Politics and Law

President Obama is continuing to fill the senior ranks of the U.S. Department of Justice with the copyright industry's favorite lawyers.

Donald Verrilli announced Wednesday that he had been named associate deputy attorney general. Verrilli is the lawyer who pulled the plug on Grokster, sued Google on behalf of Viacom, and represented the Recording Industry Association of America against a Minnesota woman named Jammie Thomas who's accused of illicit file sharing.

This follows a string of other pro-copyright industry picks that Obama has made. Last month, there was Obama's selection last month of a top RIAA lawyer--currently squaring off in court with Harvard University's Berkman Center--to be third-in-command at the Justice Department.

Donald Verrilli, the lawyer who pulled the plug on Grokster

(Credit: jenner.com)

Vice President Joe Biden has long been an ally of the recording industry, urging the criminal prosecutions of copyright-infringing peer-to-peer users and trying to create a new federal felony involving playing unauthorized music. And another senior Justice Department post has gone to the top antipiracy enforcer for the Business Software Alliance, a strong supporter of the Digital Millennium Copyright Act's anti-circumvention rules.

Obama's latest choice, Verrilli, is a senior litigator in the Washington, D.C. offices of the Jenner & Block law firm.

In technology circles, he's probably best known for arguing the Minnesota case called Capitol v. Thomas. In that case, the RIAA convinced the judge to accept jury instructions saying that the "making copyrighted sound recordings available for electronic distribution on a peer-to-peer network" violated the law, even if none had actually been transferred.

Verrilli won the first round, with a federal jury saying in October 2007 that Thomas had to pay $220,000. But then the judge threw out the verdict, concluding the jury instructions he approved were misleading; the RIAA is hoping to hold on to the initial verdict and is currently appealing.

One reason why this case is especially relevant to Verrilli's new job is that the Justice Department intervened in the Thomas case on behalf of the RIAA.

That has already caused some tech lobbyists to wonder privately about whether or not Verrilli will recuse himself from matters that affect their former clients. Another example of a relevant case involves the Supreme Court asking the Justice Department for input on a case involving Cablevision--another lawsuit that Verrilli was part of on behalf of copyright holders. (Disclosure: the film studios and television networks that brought the suit against Cablevision include Time Warner, News Corp., Walt Disney, and CBS, which owns CBS Interactive, publisher of CNET News.)

A Jenner & Block press release says that Verrilli "led the Jenner & Block team that is pursuing a $1 billion copyright case on behalf of Viacom Inc. against Google and YouTube, alleging massive violations of Viacom's copyrighted motion pictures and television shows." Last year, Viacom CEO Philippe Dauman even called YouTube a "rogue company."

The lawsuit filed in New York in March 2007 accuses YouTube of "massive intentional copyright infringement" and seeks more than $1 billion in damages. Other plaintiffs include Country Music Television, Paramount Pictures Corporation, Black Entertainment Television (all of which are Viacom affiliates).

From a legal perspective, Verrilli's zealous defense of large copyright holders reached its apogee in the Grokster case.

MGM had sued Grokster, saying that it effectively induced its users to commit copyright infringement. When the Supreme Court heard arguments on March 29, 2005 in the most important copyright case that decade, MGM chose Verrilli to represent its side.

"The recording industry has lost 25 percent of its revenue since the onslaught of these services," Verrilli told the justices. "And that's particularly critical, because, remember, this is really... a venture-capital business. Most of the records we put out don't make money. A few make a lot of money. Well, what do you think's getting traded on Grokster and StreamCast and the rest of them? It's the few that make all the money."

It worked, or at least worked pretty well. The Supreme Court ruled that operators of peer-to-peer networks could be held liable for copyright infringement, and Grokster quickly settled with Hollywood studios and the record labels.

During the campaign, when CNET News asked Obama for his views on copyright, he replied: "As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators."

That was, unfortunately, rather vague. Now it's a bit more clear where he stands.

