five million people with a commission of about 30%. If 500 buyers averaged spending what Mr. Soto spent on the vitamins, the spammer would bring in about $15,000 in revenue from the mailing.

Mr. Soto's daily spamfest starts after he gets home from his $40,000-a-year job as a building supervisor at NYRE Management, a real-estate firm that runs Manhattan apartment buildings. After dinner with his wife, he sits down in the leather chair in his home office and starts opening spam. He typically goes through 50 spam pitches before he finds one that's enticing, he says. He then pores over the pitches he has culled, winnowing them down to the must-haves.

On the recent Wednesday evening, Mr. Soto quickly reviewed the contents of his six e-mail accounts. "See, this is unsolicited," he said, pointing his cursor at a pitch aimed at mom-and-pop companies: "AOL Small Business News." He gave it some thought but decided it was from too big a company; he prefers spam from smaller purveyors. "No," he pronounced, skipping to the next spam: "Hi, Date Number 868." A boring adult-related pitch, he decided before moving on. The next was a pitch for mortgages, which he doesn't need.

"Here's an interesting one," he said, clicking on a message proclaiming: "Smoking Cigarettes Savings." It offered Newports -- his brand -- for $2.85 a pack, about a third of what he pays at a corner store near his home. He saved the message for later consideration.

The 17 messages didn't yield any buys that night, but Mr. Soto's wife, Paula Kennedy, offered a tour of the results of Mr. Soto's past spam sessions. On shelves in one bedroom were dozens of bottles of essential oils: clary sage, cinnamon, tea tree and carrot seed. Ms. Kennedy uses the oils in homemade soaps she sells via her aromatherapy business. Mr. Soto bought the oils via spam, she said, as well as ribbons, bags and other supplies for her business -- all stored in boxes piled on chairs and around the dining-room table.

Next, there were the spam-bought vitamins. "Let me show you," she said, retrieving a shoebox filled with plastic containers of bee-pollen complex, betaine hydrochloride and something called Oxy-Gen. Then Ms. Kennedy pointed to her doll and butterfly knick-knack collections, pieces of which Mr. Soto bought via spam. Elsewhere were other stacks of spam booty: a $220 computer server, computer parts and hundreds of software discs. A combination humidifier-air-conditioner that cost $650 sat unused on the living-room floor. The dining table was pushed against the china cabinet to make room for boxes that arrive almost daily.

Ms. Kennedy isn't bothered by her husband's fondness for spam. But for her part, she adds, "I don't fall for those."

Sometimes Mr. Soto feels sheepish about his spam habit. "You can get crazy," he says. "You can wrap yourself up in this stuff."

Mr. Soto used to haunt rummage sales, thrift shops and flea markets, but he hurt his back in the mid-1990s, so he turned to the Internet. He became an eBay devotee, staying up late to bid on software, self-help business tapes and other items. Soon he began buying via spam as well. "I was never anti," he said. "It's like a chase, a treasure hunt."

Eventually, spam prompted Mr. Soto to dabble in Internet entrepreneurship himself. He's bought fancy knives, leather jackets, stuffed animals, party supplies and software, all via spam, and then created Web sites to sell the items at a profit -- a skill he learned from another piece of spam. Mr. Soto says he also has bought some adult DVDs and videos via spam, but never got around to marketing them. He says he purchased two pornography Web sites, again via spam, and ran them for a while, but then he decided they weren't worth the trouble and disabled them. Likewise, he says he procured some provocative domain names via spam. In the past, Mr. Soto says he has sent out spam himself, but he doesn't any more for fear of the increasing multitude of federal and state spam regulations now on the books.

Mr. Soto says he has made very little money on these spam-inspired business ventures. "I wish I did," he says, adding that he doesn't have time to design all the Web sites required to resell stuff. "I buy it and then three weeks later it sits there," he concedes. "I do a lot of impulse buys."

