The Net neutrality regulations adopted by the FCC on a party-line vote just before Christmas 2010 represented the administration's attempt to find middle ground. Chairman Julius Genachowski had floated an idea variously called "The Third Way" or "Title II Lite." His plan proposed a historic, black-and-white reclassification of broadband Internet service as a telecommunications service under the Communications Act of 1934, but with caveats: the FCC would "forebear" on using all the regulatory muscle that it generally holds over common carriers, like the ability to impose sharing requirements. But Genachowski, facing a tsunami of industry disapproval, retreated to a far more modest jurisdiction over broadband. That's what Verizon now dismisses in court as the FCC's attempt to "conjure a role for itself."

Genachowski's Net neutrality rules were a tenuous play from the start, considering the Comcast v. FCC decision on BitTorrent throttling some months earlier, which challenged the commission's "ancillary authority" to regulate broadband. Verizon said it would go to court. It has.

Meanwhile, AT&T responded in public with a what's done is done air. In a hearing last March, a company executive quietly seconded a member of Congress who suggested the rules would "require no change in the business plans of AT&T." We're beginning to see why. In the run up to this week's expected release of iOS 6, AT&T has said that it will disable FaceTime, the iPhone's video chat feature, over its cellular networks except for subscribers to its pricey Mobile Share plans. Why? An uncertainty about data load, the company said. And if the FCC can make up the rules as it goes along, AT&T seems to be arguing, then so can we.

Blocking FaceTime doesn't violate Net neutrality regs, a company rep wrote, because the app is "preloaded." That's a distinction not found within the four corners of the FCC's neutrality rules. But it buys the company a little wiggle room.

Genachowski's Christmas surprise earned him the ire of critics, some of whom see an inevitability to today's challenges. "This is a mess of the commission's own making," said Derek Turner, research director of Free Press, a vociferous proponent of net neutrality regulations. Congress, it's worth noting, wasn't able to craft the FCC any clearer authority. But rather than establishing that the Internet is both the digital bits that make up its content and the (highly regulable) pipes that those bits travel along, Genachowski tried to make do with a far less coherent jurisdiction. And prodded by industry, he carved out exemptions for mobile Internet, which is exactly how more and more Americans are going online. Companies can't block competitive applications, and they have to be transparent about what they do do. But that leaves gaps big enough for AT&T to drive its FaceTime policy through.

That the FCC would claim jurisdiction over broadband, today's dominant communications medium, scares the bejeebus out of some people. Same goes for the idea that it wouldn't. The agency tried to calm roiling waters with a tempered approach to Net neutrality. But that produced only a momentary peace. Verizon is challenging it in court. AT&T is challenging it in the marketplace. What is the government's role in regulating broadband networks? More unsettled than ever. And that doesn't benefit much of anyone.

The plaintiffs, a handful of Hulu users in what is now a class action suit, argued that by contracting with a tracking company called KISSmetrics to install code that revived deleted cookies and shared viewing records and personal data with the third parties like Google Analytics, DoubleClick, and Scorecard Research, the video streaming service went beyond expected uses of browsing data. Instead, the plantiffs argued, Hulu's actions amounted to a "hack" of their online experience.

Step back from that San Francisco courtroom for a moment, and the Hulu privacy case offers a peek into why companies like Hulu, Netflix, and others in the online video streaming business are right now scrambling in Washington D.C. to change the Video Privacy Protection Act, or VPPA, a decades-old privacy law that governs what video companies can do with the data they collect.

Passed in the late 1980s after a Washington, DC, video store leaked the rental records of Supreme Court nominee Robert Bork, the video privacy law is, by general consensus, dated. Floating around Washington is the notion that the law needs to be adjusted so that companies like Hulu and Netflix can allow their users to, say, easily share with their Facebook friends the last TV show or movie they watched online. The VPPA, the argument goes, puts video streaming businesses at a serious disadvantage on the social web, especially when you compare them to, say, audio streamers like Pandora and Spotify.

But the California case suggests that the stakes are much higher than simple Facebook integration. Behind-the-scenes tracking of user data is a core part of the business logic of video streaming. That points to a tension between what people might like to share with their friends on social networks and their wariness about having their behavioral data traded to pay for it all.

In their bid to get the case tossed out of court, Hulu argued that the existing video privacy law doesn't apply here. Read the Reagan-era VPPA's fine print, attorneys for the company contended, and you'll see that it has little to do with the way users, say, kill an evening streaming back-to-back episodes of Family Guy.