Commerce Secretary-designate Judd Gregg (center) speaks Tuesday at the White House, accompanied by Vice President Biden and President Obama.

(Credit: White House photo by Pete Souza)

Republican senator Judd Gregg on Tuesday officially became President Obama's nominee for secretary of commerce, bringing a pro-business and pro-law enforcement record to a cabinet position with significant influence over the new administration's technology policies.

In remarks at the White House, Obama called the New Hampshire senator "an outstanding addition to the depth and experience of my economic team, a trusted voice in my Cabinet, and an able and persuasive ambassador for industry who makes it known to the world that America is open for business."

A review of Gregg's actions as senator shows that his record on technology policy is mixed. His skepticism of Internet taxes and support for more H-1B visas has made him a frequent ally of the tech industry, but he was the first -- and only -- senator to call for a global ban on secure encryption products after the September 11, 2001 attacks.

The U.S. Department of Commerce oversees the administration's position on Internet regulation, the patent office, and tech-related standards including an algorithm used in digital signatures. Commerce's National Telecommunications and Information Administration calls itself the "president's principal adviser on telecommunications and information policy issues." In addition to its traditional involvement with Internet governance, NTIA is responsible for overseeing the coupon program for digital TV converter boxes.

Because Commerce oversees regulations relating to the Web posting and export of encryption code, Gregg's pro-surveillance views are causing a bit of nervousness in Washington circles. On the Senate floor on September 13, 2001, while the World Trade Center complex was still smoldering, Gregg said: "This is something that we need international cooperation on and we need to have movement on in order to get the information that allows us to anticipate and prevent what occurred in New York and in Washington."

Gregg said that encryption makers "have as much at risk as we have at risk as a nation, and they should understand that as a matter of citizenship, they have an obligation" to include decryption methods for government agents. Gregg, who previously headed the appropriations subcommittee overseeing the Justice Department, then told the Associated Press he was writing legislation "to give our law enforcement community more tools."

That proposal echoed legislation approved by one House of Representatives committee four years earlier, which would have made it a felony to distribute or sell encryption products unless they provided police with "immediate access to plaintext." That would have prohibited the distribution of Web browsers with built-in SSL encryption, operating systems with disk encryption, and software using standard Internet protocols including IPsec and SSH.

A month later in October 2001, without explanation, Gregg abandoned the legislation he was drafting.

"We are hopeful that as Commerce Secretary, Sen. Gregg will not revive the discredited idea of limiting the use of strong encryption," Greg Nojeim, senior counsel at the Center for Democracy and Technology, said on Tuesday. "Requiring a backdoor in encryption systems to help the government conduct surveillance would create vulnerabilities that would ultimately make us less, not more, secure."

A friend of the business community
In other areas and in other ways, though, Washington representatives of the high tech industry say Gregg is a solid choice.

The Business Software Alliance said the senator "has the potential to be an outstanding Secretary of Commerce." The Information Technology Industry Council said: "He has been a strong proponent of opening overseas markets to U.S. exports, he backed a permanent R&D tax credit and has voted favorably on litigation reform."

Gregg has been a friend of the business community, receiving a cumulative score of 88 percent in the U.S. Chamber of Commerce's most recent congressional scorecard. (By comparison, Obama received a 42 percent rating, and Vice President Joe Biden a mere 35 percent.) On CNET's 2008 scorecard that rated a broader range of votes including ones relating to gambling and wiretaps, Gregg received a 50 percent.

He has been a champion of eliminating any limits on H-1B "guest worker" visas, telling Microsoft's Bill Gates in 2007 that he "agreed 100 percent" that there should be no limits on them. Gregg acknowledged that his colleagues would not be inclined to support such a radical proposal; he introduced legislation last year raising the limit on H-1B "guest worker" visas from 65,000 to 115,000 and the advanced-degree exemption to 30,000 visas for the next three years.

Gregg has also suggested making it illegal to sell someone's Social Security number without their consent, and has consistently supported efforts to restrict Internet taxes.