But it's the bargains that keep him devouring spam, including a $150 metal detector he recently bought. Good spam, he says, leaves him feeling blessed and telling himself, "I can't believe this really came."

Teen found with 20 bombs at school: Charged with attempted murder

Police found homemade bombs in the trunk of Josh Magee's car.

MALCOLM, Nebraska (AP) -- A teenager was charged with attempted murder after police found him outside his school with 20 homemade bombs, a rifle and a note saying he wanted to injure everyone at his high school except for three friends.

Authorities believe they averted what could have been the worst school shooting since the 1999 massacre at Columbine High School.

Josh Magee, 17, was arrested Tuesday in the parking lot of Malcolm High School after a staff member saw him swigging liquor from a flask and putting on a black overcoat.

Police who searched Magee's car found a bolt-action rifle, several rounds of ammunition, small bottles of propane and rigged containers of a petroleum-based propellant.

"It had the potential of going badly," said Superintendent Gene Modernize. "With this student, at this school, on this particular day, we were successful. We got lucky."

Parents and school officials in this tiny town north of Lincoln said Magee often spoke about Columbine, where Eric Harris and Dylan Klebold killed 12 students and a teacher before killing themselves.

"He asked them in class last week if they knew who Eric Harris and Dylan Klebold were," said Julia Lostrah, whose daughter is Magee's classmate. "Then he said, `I know them."'

Second school incident within a week
The arrest came in the same week that authorities in another rural town in the heartland avoided a potentially violent school encounter.

Two second-grade boys and an 11-year-old schoolmate were arrested Wednesday in Forsyth, Montana, on charges that they buried a loaded handgun in a playground sandbox and plotted to shoot and stab a third-grade girl during recess. Authorities said the boys intended to harm the young girl because she had teased two of them.

No one answered the door Thursday at Magee's red-brick home just down the road from the school in Malcolm, a town so small that its downtown streets are unpaved.

School and law enforcement officials said his mother works as a chef in Lincoln, and his father is serving in Afghanistan in the military.

Magee, who has attended Malcolm schools since kindergarten, has always been on the district's radar, Neddenriep said.

"All the way through, he was just a little different," he said. "He liked to be alone, he didn't take part in many things. His enjoyment was weapons."

The superintendent said he wasn't aware of reports that Magee was a target of bullies. "There were never any incidents reported," he said.

When students began reporting to faculty that Magee bragged of making and testing explosives at home, Neddenriep said, the school paid close attention to the teen.

Magee then began showing some interest in school activities, he said.

Lostrah, who is also the school district's administrative assistant, said Magee joined the cross-country team and was an impressive musician.

"He was very talented," she said.

Magee was being held in a juvenile jail, but he was charged as an adult with attempted first-degree murder.

Neddenriep said the school of about 450 students will refine its safety policies in the wake of Magee's arrest.

"There's one thing I did learn," Neddenriep said. "It can happen anywhere."

< He was seen drinking something from a containter that appeared to be a liquor container, and wearing an overcoat. For this they search him. That's a blatant example of illegal search and seizure if I've ever heard one. Before you say what you're already thinking, no, it doesn't matter that they averted a (potentially) major catastrophe. If the government isn't held responsible to not invade our privacy and disrupt our freedoms, there's no valid reason for it to exist. This begs the question of why the kid felt pushed to such lengths anyway, that would be the Real problem. And of course, if he hadn't had bombs and such you probably wouldn't have even heard about it. >

House Votes to Raise Indecency Fines

WASHINGTON, March 11 — An overwhelming majority of the House of Representatives voted today to greatly increase the maximum penalties for obscenity, indecency and profanity on radio and television.

With the baring of Janet Jackson's breast in the Super Bowl halftime show still fresh in their memories, the lawmakers voted, 391 to 22, to raise the maximum fine for a broadcast license-holder to $500,000 from $27,500. The penalty for a performer would also rise to $500,000 from the current $11,000.