For one thing, Hulu argued, the company doesn't qualify as a "video tape service provider," as covered by the law, nor does it provide "similar audio visual material." Material is physical stuff, the company contended, not digital bits.

On that point, Magistrate Judge Laurel Beeler consulted the Oxford English Dictionary and found that material can come in "printed or electronic form." What's more, Beeler reasoned, there's little reason to believe that Congress cared whether the movies protected by the law were delivered on tape or through digital streaming - which, of course, wasn't the way people were getting their video content back in 1988.

For another thing, Hulu argued, the plaintiffs don't count as "consumers" or "subscribers" of their videos, the population covered by the law, especially since they hadn't upgraded to the paid Hulu Plus service and instead stuck to ad-supported free content.

On that point, Judge Beeler found that, even without paying a nickel, the plaintiffs were indeed Hulu consumers under any rational understanding of the concept. They hadn't simply stumbled upon Hulu.com. They'd actually engaged the site in exactly its business purpose, which was connecting users to streaming video.

Hulu argued that passing along user data to companies like Google and DoubleClick was "incident to the ordinary course of business," which is permissible under the video privacy law. After all, it could have engaged in the sort of data analysis and ad serving those companies provided; it was simply outsourcing some of the work.

But Judge Beeler decided that whether Hulu's sharing of user data is an "ordinary" part of its video streaming business is a question of fact, not law - precisely the sort of thing trials are meant to determine.

And that sets up a fascinating dynamic. To win in court, Hulu might be called upon to explain exactly how and why its business model requires making extensive use the data on who its users are and what they're watching.

Meanwhile, back in Washington, the debate goes on over upgrading video privacy laws for the streaming-video age. Some in Congress, egged on by tech industries lobbyists (particularly those from Netflix), are pushing to amend the VPPA to let users opt-in just once to sharing their viewing data, rather than the repeated consent now required under the law. The House recently passed a law to do just that. A Senate provision to do the same failed earlier this month with the collapse of negotiations over a major cybersecurity bill.

Others in Congress, though, would like to see a wholesale upgrade to video privacy law rather than just targeted tweaks.

It might be time. After all, in the Hulu and Netflix and Facebook era, the privacy of our viewing data is several degrees more complex than when the biggest worry was a local video clerk handing a reporter a hand-written list of what you'd checked out on VHS.

(Special thanks to Venkat Balasubramani)

Senator Patrick Leahy offered an amendment to the now-stalled cybersecurity bill that would allow Facebook users to automatically share the titles of movies they rent through Netflix. His proposal would strengthen ecommerce at the expense of a decades-old bill that keeps video rental record private. Guess what? The Vermont Democrat also wrote the old privacy bill, and he seemed to think it was smart public policy as late as the start of this year. Here's the story behind the flip-flop.

The old Video Privacy Protection Act may have reflected Congress' instinct to protect itself as much as the public. It was 1987, and Washington was consumed with debate over U.S. Supreme Court nominee Robert Bork’s thinking on a Constitutional right to privacy. Bork’s hand-written records from his local Washington, DC, video store were leaked to Michael Dolan, who published a fairly goofy piece in the Washington City Paper on them. “The Bork Tapes,” as the ensuing kerfuffle was called, was in many ways a small-town affair, but the case set Washington on fire. A panicked Congress set out in the special way that it has to solve its own problems.

“If we’re going to tell people, especially people who want to be in any form of public life,” said Leahy 24 years ago this week, “well, if you do, we are going to go all the way back and find out what you checked out at your public library, what you took out on videos or what you watch at night on television programs, then we are in a sorry state.”

The issue wasn’t what Bork had popped into his VCR. Recapping the incident at a hearing this past January, Senator Al Franken described the judge’s predilection for “mysteries and caper films.” It was that no one from Joe Average to high-ranking public officials seemed to be safe from snoops. The Judiciary Committee was split on Bork, but it was “unanimous in its outrage,” the Minnesota Democrat recalled, over the revelation of Bork’s rental records. “The point was that the movies we choose to watch are our business and not anyone else’s,” said Franken.

