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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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The Importance of...


August 06, 2004
State AGs Warn Filesharing Companies: Your Technology Too Dangerous!Email This EntryPrint This Entry
Posted by Ernest Miller

Earlier today, I discussed the first media report of a letter from the state attorneys general to various P2P companies (States Warn Email Providers). Now, I have an actual copy of the letter and is it clueless. Read the 8-page (4 pages of content, 4 pages of signatures) missive for yourself: Letter from National Assoc. of Attorneys General to P2P United, Aug. 5, 2004 [PDF]. Read on for the annotation...

We are writing to encourage your companies to take concrete and meaningful steps to address the serious risks posed to the consumers of our States by your company’s peer-to-peer (“P2P”) file-sharing technology. By addressing such problems today as the use of P2P networks to disseminate pornography, invade privacy and infringe copyrights, P2P software may one day realize its potential as a means for facilitating a wide range of collaborative, project management, business planning, and academic/education activities. At present, P2P software has too many times been hijacked by those who use it for illegal purposes to which the vast majority of our consumers do not wish to be exposed.
Sweet paternalism. Is there any particular reason why consumers can't protect themselves? Are there not laws by which consumers can sue over defective products? Aren't there some class action litigation lawyers willing to sue a company providing a dangerous product and reap their multi-million dollar share of the liability?
We have carefully considered your response to the issues raised by P2P software as presented during the June 15-18, 2004 Summer Meeting of the National Association of Attorneys General and the June 8-9, 2004 National Association of Attorneys General Internet Conference. However, we find that this response fails to address the issues raised by P2P software.
And I find that this letter fails to address the critique by the P2P companies. It would be nice if the state attorneys general would be willing to engage in debate and show why the responses are inadequate or why the critique was flawed.
Our consumers need to be provided with the information necessary to understand this technology and to make informed decisions concerning its use. P2P file-sharing technology works by allowing consumers to download free software that enables them to directly share files stored on their hard drive with other users. This type of direct access to one’s computer differentiates P2P file-sharing technology from garden-variety e-mail accounts and commercial search engines such as Google and Yahoo.
When Google stores a gigabyte of your email, that is nothing to be concerned with. In any case, what the state attorneys general are saying is that they don't like it when citizens can easily publish to the world. It is dangerous when citizens have the same power to distribute information that the government and corporations do.
One substantial and ever-growing use of P2P software is as a method of disseminating pornography, including child pornography. While at least some of your companies do provide “filters” to help screen out unwanted files, including presumably those containing pornography, those filters appear to work by focusing on language in the file’s description or the file’s title rather than on the file’s content. P2P users interested in disseminating and receiving offensive or illegal material, such as child pornography, can simply use an innocuous file title and/or description in order to bypass those filters. Consequently, P2P users need to be made aware that they are exposing themselves, and their children, to widespread availability of pornographic material when they download and install P2P file-sharing programs on their computers.
You know, unlike when they connect to the web, where there is never an innocuously-named pornographic image to be found, or when they use email where pornographic spam is so rare as to be endangered.

The state AGs also make it sound bad that the filters only work on words in the filename. Do the AGs know something about image recognition that I don't? Is there a filter that can look inside the file?

Furthermore, P2P file-sharing technology can allow its users to access the files of other users, even when the computer is “off” if the computer itself is connected to the Internet via broadband. P2P users, including both home users and small businesses, who do not properly understand this software have inadvertently given other P2P users access to tax returns, medical files, financial records, personal e- mail, and confidential documents stored on their computers. Combating identity theft is one of our priorities, and many of our States have enacted laws to stop it. Consequently, P2P users need to be properly educated so that they will not inadvertently share personal files on their hard drives with other users of your P2P file-sharing technology. 1
Okay, the famous "when the computer is 'off'" but connected to the internet it can share files line. Yeah, I'd like me some of that computer. Imagine the money I'd save on my server farm electrical bill.