The measure was approved early this afternoon with wide support from members in both parties. Two hundred-eighteen Republicans voted in favor and 1, Ron Paul of Texas, voted against. On the Democratic side, 172 voted in favor and 21 against. One independent, Bernard Sanders of Vermont, also voted for the bill.

A similar bill is pending in the Senate. One difference in the measures is that the Senate version would order the Federal Communications Commission to study ways to protect children from violence on television. The Senate bill would also put a hold on media-ownership changes adopted by the F.C.C. last year.

President Bush has strongly endorsed the principle of the legislation approved today. But passage by the full Congress may be months away, since the House and Senate bills would have to be reconciled.

One supporter of the bill, Representative Joseph Pitts, Republican of Pennsylvania, said during debate that he was "tired of hearing parents tell me how they have to cover their children's ears."

Or their eyes, he might have added.

The real momentum for the measure was created on Feb. 1, when the singer Justin Timberlake exposed Ms. Jackson's breast to millions of television viewers. Accidental or otherwise, Mr. Timberlake's maneuver outraged many Americans, not all of them prudish, to judge by the mail sent to newspapers, television networks and the F.C.C.

Critics of the measure have expressed worries that it might undermine free expression. "We're moving in a direction of undermining the First Amendment," Mr. Paul of Texas said in explaining his "no" vote.

Federal law and F.C.C. regulations already bar broadcast, as opposed to cable, television and radio stations from airing sexual material between 6 a.m. and 10 p.m. There are no such restrictions for cable and satellite television or for satellite radio.

The bill approved today would not change the definitions of what is "obscene" and "indecent." Those are spelled out by the F.C.C. and can be read on the agency's web site: www.fcc.gov.

Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be considered "obscene," material must be offensive to "an average person, applying contemporary community standards," and it must depict sexual conduct "in a patently offensive way." Finally, the material taken as a whole must lack serious merit.

Material that is "indecent" is defined by the F.C.C. as containing "patently offensive sexual or excretory references that do not rise to the level of obscenity." The timing of the broadcast for such material may be restricted to protect children.

"In making indecency determinations, context is key!" the F.C.C. says on its web site. "The F.C.C. staff must analyze what was actually said during the broadcast, the meaning of what was said, and the context in which it was stated."

Edward O. Fritts, president of the National Association of Broadcasters, noted that the industry has already scheduled an indecency summit for March 31.

"N.A.B. believes that voluntary industry initiatives are far preferable to government regulation when dealing with programming issues," Mr. Fritts said in a statement on his organization's Web site. "Just recently, a number of broadcasters have taken positive steps to address concerns of parents and policymakers, and we expect the upcoming N.A.B. Summit on Responsible Programming to yield additional substantive results. N.A.B. does not support the bill as written, but we hear the call of legislators and are committed to taking voluntary action to address this issue."

Despite Mr. Fritts's preference for voluntary action, the Super Bowl incident created irresistible momentum for Congressional action, especially in an election year.

The measure approved by the House today, if it also clears the Senate, would amend the Communications Act of 1934. Television was a scientific concept back then, but the first round-screen, black-and-white sets were still years away from becoming household fixtures.

Many Americans can recall that, once upon a time, husbands and wives slept in separate beds on television, never used profanity and never talked about sex. They will recall, too, that football was once an outdoor game played on grass, and that halftime shows used to feature brass bands and high-prancing but modestly dressed young women.

Television and football have come a long way since then — too far, a House majority declared today.

Ashcroft's new Internet antiporn gambit

When John Ashcroft testified before Congress during his confirmation hearings, he left no doubt that he believed the Internet was replete with pornographers who needed to be imprisoned, preferably for a very long time.

"I am concerned about obscenity," Ashcroft told the House Judiciary committee in June 2001, adding that prosecutions of Web pornographers "would be an objective of ours in this respect."

