Berin has already done a fine job tearing apart this latest effort by 10 activist groups to break the Internet by imposing burdensome regulation or punishing legal liability on Internet operators for the crime of trying to deliver relevant advertising to users that can actually pay for the content and services given away to users for free. To that, I would add my deep disappointment that the Electronic Freedom Foundation (EFF) choose to join this cabal. After all, the other members of the coalition are frequently heard calling for regulation of one variety or another. But EFF always prides itself on supposedly avoiding online regulatory schemes. That’s what makes it so surprising that they chose to jump on this bandwagon for an Internet industrial policy in the name of “protecting privacy.”
EFF’s embrace of regulation is particularly inconsistent given their excellent filing in the FCC’s “Child Safe Viewing Act” proceeding this summer. As I’ve previously noted, this proceeding raises the specter of “convergence-era content regulation” with Congress authorizing the FCC to look into “advanced blocking controls” for “wired, wireless, and Internet” platforms. EFF’s comments rightly stressed dangers of expanded content controls or Internet regulation, and noted the many “less-restrictive means” available to the public that provide compelling alternatives to government regulation: ”Blocking technologies are widely available in the market and do not require further government support.” And EFF has been instrumental throughout the years of making the case in courts for applying the less-restrictive means test and strict scrutiny when it comes to government efforts to regulate speech.
Why, then, does EFF take the diametrically opposite position when privacy concerns enter the picture? Berin and I appreciate the concerns some people have about their online privacy, just as we appreciate the concerns others have about media content or online child safety. But the only really important question here from a legal perspective is: Do people have tools and methods at their disposal to handle these concerns for themselves, or must government intervene and play Big Momma for them?
Berin and I have argued that citizens have more tools and methods at their disposal than ever before that enable them to make decisions for themselves and their families—both for parental controls and privacy-protecting technologies. In fact, we believe a good case can be made that privacy controls are actually superior to parental controls in terms of providing protection against the concerns at issue. That doesn’t mean privacy controls are perfect, but when properly configured, they can actually do a better job protecting user privacy than parental controls can against objectionable content.
So then, if current-generation privacy controls represent superior “less-restrictive means” to current generation parental control technologies, why does EFF support government regulation for privacy but not for child safety? It doesn’t make any sense to me. They should be consistent in their support for real Internet freedom.