At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #7, On-line Video, where we predicted:
Like the print business, the television business is being radically disrupted by the Internet. The disparate and powerful industries affected — telco, cable, satellite, ISP, software, and production — are engaged in a battle for dominance. But as big business dukes it out, consumer rights risk being left behind. [...]
In 2010, expect industry to advance those initiatives, as well as to introduce new and similarly problematic schemes along the same lines. EFF, as usual, will be there to try to stop them.
DRM restrictions remained ubiquitous in on-line video this year, as well as in new Internet-connected high-tech TV appliances and the DVRs and other appliances that compete with them. When criticized over DRM, TV devicemakers and video providers consistently passed the buck, saying that they were only doing what was necessary to get access to copyrighted video (i.e., doing the bidding of Hollywood studios). In this two-sided market, Hollywood is extraordinarily well-positioned to demand DRM and consumers are poorly positioned to resist it.
This year the FCC took comments on its AllVid initiative, a next-generation attempt to create a single standard for devices that can receive pay TV services from any provider (instead of needing a set-top box specific to that provider). AllVid is positioned as a successor to the existing CableCARD regime, which has seen limited adoption; among other things, AllVid could apply to a wider range of pay TV providers, where CableCARD works only with cable TV. We've consistently criticized the FCC, which is responsible for overseeing CableCARD, for letting the industry get away with putting DRM into the CableCARD standard and thereby undermine the ostensible goal of promoting interoperability between devices. Naturally, the industry participants in AllVid want and expect to continue inserting DRM into future standards.
This year also saw more attempts to make on-line video services ISP-specific or device-specific for business rather than technical reasons. For example, video streaming websites like Hulu deliberately blocked video from flowing to particular devices, like Boxee or Google TV.more...
At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #12, Web Browser Privacy, where we predicted the following:
And that's how it remained for some time. Or so most web users thought.
As it turns out, corporations seeking to track individuals' use of the web were hard at work developing new and unexpected methods of profiling. For a long time, many of these methods either remained unexamined or were simply performed covertly and hidden from the public. But as we enter 2010, awareness and scrutiny of them is on the rise.
Try browsing the web while using a tool like the Firefox add-on RequestPolicy, and you'll see that many major sites share your web activity with dozens of advertisers and advertising networks. With few technical or legal restrictions on the ability to track you around the web, companies you may never have heard of may have profiles of you which include things about your web use that you don't even remember.
This year the Federal Trade Commission is taking a fresh look at privacy and the use of profiles to target ads based on individuals' behavior on the web. We'll be participating in the process by providing testimony to the FTC, as well as launching our own study of just how easy individual browsers are to track, and how they can be made more privacy-protective.
During 2010, a clearer picture emerged of just how sophisticated and hard-to-defend-against modern browser tracking technologies have become. There are many dimensions to this problem.
One is the sheer number of supercookie technologies that persist even if users limit or delete their regular cookies. This was a previously known problem, and some companies were already receiving scrutiny for using supercookies to record people's online reading habits. But the Evercookie project underscored just how many types of supercookie there are, how easy they are to deploy, and how hard they are to delete.
Another is browser fingerprinting. Early in 2010, we ran the Panopticlick browser fingerprinting experiment, which showed that the vast majority of web browsers can be tracked even without IP addresses, cookies or supercookies. Subsequently, the Wall Street Journal reported that firms had already been using these methods to track huge numbers of people.
We will continue to promote the development of privacy technologies to defend against these tracking methods, and encourage browser developers to include them in their mainline releases. But as things stand, we do not believe there are any options that offer web users the option to read in private without the use of tools that are impractically slow and inconvenient for continual use. As a result, we are interested in the emerging proposal for a browser header-based Do Not Track convention, and are encouraged by the FTC's interest in the proposal. Perhaps 2011 can finally be a year when Web users get more, rather than less, privacy.more...