Then jets slammed into the World Trade Center and the Pentagon, and Ashcroft unexpectedly had real problems on his hands. Nearly three years later, as far as I can tell, the number of federal Internet obscenity prosecutions is precisely zero.

Look for that to change.

Ashcroft appears ready to make an example of online porn purveyors who specialize in hardcore raunch and ribaldry. In an election year, it's also an easy way to rally conservatives, who are otherwise lukewarm toward a president who spends like a drunken Democrat.

"I would expect that very soon we'll see a real uptick in prosecutions," says Michael Schwartz, vice president of government relations at Concerned Women for America, a conservative group that is steadfastly antiporn. "We had a lot of complaints about the department's performance in this area up to this point. Obscene material is not protected by the First Amendment. It is prohibited by law. Yet it is an extremely lucrative business."

Most forms of pornography are completely legal. But in 1973, the U.S. Supreme Court voted 5-4 to ban obscenity, or anything found to "appeal to the prurient interest" and that lacks serious literary, artistic, political, or scientific value.

In an early hint that Ashcroft was beginning to ready his forces, the Justice Department convened a training session for prosecutors in 2002. "The Internet is perhaps the most pernicious medium for obscenity," Ashcroft said. "The Department of Justice is committed unequivocally to the task of prosecuting obscenity."

Because Ashcroft wasn't moving fast enough, Congress ratcheted up the pressure. Last November, the Senate unanimously approved a nonbinding resolution warning that the "Internet has become a conduit for hardcore pornography that now reaches directly into tens of millions of American homes."

Antiporn police
Ashcroft got the message. Recently, he hired Bruce Taylor, probably the most aggressive antiporn advocate in the United States, to jump-start the effort. Taylor, 53, started out as a porn prosecutor for the state of Ohio, then joined the Justice Department. He left to start his own antiporn group, the National Law Center for Children and Families in Fairfax, Va., and now is special counsel to Christopher Wray, the assistant attorney general for the criminal division.

I've known Taylor for almost nine years, and I have no doubt that he's deadly serious about putting owners of smut-sites in prison. The odd thing is, though, Taylor can't be characterized as a bluenose religious conservative. He's not: He smokes Lucky Strikes; he drinks; he unapologetically reels off phrases like "Comstock was an amateur!" and "Nothing protects pictures of a women's genitalia being nailed to a board!"

It's not personal. Taylor relishes the chance to clash with First Amendment lawyers. "Every year we'll put a bill in there, every other year, just to keep the ACLU in business," he told me a few years ago, talking about his efforts to lobby Congress. "They should send me Christmas presents instead of hate mail. I'm putting their rotten little kids through private school."

"I think we should be worried," says the ACLU's Barry Steinhardt, whose children went to public schools. "We're assuming that by hiring Bruce Taylor, by issuing these threats (of prosecution), at some point they're going to act on them."

On Friday, a spokesman for the Justice Department acknowledged that "there is a renewed emphasis on obscenity prosecutions across the board."

Double trouble
Complicating matters is a 1998 law called the Child Online Protection Act (COPA). It targets operators of commercial Web sites with "harmful to minors" content not behind a credit card firewall. The maximum penalty is a $50,000 fine and six months in prison.

After a federal appeals court in Philadelphia struck down COPA as a violation of free speech, the Supreme Court heard oral arguments in the case last week. If the law remains on the books, it would give Taylor and his allies a disturbingly powerful new weapon in their campaign against offensive Web sites.

The problem is that COPA is worded so broadly that it endangers far more than just sex sites. That's why the plaintiffs in the COPA case include the American Booksellers Foundation for Free Expression, Salon.com, Philadelphia Gay News, Planet Out, and the Internet Content Coalition. (CNET Networks, publisher of News.com, is a member.) The appeals court recognized that COPA "is not narrowly tailored to proscribe commercial pornographers and their ilk, as the government contends, but instead prohibits a wide range of protected expression."

