Politics and Law

Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Feds want to eavesdrop on touch tones pressed during phone calls without obtaining a court-authorized wiretap order first.

When: U.S. Magistrate Judge James Orenstein in the Eastern District of New York rules on December 16, 2008.

Outcome: Surveillance request rejected.

What happened, according to court records and other documents:
Just about everyone knows that the FBI must obtain a formal wiretap order from a judge to listen in on your phone calls legally. But the U.S. Department of Justice believes that police don't need one if they want to eavesdrop on what touch tones you press during the call.

Those touch tones can be innocuous ("press 0 for an operator"). Or they can include personal information including bank account numbers, passwords, prescription identification numbers, Social Security numbers, credit card numbers, and so on--all of which most of us would reasonably view as private and confidential.

That brings us to New York state, where federal prosecutors have been arguing that no wiretap order is necessary. They insist that touch tones cannot be "content," a term of art that triggers legal protections under the Fourth Amendment.

On June 11, 2008, U.S. Magistrate Judge James Orenstein denied prosecutors' request to obtain in-call touch tones, a denial that the Justice Department appealed to a district judge. After being asked for more information, prosecutors said that they would configure their wiretap gear not to record in-call touch tones received from the wireless provider, presumably using tone-detection equipment. (In industry lingo, in-call touch tones are called "post-cut-through dialed digits," or PCTDD, and the government's request is called a pen register.)

That was enough for U.S. District Judge Nicholas Garaufis to approve the idea on November 26.

Probably thinking that ruling would be the last word on the topic, the Justice Department came back on December 16 for what was supposed to be a routine pen register request. It would let federal agents receive all phone numbers dialed by a suspect. A pen register is easy to get; all the Feds have to do is claim it's possibly "relevant" to an ongoing investigation.

The case happened to be referred to Orenstein, who was working with a different district judge this time, and concluded he didn't have to follow Garaufis' opinion because it was not binding precedent. Orenstein rejected the government's request.

This isn't the first time that the Justice Department has expressed a keen interest in post-call touch tones, and claimed it didn't need a wiretap order to obtain them. In 2007, Police Blotter covered yet another judge--also in the Eastern District of New York--rejecting the warrantless surveillance request. Two years earlier, Police Blotter revealed that the Justice Department believed that pen register orders could also be used to track mobile phones.

The FBI and other police agencies have always liked access to lists of numbers dialed; knowing who's talking to whom at a particular time can be almost as good as knowing what they're saying.

The debate is really over the in-call touch tones, and it dates back to at least 1994, when FBI director Louis Freeh was lobbying Congress to expand wiretap laws. Here's an excerpt from a hearing:

Sen. Patrick Leahy (D-VT): You say this would not expand law enforcement's authority to collect data on people, and yet if you're going to the new technologies, where you can dial up everything from a video movie to do your banking on it, you are going to have access to a lot more data, just because that's what's being used for doing it.

FBI Director Louis Freeh: I don't want that access, and I'm willing to concede that. What I want with respect to pen registers is the dialing information, telephone numbers which are being called, which I have now under pen register authority. As to the banking accounts and what movie somebody is ordering in Blockbuster, I don't want it, don't need it, and I'm willing to have technological blocks with respect to that information, which I can get with subpoenas or other process. I don't want that in terms of my access, and that's not the transactional data that I need.

That was then. Now the Justice Department claims it does want it, does need it, and is unwilling to go through the trouble of obtaining a wiretap order--but without publicly saying why. The court documents aren't helpful; Judge Orenstein's order last month was actually redacted and the requests are filed under seal.

Which invites speculation: Are police most interested in voicemail passwords? Online banking logins? Regulatory proceedings from almost a decade ago suggest that police were especially interested in the digits pressed after using an 800 number to reach a long distance carrier.

Excerpt from U.S. Magistrate Judge James Orenstein's opinion:
I find that proposal insufficient for the following reason. The pen register statute does not merely forbid the government as such from decoding content such as PCTDD; if it did, I would agree that the government's proposal is workable. Rather, the statute also makes it unlawful for a pen register itself to record the contents of a communication.