The section program at the Annual Meeting of the Association of American Law Schools in San Francisco on January 7 is a veritable Credit Slips reunion show. The theme is post-crisis regulation of finance. The Call for Papers panel at 4 pm features papers by William Birdthistle, Jim Hawkins, Adam Levitin, Alan White and Sarah Woo. The 7 am breakfast is a policy roundtable representing a range of interdisciplinary perspectives, including Cristie Ford, Bill Kovacic, Brett McDonnell and Annelise Riles, with Heidi Schooner moderating. Both meetings are at the Parc 55 hotel in Union Square. Registration informaiton is here; program details are here.more...
My Soviet roots manifest most acutely around New Year’s (a big holiday in the motherland), which must account for the urge to quote Marx apropos the European financial crisis. Europe is the lead story of the 2010 Crisis Yearbook. It holds the promise of radical legal innovation in financial crisis management: it may yet become the birthplace of the first-ever sovereign bankruptcy regime, and the first-ever initiative to standardize sovereign bond contracts issued under the domestic laws of different states. But for now, Europe is mired in CACology.
In the absence of a sovereign bankruptcy regime, Collective Action Clauses (CACs) help solve coordination problems in sovereign bonds by binding all bondholders to the terms of a debt restructuring approved by the majority. Some variants go farther to help map a path for debt renegotiation. A promise to adopt CACs in all sovereign debt issued by EU member states figured prominently in statements by European leaders in November, and again by the European Council just a couple of weeks ago. Beginning in 2013, CACs would be adopted, and could be used “case by case” to facilitate restructuring of unsustainable government debts, and thereby share the burden of crisis response with the private sector, eliminating the need for bailouts. CACs are part of the plan for a new European Stability Mechanism, which would replace the temporary European Financial Stability Facility and the European Financial Stabilization Mechanism, established earlier this year for three years.
As a general matter, CACs are a very good thing, as is the idea of harmonizing the domestic law debt of member states to include some form of debt restructuring support. Sovereign bankruptcy is more complicated; fair coverage requires a separate post. Even so, CACs’ European revival is puzzling. Unlike the last two campaigns to include CACs in foreign sovereign bonds in the 1990s and early 2000s, today’s initiative does not point to coordination problems. Most of the sovereign bonds at issue either already have CACs or include other features that make restructuring relatively straightforward. Much of the European debt problem outside Greece stems from private sector debts, which can be restructured in bankruptcy or its analogues. Moreover, standardized CACs on the Group of Ten model referenced in the EU statements are a hard fit for domestic law bonds, whose documentation is very idiosyncratic.
With the historic crisis still spreading, why lead with such an ill-fitting remedy? Mitu Gulati and I noodle this question in our introduction to the forthcoming Law & Contemporary Problems volume on the Modern History of Sovereign Debt. Looking back to CACs’ policy debut in 1996 and return in 2002, which led to their widespread adoption in foreign sovereign bonds, we get the nagging sense that CACs have always been something of a diversion. Politicians who must explain unpopular bailouts to the angry public want to be seen as solving the problem that led to the bailout. They want to look the public in the eye and promise no more bailouts. But the real problems underlying any big financial crisis are complicated and often intractable, which is why crises always return. Real solutions require alienating powerful constituencies, spending tax money, and reducing the availability of credit, among other unpopular measures. When real solutions are out of reach, officials are tempted to reframe the problem. Creditor coordination can be fixed with CACs; sovereign insolvency, bank under-capitalization, interdependence and interconnectedness cannot.
The fact that no one has identified the creditor coordination problems blocking European bond restructuring, nor their roots in contract terms, is telling. After the official drive of the 1990s and early 2000s, CACs have acquired such a powerful symbolic meaning as a market-friendly answer to both bailouts and treaty-based sovereign bankruptcy, that collective action problems are no longer needed to invoke them.
If CACs are good, what is the harm? None but spending precious time on tertiary business and misleading the public about what it would take to solve the real problem. But then again, after a decade of studying CACs as we have, anyone would get cynical.more...