The problem is that, two dozen years after the Bork Tapes, the movies we chose to watch are exactly someone else’s business. Data on our personal habits drive the digital economy, from Facebook to Google to countless other social-enabled sites. Netflix wants its own targeted fix specifically so it can integrate with Facebook. Never mind the argument made by some that the Video Privacy Protection Act (VPPA) doesn’t apply to streaming video or that Netflix could satisfy the law by giving users a "play-and-share" option. That ambiguity, Netflix’s general counsel has said, creates “a drag on social video innovation that is not present in any other medium.” User accounts for music or books stores didn't exist in pre-iTunes era, but in 2012 what sense does it make that I can tell my Facebook friends what’s on my Spotify or Hulu or Social Reader playlist but can’t easily share what movies that I watched this weekend?

In December, the U.S. House of Representative agreed. The way things stand now, video tape providers can disclose rental records only when the customer gives written disclosure, which must happen each time they’re sought. But under H.R. 2471, consent can be given online and ahead of time, and is considered binding until the user says stop.

“Durable sharing,” as advocates have called it, would be a boon for Netflix. For one thing, it increases the possibility of targeted ads like the ones Spotify displays, which are tailored to the information Facebook knows about the user. For another, there’s simple word of mouth. Netflix is betting on its streaming business, and Facebook is a high-profile venue for promoting its wares, including in places like Latin America and Europe where it is hoping to grow its business.

To opponents, moves to modernize VPPA put privacy at risk. There’s nothing in the bill, for one thing, that limits Netflix to sharing my watching habits with Facebook—or to any other social network, for that matter. For another, our viewing histories might reveal more about us than we’d like others to know. It might be fine for the world to know you just rented The Godfather, Franken said at the hearing. Less comfortable might be sharing the fact that checked out Yoga for Health, Depression, and Gastrointestinal Problems. “Why else,” testified William McGeveren, an associate professor at the University of  Minnesota Law School, “did a newspaper reporter think Judge Bork’s rental history might be interesting in the first place?”

But there’s a bigger critique with this bit of lawmaking. It's that Congress is modernizing the country’s video privacy laws in one direction only: Netflix’s. Legislators are not otherwise coping with the new digital economy by, say, clarifying that privacy protections written for the video tape era apply to modern video streaming. And they’re not redefining the personal account information covered by VPPA to cover things like IP addresses.

In fact, some have argued that VPPA’s protections should be expanded, not reduced. Let’s go the other way and cover listening and reading habits, too, McGeveren argued, like California did in October with its Amazon-targeting Reader Privacy Act.

Not long ago, Patrick Leahy seemed to agree with that way of thinking. He opened that January hearing by telling a joke about how privacy comes naturally to Vermonters like him. It’s also perfectly natural, he explained, for companies like Netflix and Facebook to want to increase the flow of user data online. But that doesn’t make it right. Waving his hands in seeming consternation, Leahy raised the idea that “a one-time check off has the effect of an all-time surrender of privacy.”

So what changed in the last seven months? One possibility: Leahy is eager to get tech company support on the much-contested cybersecurity bill he and others have been working on for years. Netflix has been a high-profile backer of VPPA modernization, but there are others: Facebook, Google, Barry Diller’s IAC. The bill stood to benefit any tech company that wants to mine the streaming-plus-social space. Throwing an otherwise non-germane amendment into the cybersecurity mix might be a nice inducement to tech companies to help push the cybersecurity bill through the Senate.

But the video privacy amendment is also a test case in Washington’s effort to grapple with digital privacy and consumer choice. Lawmakers, generally, can’t seem to bring themselves to imagine that people are willing to share as much of themselves on Facebook as we regularly demonstrate we’re perfectly willing to do. Congress might not understand social media, but it doesn’t want to kill it. It only wants to figure out the artful public policy that lets the digital economy flourish while upholding very high personal privacy standards. It's not ready to face the possibility that that might not be possible. So, instead, it tweaks laws, responding to its own needs here, responding to the needs of the increasingly vocal tech industry there.

An open question is what actual consumers in the digital age “like” when it comes to privacy. And that’s something that Congress and tech companies would, for now, rather not know.

Tweets & Metadata

For starters, Fine argued, Judge Sciarrino mixed up two different kinds of data: tweets and metadata. "All the decision talks about is the public nature of tweets," Fine said in a phone interview about Sciarrino's late June ruling to deny Twitter Inc.'s motion to quash the subpoena. But the Manhattan district attorney has requested more than the public information associated with the account of @destructuremal, allegedly used by Malcolm Harris, an Occupy participant arrested on the bridge.