The government explicitly seeks authorization to have its agents install and use, or cause to be installed and used, a device or process that will record all dialing, routing, addressing, and signaling information but that will only exclude the decoding of any PCTDD within such information. Thus, as a result of the orders the government would have me issue, agents of the government (or employees of a service provider, acting at their behest) would install and use a device or process to record the contents of communications. In doing so, they would be using a device or process that cannot be considered a "pen register," and would thereby violate the law. That the same agents, or others acting on their behalf, would somehow later delete the portion of the recording that constituted the contents of the communication would not serve to undo the already completed unlawful act, nor would it retroactively transform something that was not a pen register into something that was.

I emphasize that my basis for denying the requested relief in part is a narrow matter of statutory interpretation. I see no constitutional difficulty with allowing the government to obtain the information it seeks to use for investigative purposes by means of a device or process that would qualify as a pen register but for the fact that, during the collection process, PCTDD information is initially recorded and then quickly deleted. Nor do I mean to convey a belief that Congress would or should, if presented with the issue, do anything other than endorse the methodology the government proposes. However, Congress has taken great care to establish a finely calibrated statutory regime to regulate various forms of electronic surveillance; to the extent that I cannot reconcile an otherwise seemingly appropriate surveillance technique with the relevant statutory provisions, I conclude that I must leave it to Congress to change the law rather than accept the government's implicit invitation to do so.

For the reasons set forth above, I grant the government's application only to the extent that the relevant service provider would in any event record the relevant post-cut-through dialed digits for its own purposes and only to the extent that the provider is able to delete such information before disclosing any other dialing, routing, addressing, or signaling information to the government. To the extent that the provider would not in any event record post-cut-through dialed digits without the requested orders, or is unable to delete all such information from the dialing, routing, addressing, and signaling information it would disclose to the government, I deny the government's application.

President-elect Barack Obama's transition team on Thursday asked Congress to consider postponing the upcoming national switch to digital television, warning that more congressional action is needed to address potential problems.

In a letter sent to the Senate Commerce, Science, and Transportation Committee and the House Energy and Commerce Committee, transition co-chair John Podesta called funding in support of the switch "woefully inadequate," The Washington Post reported.

The letter comes on the heels of news that the $1.3 billion fund to provide citizens with $40 coupons for digital converter boxes has run dry, and more than 100,000 consumers already sit on a waiting list for the coupons. For months, officials have said the digital transition, scheduled for February 17, is likely to be fraught with problems.

Rep. Ed Markey (D-Mass.), a senior member of the House Telecommunications and the Internet subcommittee, said it was worth considering pushing back the date.

"The prospect of leaving millions of consumers in the dark requires Congress to immediately consider the feasibility of the President-elect's proposal," in spite of significant logistical challenges, he said.

He also said Congress should immediately pass legislation to make more coupons available.

Other members of Congress came out in support of adding emergency funds to the federal program, including Sen. Kay Bailey Hutchison (R-Tex.), ranking member of the Commerce, Science, and Transportation Committee. However, Hutchison said it would be unwise at this point to set back the date of the transition.

"Shifting the date this close to the transition without a sound plan to share information about the new transition date will likely result in significant confusion," she said.

The New York Times on Thursday rolled out its latest political application program interface, just as members of the 111th Congress are settling into their new offices.

The Congress API will enable developers to keep close eye on their elected representatives with data on specific congressional roll call votes and members' most recent positions on roll call votes. The API also provides lists of House and Senate members in specific years, as well as biographical and role information about specific members.

(Credit: The New York Times)

The tool is one of a series of APIs the Times is developing to let its readers dissect the data it uses in its reporting. In October, it released an API to track campaign donations. The newspaper also released a movie review API and is working on several more, including a Times Best Sellers tool.

The information for the Congress API comes from the House and Senate Web sites, along with the Library of Congress site Thomas.gov and is updated throughout the day while Congress is in session. The tool works with information from other publicly available data sources like the Biographical Directory of the United States Congress and GovTrack.

The biographical data for House members goes as far back as 1983, while the data for House votes goes back to 1991. Developers can find information for Senate votes from as early as 1989 and information on individual Senators dating back to 1947.

WASHINGTON--When politicians are doling out trillions of tax dollars in bailouts and so-called stimulus spending, nobody should be surprised if the line of businesses queuing for cash snakes all the way around the Capitol building. The latest idea: more spending on smart grids.

