Re: Comcast's "Evil Bot" Scanning Project (Lauren Weinstein)

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: "Christopher S. Yoo" <csyoo () law upenn edu>
> Date: October 12, 2009 14:49:00 EDT
> To: George Ou <george_ou () lanarchitect net>, "Livingood, Jason" <Jason_Livingood () cable comcast com 
> >, Dave Farber <dave () farber net>
> Cc: Brett Glass <brett () lariat net>, Richard Bennett <richard () bennett com 
> >, Rich Woundy <Richard_Woundy () cable comcast com>, John Day <jeanjour () comcast net 
> >, "David P. Reed" <dpreed () reed com>, nnsquad () nnsquad org
> Subject: RE: [ NNSquad ] Re: Comcast's "Evil Bot" Scanning Project   
> (Lauren Weinstein)

> If I may take the discussion in a slightly different direction, one  
> aspect I find particularly striking about the current discussion is  
> that its primary focus is over whether Comcast has been sufficiently  
> transparent about its program.  What is noticeably missing are  
> statements that functions like curbing botnets should only be done  
> by hosts.  The existence of e-mail servers and content caches has  
> long demonstrated the existence of functions that are more  
> effectively provided within the network.  There are arguments that  
> security-based issues such as spam filtering and identity  
> verification  are better performed in the network, either because of  
> scale economies, the need for enough traffic flow to recognize spam  
> or malware, or lack of end user sophistication.  Interestingly, as  
> Marjory Blumenthal and David Clark have argued in a recent paper,  
> security may well be better performed by non-host proxies when the  
> host is already infected to the point where the end user cannot  
> trust their own machine.  A conversation that focuses on the costs  
> and benefits of placing these functions in different locations and  
> how best to implement them in terms of transparency and the ability  
> to opt-out strikes me as more constructive than categorical  
> assertions about where such functions should reside.
>
>
>
> As the only lawyer participating in this discussion, I will note  
> that I don’t see anything wrong with Comcast acting proactively to c 
> urb a problem without waiting for law enforcement to step in.  The   
> law recognizes that it cannot control all antisocial behavior and th 
> at even in areas in which it does attempt to intervene, enforcement  
> is inherently imperfect and incomplete.  Simply put, the law cannot  
> catch all violations or deter all bad acts.  As such, in contexts bo 
> th related to the Internet and unrelated to the Internet, the law de 
> pends on private actors to arrange their affairs to avoid most probl 
> ems before they arise and to resolve most problems that do arise any 
> way without the law having to step in.  Any other solution would pla 
> ce a greater burden on the legal system than it can possibly bear.



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