May 2011

Be Sure to Attend CFP

by on May 31, 2011 · 1 comment

The Computers, Freedom and Privacy conference—the original privacy conference—is June 14th through 16th at the Georgetown University Law School here in D.C.

It has a neat layout this year, with a focus on each of the topics—computers, freedom, and privacy—on each of its three days. I’ve always found that it’s a rollicking conference at which the newest ideas and problems get aired. It’s got some big draws if you’re into that kind of thing: Senator Patrick Leahy (D-VT) will speak on Thursday. But there really is something for everyone. TLFer’s Ryan Radia and Berin Szoka will join yours truly and other experts on a panel entitled “Do Not Track: Yaaay or Boooh?”, which should be fun.

Check out the agenda, then register.

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Konstantinos Stylianou on technological determinism and privacy

by on May 31, 2011

On the podcast this week, Konstantinos Stylianou, a former Fulbright Scholar now working on a PhD in law at Penn Law School, and author of the provocative new essay, “Hasta La Vista Privacy, or How Technology Terminated Privacy,” discusses technological determinism and privacy. Stylianou’s thesis is that the evolution of technology is eliminating privacy; therefore, lawmakers should switch emphasis from regulating the collection of information, which he claims is inevitable, to regulating the use of that information. Stylianou discusses why digital networks specifically make it difficult to keep information private, differences between hard and soft technological determinism, and when he thinks people will realize about their private information what the recording industry has finally realized about digital music.

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Sarkozy, Facebook, Moral Panics & the Third-Person Effect Hypothesis

by on May 29, 2011 · 0 comments

John Naughton, a professor at the Open University in the U.K. and a columnist for the U.K. Guardian, has a new essay out entitled “Only a Fool or Nicolas Sarkozy Would Go to War with Facebook.” I enjoyed it because it touches upon two interrelated concepts that I’ve spent years writing about: “moral panic” and “third-person effect hypothesis” (although Naughton doesn’t discuss the latter by name in his piece.) To recap, let’s define those terms:

“Moral Panic” / “Techno-Panic“: Christopher Ferguson, a professor at Texas A&M’s Department of Behavioral, Applied Sciences and Criminal Justice, offers the following definition: “A moral panic occurs when a segment of society believes that the behavior or moral choices of others within that society poses a significant risk to the society as a whole.” By extension, a “techno-panic” is simply a moral panic that centers around societal fears about a specific contemporary technology (or technological activity) instead of merely the content flowing over that technology or medium.

“Third-Person Effect Hypothesis“: First formulated by psychologist W. Phillips Davison in 1983, “this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.” While originally formulated as an explanation for how people convinced themselves “media bias” existed where none was present, the third-person-effect hypothesis has provided an explanation for other phenomenon and forms of regulation, especially content censorship. Indeed, one of the most intriguing aspects about censorship efforts historically is that it is apparent that many censorship advocates desire regulation to protect others, not themselves, from what they perceive to be persuasive or harmful content. That is, many people imagine themselves immune from the supposedly ill effects of “objectionable” material, or even just persuasive communications or viewpoints they do not agree with, but they claim it will have a corrupting influence on others.

All my past essays about moral panics and third-person effect hypothesis can be found here. These theories are also frequently on display in the work of some of the “Internet pessimists” I have written about here, as well as in many bills and regulatory proposals floated by lawmakers. Which brings us back to the Naughton essay.

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Does Spin Magazine Own the Word “Spin”?

by on May 29, 2011 · 1 comment

Their lawyers seem to think so.

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Unlocked Bootloaders, Increased Smartphone Openness & Zittrainian Generativity

by on May 27, 2011 · 136 comments

In my work critiquing the Lessig-Zittrain-Wu school of thinking–which fears the decline and fall of online “openness” and digital  “generativity”–I have argued that, while there is no such thing as perfect “openness,” things are actually getting more open and generative all the time. All that really counts from my perspective is that we are witnessing healthy innovation across the generativity continuum.