The idea of a smart grid is an alluring one: A far more intelligent electric power system that takes advantage of technological developments to deliver power in a more optimal, energy-efficient way. A household dishwasher could decide to turn on when prices are low at off-peak times, and plug-in electric cars could feed power back into the grid when necessary.

To make the case that a smart grid is deserving of some serious federal largesse, utility companies and their business partners organized an event here on Thursday that drew hundreds of congressional staffers and random political lurkers (the free sandwiches probably helped). The companies demonstrated "smart" thermostats and smart phone applications to monitor energy usage--and then delivered the punch line: significant checks from the U.S. Treasury are necessary to make all this happen.

Given that electric companies make money from energy consumption, they need some government encouragement to adopt smart grid technologies, they said.

Congressman Jay Inslee (D-Wash.) gave his support Thursday for using stimulus money to invest in smart grid technology.

(Credit: Jay Inslee's congressional Web site)

The federal government should provide "the right incentives to allow the utilities to do the right thing," said Bob Gilligan, vice president of transmission and development for GE Energy.

It is expected, business representatives said, that Congress will soon authorize using taxpayer funds for smart grid technology, if not through the upcoming stimulus package, then in either an energy bill or a separate climate change bill.

Rep. Jay Inslee (D-Wash.), who belongs to the House Select Committee on Energy Independence and Global Warming, the Energy and Commerce Committee, and the Natural Resources Committee, was on hand to endorse the spending allocation.

"We know this is driven principally by private enterprise and private inventors, but Uncle Sam needs to belly up to the bar and be the spark plug for this revolution," Inslee said. "We know the world demands clean energy technology. The world is going to go to the door of the country that will develop these new technologies."

Along with increasing loan guarantee programs and research and development funding for such technologies, the federal government could take steps to incentivize the use of smart grids by decoupling utility revenues from the amount of electricity sold, Inslee said. The development of a smart grid system could also be dovetailed with a renewable energy portfolio standard, he said.

"We should not allow this economic crisis to be wasted," Inslee said. "We intend to use this stimulus package to promote investment in these technologies."

Tax vehicles such as investment tax credits would be cleanest way to spur smart grid use, said Dan Delurey, executive director for the Demand Response and Smart Grid Coalition, a trade association.

"The smart grid does qualify for stimulus," he said. "It's infrastructure, and it's shovel ready. There will be R&D, but there are technologies out there that will be deployed now."

Better business models and policy frameworks are needed, the business representatives said, before the country can embrace renewable energies like wind and solar, which are not especially useful on a calm day or when the sun isn't shining. The energy produced by those sources, they said, needs to be integrated into a smart grid that can use other sources of power when necessary.

Furthermore, smart grids can let customers know when energy from environment-friendly sources is available.

"We have the opportunity to put into the hands of Americans the means to save our economy money and address a grave threat" such as climate change, said Dan Abbasi, senior director for the investment firm MissionPoint Capital Partners. (Abbasi's company has invested in companies including Trilliant Networks, which sells "intelligent network solutions that power the Smart Grid," and stands to make a handsome profit from Uncle Sam's generosity.)

Smart grid implementation could also result in installation jobs in every congressional district in the country, he said.

The benefits of the smart grid are spread to all energy participants, not just utilities, said Trilliant CEO Bill Vogel.

However, "like the Internet, the government needs to have some influence and then back out to get something started correctly," he said of the smart grid.

"Through innovation and standards, it is the gift that keeps on giving," he said.

CNET's Declan McCullagh contributed to this report

With President-elect Barack Obama set to argue for urgent, massive government spending, and what is likely to be a $1.2 trillion deficit, lobbyists for technology firms are saying that any stimulus should be directed at, well, technology firms.

A report released Wednesday by the Information Technology and Innovation Foundation says that spending $30 billion in taxpayers' money in 2009 on broadband infrastructure, health IT, and electric grid technologies could create or save approximately 949,000 U.S. jobs. More than half of those jobs, the report claims, would be in small businesses.

Directing stimulus dollars toward IT infrastructure will have a greater impact on jobs and productivity than investment in traditional infrastructure, the report argues, because of the potential to indirectly create new jobs through the growth of new services and applications that depend on IT.