Sciarrino's concern is for the tweets themselves, and there he has a straightforward framing. "What you give to the public belongs to the public," he declared in late April. "What you keep to yourself belongs only to you." To bolster his ruling, the judge pointed to two projects that suggest just how tremendously public a medium Twitter truly is: the Library of Congress' long-promised tweet archive and Politwoops, a running feed of politicians' deleted tweets. They're complicated pieces of evidence. The Library of Congress is wrestling with how to meet Twitter's restrictions on researcher access. Politwoops may well violate the Twitter API's terms of service. But for Fine, they're perfect examples of how, in celebrating Twitter's publicness, Sciarrino is eliding public tweets and collected nonpublic data like IP addresses, email addresses, timestamps and more. Whether that's error or intentional, Fine won't speculate. But "it's one of the big problems with this decision."

(The ACLU joined with the Electronic Frontier Foundation and Public Citizen on an amicus brief supporting Twitter's motion to quash the DA's subpoena.)

Which brings us to a big problem with treating public tweets and Twitter metadata as one and the same thing.

No Warrant Necessary

Sciarrino implicitly decided that users like Harris have no right to go to court to protect any of it. "There is no proprietary interest in your tweets," Sciarrino wrote, "which you have now gifted to the world." On this point, Twitter and the judge lobbed terms of service provisions at one another. The company pointed to the part that said users retain their rights to content. The jurist highlighted the part that said Twitter is free to use and reproduce tweets. "Twitter's license to use the defendant's Tweets," Sciarrino wrote, "means that the Tweets posted were not his." If Harris' tweets don't belong to him, then he has no leg to stand on when the government combs through Twitter's servers for them. "As a user, we may think that storage space to be like a 'virtual home,'" wrote the judge, "and with that strong privacy protection similar to our physical homes." But we'd be mistaken. "That 'home' is a block of ones and zeros stored somewhere on someone's computer." As such, we have no right to tell the government not to enter our Twitter accounts without a warrant - whether we're talking about the data we voluntarily make public or the data we generate as we go about doing it.

Users have no recourse on those constitutional questions, says the ACLU's Fine. And that problem goes beyond Twitter. "The rationale of that decision means that Internet users never have the right to go to court to protect their own constitutional rights on the Internet."

Deliberate Versus Automated Disclosure

All of which adds up to another concern for Fine: The government's ability to combine easy-to-get public social data with easy-to-get social metadata can reveal a tremendous amount. Say I tweet, "About to do something very, very bad." That line's meaning is far different if metadata places me outside the Big Gay Ice Cream Truck parked at New York's Union Square than it does outside a subsequently robbed Citibank in the Bronx. Sciarrino, in his rulings, cited United States vs. Miller, a landmark Supreme Court case that held that bank customers had no privacy right to records on their accounts maintained by banks. The Miller decision on banking was controversial enough back in 1976, Fine says. But it's worse now, when social media users aren't fully aware of the information being collected about them. "When you knowingly disclose something, that's one thing," argues Fine. "But when you unknowing disclose your location, for example, to a company, that can't be enough to eliminate your expectation of privacy." The worry goes beyond privacy to the chilling of free speech.

By combining public tweets and privately held metadata, "[the government] can create a very detailed map of your speech activities," Fine says. "And that raises serious First Amendment issues."

Social Media Justice

Sciarrino fancies himself something of an expert on social technologies. He hashtagged his first ruling: "The defendant moved to #quash that subpoena. That motion is #denied." Notice that the second ruling came on June 30th. As a Saturday, that's a nontraditional day for the issuance of judicial opinions. It also happened to be International Social Media Day.

The judge declared himself well positioned to break the ground he knew he was breaking. "While the law regarding social media is clearly still developing," he wrote, "it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision."

Indeed, it will now likely be up to future courts to see how right he got it.

Lamar Smith (R-TX), the mastermind behind last winter's widely-disliked Stop Online Piracy Act, is back at it. His latest bill may not be the SOPA redux that some observers fear, but his legislative tactics are every bit as problematic. 

Fifty days.

That's the median time it took for eight legislative bills - on economic espionage, identity theft, abortion in the District of Columbia - to circulate in the House of Representatives before they were put on the agenda for Tuesday's markup session by the House Judiciary Committee.

Zero days.