The news of Gregg's nomination comes a day after the Senate confirmed Eric Holder as attorney general. Holder supported laws mandating Internet traceability, limits on domestic use of encryption, and restrictions on free speech online; during his confirmation hearing last month he said the president has inherent wiretapping and surveillance authority that "cannot be infringed by the legislative branch."

CNET's Stephanie Condon contributed to this report

Updated at 3 p.m. PST with quotes from White House spokesman Bill Burton.

The Obama administration may be considered tech-savvy, but that didn't do much good Monday when the White House was hit with a daylong "server outage."

Most White House aides, the first lady's office, and other executive offices were without e-mail for the day, The Washington Post reported, after the outage blocked all incoming and outgoing messages beginning around 10 a.m. EST.

As of Tuesday morning, the White House was once again sending its regular slew of e-mails.

Press secretary Robert Gibbs acknowledged the outage during a briefing to reporters Monday afternoon. White House aides at the briefing had to pass out photocopies of the executive orders signed by the president that day, rather than e-mailing them to reporters. The outage, however, did not appear to cause any major disruptions at the White House.

White House spokesman Bill Burton said the outage was the result of a piece of old hardware in the data center breaking Monday morning.

"This caused a chain reaction with other systems, specifically the e-mail servers," he said. "We began the process of modernizing all of our technology infrastructure last week, and the faulty piece of hardware that broke has been replaced."

"In spite of it all, we enjoyed the opportunity to get out from behind our computers and meet with colleagues and visitors face to face," he added.

President Barack Obama will be able to keep his beloved BlackBerry, an aide confirmed on Thursday, making him the first U.S. president to use e-mail regularly.

White House press secretary Robert Gibbs told reporters that, thanks to a "compromise," his boss will be able to keep a security-enhanced BlackBerry and use it for e-mail.

That will, Gibbs said, allow Obama to continue to keep in touch with people and avoid getting "stuck in a bubble." (The new Washington insider test: Do you know the president's secret e-mail address?)

Gibbs didn't offer details, but the contours of the compromise seem to be: official, work-related e-mail messages will be subject to the Presidential Records Act and the possibility of eventual disclosure. But strictly personal communications--with family, for instance--will be exempt.

This makes sense. As we reported last week, federal law explicitly exempts from disclosure any "personal records" that do not relate to the president's official function.

Those include electronic records that are "of a purely private or non-public character" and don't relate to official duties; the law lists diaries, journals, notes, and presidential campaign materials as examples. Similarly, the Freedom of Information Act prevents files from being released if the disclosure would significantly jeopardize "personal privacy."

Thursday's official confirmation ends weeks of speculation about whether Obama would follow the lead of his two immediate predecessors. Bill Clinton sent only two e-mail messages as president and has yet to pick up the habit. George W. Bush ceased using e-mail in January 2001 but said he was looking forward to e-mailing "my buddies" after leaving Washington, D.C.

"It's not just the flow of information," Obama said in a recent interview with CNBC. "I mean, I can get somebody to print out clips for me, and I can read newspapers. What it has to do with is having mechanisms where you are interacting with people who are outside of the White House in a meaningful way. And I've got to look for every opportunity to do that--ways that aren't scripted, ways that aren't controlled, ways where, you know, people aren't just complimenting you or standing up when you enter into a room, ways of staying grounded."

One limitation of the BlackBerry, though, is that it does not appear to have been certified by the National Security Agency as secure enough for Top Secret voice communications. For that, there's the chunky, unwieldy, but built-to-military-specifications Sectera Edge, a combination PDA-phone that runs Windows Mobile.

Update 2:15pm PT: Here's more from today's exchange:

GIBBS: The president has a BlackBerry, through a compromise that allows him to stay in touch with senior staff and a small group of personal friends in a way that use will be limited and that the security is enhanced to ensure his ability to communicate, but to do so effectively and to do so in a way that is protected.

Q: Are records kept?

Q: Will the records be kept?