"With the U.S. economy now mired in a deep, and potentially prolonged, recession, increased investment is one of the best tools to stimulate aggregate demand and quickly get American workers back on payrolls," the report says. "Ignoring IT infrastructure investments will do nothing to save U.S. taxpayers' money; instead, it will simply shift the proportion of the economic stimulus money that goes to other areas, some of which, including personal consumption, do not offer many added benefits such as longer-term economic growth or innovation."

This report follows the same general path as a series of other requests for bailouts and spending. The list includes motorhome makers, home builders, governors, the city of Gary, Ind., and even some newspapers. Hustler magazine wants a porn industry bailout. The American Corn Growers Association wants handouts to ethanol plants experiencing "financial difficulty" and new "price supports" for farmers (for some odd reason, the group didn't include any antitrust investigations of Silicon Valley firms in its wish list this time).

The Information Technology and Innovation Foundation didn't say where the money would come from, but the government would presumably borrow it. Some economists support that concept as a way to recover from a recession. Others, like former Bush administration economist Greg Mankiw, say they're skeptical; George Mason economics professor Tyler Cowen says: "It is very hard to find examples of successful fiscal stimulus driving an economic recovery. Ever. This should be a sobering fact."

Nevertheless, ITIF says government spending of $10 billion over one year on broadband networks would create or sustain about 498,000 U.S. jobs for a year, the report estimates. In addition to facilitating a wide variety of services such as telemedicine, online education, and social networking, broadband networks create more high-paying jobs, the report says. IT jobs, according to the ITIF, pay 84 percent more than average jobs.

The report recommends that politicians focus on targeting broadband deployment in unserved areas and expanding network speeds with tax credits for cable and telecom companies.

Some argue that the stalled broadband adoption rates indicate that access is not the problem. A study released by the Pew Research Center in July 2008 showed 62 percent of dial-up users expressed no interest in broadband. The ITIF is also recommending the government encourage increased adoption by allowing broadband-related expenses to qualify for the Lifeline and Linkup programs, through which the government provides discounts to income-eligible individuals for the installation costs of telephone service and for monthly telephone bills.

Spending $10 billion specifically on health IT would create 212,000 new U.S. jobs, the report estimates, and would lead to fewer medical errors and reduced health care costs. The jobs related to health IT spending would come to fruition in computer hardware production, IT services, and among other things, additional job growth in related industries that develop out of the health IT sector.

The report also recommends spending federal funds for "smart grid" infrastructure, or a modernized power grid that uses two-way communication, sensors, and advanced IT to work more efficiently. About 239,000 jobs would be created, the report says, if $10 billion were spent on the smart grid. Beyond employing people directly to build the smart grid, the spending would "spur a host of innovative new products and services from hybrid plug-in electric vehicles to smart appliances to more investment in renewable energy," the report says.

CNET's Declan McCullagh contributed to this report

The U.S. Chamber of Commerce said Wednesday it is optimistic about the stimulus package currently in the works yet warned that the group may butt heads with Democratic leaders over issues like climate change regulation and energy policy.

"The chamber is very encouraged by the direction the President-elect is taking with his recovery package," Chamber CEO Tom Donohue said Wednesday, as he presented his organization's 2009 State of American Business report and its proposals for economic recovery. "Even so, we will not hesitate to vigorously fight wrong-headed proposals when necessary."

The chamber remains optimistic it can find a workable approach to energy solutions with Congress, said Bruce Josten, the agency's executive vice president of government affairs, even though it does not see eye to eye with the new leadership on the issue.

"Technology's the ultimate solution here," Josten said. "We continue to pass laws promoting the development and acceleration of new technologies, and then we don't fund it and walk away from it."

He cited the Energy Policy Act of 2005, which included incentives for the development of 72 different energy-related technologies. Two-thirds of those have remained unfunded, he said, with the final third underfunded.

Thomas Donohue

(Credit: U.S. Chamber of Commerce)

The chamber leaders said they expect to see more incentives for energy efficiency in the stimulus package, by way of infrastructure funding.

"We're going to make a down payment going forward, but we're not going to get everything done in one stimulus package," Josten said.

Lawmakers should consider all means of securing affordable, efficient energy, especially given the current economic climate, the chamber said. The United States is the "Saudi Arabia of coal," its report says, and the country should continue to invest in clean coal technologies.

