This article originally appeared at techfreedom.org.

Today, TechFreedom and a coalition of free-market groups urged Congress to protect Americans against malicious or frivolous litigation that threatens to stifle free speech and undermine the digital economy. In a letter to the House Judiciary Committee, the coalition called for passage of H.R. 2304, the SPEAK FREE Act, which would give defendants across the nation access to a special motion to dismiss SLAPPs (strategic lawsuits against public participation). The bill would also empower courts to shift fees, so that defendants who prevail on an anti­-SLAPP motion would not have to face legal costs.

The coalition letter reads:

Each year, a multitude of Americans fall victim to lawsuits called SLAPPs (strategic lawsuits against public participation) that are aimed at unfairly intimidating and silencing them. These kinds of lawsuits are highly effective, despite being without merit, since the legal costs, invasion of privacy, and hassle associated with fighting them is rarely considered a worthwhile use of individuals’ time.

SLAPPs threaten online free speech and the business models that thrive on consumer reviews,” said Tom Struble, Policy Counsel at TechFreedom. “Without an easy judicial mechanism to dismiss groundless lawsuits and shift fees, consumers and small businesses often have no choice but to relent to the demands of companies with deeper pockets. 28 states have already adopted anti-SLAPP standards — it’s time for Congress to do the same.”

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We can be reached for comment at media@techfreedom.org.

With great fanfare, FCC Chairman Thomas Wheeler is calling for sweeping changes to the way cable TV set-top boxes work.

In an essay published Jan. 27 by Re/Code, Wheeler began by citing the high prices consumers pay for set-top box rentals, and bemoans the fact that alternatives are not easily available. Yet for all the talk and tweets about pricing and consumer lock-in, Wheeler did not propose an inquiry into set-top box profit margins, nor whether the supply chain is unduly controlled by the cable companies. Neither did Wheeler propose an investigation into the complaints consumers have made about cable companies’ hassles around CableCards, which under FCC mandate cable companies must provide to customers who buy their own set-top boxes.

In fact, he dropped the pricing issue halfway through and began discussing access to streaming content:

To receive streaming Internet video, it is necessary to have a smart TV, or to watch it on a tablet or laptop computer that, similarly, do not have access to the channels and content that pay-TV subscribers pay for. The result is multiple devices and controllers, constrained program choice and higher costs.

This statement seems intentionally misleading. Roku, Apple TV and Amazon Fire sell boxes that connect to TVs and allow a huge amount of streaming content to play. True, the devices are still independent of the set-top cable box but there is no evidence that this lack of integration is a competitive barrier.

Continue reading →

This article originally appeared at techfreedom.org.

Today, TechFreedom joined a coalition of over 40 organizations from across the country in urging Senate leadership to permanently ban taxes on Internet access. In a letter to Majority Leader Mitch McConnell and Minority Leader Harry Reid, the coalition voiced support for a permanent extension of the Internet Tax Freedom Act (ITFA), which bans states and localities from imposing Internet access taxes and discriminatory taxes on electronic commerce. The bill is currently embedded in H.R. 644, the Trade Facilitation and Enforcement Act.

The letter reads:

After decades of progress in connecting more Americans to the Internet, the lack of a permanent ban on Internet access taxes could reverse this progress. Numerous studies continue to show that cost remains an obstacle to Internet access and, if taxes on the Internet go up, even fewer people will be able to afford to go online. This would impede our nation’s long held goal of universal Internet access.

Americans’ broadband bills shouldn’t be used as bargaining chips by Senators who want to impose online sales taxes,” said Tom Struble, Policy Counsel at TechFreedom. “For 17 years, the Internet access tax ban has helped encourage broadband adoption and investment. If Senators want an online sales tax, then pass it on the merits — but handcuffing a broadband tax with sales tax is irresponsible. Consumers are already facing the prospect of higher bills, as the FCC is likely to soon impose universal service fees on broadband as part of its Title II regime imposed in the name of ‘net neutrality.’ Let’s not make that problem worse. The Senate should act quickly to end the uncertainty and pass permanent, Internet tax freedom.”

