If you are like most Americans, three questions probably pop into your mind:
1) Am I paying for this?
2) Seriously, am I paying for this?
3) Because if I’m paying for this, I’m going to be really ticked off.
Indeed, it’s probably going to cost us a lot more than we can possible imagine, especially with all the lawyering and lobbying that will accompany it. Oh well, that’s Washington for you–we pay $2 bucks to get $1 worth of benefits. I’m voting for the National Elevator Plan instead.
Reihan Salam of National Review Online has a great piece on the US Trade Representative’s Special 301 Watchlist today. Salam points out that this list, which is supposed to identify nations that are a threat to intellectual property, may include Brazil, India, and Indonesia not because of any piracy occurring there, but because of their use of open-source software.
That inclusion is being pushed for by the International Intellectual Property Alliance, a group which includes the MPAA and RIAA. This is, of course, a brazen move by US corporations to force these developing nations to use their expensive proprietary software instead of the cheaper open-source alternatives.
This is exactly the kind of thing libertarians should abhor—government being co-opted by corporations so that policies can be made in order to defend their interests, instead of our rights.
Thanks to Salam for recognizing me and Tim Lee in the form of a link to a recent blog post on Tim’s site, Bottom Up.
Congress gets dinged a lot for slowing down innovation, but sometimes that is just what the doctor ordered. Thirty-five years ago, a Democratically controlled Congress passed the Magnuson-Moss Act in an attempt to check a hyperactive FTC.
Like a kid set loose in a candy store, the FTC at the time had gone on a binge of overreaching and harmful regulation. The core enabler of this action is the exceptionally broad mandate bestowed on the agency to regulate all “unfair” consumer activity. Unlike regulating the structural stability of bridges or safety in food, “fairness” is a subjective concept.
Congress’ prudent action to place special restrictions on FTC rulemaking [15 U.S.C. Sect. 57a(b)(2)(A)] was in direct response to the agency’s overreach and regulation of activities that would have included advertising children’s products – in essence, acting like a kid in a candy store. Magnuson-Moss was the equivalent of putting the candy behind the counter, providing Congress and courts control over how much candy was appropriate.
Now, 35 years later, the FTC has that ‘unfairness feeling’ again. In a NY Times interview last month, FTC Chairman Jon Leibowitz signaled his intent to change standard marketing tactics of disclosure and opt-out, by requiring users to opt-In for collection of information for targeting ads. They are concerned about what’s “fair” in advertising, but we know that low rates of opt-in will reduce ad revenue. If the change were put into effect, free online services might have to charge a “fare” to users.
At the same time, the FTC is seeking to shed what the Chair called “medieval restrictions” on its rulemaking powers. A change that would allow the FTC to move quickly to require opt-in. Taken together, these threats to online services and e-commerce are #1 on the NetChoice 2010 iAWFUL list. Continue reading →
Yesterday I engaged in a lively luncheon debate about Net neutrality regulation with Ben Scott of Free Press at a Catholic University Law School event on “Implementing the National Broadband Plan.” To open the debate, I made a very quick 5-Part Case against Net Neutrality Regulation. I argued that the the objections to a Net neutrality regulatory regime can be grouped into 5 major categories: (1) Legal; (2) Economic; (3) Engineering; (4) Practical; and (5) Philosophical / Principled. Down below you will find my working notes to see how I then elaborated on each objection in a bit more detail. And then Ben and I engaged in some spirited banter for the next 45 minutes.
Unfortunately, it doesn’t appear that the video of our debate is online just yet, but once it is I will post it here. However, the folks from NextGenWeb asked me to shoot a short 2 1/2 min video clip after the debate summarizing my remarks. If you can stand the sight of my big fat head in your browser for that long, here ya go:
The 5-Part Case against Net Neutrality Regulation
The objections to a Net neutrality regulatory regime can be grouped into 5 major categories: (1) Legal; (2) Economic; (3) Engineering; (4) Practical; and (5) Philosophical / Principled. Each objection will be briefly summarized below: Continue reading →
This is especially tricky because the facts are still very much unclear, but I’m going to follow Orin Kerr in assuming that the facts are roughly as follows. (I also, incidentally, follow Kerr in his conclusions: The statutory claims are mostly spurious; the Fourth Amendment claim is legitimate.) Harriton High School issues its students personal laptops, which are required for class, and normally are also taken home by the students. Student Blake Robbins, however, had apparently been issued a temporary “loaner” laptop while his normal one was in for repairs. According to school rules, this laptop was supposed to remain on campus because he had not paid an insurance fee for it, but he took it home with him anyway. Exactly what happened next is not entirely clear, but at some point someone at the school appears to have registered it as missing on the school’s asset management and security system. The system works as follows. Each laptop periodically checks in with the school server whenever it is online—it sends a “heartbeat”—registering its identity, the IP address from which it’s connected, and some basic system data. It also, among other things, checks whether it has been reported missing or stolen. If it has, depending on the settings specified, it activates a security protocol which causes it to check in more frequently and may also involve taking a series of still images with its built-in webcam and submitting them back to the server for review. One of those images, presumably because it showed something the school’s techs thought might be drugs, was subsequently passed along to a school administrator. Again, any of this could be wrong, but assume these facts for now.