The chamber also recommends Congress facilitate the immediate expansion of nuclear energy.

"It will give us clean power at low prices for a lifetime," Donohue said. "We're going to beat the drum on it."

Donohue argued that decisions about energy regulation should not be left up to independent regulatory agencies like the Environmental Protection Agency. Instead, it should be in the hands of Congress, which can view energy and climate change issues in the context of the larger economy.

"A system run by regulators from the top down that could stop any economic recovery in its tracks is not something this country needs," Donohue said. "It is our belief anything we do about CO2 or to keep people in their jobs ought to be global in nature or use U.S. innovation and technology."

The chamber will not back any particular approach to emissions regulations until it has had a chance to sit down with all the relevant players, he said.

Rep. Henry Waxman (D-Calif.), the new chair of the House Energy and Commerce Committee, is "going to be a challenge," Donohue said.

Waxman advocated for stronger carbon emissions regulations than Rep. John Dingell (D-Mich.), whom he replaced as head of the committee this year.

The chamber is also encouraging Congress to provide more assistance to the broadband industry, starting by funding the Broadband Data Improvement Act, which facilitates the collection of data regarding broadband deployment and establishes a grant program to promote Internet usage. The chamber also supports providing the private sector with incentives like tax credits to build out broadband infrastructure.

Christopher Norberg, defendant in a lawsuit accusing him of libel for a negative review he posted on Yelp.

(Credit: Christopher Norberg)

San Franciscan Christopher Norberg went to a chiropractor after being injured in a car accident in 2006. After a disagreement with the chiropractor over billing, he posted a negative review of the business on Yelp suggesting that the doctor was dishonest. Now he is facing a defamation lawsuit that could chill self-expression on the popular gripe Web site.

"If Christopher loses then anyone on Yelp who writes a negative review better be careful," said Michael Blacksburg, an attorney representing Norberg. "This strikes at the heart of Yelp's business model and other Web sites that provide a bulletin board for people to state what they think of businesses in their community."

"This is clearly Christopher Norberg's version of conversations with the doctor relating to a billing dispute and his opinion of how the doctor was behaving," Blacksburg said on Tuesday. "This is clear opinion that falls squarely within constitutionally protected speech."

Eric Nordskog, the attorney for chiropractor Steven Biegel, said the case comes down to whether Norberg's comments are considered statements of fact or opinions.

"Dr. Biegel has no problem with people expressing their views and opinions about his service," Nordskog said. "But there is a line where if someone, even on Yelp or on the Internet, publishes a false statement of fact as opposed to an opinion, then that person can and should be held responsible for their words."

Norberg, a 26-year-old custom-furniture builder, was advised not to discuss the case publicly, but has a Web site with related information. Biegel did not return a call seeking comment.

The two sides are scheduled to sit down for court-required mediation on Friday, but Norberg said he isn't optimistic that the case will be resolved then. A March 2 trial date is on the San Francisco Superior Court calendar.

The lawsuit, filed February 25, 2008, alleges that Biegel has suffered loss of reputation and business as a result of the review and seeks punitive damages. According to the lawsuit, the review allegedly contained false statements and inaccuracies that suggested Biegel was dishonest and accused him of fraudulent billing practices.

Billing dispute at center
Norberg was treated twice by Biegel before a friend of his told him he had had billing problems with Biegel's office, he wrote in his review. Norberg, who said he did not have medical insurance, was not asked to pay for the visits because Biegel's office said it would try to bill his auto insurance company instead, the review said. Even though the insurance company refused to pay, Norberg did not initially receive a bill from Biegel, he said.

In the meantime, Norberg began getting treatment from another chiropractor who suggested he sue the driver of the car that hit him, Norberg's review said. Norberg eventually settled the case, the review said.

After learning that Biegel's bill to the auto insurer was $550 instead of $125, which was the amount quoted for two visits, Norberg called Biegel, his Yelp review said. Norberg said that Biegel demanded he pay $550 during that phone call, but then said he would waive the fee entirely, according to the review. Biegel later called Norberg and explained that his office bills insurers at a higher rate than patients who pay for service directly because of the higher office costs in dealing with the paperwork and delays in receiving payment, court documents said.