That's how long the ninth bill on the agenda, a measure submitted by Judiciary chair Lamar Smith, existed before it was submitted for Tuesday's markup. Unlike the other eight (H.R. 6029, H.R. 4362, H.R. 3803... ), Smith's Intellectual Property Attaché Act didn't even have a number. It had yet to be introduced into the House legislative system.

That's legislating the future of copyright, the Internet and creative content, Lamar Smith-style.

The Smith Way

Smith's IPAA maneuver is of a piece with how he has run his tech and copyright agenda since taking the gavel of powerful Judiciary Committee in January, when Republicans gained control of the House. After 13 terms in the House, the 64-year-old Texas Republican is a copyright near-absolutist of the 'theft is theft' variety, a school of thought where, by all appearances, "fair use" receives less consideration than even MPAA and RIAA demand. Why Smith is so committed to that path is an open question. The TV, movie, and music industries have long been among his top funders, but whether that's cause or effect isn't much worth debating.

It's the way that Smith goes about making legislation that makes one wonder if Smith learned anything meaningful at all from the recent fight over the Stop Online Piracy Act (SOPA) that he authored and championed, and its cousin in the Senate, the Protect IP Act, or PIPA. There was an enormous swell of public interest in Internet policy back then, as well as the copyright policy to which it is inextricably linked. Oregon Sen. Ron Wyden, a democrat, explained his take on the sales pitch made by the the bill's supporters back in January, when nobody knew what a SOPA or a PIPA was. "This is noncontroversial," Wyden said, channelling PIPA's backers inside and (mostly) outside Congress. "Nobody is in favor of piracy. This is practically a gimme."

The line from Smith's office this week on the rush to get IPAA through: Oh, this bill? This one's really no big deal.

Echoes of SOPA

In the end, SOPA got tripped up by process as much as anything. Smith, as chair of the Judiciary Committee, called a single hearing on a bill that would have had a sweeping effect on the functioning of the Internet. The panel was stacked with the bill's advocates. One witness, an attorney for Google, raised an objection. But as that bill steamed along to markup, members of Congress got the feeling that they been sold a bill of goods.

"This bill is not ready for prime time," concluded Wisconsin Republican James Sensenbrenner, himself a former Judiciary Committee chair. One of the most pivotal moments in the SOPA debate, in retrospect, might have been when Ohio's ultra-conservative Jim Jordan jumped off the legislative train, suggesting that the House "take a little extra time," not rubberstamp Smith's SOPA without knowing what it really would do. Certainly, the website blackouts, news reports, and email and tweet deluges drew Congress' attention to the major Internet bill barrelling through its halls. That was something new. "Here you have a picture," Wyden said in January, "of millions of Americans saying that this process has been flawed, [that] it only listened to one side." The Oregonian's takeaway? "In terms of communicating with government, America is never going to be the same."

Tell that to Lamar Smith.

In a way, it's not his fault. Judiciary chairs in both the House and Senate have enormous leeway to handle the business that falls under their jurisdiction. But add to that the fact that in the past few decades - as the online universe has expanded apace - nearly all things having to do with the Internet have been ceded to those same Judiciary Committees. What you end up with is very few people making policy on a medium of historic importance not only for us in the U.S. but for billions of people all over the planet. It's a dangerous combination, all the moreso when the process seems sloppy and rushed. The working copy of the IPAA posted on Smith's website carries a date stamp from the House's bill-drafting Legislative Counsel Office of July 5th, meaning that the bill existed in draft form for just three business days before it was scheduled for markup. Two of those days were during a holiday week.

The draft also lists the name of California Republican Darrell Issa, the leader of the House's SOPA resistance, as an original co-sponsor. That's not true, Issa's office said this week. He's not a co-sponsor of IPAA and never has been.

Again, Smith's office says that's no big deal. "We often list bills for markup to give us the option to debate them if we get them ready in time," a committee aide wrote in an email this week. With IPAA not yet properly introduced, Tuesday's markup came and went without its formal consideration.

Ministry of Openness & Transparency 

All of this is not to say that Lamar Smith took nothing away from the SOPA fight. His team seems to have picked up the language of its opponents. The Declaration of Internet Freedom rolled up by activists last week, largely in reaction to the SOPA/PIPA case, included near its very top a call for making the crafting of Internet policy a transparent and participatory experience. Smith's aide: "We plan to circulate a new draft based off those changes to ensure that the development of this bill continues to be an open and transparent process."