People are excited about online TV getting big in 2016. Alon Maor of Qwilt predicts in Multichannel News that this will be “the year of the skinny bundle.” Wired echoes that sentiment. The Wall Street Journal’s Geoffrey A. Fowler said, “it’s no longer the technology that holds back cable cutting–it’s the lawyers.”

Well, I’m here to say, lawyers can’t take all the blame. In my experience, it’s the technology, too. Some of the problem is that most discussion about the future of online TV and cable cutting fails to distinguish streaming video-on-demand (SVOD) and streaming linear TV (“linear” means continuous pre-programmed and live “channels”, often with commercials, much like traditional cable). Continue reading →

This article was originally posted on techfreedom.org

On January 11, TechFreedom joined nearly 200 organizations, companies, and experts from more than 40 countries in urging world leaders to support strong encryption and to reject any law, policy, or mandate that would undermine digital security. In France, India, the U.K, China, the U.S., and beyond, governments are considering legislation and other proposals that would undermine strong encryption. The letter is now open to public support and is hosted at https://www.SecureTheInternet.org.

The letter concludes:

Strong encryption and the secure tools and systems that rely on it are critical to improving cybersecurity, fostering the digital economy, and protecting users. Our continued ability to leverage the internet for global growth and prosperity and as a tool for organizers and activists requires the ability and the right to communicate privately and securely through trustworthy networks.

There’s no middle ground on encryption,” said Tom Struble, Policy Counsel at TechFreedom. “You either have encryption or you don’t. Any vulnerability imposed for government use can be exploited by those who seek to do harm. Privacy in communications means governments must not ban or restrict access to encryption, or mandate or otherwise pressure companies to implement backdoors or other security vulnerabilities into their products.”

For tech policy progressives, 2015 was a great year. After a decade of campaigning, network neutrality advocates finally got the Federal Communications Commission to codify regulations that require Internet service providers to treat all traffic the same as it crosses the network and is delivered to customers.

Yet the rapid way broadband business models, always tenuous to begin with, are being overhauled, may throw some damp linens on their party. More powerful smart phones, the huge uptick in Internet streaming and improved WiFi technology are just three factors driving this shift.

As regulatory mechanisms lag market trends in general, they can’t help but be upended along with the industry they aim to govern. Looking ahead to the coming year, the consequences of 2015’s regulatory activism will create some difficult situations for the FCC.

Continue reading →

This article originally appeared at techfreedom.org

Yesterday, the FTC reiterated its age-old formula: there are benefits, there are risks, and here are some recommendations on what we regard as best practices. The report summarizes the workshop the agency held in October 2014, “Big Data: A Tool for Inclusion or Exclusion?”

Commissioner Ohlhausen issued a separate statement, saying the report gave “undue credence to hypothetical harms” and failed to “consider the powerful forces of economics and free-market competition,” which might avoid some of the hypothetical harms in the report.

The FTC is essentially saying, ‘there are clear benefits to Big Data and there may also be risks, but we have no idea how large they are,’” said Berin Szoka. “That’s not surprising, given that not a single economist participated in the FTC’s Big Data workshop. The report repeats a litany of ‘mights,’ ‘concerns’ and ‘worries’ but few concrete examples of harm from Big Data analysis — and no actual analysis. Thus, it does little to advance understanding of how to address real Big Data harms without inadvertently chilling forms of ‘discrimination’ that actually help underserved and minority populations.”

“Most notably,” continued Szoka, “the report makes much of a single news piece suggesting that Staples charged higher prices online to customers who lived farther away from a Staples store — which was cherry-picked precisely because it’s so hard to find examples where price discrimination results in higher prices for poor consumers. The report does not mention the obvious response: if consumers are shopping online anyway, comparison shopping is easy. So why would we think this would be an effective strategy for profit-maximizing firms?”