Biegel's office then made a call to Norberg's auto insurance company and learned about the settlement and then called Norberg and demanded he pay $125, the lawyers said. Norberg paid the bill and posted a review of Biegel with a one-star rating on Yelp on November 16, 2007.

"I didn't feel comfortable with their tactics," Norberg wrote in his review after earlier writing that the office had been aggressive in trying to get him to come back for treatment before the billing dispute. Biegel "couldn't give me a straight answer as to why the jump in price...He called me back to cover his ass...(and says) he runs a business and would stick it to insurance companies," the review said.

"I don't think good business means charging people whatever you feel like hoping they'll pay without a fuss. Especially considering that I found a much better, honest chiropractor," Norberg wrote at the end of his review.

In a letter sent to Norberg dated December 7, 2007, Biegel asked Norberg to remove the review, saying it "unjustly characterizes me as unethical and dishonest" and attributed the dispute to a misunderstanding of his office procedures.

"I did not do anything unethical or illegal in our entire dealings," Biegel wrote. "It has never been my policy or intention to take advantage of an individual or insurance company."

On January 8, Norberg got a letter from Biegel's lawyer threatening him with a lawsuit over the review and two days later Norberg removed the review and rating from the site. The following month, Biegel sued.

Biegel, who was a "sponsored" advertiser on Yelp and encouraged customers to write reviews on the site, received about as many referrals per month from Yelp while the review was up as before, but fewer after the lawsuit was filed, Blacksburg said, citing Yelp documents.

A Yelp spokeswoman said she did not know of any other cases in which a business sued a Yelp user over a negative review.

"We won't comment on specific litigation, but in general, lawsuits like this are pretty uncommon," Yelp spokeswoman Stephanie Ichinose wrote in an e-mail.

"Most businesses engage constructively with customers who haven't had a good experience," she wrote. "When that doesn't work, they recognize that they can't always make one hundred percent of their customers happy one hundred percent of the time, and don't risk the huge expense and potential negative publicity that comes with suing one of their customers."

Accusing a business owner of unethical conduct would constitute defamation unless it is true, said Aaron Morris, an Internet defamation attorney in Santa Ana, Calif. However, if the defendant can successfully prove that posting the statement was a matter of public good then the plaintiff would have to show malice and that the defendant knew the statement was false or had reason to believe it was false, he added.

"You can have something that would normally constitute defamation but if it's a matter of public interest it is entitled to protected status," Morris said. "Some courts will say that if you are posting it in a forum where people would be interested, they are going to Yelp specifically to find out about the doctor...then it enjoys a heightened level of privilege."

Not much legal precedent has been set on Internet defamation involving consumer review Web sites. Two similar cases decided in August in California had conflicting outcomes. In European Spa v. Kerber, the First District Court of Appeal ruled that negative reviews of a spa posted on Yelp and Yahoo did not meet the public interest element to merit special status in a defamation lawsuit, Morris wrote in an entry on his blog. In a separate case, Kim v. IAC/InterActive Corp., the Second District Court of Appeal granted an anti-SLAPP (strategic lawsuit against public participation) motion filed by someone who had posted a negative review of a dentist on Citysearch.

"If enough of the cases come back where individual posters are being sued, that could chill the desire of people to go on and post their opinion," Morris said. "But all they have to do to protect themselves is to make sure there is some truth to what they are saying."

Updated 1:40 a.m. PST Jan. 7 with background on other cases.

As a presidential candidate, Barack Obama won applause from legal adversaries of the recording industry. Stanford law professor Larry Lessig, the doyen of the "free culture" movement, endorsed the Illinois senator, as did Google CEO Eric Schmidt and even the Pirate Party.

That was then. As president-elect, one of Obama's first tech-related decisions has been to select the Recording Industry Association of America's favorite lawyer to be the third in command at the Justice Department. And Obama's pick as deputy attorney general, the second most senior position, is the lawyer who oversaw the defense of the Copyright Term Extension Act--the same law that Lessig and his allies unsuccessfully sued to overturn.

Obama made both announcements on Monday, saying that his picks "bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times." The soon-to-be-appointees: Tom Perrelli for associate attorney general and David Ogden for deputy attorney general.