Actually, this paragraph suffers from serious cluelessnes. I'm unaware of any filesharing program that changes what is shared depending on whether the computer is being actively used or not. Either you're sharing private information or you're not. Is protecting private information part of a more general problem? Should people feel safe about identify theft if they don't use P2P programs? Or, perhaps, is this part of a bigger problem and a broader educational campaign is the proper response? Maybe we should teach people about protecting themselves against identity theft in general, with P2P programs as only part of the problem. Note also, that the state AGs don't actually blame a specific instance of identity theft on P2P, since most identity theft takes place through other channels.

Footnote 1: This problem is exacerbated by the default settings that you use as part of the installation process of P2P software. One default setting designates each and every file in a user’s hard drive for sharing with other users of P2P software. A second default setting leaves a user’s computer continuously accessible to the Internet. We would urge your companies not to select such default settings as part of your software installation process.
Default settings that "you" use. P2P United doesn't provide software, so I'm not sure what these default settings mean for such an organization. And why not point out the specific company? Which companies are using such bad defaults, if bad defaults they are? Why shouldn't filesharing programs default to on until terminated? I think what the AGs are complaining about here is that it has been difficult to shut down some filesharing programs. But that's not really a default.
The illegal uses of P2P technology are having an adverse impact on our States’ consumers, economies, and general welfare. There are serious concerns that P2P software is replacing Internet chat rooms and e-mail as a medium of choice for the dissemination of pornography, especially child pornography. Market forces and technological limitations of the Internet (e.g., the need to pay for web space and bandwidth) have combined to make peer-to-peer software a more attractive alternative to the Internet as a means of disseminating pornography. Peer-to-peer users and distributors of child pornography particularly believe that their anonymity on P2P networks protects them from detection by law enforcement. According to a January 25, 2004 New York Times Magazine article, “[c]yber networks like KaZaa and Morpheus – have become the Mexican border of virtual sexual exploitation.” The Federal Trade Commission, the United States General Accounting Office, and the Judiciary Committee of the United States Senate, among others, have all taken testimony or issued reports on the increasing use of P2P software to disseminate pornography.
This paragraph is really full of bullshit. It would be nice to have some firm figures here, instead of "concerns." What percentage of pornography distribution takes place via P2P as opposed to email, FTP, HTTP, NNTP, etc.? It is isn't a particular large percentage, or they would have mentioned it. Yes, pornography distribution has increased as P2P has increased, but that doesn't mean much in an absolute sense.

And what is this talk of "market forces" and "technological limitations of the Internet" making P2P a "more attractive alternative to the Internet"? Hello, clueless state AGs. I hate to break it to you, but P2P uses the internet. It isn't an alternative to the internet, it is part of it. Perhaps they meant the "web," but even that doesn't make sense.

By the way, the NY Times article cited (mirror) was considered so sensationlistic that the Times had an internal investigation discovering several errors. The reference to P2P is actually part of an entire paragraph devoted mostly to pornography on the web. There is no evidence provided as to why P2P is any worse than the web. It would be nice if the state AGs refrained from cheap sensationalism themselves.