Our baseline is that private homes enjoy the very highest level of Fourth Amendment protection, and that whenever government agents engage in non-consensual monitoring that reveals any information about activity in the interior of the home, that’s a violation of the right against unreasonable search.There are some forms of public search that may be deemed reasonable without a court order, such as the so-called Terry stop, but “searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances” (Karo v. United States). Obviously, an ordinary search for stolen property cannot be “exigent.” Karo is actually helpful to linger on for a moment. There, a can of ether fitted with a covert tracking beeper had been sold to suspects who were involved in cocaine processing:
Teens are very active users of Internet websites. To verify parental consent, parents would have to provide identifying data (most often credit card information) to a myriad of sites and services. This would require private companies to store vast amounts of parents’ personal information and, by doing so, increase customers’ vulnerability to security breaches and identity theft. According to the Berkman study, “there are significant potential privacy concerns and security issues given the type and amount of data aggregated and collected by the technology solutions….” Many online companies have moved away from collecting and storing this type of data for good reason.
Like the comments filed jointly by PFF and EFF, I also asserted that the FCC lacks jurisdiction to regulate online media platforms. Neither the Telecommunications Act of 1996 nor the Children’s Television Act of 1990 provides the Commission with the authority to regulate online media content. Furthermore, if the FCC were to pursue regulation of the Internet in the same manner it regulates broadcast and cable television, we believe there would be serious first amendment implications.
Not sure where the FCC can go with this NOI (at least as it regards the Internet) but that’s the scariness of it all.
There’s been some considerable comment over my February 11 post that, had the the FCC’s proposed Network Neutrality regulation been in force a few years ago, products like the Apple iPhone and Amazon Kindle would not have been possible.
The premise behind mandated network neutrality is the concern that ISPs like AT&T, Verizon and Comcast are in a position to exploit their control of the “last mile” broadband connections to unfairly influence the market success or failure of a third-party Internet-related product or application.
Former vice-president Al Gore summed up the position best in a Reason TV video posted here the other day: “I just think that’s it’s unacceptable to have the folks that control the pipes get into anything that smacks of controlling the content or favoring their content over other content. Whoa!”
seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks [and] to gather data and recommendations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully.
In our joint comments with Lee Tien and Seth David Schoen of EFF, we warned that the FCC should tread carefully when considering taking action on areas described in their inquiry. The agency simply has no authority to act on many of the topics discussed throughout the NOI, and it should not attempt to preempt successful private sector solutions. Congress never authorized the Commission to regulate Internet media, nor asked the agency to consider doing so. In fact, Congress plainly declared that the Internet should be kept “unfettered by Federal or State regulation.” Continue reading →
Today I am attending, and speaking at, a terrific event in downtown DC sponsored by the Catholic University Law School on“Implementing the National Broadband Plan: Perspectives from Government, Industry, and Consumers.” It’s being held at the offices of the law firm of Wiley Rein LLP. Edward Lazarus, Chief of Staff to FCC Chairman Julius Genachowski kicked off the event with a nice keynote address talking about the broad goals of the FCC’s coming National Broadband Plan. Lazarus broke the ice by joking with the crowd — which is heavily made up of communications industry lawyers — that “The FCC is doing everything it can to provide full employment for telecom lawyers. Whatever else we are failing at, we are succeeding at that.” Again, it was a joke, so I don’t want to make too much out of it, but… No, strike that, I do want to talk about that for a minute! Because this is actually a very important question: Exactly how much bureaucracy and deadweight loss to the economy (in the form of more lawyering and lobbying) is going to accompany the National Broadband Plan?
Two years ago, I posted an essay on “Lawyers, Lawsuits and Net Neutrality Regulation,” in which I attempted to highlight the uncomfortable fact that Net neutrality regulation will likely lead to a bureaucratic nightmare at the FCC and a lawyer’s bonanza once the lawsuits start flying in court. Of course, now we have Net neutrality regulations and a National Broadband Plan pending at the FCC, so the potential for bloated bureaucracy will only grow larger. Do you think I am exaggerating? Well, here are some facts to consider from our recent experience in the field of “telecom reform.” In the years following passage of the Telecom Act, entire forests fell because of the thousands of pages of regulatory and judicial interpretations that were handed down trying to figure out what that word meant. In fact, let’s take a quick tally of the paperwork burden the FCC managed to churn out in just three major “competition” rules it issued in an attempt to implement the Telecom Act and define the “cost” of unbundled network elements (“UNEs”):