Still, even if COPA is shot down, the enforcement of existing obscenity laws remains worrisome. Obscenity laws deal with "community standards," but how does that concept apply online? Could juries in the most prudish community veto what's publishable in more liberal ones? How can any U.S. law hope to shutter pornographic Web sites hosted in places like the Netherlands?

In the not-so-distant past, obscenity law has been used to suppress unpopular ideas. Its victims include a literary review with works by Jack Kerouac and William S. Burroughs, Henry Miller's "Tropic of Cancer," the classic tale of "Fanny Hill," James Joyce's "Ulysses," and, in the last decade, comic book artist Mike Diana.

Obscenity prosecutions, in other words, tend to start with pornography but not to end there. In his dissent in a 1973 obscenity case, Justice William Douglas put it best: "Obscenity, which even we cannot define with precision, is a hodgepodge. To send men to jail for violating standards they cannot understand, construe and apply is a monstrous thing to do in a nation dedicated to fair trials and due process."

How the FBI eavesdrops on Internet phone calls (and why it sometimes can't). (thanks pistoleirao)

The Federal Communications Committee and the Justice Department are at loggerheads over a new problem in the war on terror: how to listen in on Internet phone calls. Thanks to the blistering growth of VoIP—Voice over Internet Protocol—services, which have been adopted by approximately 10 million people worldwide so far, law enforcement officials now worry that wiretapping may one day become technically obsolete. If traditional phone lines go the way of the horse and carriage, will the FBI still be able to listen in on Internet phone calls? How would it go about tapping one? Is it even possible?

I contacted three of the leading VoIP providers in the United States—Time Warner Cable, Vonage, and Skype—to ask them how they would comply with a court order to permit a wiretap. As it turns out, the Justice Department has good reason to worry. Depending on the provider, tapping a VoIP call can be either tricky or impossible.

For Jeffrey Citron, the CEO of Vonage, the critical problem is this: The 1994 law that dictates how telecoms must cooperate with the feds (it's known as CALEA) stipulates that government agents can listen in on phone calls only in real time. They are not permitted to record calls and play them back later to check for incriminating information. But as Citron explained it, on Vonage's system, it is technically impossible (for now) to listen in on a live phone call.

Here's why: A VoIP call transforms your voice into digital bits, then segments them into separate packets of data that are routed through the Internet and reassembled upon arrival at the other end. From an old-fashioned perspective, there is no actual "sound" passing through the Internet at any time—the PC or other device you use to place the VoIP call digitizes your voice in your home. Of course, a huge amount of regular phone traffic is also segmented into digital packets at some point, but such calls are digitized and then reconverted into sound waves far deeper into the telephone system, at points outside private homes. Law enforcement can therefore listen in on your line within the telephone system itself; the technology to do this is already embedded in the phone company's switches.

In theory, Vonage could comply with a tap request by making a copy of the call in real time and streaming that call to a law enforcement agent. But that tack would violate CALEA, since Vonage would still be making a copy of the original call. The alternative, Citron says, is for Vonage to modify its VoIP system so that its digital routers include analog-friendly wires capable of producing a real-time sound wave. These could then be linked to a law enforcement agency, permitting simultaneous listening-in. Citron says making the shift would cost Vonage a few million dollars—before taking any action, he's awaiting further regulatory instructions from the FCC. The company has already complied with between 10 and 100 requests from various government agencies for general information (including call records and billing history), but to date, he has yet to receive a single request for a live tap into a Vonage call.

Time Warner Cable, which has announced that it will make VoIP available to all its digital cable markets by the end of the year, would have a much easier time wiretapping live phone calls. That's because Time Warner owns the underlying infrastructure its VoIP service relies on. So while Vonage could offer government agents access only to the handful of routers it uses to direct its calls over the wider Internet, Time Warner can offer them direct access to the cables, routers, and switches over which its VoIP calls travel. It could, in theory, open a live channel for law enforcement at the place where Time Warner's cable modem signals are routed onto the wider, public Internet. This switch, known as the Cable Modem Termination System, is a natural junction where a company like Cisco, which already builds CMTS hardware, could easily and cheaply add in CALEA-compliant technology.