P2P file-sharing programs also are being used to illegally trade copyrighted music, movies, software, and video games, contributing to economic losses. The Business Software Alliance estimates that its members lost $13 billion in revenue last year due to software piracy. According to a February 20, 2004 CNN article, “U.S. software companies lose up to $12 billion a year in piracy according to the Software and Information Industry Association. Music companies lost more than $4.6 billion worldwide last year, according to the RIAA [Recording Industry Association of America] and movie industry officials pegged their annual losses from bootlegged films at more than $3.5 billion.”
And this is relevant to P2P, why? What percentage of these figures is due to piracy in the US (you're state AGs after all, and you can't enforce in China, for example) and what percentage of that is due to P2P? Bueller? Bueller?
The article further reveals that “[t]he entertainment and computer industry have tried to stem piracy by making CDs and DVDs harder to duplicate. But the rise of free file-sharing networks on the Internet has made it easy for millions of individuals to distribute songs, movies, and software worldwide.” Similarly, a March 28, 2003 USA Today article described a recent hearing of the California Senate Select Committee on the Entertainment Industry in which “committee chairman Kevin Murray, D-Los Angeles, downloaded the KaZaa media desktop player in under 20 seconds, then downloaded numerous songs and the Oscar-winning movie Chicago, which hasn’t been released on DVD.”
This is truly bizarre. Wasn't there some consumer rights concern for improperly labeled CDs that had DRM and wouldn't play in CD players? And isn't there a law against anti-circumvention devices already? And Chicago was available, because of P2P? If they're trying to say something more than that P2P is used for copyright infringement, it beats me what it is.
Some of your companies have taken initial steps to warn users of P2P software that it may not be employed for illegal ends, which is commendable. However, more needs to be done by your companies to warn your P2P users as to the specific legal and personal risks they face when they use P2P technology for the illegal ends of disseminating pornography and “sharing” copyrighted music, movies, and software.
And what is illegal about disseminating pornography? I thought that was legal. Perhaps I missed the memo where the Supreme Court overturned the First Amendment. As for the warnings, what exactly do the state AGs propose and will they enforce it for email programs, browsers and other tools of copyright infringement?
We have, in the past, initiated Internet-related actions to stop individuals from disseminating unwanted spam, including deceptive e-mail designed to lure unsuspecting adults and children to pornographic web sites. We will, as appropriate, continue to initiate such actions in the future to stop deceptive and illegal practices by users of the Internet, including users of P2P software.
Well, gee, I hope so. Nice to see that state AGs still believe in doing their job.
However, the undertaking of enforcement actions against individual users does not excuse your companies from fostering deceptive practices on our consumers that invade their privacy and threaten their security. Nor do they excuse your companies from avoiding software design changes that deliberately prevent law enforcement in our States from prosecuting P2P users for violations of the law.
And these deceptive practices are, specifically, what? And these privacy invasions are, specifically, what? And, these security threats are, specifically, what?
We view with alarm reports that P2P software is being used by your companies as a means of transmitting unwanted spyware and adware that is bundled with the P2P software. Spyware aids an individual or a corporation in gathering information about P2P users without their consent or in asserting control over P2P users’ computers without their consent. In the past, we have initiated enforcement actions against Internet web sites that, without the knowledge of our consumers, placed “cookies” on their computers designed to track their use of the Internet. We would ask you to take concrete and meaningful steps to avoid the infringement of the privacy and security of our citizens by bundling unwanted spyware and adware with your software.2
Gee, why don't the state AGs go after the spyware directly? Most of the spyware is installed based on a clickwrap license. Perhaps state AGs could come out and say that these clickwrap licenses are bogus.
Footnote 2: It also has come to our attention that P2P file-sharing technology is being used as a means of transmitting computer viruses and worms because conventional virus protection programs, such as those marketed by Novell, do not scan files exchanged via such technology. If such is the case, then it would be incumbent upon your companies to warn your users of this risk.
When are the state AGs going to force Microsoft to include prominent virus warnings? Can the AGs point to any P2P virus that comes close to the damage Windows viruses have caused?
We view with equal alarm reports that at least some P2P file-sharing services are adding encryption features to those services. The addition of such encryption features will make it more difficult, if not impossible, for law enforcement to police users of P2P technology in order to prosecute crimes such as child pornography. Encryption only reinforces the perception that P2P technology is being used primarily for illegal ends. Accordingly, we would ask you to refrain from making design changes to your software that prevent law enforcement in our States from investigating and enforcing the law.
Translation: We like privacy, we don't like technology that protects privacy. Please.
Finally, we are concerned that the filters currently in use are inadequate as a means of protecting P2P users, and their children, from unwanted and offensive materials, such as child pornography. We believe that meaningful steps can and should be taken by the industry to develop more adequate filters capable of better protecting P2P parents and children from unwanted or offensive material. Not warning parents about the presence of, and then reasonably providing them with the ability to block or remove, obscene and illegal materials from their computers is a serious threat to the health and safety of children and families in our States.
A threat to health! And safety! What meaningful steps can be taken? It would be nice if the state AGs mentioned one or two. Surely their combined brain power is up to coming up with one or two feasible ideas that don't have pernicious side effects.
We take seriously our responsibility to protect our citizens from misleading or deceptive practices, and to ensure that our citizens are given the information necessary to making an informed decision. And, we take seriously the need to investigate and prosecute violations of our laws wherever they may be taking place – on the Internet, in the brick and mortar world, or on P2P networks.
Well, I'm glad they take their responsibilities seriously and all, but complaining and not providing actual solutions doesn't seem very serious to me. It also doesn't seem very serious to me when they make claims that computers can distribute information when they are "off" and that P2P is an alternative to the internet. Nope, not serious at all.
We believe that it is in no one’s interest for P2P technology to be used in order to promote unlawful or deceptive activities. Rather, we believe that concrete and meaningful steps can and should be taken to address the problems we have raised in this letter. It is only by taking such steps that P2P networks will be able to realize their innovative potential as a 21st century virtual collaboration and project management tool for regional or nationwide academic, business, home, and governmental activities.
That internet. So dangerous, but so full of promise. If only it was centralized for better control of illegal activity. Only then could the internet reach its full innovative potential.
We look forward to working closely with you to proactively address these problems.
Uh, yeah. Sounds great.