That's transparency-washing, Smith's critics say. "He might say that he invites a transparent process," observes Josh Levy of Free Press, which co-led the creation of the Declaration of Internet Freedom. "But he hasn't done much to show it." Levy continues, "I think Lamar Smith could use an education in what engaging the public means. It means something different from just reaching out to his fellow members of Congress."

The view from the House Judiciary Committee offices is that the Intellectual Property Attaché Act just doesn't warrant the attention. The IP attaché program has been around since 1996, stationing liaisons in U.S. embassies in countries where CDs are regularly copied, Nikes knocked off and electronics reverse-engineered. There are attachés in China (both Beijing and Guangzhou), Bangkok, Rio de Janeiro, New Delhi and Moscow, and there's a currently an 'unfilled but established post in Cairo. Their mission, in part, is to "encourage strong IPR [intellectual property rights] protection and enforcement by U.S. trading partners for the benefit of U.S. rights holders."

Smith's Legislative Trial Balloon

The IPAA is a narrow bill, Smith aides say, focused on streamlining the use of funds in the U.S. Patent and Trademark Office (USPTO) and increasing organizational efficiencies. A reshuffling, more or less. The bill would, it seems, bump up the program from its home in the somewhat beleaguered USPTO to a slot in the greater Department of Commerce bureaucracy. It would add an 11th full Assistant Secretary of Commerce, this one charged with overseeing "intellectual property" matters. And there's a bit of job re-titling. The post now known as Administrator for Policy and External Affairs at PTO would become Deputy Assistant Secretary of Commerce for Intellectual Property Policy and External Affairs. (RWW's Brian Proffitt runs down more of the details.) IPAA is no SOPA, but it's plenty robust to warrant some healthy consideration.

Actually, in its modest scope and wonkish subject matter, IPAA makes a rather nice vehicle with which Smith can test the post-SOPA waters. Move around pieces of an overseas program that few people have ever heard of, in a bureaucracy few people care about, and see who freaks. It's a juicy bit of lawmaking - certainly IPAA would be a nice win for the so-called content industry angered by the way SOPA and PIPA played out - but maybe just dry enough that it stands a chance of getting passed.

As it turns out, people did freak. After Politico reported the planned inclusion of the bill in Tuesday's markup, tech blogs picked up the story and ran with the idea that IPAA was SOPA back from the dead, that IPAA was the first move in a plan to move the bulk of SOPA through Congress piece by piece. The response annoyed Smith's staff. "This week, the House Judiciary Committee released a discussion draft of a bill that streamlines the IP attaché program to help safeguard American intellectual property abroad," Smith's aide wrote. "Unfortunately, some groups and blogs have misreported that this is a follow up to the Stop Online Piracy Act. That is not the case."

In other words, IPAA triggered an early-warning system that had been built and primed by SOPA/PIPA. The alarm bell's volume might irritate Smith. That's understandable. But he should also understand that his way of doing things is what set it off.

How to Dislodge Lamar Smith

So what to do about Lamar Smith? He's up for re-election in November, but there's little chance that he'll be relieved from his Judiciary Committee post through the ballot box. Smith's opponents in the May Republican primary in Texas's 21st district, a software engineer and a sheriff, banged him over the head with SOPA as hard as they could. More attention to the topic came from local billboards organized by the anti-SOPA group Fight for the Future and funded in part through online fundraising. "Don't Mess with the Internet," they read, with the footer, "Paid for by the Internet." Yet Smith crushed the challenge, garnering 77% of the vote. His Democratic challenger works as a volunteer for the Texas Democratic Party, and either way, the district is heavily Republican. (For political numbers geeks, the Cook PVI on Texas' 21st is +14 in favor of Smith's party.)

There's a better chance that internal House wrangling will bring an end to Smith's reign as Judiciary Committee chair. One possibility: The House Republican leadership, eager both to be seen as the party of the future and to have the favor of the tech world, will lean on Smith to stop being so reflexively retrograde when it comes to the Internet. There are signs that similar forces were at play in SOPA's demise. Another: Smith will be done in by House rules. At the moment, committee chairs have to step aside after three terms, as required by the GOP's bylaws. Smith has held the chair only since last year, but he was the ranking Republican on the committee for two terms before. Leadership can decide that both stints count towards the term limit. That's what forced out Sensenbrenner in 2006. (Next in line in seniority after Smith and Sennsenbrenner is North Carolina's Howard Coble, who seems to have been neither here nor there on SOPA.) The last possibility is the most revolutionary. House Republicans actually elect their committee chairs, and Smith could face a challenge from someone within his own party, a la the epic battle between auto-industry favorite John Dingell and environmentalist Henry Waxman for the chairship of the House Energy and Commerce Committee in 2008, when Democrats were eager to get legislating against climate change and in favor of progressive energy policies. Waxman won.