The FTC can do a lot better than this,” concluded Szoka. “The agency has an entire Bureau of Economics, which the Bureau of Consumer Protection stubbornly refuses to involve in its work — presumably out of the misguided notion that economic analysis is somehow anti-consumer. That’s dead wrong. As with previous FTC reports since 2009, this one’s ‘recommendations’ will have essentially regulatory effect. Moreover, the report announces that the FTC will bring Section 5 enforcement actions against Big Data companies that have ‘reason to know’ that their customers will use their analysis tools ‘for discriminatory purposes.’ That sounds uncontroversial, but all Big Data involves ‘discrimination’; the real issue is harmful discrimination, and that’s not going to be easy for Big Data platforms to assess. This kind of vague intermediary liability will likely deter Big Data innovations that could actually help consumers — like more flexible credit scoring.”

Another year in the books for the Technology Liberation Front. Many developments unfolded in 2015 in the technology world and we covered much of it (on TLF and in other outlets). The most popular posts this year revolved around the Internet of Things, privacy, unlicensed spectrum, and municipal and public broadband networks. Thanks for reading, and enjoy the year in review. Continue reading →

This article originally appeared at techfreedom.org

On December 15, the European Commission announced that it had reached agreement with the European Parliament and the Council on a new EU Data Protection regulation. The new regulation, which is not yet public, has been under negotiation since January 2012, and would replace Europe’s 1995 Data Protection directive, which left implementation up to nation states.

Europe has a collective insecurity complex about the Internet,” said Berin Szoka, President of TechFreedom. “The problem isn’t that Europeans aren’t innovative, but that Europe’s most innovativeusually leave the gray continent to start web businesses in the U.S., where innovation doesn’t require permission. Now, it seems, European governments have thrown in the towel: instead of trying to stop the digital brain drain by making Europe more open to innovation, they’re cracking down on the data flows that drive web companies. Their hodgepodge of new measures will prove either crippling, counter-productive or utterly unworkable.”

The worst idea is banning young teens from using social media without parental consent,” continued Szoka. “We already know that kids 13 and under simply lie about their age to get access to the sites they want to use. Teens will do the same, making the promise of parental control utterly illusory. That, in turn will undermine social media platforms’ efforts to offer age-appropriate experiences for their users. The only way to avoid this will be to age-verify all users, which means tyingeveryone’s Internet use to a verified identity — in short, ending online anonymity. Similarly, the ‘right to be forgotten’ sounds great, but in practice, means giving users a right to censor speech about them they don’t like.”

The new regulations will harm startups most,” concluded Szoka. “Allowing fines of up to 4% of a company’s global revenue will make all companies reluctant to experiment with new offerings that unsettle established norms. From Google’s Street View to Facebook’s NewsFeed, yesterday’s ‘creepy’ has proved to be today’s ‘awesome.’ Now, that line will be drawn by bureaucrats rather than consumers. Ironically, it’s established, American companies that will be most able to deal with the burden of compliance — which is why, of course, these heavy-handed regulations will no doubt be enforced arbitrarily. Regulatory discretion will be used as a tool of digital protectionism — yet another way for regulators to vent their frustration as Europe falls further and further behind Silicon Valley. Ordinary Europeans will be told that only tougher measures will bridge the gap, and Europe’s sad spiral of digital self-destruction will go on, and on, and on…”

Throughout the year, I collect some of the more notable tech policy-related essays that I’ve read and then publish an end-of-year list here. (Here, for example, are my end-of-year lists from 2014 and 2013.) So, here are some of my favorite essays and editorials from 2015. (Note: They are just in chronological order. No ranking here.)