Category: File Sharing


COMMENTS
Alexander Wehr on August 6, 2004 01:51 AM writes...

"One substantial and ever-growing use of P2P software is as a method of disseminating pornography, including child pornography......P2P users need to be made aware that they are exposing themselves, and their children, to widespread availability of pornographic material when they download and install P2P file-sharing programs on their computers. "

[how about web browsers also have a long education pamplet, after all they expose people to porn, and why not google. Despite filters, i often have to weed through porn to get to relevant material. ]

"Furthermore, P2P file-sharing technology can allow its users to access the files of other users, even when the computer is “off”"

[I really want these hard drives which run without electricity, where did these state attorneys find one =)

" Peer-to-peer users and distributors of child pornography particularly believe that their anonymity on P2P networks protects them from detection by law enforcement."

[i believe several thousand RIAA lawsuits which have extensive news coverage shatter this myth, and there are tough child porn laws on the books

"P2P file-sharing programs also are being used to illegally trade copyrighted music, movies, software, and video games, contributing to economic losses."
[i will not debate that there is some impact, though studies conflict, but the point is that about 250% of cds created in a given year are traded online, but sales have dropped only a few percent... if each is a lost sale, then the music biz has negative 150% sales (have you been visited by RIAA reps looking to buy your cds back?)]

This letter seems to me to try to maintain objectivity, but it is clear these officials have been saturated with every RIAA lobbying tactic so far (e.g. P2P hurts sales, P2P is to blame for child porn, P2P represents a national security risk(terrorism ploy))

enough already.. this is reminding me of the over the top "reefer madness" propaghanda films in our earlier century.

Permalink to Comment

David P. Reed on August 6, 2004 03:43 PM writes...

It is clear that the assembled attorneys general did not provide these arguments. Nor do they claim to have consulted individual consumers. One might well ask who provided the input to this letter. I'd not be surprised to find a "group" funded by industry and run on its behalf by a large PR firm such as Burston Marsteller.

Permalink to Comment

Tim on August 6, 2004 03:44 PM writes...

This doesn't sound like something the AG's would draft. However, it does sound quite similar to something the MPAA has drafted before and sent to politicians. Alot of arms in the air chaos, the end is coming ruckus, but nothing to fix it other than kill anything that threatens my business model.

Permalink to Comment

R Roffel on August 6, 2004 03:49 PM writes...

It would seem as if the US has become one of the most repressive and totalitarian countries in the world since 9/11. This would only ass to the paranoia.

I would hope that all P2P companies use the argument that the AGs are infringing on the marketplace too freely. They could also argue that most medical researchers use P2P to share ideas and research data. Now, would the AGs want to stop medical research, too?

Permalink to Comment

Mark Wusinich on August 6, 2004 03:53 PM writes...

Please don't just put your thoughts here. Send them to your AG's on paper.

Permalink to Comment

Big Air on August 6, 2004 03:57 PM writes...

If you ever wondered why some people think "state's rights" is just a codeword for violation of human rights.

Now you understand.

I think this is just threat-mongering from the state AGs and their puppetmasters in the industry. But it's still serious, because it shows that those 46 AGs either didn't read what they signed, or they have no clue about technology or the Constitution.

There are far too many Constitutional arguments against state-action regulating p2p software companies.

You've got the First Amendment.