GIBBS: The presumption regarding those emails are that they're all subject to the Presidential Records Act. There are, as you know, some narrow exemptions in the Presidential Records Act to afford for strictly personal communications. But, again, the presumption from the Counsel's Office is that they will be subject to the Presidential Records Act --

Q: -- hacker in Russia and China is already at work.

GIBBS: That's why I didn't give the email address.

Q: Are you trying to wean him off of it?

GIBBS: Nobody can do that. I think he believes that -- he believes it's a way of keeping in touch with folks, a way of doing it outside of getting stuck in a bubble.

I've gotten emails from him -- not recently, or not in a few days, I should say -- that go from anywhere from something that's very strictly business to "Why did my football team perform so miserably" on either any given Saturday or any given Sunday.

So I think he finds it as an important way to continue to communicate. There's a process by which people that have access to the email will be briefed before anything like that can happen. Jeff.

Q: How specifically will this be allowed to be used? I mean, will all members of his senior staff be able to email him? And how will you keep a proper chain of command and chain of communication with him? Who can email him and who can't?

GIBBS: Well, I'm not going to get into all those specifics, for obvious reasons. But a limited group of senior staffers and some personal friends -- it's a pretty small group of people --

Q: Can you put a rough number on it?

GIBBS: Let me get some guidance from the Counsel's Office before I do something like that, so that the hackers that Bill has instructed won't start.

President Obama signed an order on Wednesday proclaiming that the entire federal government should be more open, transparent, and Internet-friendly. It said that agencies must "put information about their operations and decisions online and readily available to the public."

That memorandum, along with a few other executive orders and statements from White House officials, were sent to reporters throughout the day. But in an ironic twist, the transparency and a slew of other first-day-in-office documents were still absent from the official Whitehouse.gov site as of Wednesday at 8 p.m. ET.

caption: Whitehouse.gov, frozen in time since Tuesday?

The Web site still says: "The President has not yet issued any Executive Orders."

By comparison, the outgoing Bush administration was disciplined about updating Whitehouse.gov. As soon as Bush left the White House on Tuesday to go to the inauguration, a photo of himself and his wife appeared online.

Yet the text of Obama's inaugural address didn't appear for more than a day, even though news organizations posted it immediately. Still missing from Whitehouse.gov are an executive order relating to ethics, a memorandum about a staff pay freeze, and an Obama statement about meeting with the Iraqi ambassador.

Now, we've heard reports of confusion during the Obama press office's first full day on the job, with phones not working and computer passwords not assigned. And it's fair to say that the Bush administration's takeover of Whitehouse.gov was not exactly an unqualified success; it boasted broken links and, briefly, the phrase "Insert Something Meaningful Here."

But for a president who campaigned on on government openness and (unlike Bush) had almost three months to prepare, this state of affairs can't be entirely satisfying.

Update 5:40 pm PT: The White House Web site has been updated to include some, but not all, of the documents.

Update 5:50 pm PT: Whitehouse.gov includes some JavaScript tracking code that sends WebTrends--a private company that provides Web analytics--information about each visitor's computer and settings. This disclosure is not made public in Whitehouse.gov's privacy policy, and may violate a Clinton-era memorandum saying government Web sites should have "clear and conspicuous notice of any such tracking activities." The Bush administration got in trouble for a less intrusive use of WebTrends, which merely set a cookie instead of sending visitor information to a third party, according to an Associated Press article from 2005. A WebTrends spokesman declined to comment, referring us to the White House. We'll contact the White House and get back to you.

In one of his first official acts as president, Barack Obama ordered more government openness, marking an abrupt end to his predecessor's policy of extraordinary secrecy.

Obama's still-be-named chief information officer -- some speculation has centered on Washington, D.C., CTO Vivek Kundra -- is required to come up with ways within 120 days to make the administration more Internet-friendly. (The memorandum says agencies must "harness new technologies to put information about their operations and decisions online and readily available to the public.")