  1. Larry Downes –Take note Republicans and Democrats, this is what a pro-innovation platform looks like,” Washington Post, January 7. (Downes explains how governments need to adapt to accommodate and embrace new forms of technological innovation. He notes: “Here at home, the opportunity to wrap themselves in the flag of innovation is knocking for both parties, but so far there are few takers. Republicans and Democrats regularly invoke the rhetoric of innovation, entrepreneurship, and the transformative power of technology. But in reality neither party pursues policies that favor the disruptors. Instead, where lawmakers once took a largely hands-off approach to Silicon Valley, as the Internet revolution enters a new stage of industry transformation, the temptation to intervene, to usurp, to micromanage, to circumscribe the future — becomes irresistible.”) Equally excellent was Larry’s essay later in the year, “Fewer, Faster, Smarter.” (“As the technology revolution proceeds, the concept of government may return to its pre-industrial roots, setting the most basic rules of the economy and standing by as regulator of last resort when markets fail for some or all consumers over an extended period of time. Even then, the solution may simply be to tweak the incentives to encourage better behavior, rather than more full-fledged—and usually ill-fated—micromanagement of fast-changing industries.”)
  2. Bryant Walker Smith –Slow Down That Runaway Ethical Trolley,” CIS Blog, January 12. (Smith, a leading expert on autonomous vehicle systems, notes that, while serious ethical dilemmas will always be present with such technologies, we should not allow the perfect to be the enemy of the good. “The fundamental ethical question, in my opinion, is this: In the United States alone, tens of thousands of people die in motor vehicle crashes every year, and many more are injured. Automated vehicles have great potential to one day reduce this toll, but the path to this point will involve mistakes and crashes and fatalities. Given this stark choice, what is the proper balance between caution and urgency in bringing these systems to the market? How safe is safe enough?”)
  3. Tim Worstall –Google gets my data, I get search and email and that. Help help, I’m being OPPRESSED!” The Register, February 4. (A wicked tongue-lashing of the critics of the data-driven economy.)
  4. Aki Ito –Six Things Technology Has Made Insanely Cheap: Behold the power of American progress,” Bloomberg Business, February 5. (The title says it all.)
  5. Andrew McAfee –Who are the humanists, and why do they dislike technology so much?” Financial Times, July 7, 2015. (A brief but brilliant exploration of the philosophical fight over differing conceptions of “humanism.” McAfee, appropriately in my opinion, calls into question technological critics who self-label themselves “humanists” and then suggest that those who believe in the benefits of technological innovation and progress are somehow opposed to humanity. In reality, of course, nothing could be further from the truth!)
  6. Jocelyn Brewer – “Techno-Fear is Hurting Kids, Not Their Use of Digital Devices,” July 7, 2015. (A beautiful piece that makes it clear why “the Internet… is not addictive. Technology is not a drug.” Brewer continues on to make the case for avoiding fear-based messaging about Internet problems and instead adopting a more sensible approach: “Rather than trotting out interminable lists of the negative consequences of our adoption of technology lets raise awareness of how to avoid the pitfalls of not approaching this new era with solutions and proactive thinking.” Amen, sister!)
  7. Evan Ackerman – “We Should Not Ban ‘Killer Robots,’ and Here’s Why,” IEEE Spectrum, July 29, 2015, (A thought-provoking piece about a controversial subject in which Ackerman argues that “banning the technology is not going to solve the problem if the problem is the willingness of humans to use technology for evil”)
  8. Tim O’Reilly –Networks and the Nature of the Firm,” Medium, August 14, 2015.  (Explores the economics of the sharing economy and “the huge economic shift led by software and connectedness.”)
  9. Joe Queenan –America’s Need for Pointless Updates and Cat Videos,” Wall Street Journal, December 3, 2015. (“The back-to-nature, turn-off-your-cellphone movement is based on a false assumption.  . . .  Time not spent doing dumb stuff would otherwise be wasted doing other dumb stuff. It’s called ‘play,’ without which Jack is a dull boy. It is a variation on the old saying that nature abhors a vacuum. So nature created the Internet.”)
  10. Dominic Basulto –Can we just stop with all these tech dystopia stories?” Washington Post, Dec 8, 2015. (“Yes, a dystopian future is possible, but so is a utopian future. Most likely, the answer is somewhere in the middle, the way it’s been for millennia.”)