Tom Perrelli

(Credit: Jenner and Block)

Campaign rhetoric aside, this should be no surprise. Obama's selection of Joe Biden as vice president showed that the presidential hopeful was comfortable with someone with firmly pro-RIAA views. Biden urged the criminal prosecutions of copyright-infringing peer-to-peer users and tried to create a new federal felony involving playing unauthorized music.

Perrelli is currently a partner in the Washington offices of Jenner and Block, where he represented the RIAA in a a slew of cases, including a high-profile bid to unmask file sharers without the requirement of a judge reviewing the evidence first. Verizon initially lost to the RIAA, but eventually prevailed in 2003 when a federal appeals court ruled the record labels' strategy under the Digital Millennium Copyright Act was unlawful.

Perrelli has represented the RIAA in other lawsuits against individual file sharers. One filed in Michigan accuses a university student of distributing "hundreds of sound recordings over his system without the authorization of the copyright owners." A lawsuit against a Princeton University student makes similar arguments; Perrelli and his colleagues also tried to force Charter Communications to give up the names of 93 file-trading subscribers.

David Ogden

(Credit: WilmerHale)

A 2004 summary of a Boston lawsuit written by Harvard's Berkman Center--which opposed the RIAA in this and a current case--quotes Perrelli as telling a federal judge that it would be easy to determine who was using a wireless network to share music. "It is correct that the actual downloader may be someone else in the household," he said, but any errors can be determined easily after a "modest amount of discovery."

An article on his law firm's Web site says that Perrelli represented SoundExchange before the Copyright Royalty Board--and obtained a 250 percent increase in the royalty rate for music played over the Internet by companies like AOL and Yahoo. Perrelli previously worked in the Clinton Justice Department.

An article in Legal Times titled "Building an Entertainment Beast in D.C." says that in 2002, Perrelli used Jenner's reputation as an appellate law firm to "get a meeting with officials at the RIAA, at a time when Internet file-sharing entities like Napster were threatening the music business." A year later, in 2003, the law firm recruited Steven Fabrizio, previously the RIAA's senior vice president for business and legal affairs, and business began booming (the RIAA also used the Jenner law firm to write a friend-of-the-court brief in the copyright extension lawsuit).

If confirmed by the Senate, which is unlikely to pose much of a hurdle, Perrelli would oversee the department's civil division, the antitrust division, and the civil rights division.

Obama's choice for deputy attorney general--the second-in-command at Justice--is David Ogden, who's currently a partner at the WilmerHale law firm.

As assistant attorney general for the civil division, Ogden was responsible for organizing the defense of the Child Online Protection Act, or COPA, an antiporn law that has been challenged by the ACLU in court for more than a decade with no resolution. His department also successfully defended the Sonny Bono Copyright Term Extension Act before the U.S. Supreme Court.

Ogden's biography at Wilmer Hale says only that he represents the "media and Internet industries, as well as major trade and professional associations," without listing details. The Justice Department, barring exceptional cases, has a duty to defend laws enacted by Congress.

Perrelli, on the other hand, went out of his way to recruit the RIAA as a very lucrative client: his law firm bills some partners' time at a princely $1,000 an hour.

During his confirmation hearing, it will be instructive to see if senators ask whether his zealous anti-file sharing advocacy can make him an objective civil servant--especially when these same politicians want the Justice Department to sue peer-to-peer pirates at taxpayer's expense. (Then again, if that proposal becomes law, Perrelli's surely the right man for the job.)

It will also be instructive to see if this week's news prompts some of the RIAA's longtime adversaries to moderate their enthusiasm for Obama's technology policies.

As supporters of President-elect Barack Obama in Washington try to downplay near-term expectations for his administration's chief technology officer, an Obama aide on Tuesday said reports of an imminent announcement are incorrect.

With nearly of all Obama's cabinet named, recent speculation has swirled around whether news about the CTO post would be next, with one report saying to expect an announcement on Wednesday. The member of Obama's transition team, who asked not to be named, said that would not happen.

Still unclear are key details: who will fill the role, and what, exactly, the CTO will be tasked with doing. One possibility is that the CTO could be involved with, or even lead, policy groups handling topics as wide-ranging as Net neutrality, health information technology, and cybersecurity. Another is that the job could be limited to overseeing federal technology efforts--an area that could certainly use some improvement.