The second memorandum overrules the Bush administration's controversial policy, issued a few weeks after September 11, 2001, instructing agencies to limit their responses to FOIA (Freedom of Information Act) requests as much as possible. OpenTheGovernment.org said last fall that Bush had "exercised unprecedented levels not only of restriction of access to information" but also of "suppression of discussion of those policies and their underpinnings and sources."

Then-Attorney General John Ashcroft's October 2001 memorandum promises that the Justice Department would "defend" decisions not to release materials, and an accompanying note talks about denying requests "to provide necessary protection in the wake of terrorism."

That's what Obama essentially revoked. Here's an excerpt from the FOIA memo:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears... All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open government. The presumption of disclosure should be applied to all decisions involving FOIA.

And an excerpt from the memo "Transparency and Open Government":

Information maintained by the federal government is a national asset. My administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.

Fans of President Barack Obama, or perhaps just those who dislike former President George W. Bush, seem to think there's something notable about the way the new White House Web site is configured to deal with search engines.

That configuration file is called robots.txt. It's designed to let Webmasters ask search engine robots not to include certain areas of a Web site in their index. Well-behaved robots will comply.

The Obama revamp of Whitehouse.gov included a shorter robots.txt file, which Thenextweb.com called "a sign of greater transparency and change." A BoingBoing poster claimed that now "people can find information that was restricted before." And so on.

There's just one problem with these comments. They're wrong. As of Tuesday morning, the Bush administration's robots.txt file did only two things: first, it pointed search engines to the high-graphics versions of the page, as opposed to the text-only versions, and second, it tried to keep type-in-your-search-query pages from being indexed.

Those are legitimate reasons to list those pages in robots.txt, which is why CNET's own file is relatively long and complicated too. (Sites that have been around for eight years or longer tend to get that way). We ask search engines not to index an "/Ads" directory, e-mail-this-story pages, and dozens of others. The Democrat-controlled House and Senate have--gasp!--substantial robots.txt files too.

It's true that in 2007, the Bush White House did block some files they should not have, which they fixed once I brought it to their attention. They also fixed a more serious problem with the Director of National Intelligence's Web site, and an earlier problem in 2003. (A better solution would be for search engines to ignore overly broad robots.txt files on .gov and .mil sites, including Thomas.loc.gov.)

If anything, Obama's robots.txt file is too short. It doesn't currently block search pages, meaning they'll show up on search engines--something that most site operators don't want and which runs afoul of Google's Webmaster guidelines. Those guidelines say: "Use robots.txt to prevent crawling of search results pages or other auto-generated pages that don't add much value for users coming from search engines."

And here's something sure to upset Obama-praising geeks: the new White House site doesn't pass the litmus test of good HTML design. Alas, according to the W3C, not all pages successfully validate. Those are your tax dollars at work.

P.S.: The White House seems to be using Akamai's Edge Platform for scalable Web hosting:

sh-2.05b$ host whitehouse.gov
whitehouse.gov has address 96.6.250.135
whitehouse.gov mail is handled by 105 mailhub-wh3.whitehouse.gov.
whitehouse.gov mail is handled by 100 mailhub-wh2.whitehouse.gov.
sh-2.05b$ host www.whitehouse.gov
www.whitehouse.gov is an alias for www.whitehouse.gov.edgekey.net.

www.whitehouse.gov.edgekey.net is an alias for e2561.b.akamaiedge.net.
e2561.b.akamaiedge.net has address 96.16.218.135
sh-2.05b$ 

GeoEye-1 took this satellite photo of Barack Obama's inauguration ceremony. At left, crowd. At right, Capitol Building.

(Credit: GeoEye)

GeoEye-1, the satellite that will supply Google with high-resolution imagery of the Earth, took a high-resolution photograph of the inauguration of President Barack Obama.

The satellite is expected to start producing data for Google in coming weeks, but in the meantime, this shot shows a bit more tantalizing detail about what will show in Google Earth and Google Maps. It was taken from 423 miles up as the 4,300-pound satellite traveled 17,000 miles per hour.

