Category: testimony

Testimony — including expert reports as well as public comments, submissions to rule-making proceedings, public comments, and other filings with government bodies

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Methods and Effects of Spyware

Methods and Effects of Spyware (PDF) is my written response to the FTC‘s call for comments (PDF), leading up to their April 19 workshop on spyware. In this document, I explain how spyware works, including presenting specific personal information transmitted by both Gator and WhenU. (The WhenU transmissions are particularly notable because these transmissions seem to violate WhenU’s own privacy policy.) Other sections of the document discuss installation methods of spyware (with special consideration of the technical methods used in drive-by downloads), frequency of advertisement display, and performance and security effects of spyware.

I hope to attend the FTC’s April workshop, and I would be particularly pleased to hear from others who will be there or who have comments on this issue.

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New Publications about Spyware Legislation and Regulation updated March 19, 2004

Some months have passed since my last work on spyware — Documentation of Gator Advertisements and Targeting (spring 2003) and my expert testimony in the matter of Quicken Loans and Wells Fargo v. WhenU (not available on the web) (summer 2003).

This week I’ve been working on a new subsection of this web site, “Spyware”: Research, Testing, Legislation, and Suits, for which two new entries are now available:

A Close Reading of the Spyware Control Act takes a careful look at the spyware legislation recently passed in Utah and now awaiting the governor’s signature. This legislation requires software that transmits users’ usage data (web sites visited, etc.) to provide appropriate disclosures in a license agreement (in plain language, actually presented to users, etc.), and to provide an uninstall routine. Seems pretty uncontroversial? That’s what I thought, but in fact the bill has raised some opposition from big .COM companies that seem to think the legislation is actually a bad idea — even as they are among the sites most intensively targeted by spyware pop-up ads. Have these companies missed the boat? Or have I? Check out the article — including their letter (PDF) and my paragraph-by-paragraph response — and decide for yourself.

Methods and Effects of Spyware (PDF) is my written response to the FTC‘s call for comments (PDF), leading up to their April 19 workshop on spyware. In this document, I explain how spyware works, including presenting specific personal information transmitted by both Gator and WhenU. (The WhenU transmissions are particularly notable because these transmissions seem to violate WhenU’s own privacy policy.) Other sections of the document discuss installation methods of spyware (with special consideration of the technical methods used in drive-by downloads), frequency of advertisement display, and performance and security effects of spyware.

I hope to attend the FTC’s April workshop, and I would be particularly pleased to hear from others who will be there or who have comments on this issue.

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Intentionally Invalid Whois Data

Edelman, Benjamin G. “Intentionally Invalid Whois Data.” US House of Representatives, Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property, September 2003.

As the DNS is currently structured, registrants are under only an honor system to provide accurate Whois data. Meanwhile, it makes no economic sense for registrars to enforce Whois accuracy. The result is that in terms of accuracy, when compared with other compilations of public data (such as driver’s licenses and trademark registrations), the Whois database is substantially fiction. I suggest 1) a reduction in the lenience of opportunity to “cure” intentionally invalid data, 2) for registrants with multiple domain names with intentionally invalid data, forfeiture of all domains when any are to be cancelled, 3) statistically valid surveys of registrars’ Whois accuracy, with public reporting of each registrar’s accuracy, 4) public reporting of Whois accuracy complaints and their dispositions, and 5) financial and other penalties to registrars with poor Whois accuracy records.

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Expert Declaration in Washingtonpost.Newsweek Interactive Company, LLC, et al. v. the Gator Corporation

I had the honor of preparing two expert declarations in Washingtonpost.Newsweek Interactive Company, LLC, et al. v. the Gator Corporation in federal court in the Eastern District of Virginia. My clients were the plaintiffs in the case, including the Washington Post Newsweek Interactive Company, Gannett Satellite Information Network, Media West-GSI, the New York Times Company, the Boston Globe Newspaper Company, Dow Jones, Smartmoney, the Chicago Tribute Interactive, Condenet, American City Business Journals, Cleveland Live, and Knight Riddler Digital.

Soon after my declarations, the case settled, and Gator stopped covering my clients’ sites with its popup advertising and other ads.

My declarations and other case documents.