Or the position may fall somewhere in between, involving guiding other agencies in their use of technology. Creating an entirely new cabinet position with robust jurisdiction--and addressing consequential challenges such as turf wars, bureaucratic reorganization, and the development of a unique mentality for the office--could be too much to handle while trying to create an economic stimulus package, said Ed Black, president and CEO of the Computer and Communications Industry Association.

"It is not clear to me (that) they may try to do it all at once," Black said. "If they do, I think it can succeed, it will just take a degree of attention and focus that they might not want to dedicate at the outset, with this much going on."

Former InterActiveCorp executive and Obama technology transition team member Julius Genachowski has been considered a strong contender for the CTO role, though he is also seen as a top choice for chairman of the Federal Communications Commission. The Washington Post reported last month that Genachowski may be more interested in the FCC position because of the CTO's limited responsibilities.

"There does seem to be some belief (that) if he wants (the chairmanship), he'll get it," said David Kaut, a telecommunications, media, and tech policy analyst for the firm Stifel Nicolaus, who donated money to Obama. "The FCC is going to be the big player, when it comes to making and implementing policy, but depending on how much weight Obama wants to give the CTO, they could be a player as well."

The FCC may have immediate jurisdiction over issues like broadband deployment, Kaut said. While broadband deployment may not be a part of the stimulus package currently under development, Obama has indicated that it will be part of his plan for economic recovery.

"Technology seems to have fallen down the list of priorities, but I think they see it as a key to long-term competitiveness and growth," Kaut said. "The Democrats and Obama see a need for much more proactive policy to make broadband a driving force of U.S. competitiveness."

Other potential candidates for the CTO position have experience spanning government and industry, including Jeffrey Bezos, Amazon.com's CEO, and Blair Levin, managing director for Stifel Nicolaus, the former chief of staff for the FCC chair in the mid-1990s, and a member of Obama's technology transition team.

The transition team has also brought on Washington, D.C.'s own CTO, Vivek Kundra, as a technology policy adviser, and he's another potential candidate for the national CTO position.

Steve Moore, the president and CEO of the Washington, D.C., Economic Partnership, says Kundra's understanding of technology has been critical to stimulating the city's economic growth.

"The power behind social-networking sites--(Kundra is) taking that and plugging it into business," Moore said. "It's not just a cooler marketing tool; it's a fundamental change in the way you do things. Can that play nationally? I think that's the question all of us are asking."

In what amounts to a thinly veiled legal threat, the Chinese government has intensified its campaign against sexually explicit material online by instructing companies, including Google, to curb the availability of pornography.

Monday's announcement from a collection of seven government agencies singles out 19 sites as unlawfully providing access to "vulgar content." On the list: Google's Web search and image search, Baidu.net and the company's blogging site, and Sohu.net. (Google has denied any wrongdoing.)

The announcement from the State Council Information Office is billed as a "nationwide anti-crime" initiative, and urges the public to report illicit posts and Web sites. The state-controlled China Daily said that the companies named on the list "have been found to spread pornography and threaten youth's morals." It also warns that a regulatory crackdown may be coming.

While politically themed Internet censorship in China has received most of the attention--news sites and human rights sites are frequently restricted--the country's ruling Communist Party has long been interested in stamping out smut too. A CNET News article from as far back as 1996 said that Chinese Internet users were asked to "sign a set of rules that makes it illegal for users to produce or receive pornography."

More recently, the public security ministry said in 2007 that it would target porn, online strip shows, and even erotic stories. Some of the electronic barriers came down during the Olympics last year, only to reappear in the last few weeks.

Along the way, Chinese officials have made some bizarre statements. At an international Internet summit in Athens, a government representative told an incredulous audience: "I've heard people say that the BBC is not available in China or that it's blocked. I'm sure I don't know why people say this kind of thing. We do not have restrictions at all." (That statement would come as a surprise to Falun Gong practitioners.)

If this were simply political speech, no doubt members of the U.S. Congress would be tempted to convene ritual hearings where China, Google, and various other companies could be ceremoniously denounced in front of the cameras. But because we're talking about porn, a Senate resolution applauding China's censorial policies is probably more likely.