GeoEye launched GeoEye-1 in September, and Google has exclusive rights to imagery for online use.

For a larger view, click on the bottom image, which we're publishing at one quarter the original resolution. The two smaller images are full-size crops.

Update 7:52 a.m. PST January 21: Google Earth users can view the photo through the software, according to Google's Lat Long blog. And GeoEye has added the image to CNN's Photosynth view of the inauguration.

GeoEye-1 took this satellite photo of Barack Obama's inauguration ceremony. Note the shape of the crowd gathered around the large-screen TV in upper right.

(Credit: GeoEye)

GeoEye-1 took this satellite photo of the Mall during Barack Obama's inauguration ceremony. Click to see a larger image.

(Credit: GeoEye)

WASHINGTON--Barack Obama was sworn in as president Tuesday in what many spectators viewed as the nation's most interactive inauguration ceremony so far.

Andrea Williams takes a picture of herself in Washington on Tuesday to send to her family.

(Credit: Stephanie Condon/ CNET News)

As millions of people in Washington and around the globe watched a weekend of festivities, culminating with Tuesday's ceremony, they gave their instant feedback online and through text messages and other means to family, friends, and anyone else listening. At the same time, event organizers were able to give spectators live updates about the state of affairs in the nation's chilly, crowded capital.

Most people who watched the inauguration did it through traditional television broadcasts, a medium that hasn't changed significantly in half a century. But it was also possible to tune in online; our sister site CBSNews.com, for instance, streamed the inauguration live over the Internet. And people learned about the inaugural action from pictures uploaded by friends, comments on Twitter and other social media, and direct text messages from event organizers.

"I think we're more connected with the experience, the overall process from the primaries to today," because of technology, said Ghajiibah Campbell, who came from Baltimore with her family to watch the inauguration. "It made you not only more connected, but willing to be connected--it wasn't an inconvenience."

Campbell used her cell phone to send pictures and text messages to her sister in Florida, her brother-in-law in New Jersey, and her brother in Virginia.

"It allows us to share the experience with everybody live, as opposed to getting home and saying, 'Guys, you should've been there, you should've seen it,'" she said.

Countless others also used their handheld devices to share the historical moment with loved ones.

Dawn Chandler from New York said she was sending text messages to her relatives throughout the ceremonies describing "how cold it was, how long we were waiting--it was worth the wait--and the speech."

The desire to share the experience led to more organized communications as well. Inauguration-watchers from Oregon to Massachusetts sent anonymous comments to Januarythe20th.com, describing the scene around them as the swearing-in took place. Participants of the "mass observation" sent comments to Januarythe20th either via e-mail or Twitter.

"CNN airs," says one post from a deli in Washington. "A small sitting room is packed with diners eating out of Styrofoam containers. Three limo drivers beside a salad bar talk rapidly in an eastern language."

The inaugural balls this year have a new emphasis on interactivity as well.

The Huffington Post pre-inaugural ball Monday night featured text messages from guests displayed on a giant computer.

(Credit: Stephanie Condon/ CNET News)

New media received top billing at the pre-inaugural ball held Monday night by the news aggregation and commentary site Huffington Post. Even as stars like Ben Affleck, Dustin Hoffman, and Michael J. Fox milled around the lowly lit, sleekly designed Newseum in downtown Washington, they were overshadowed by a giant computer displaying text messages sent in from lesser-known guests at the party.

The Presidential Inaugural Committee's Web site will host a live blog of the Neighborhood Inaugural Ball Tuesday night, which is open to Washington residents. The committee is encouraging people to host their own inaugural balls across the country and text in photos or video of their events, some of which will be aired on ABC's broadcast coverage of the Washington inaugural balls.

The committee made use of more practical interactive features as well, offering text alerts for event scheduling updates, public transportation news, weather reports, and more.

Regular citizens will also be able to contribute to the Official Barack Obama Inaugural Book by uploading their pictures to Photobucket.