To save you the trouble of checking: Darrell Issa is indeed already on the House Judiciary Committee.

Advocates for open government have been pushing the Supreme Court for decades to reveal its work in progress to the public at large. And they have had successes. The court once squirreled away audio recordings in the National Archives, often long after the cases had been argued. Today, those recordings are posted to the Supreme Court website every Friday during argument sessions. But video has proven a step too far. With the court expected to release this week its decision on the constitutionality of the health care bill, Chairman Patrick Leahy and Ranking Member Chuck Grassley of the Senate Judiciary Committee are prodding Roberts to let cameras in.

“Their work should be as transparent as any other branch of government,” says Bruce Collins, general counsel of C-SPAN, which along with several dozen organizations also asked Roberts to air the health care decision. The court has not responded. 

As the Supreme Court's chief administrator, Roberts is the decider on the court's operations. In his silence, he seems to be doing something for which he’d tear a lawyer to pieces: resting on assumptions.

One of the most frequently heard worries is that putting cameras inside the Supreme Court would turn the courtroom into a stage. But there are strong reasons to believe that the internal dynamics of the court would keep participants from behaving badly. Lyle Denniston has covered the Supreme Court for more than 50 years, lately for the closely watched SCOTUSblog. “A lawyer gets up in the Supreme Court and… knows that they have one task - that is, to persuade five people,” Denniston said in a C-SPAN interview. The audience is the nine folks in robes, and there’s a very good chance that the focus it takes to win over a majority is a more powerful force than the desire to make a flashy public showing.

And there’s a similar thing happening on the bench. During oral arguments, the justices are working to win over one another. Ironically, that might help to explain a phenomenon, noted in lower courts, where justices appear to become more conservative on camera. They seem to grow increasingly worried about protecting both collegiality and the court’s authority.

Several newer justices, for instance, have testified during their confirmation hearings that live Supreme Court footage seems like a pretty good idea. “I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people,” Elena Kagan testified during hers. Once on the court, though, by all appearances they refrain from rocking the boat. Stephen Breyer’s evolution sums up the trend. While chief judge of the U.S. Court of Appeals for the First Circuit, he volunteered his court for cameras. But after a decade on the Supreme Court, Breyer said that the justices are trustees of a “reputation of great importance so that government will work fairly in America... And not one of us wants to take a step that could undermine the courts as an institution."

Breyer’s framing suggests a failure of imagination. The flourishing open government movement isn’t simply about peeling back the curtain on wrongdoing. Openness can be affirming, too.

And that raises the possibility that Roberts and company are actually damaging the court by closing it off. “By being somewhat remote from the popular culture,” C-SPAN’s Collins explains the argument (which he disagrees with, naturally), “they retain the dignity and therefore enhance the authority of the court.” Yet documentary footage provides fodder for dissections that remind us all that these opinions aren’t descended from the heavens. There’s public appetite for it, and in the digital age, there are the tools to do something with it. SCOTUSblog’s in-court live blog, for example, drew a reported 70,000 readers on Friday, when there was a chance that the court was going to issue the health care decision. (That prompted an Atlanta Journal-Constitution reporter to tweet, “One day we'll tell our grandkids about how we were using Cover It Live [sic] to figure out what the Supreme Court is doing.”)

A less mysterious Supreme Court would be more tightly moored to American life as a whole, in the same way that Americans tend to hate Congress but approve of their congressperson.

If there’s something that Chief Justice Roberts has proven skilled at, it’s threading needles. Here, he has a chance to figure out a decision everyone can rally behind. Congress, for its part, lets C-SPAN’s cameras in but doesn’t allow for reaction shots. Roberts could get similarly creative, like stationing a camera behind the bench - good live-blogging material, bad source footage for “The Daily Show.”

Behind-the-bench shots might reveal bald spots. But it’s not such a bad thing for the public to be reminded actual humans are up on that bench.