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Qualified as expert in Internet filtering over objections from US Department of Justice

In Multnomah County Public Library et al., vs. United States of America, et al. (an ACLU challenge to the Children’s Internet Protection Act), I prepared an expert report, then was offered as an expert for oral testimony.  Counsel for the United States of America challenged my credentials, remarking on my youth and lack of relevant credentials.  The United States’ challenge was overruled.

The voir dire challenge of my designation as an expert:

Q   Mr. Edelman, the highest academic degree that currently hold is a high school diploma, isn’t that correct?

A   That’s correct.

Q   The undergraduate degree that you expect to receive in June of this year is the only undergraduate degree that you will hold when you receive it, isn’t that right?

A   That’s correct.

Q   And that undergraduate degree that you have yet to receive that you will receive in June of 200 will be in economics, is that correct?

A   I will in June of 2002 receive a undergraduate degree in economics, that’s correct.

Q   And you will not receive any degree in computer sciences, is that correct?

A   That’s correct.

Q   You don’t belong to any professional associations currently, is that right?

A   That’s correct.

Q   And you currently hold no professional licenses, is that correct?

A   That’s correct.

Q   You have not published any articles in any scholarly journals, is that correct?

A   That’s correct.

Q   And you have not  published any peer reviewed articles of any kind is that correct?

A   That’s correct.

JUDGE BARTLE:  He may have no peers.

Q   You testified that you spent nine years doing consulting for various organizations, is that right?

A   Yes.

Q   And you began that consulting while you were still in junior high school, isn’t that right?

A   That’s correct.

Q   You currently other than the teaching responsibilities that you have at Harvard College you don’t hold as formal teaching appointment, do you?

A   I do not.

Q   You also testified that you previously given testimony in Federal Court, is that right?

A   Yes.

Q   On one occasion you testified before an Federal District Court, is that correct?

A   That’s correct.

Q   You were not deposed for purposes of that testimony were you?

A   I was not.

BHATTACHARYYA: I render my objection, Your Honors, to the qualifications of this witness as an expert under the Federal Rules of Evidence.

Remarks by the three-judge panel in qualifying me as an expert:

JUDGE BECKER:  Well, I would observe that some of the great figures in history have been autodidacts could spend a half a morning listening to all of the autodidacts.

[Rule] 702 says that it’s scientific technical or otherwise specialized knowledge, assist in the trier of fact to understand the evidence or to determine a fact in issue.  In other words the helpfulness standard.  A witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion.  That’s the applicable standard.

I know how I’m prepared to rule. Judge Fullam?

JUDGE FULLAM:  I have two reasons for ruling the same way.  One is that we waited just so we could hear this witness, and I think that would be a terrible waste.

The other is that I happen to on occasion rely upon my six year old grandchild for advice on the internet and computer.

JUDGE BECKER:  Okay.  Ms. Bhattacharyya, your objection is overruled.  Mr. Edelman is qualified to give expert testimony.

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Expert Report and Appendices for Multnomah County Public Library et al., vs. United States of America, et al.

I had the honor of testifying, in writing and orally, in Multnomah County Public Library et al., vs. United States of America, et al., an ACLU challenge to the Children’s Internet Protection Act. My expert report, rebuttal report, and supplemental report include documentation of specific pages wrongly blocked by adult filters.

See also my oral testimony including the United States’ attempt to prevent me from being qualified as an expert.

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Shortcomings and Challenges in the Restriction of Internet Retransmissions of Over-the-Air Television Content to Canadian Internet Users

My expert memorandum Shortcomings and Challenges in the Restriction of Internet Retransmissions of Over-the-Air Television Content to Canadian Internet Users was attached to the National Association of Broadcasters’ submission to Industry Canada in its 2001 evaluation of retransmission of commercial television content over the Internet.

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Expert Declarations in National Football League, et al., v. TVRADIONOW Corporation (iCraveTV)

I had the honor of submitting testimony, both in two expert declarations and orally, in National Football League, et al., v. TVRADIONOW Corporation (iCraveTV), litigation in federal court as to the propriety of iCraveTV’s retransmission of certain American television video to users nationwide and worldwide. My initial expert declaration and supplemental expert declaration.