Since p2p enables consumers to publish. Regulating p2p is like regulating the printing press. They better be damn careful of how they approach it.

Additionally, there is a strong argument for extending 1st Amendment protection to the code of a software program... as with normal speech, code should not be inhibited unless it creates a clear and present danger of imminent harm (i.e. viruses, trojans, etc.).

You've also got the negative implications of the Commerce Clause (states are not allowed to unreasonably interfere with interstate commerce). If P2P on the internet isn't interstate commerce, then I don't know what is.

Besides, even if the state AGs did something to stop these companies... that still doesn't affect companies that are off-shore or open-source projects that use off-shore websites.

Everyone should send off an email to their state Attorney General, explaining what is wrong with the letter and why we want them to NOT sign the next one. In my state, the AG is a separately elected official. He makes his own decisions. I am sure that is the case in many other states.

Go forth and contact your elected officials!

Permalink to Comment

Matt on August 6, 2004 04:05 PM writes...

Wow, is it just me, or do other people also feel we should petion the government to read a book, and learn something, before trying to enforce any laws on the internet.

Permalink to Comment

Ichabod Ver7 on August 6, 2004 04:07 PM writes...

I think the comments about this are right on. I also agree that the RIAA has been working their ass off to try and stop P2P rather than find another alternative for them to make money. The fact of the matter is people who use P2P like it, and they are not going to quit using it. I do a presentation called "Down With the RIAA." It is a look at how we don't even need them anymore and how much of an obsolete organization they really are.

Frankly, I am starting to get worried. It seems that a lot of our freedoms are being taken away and nobody is doing anything about it. As a veteran of the armed forces, I am disgusted. I think there are better ways to handle these issues. As Ben Franklin once said, "Those who sacrifice liberty for security deserve neither." It was something to that effect anyway. I think that the forefathers of this nation would be disgusted at what we have done. This country was founded on freedom and it seems to be the one thing we are lacking lately.

Personally, I can think for myself and a lot of other people can too. It is going to take a lot of people voicing their opinion to make a difference. That is the only way to compete with the deep pockets of organizations like the RIAA. I strongly urge everyone who cares about their freedoms to support organizations like the EFF http://www.eff.org The best thing to do when there is a problem like this is find the person with the biggest mouth and let them use it.

Permalink to Comment

herimone on August 6, 2004 04:29 PM writes...

The AGs should let people know that they don't have to install P2P software on their computers.

I found I was downloading a lot less warez, films, porography and viruses as soon as I worked out I could avoid it by not installing any P2P software.

It's a very technical and hard to comprehend solution I know, but I'm sure it can be simplified so the AGs understand it.

Permalink to Comment

Alexander Wehr on August 6, 2004 04:38 PM writes...

I see the broadcast flag as a greater threat than banning of p2p networks.

The "robustness requirements" are the equivalent of an implementation of the SSSCA, which was struck down as way too invasive in the senate, by the same committees which are selling us out in every other way.

Meaning.. it is VERY evil.

Permalink to Comment

Rob Rittenhouse on August 6, 2004 04:51 PM writes...

Footnote 2: It also has come to our attention that P2P file-sharing technology is being used as a means of transmitting computer viruses and worms because conventional virus protection programs, such as those marketed by Novell ...

No wonder they're concerned about viruses -- Novell does not appear to market an antivirus program...

Permalink to Comment

Paul Crowley on August 6, 2004 05:26 PM writes...

I think some of the commenters here fail to understand what is coming. Like the broadcast flag and similar things that are either coming or have been threatened, limits on P2P are something that law enforcement and corporate interests are looking at.

OK, so you think a letter urging the publishers of such software to "do something" and "acknowledge problems" is unfair and is a infringment on our rights. Well, look past the immediate and think about the results. I think what the AG's are trying to say is "No more Wild West" Failure to acknowledge that there is a problem will result in "measures" being taken. Escalation. What specifically? Who knows, but I bet we won't like it much.