Why, then, couldn't the feds tap any VoIP call by listening in on the line at the CMTS? Because some VoIP calls are routed, digitized, or encrypted in ways that law enforcement can't decipher. Skype, which now boasts 7 million users, specializes in such encryption. The company's system is designed to thwart potential eavesdroppers, legal and otherwise. The difference begins with how the networks are designed: Both Time Warner and Vonage offer VoIP services that run through centralized networks. For instance, when I place a call through Vonage, it starts by going to a centralized Vonage computer, which in turn looks up the phone number I am dialing and routes the call over to the traditional phone system. This is a classic instance of a "hub and spoke" network. But Skype, built by the same people who brought us Kazaa, is a totally distributed peer-to-peer network, with no centralized routing computers. (That's possible in part because Skype calls can only be sent and received by computers—you can't call a friend with an analog phone.) As a result, the company's network looks more like a tangled spider web, and the packets that make up your voice in a Skype call are sent through myriad routes to their destination. Part of the brilliance of the Skype software is that it has learned to use desktop PCs as "supernodes," each sharing some of the load needed to route Skype calls quickly to their destination. From the caller's perspective, this is all invisible: The call just works.

Since it's exceedingly difficult to follow the path that a Skype call makes through the network, law enforcement agents would be hard-pressed to figure out where to place a tap. But even if they could, the company has built in such strong encryption that it's all but mathematically impossible with today's best computer technology to decode the scrambled bits into a conversation. Here's how Skype explained it: "Skype uses AES (Advanced Encryption Standard)—also known as Rijndel—which is also used by U.S. government organizations to protect sensitive information. Skype uses 256-bit encryption, which has a total of 1.1 x 1077 possible keys, in order to actively encrypt the data in each Skype call or instant message." The point of all this mumbo-jumbo is that Skype uses an encryption algorithm* known as 256-bit AES. The National Institute of Science and Technology states that it would take a computer using present-day technology "approximately 149 thousand-billion (149 trillion) years to crack a 128-bit AES key." And that's for the 128-bit version; Skype uses the more "secure" 256-bit standard. Since computers have a way of quickly getting more powerful, the institute forecasts that "AES has the potential to remain secure well beyond twenty years."

Moreover, Skype says, the company does not keep the encryption "keys" that are used to encode each Skype transmission—each one is generated and then discarded by the computer that initiates the call. So government agents couldn't force Skype to turn over the keys needed to decrypt a call either.

Last Thursday the FCC held an open hearing on the future of VoIP telecommunications. In a 4-1 decision, FCC commissioners, supported by Chairman Michael Powell, voted that a VoIP provider called Free World Dialup should not be subject to the same regulations as traditional phone companies—including the particulars of CALEA compliance. Instead, the FCC decided to put off the issue, stating that it would initiate a proceeding "to address the technical issues associated with law-enforcement access to Internet-enabled service" and "identify the wiretapping capabilities required." One commissioner, Michael J. Copps strongly dissented, calling the postponement "reckless."

But even if the FCC had ruled differently on Thursday, mandating specific rules for Internet phone calls and CALEA compliance, it couldn't have been the definitive word on the subject.

VoIP technology is gaining ground so fast that it may be impossible for any government agency to dictate what these networks should look like. Skype, for instance, isn't even an American company. It's legally based in Luxembourg. Increased regulation on American carriers, which could lead to higher costs for consumers, is likely to push people further toward carriers like Skype, rewarding companies that seek permissive legal jurisdictions and punishing those that try to comply with domestic regulations. It's this scenario that the Justice Department legitimately fears: Even though the Patriot Act has increased its ability to eavesdrop on Americans, companies like Skype are giving everyday people unprecedented freedom from government monitoring.