P2P is a threat on many fronts to many different interests. Software that you install which automatically, by default, shares all of the files on your hard drive is bad. Software that users install to get free music is incredibly attractive, so whatever the "bad" attributes are, they will be ignored. Market forces have no part in this because for the most part these programs are not sold and aren't published by anyone with anything to lose in the US. So, if a state AG wanted to file suit against the publisher of a P2P program for failing to take basic precautions against disseminating supposedly private files, just who exactly would they sue? Some individual in Romainia? A company in Vanuatu? So, there isn't anybody to go after. Sounds like the Wild West to me - you can get away with anything - no consequences.

There are plenty of other examples where outside of the Internet there are real consequences to actions but on the Internet there are none. Now. I can go online and download all the raunchy pictures of eight-year-old girls I want and I can P2P share them with everyone. I can practice my form of civil disobedience and rename the files to seem like pictures of band members and make them available for downloading via P2P and likely as not never get caught. However, if I print the pictures and pass them out on the street, I will spend the rest of my life in prison. Is this reasonable? A lot of people in law enforcement do not think so.

The "consequences" part of this has been shown a little tiny bit with RIAA lawsuits. However, everyone knows that the real likelyhood of getting caught is about .001% So, why not? The thinking today is that in the "Wild West" there were no consequences for robbery and murder. Well, that has changed. And believe me, the Internet is going to change as well, one way or another.

Permalink to Comment

Big Air on August 6, 2004 07:05 PM writes...

"P2P is a threat on many fronts to many different interests. Software that you install which automatically, by default, shares all of the files on your hard drive is bad."

Yeah, that would be bad. If such a program existed. But it doesn't.

People in government, just like the RIAA are terrified that people will actually have real free speech. That's what this is all about. It's not about being able to share porn or mp3s. It's about the future of our culture.

If you ever want to watch something other than FOX News and MTV, you'd better do something to foster p2p.

It is our only hope to avoid a completely mindless and predefined culture dominated by corporate interests.

I don't share mp3s. I don't want their stupid music and vapid movies. I wish they would all die out and quit pumping crap into the veins of my country.

Permalink to Comment

Woody Jensen on August 6, 2004 07:08 PM writes...

We need to ban telephones because terrorists use them. We need to ban cars because bank robbers use them. We need to ban the postal service because pedophiles send pictures to each other that way. Ban all pain killers because some people abuse them. Ban roads because criminals use them to commit crimes. Ban children because kids can become juvenile delinquents. Ban RAP music because it INDUCES people to become gang members. Ban money because it allows criminals to profit from their crimes. Where are the Taliban when you really need them?

And the worse part is, they haven't even defined what a P2P program is.

Permalink to Comment

Sombozo on August 10, 2004 03:11 AM writes...

The AGs of New Hampshire, Kansas & Wyoming are probably in agreement also. The Governors haven't been asked, but I'm sure they'll concur.
If a bill ended up on their desks both Bush and Kerry would sign it. Even if they don't, the UN will likely outlaw P2P and the US will agree by treaty.

Face it, the future will see complete and absolute control of every usage of every single byte of information. The Toltalitian, Socialist, Islamic, Fundamentalist and just plain Capitalist busybody forces will find concensus.
When my kids are seniors, getting permission and/or paying fees for everything that crosses our paths will have become second nature.

Permalink to Comment


TRACKBACKS
TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-pcorso.cgi/4006
Yes, but they *have* the power from blogbook.org - Tech IP+Cyberlaw Attorneys general of 45 states have signed on to a letter urging P2P software companies such as Kazaa not to implement encryption or other identity-disguising features. The letter warns of legal consequences if the companies don't adequately warn consu... [Read More]

Tracked on August 9, 2004 06:39 PM

State AGs to Al Gore - Fix the Internet! from Copyfight Last week, over on The Importance Of..., I annotated a letter from 46 state attorneys general to various P2P companies (State AGs Warn Filesharing Companies: Your Technology Too Dangerous!). Now, EFF has taken the letter to its logical conclusion and... [Read More]

Tracked on August 13, 2004 07:51 PM

State AGs Warn P2P Vendors from Freedom to Tinker Yesterday, the National Association of [state] Attorneys General sent a letter to P2P United, a trade association of peer-to-peer vendors, chiding the P2P industry for fostering porn, spyware, and copyright infringement. Though the letter does make a f... [Read More]

Tracked on August 30, 2004 03:16 PM




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