Will some devices and platforms continue to be “closed”? Sure. Think Apple and cable set-top boxes. But (a) there’s a ton of innovation taking place on top of those supposedly “closed” platforms and (b) there are other options consumers can exercise if they don’t like those content /information delivery methods. [See this chapter from the Next Digital Decade book for my fuller critique.]

And, even if one adopts a rigid Zittrainian view of openness and generativity, each day seems to bring more good news. From that perspective it’s hard to find a better headline than this one: “Smartphone Makers Bow to Demands for More Openness.” That’s from ArsTechnica today and it refers to the fact that smartphone giant HTC just announced it would no longer attempt to lock the bootloader on its smartphones, meaning geeks like me can root and hack their devices to their heart’s content. As the Ars story notes:

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Data in the “Cloud” Needs Fourth Amendment Protection

by on May 27, 2011 · 4 comments

“Cloud computing” is the term for applications that are handled by third-party software and storage on the Internet, like Google Docs and QuickBooks Online, as opposed to programs like Microsoft Word and Quicken, which you load and access from your PC.

Gmail and Hotmail were early examples of cloud computing. The cloud computing concept has since expanded to include popular applications like photo editing and sharing, money management and social networking. It also takes in the increasing number of cloud-based storage services, like Dropbox, which allows you to port documents from client to client, and Carbonite, which performs near real-time back-up of data and documents on your PC.

What most Americans don’t realize is that data stored in the cloud is not protected by the Fourth Amendment the way that same data is if stored on a PC, CD or detachable hard drive in the home. My op-ed in the Washington Times today outlines this problem, and points to a new bill in Congress, S.1011, introduced last week by Sen. Patrick Leahy (D-VT), as a big step toward closing this loophole. S.1011, also cited by Berin here, extends the due process provisions against illegal wiretapping in the existing Electronic Communications Privacy Act (ECPA) to personal data stored in data centers owned and operated by third parties.

As online services and applications evolve, it is critical that these due process protections extend to cloud services. Public cloud infrastructure, applications and platforms are growing at 25 percent per year, according to International Data Corp., a market research firm specializing in high-tech. IDC found that, as of year-end 2010, 56 percent of Internet users use webmail services, 34 percent store personal pictures online, 7 percent store personal videos, 5 percent pay to store files and 5 percent back up their hard drive to a website. These numbers are all expected to grow rapidly.

But this is about more than convenience or personal preference for data storage. Internet applications are becoming geared for the “cloud.” Cloud computing will be the easiest, cheapest and most efficient way users can access personal data on any device, in any location, at any time. It’s not simply an option in the way one chooses to manage data. Cloud computing is becoming necessary to go about one’s daily business. Legal protections need to be there.

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Financial Crises as Information Problems

by on May 25, 2011 · 0 comments

If you haven’t seen it already, be sure to give a read to Friedman Prize winner Hernando de Soto‘s recent piece in Business Week, “The Destruction of Economic Facts.” It’s a fascinating perspective on the economic and financial turmoil that is wracking the United States and the world.

As de Soto perceives more easily from working in developing economies, an important input into functioning markets is good information—about property, ownership, debts, and so on. The “destruction of economic facts” is one of the roots of instability and uncertainty in Europe and the United States, he says. “In a few short decades the West undercut 150 years of legal reforms that made the global economy possible.”

The law and markets are information systems, says de Soto:

The rule of law is much more than a dull body of norms: It is a huge, thriving information and management system that filters and processes local data until it is transformed into facts organized in a way that allows us to infer if they hang together and make sense.

If you’re interested in information and transparency, it’s worth a read.

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Sprint throws cellular backhaul in with the merger kitchen sink

by on May 25, 2011 · 7 comments

For CNET this morning, I write about the latest tempest in the AT&T/T-Mobile USA merger teapot: cellular backhaul or “special access” as its known in the industry.

Like a child sitting on Santa’s lap at the mall, Sprint CEO Dan Hesse included backhaul in his wish list of conditions he’d like to see attached to the deal.  Yesterday, Public Knowledge duly confirmed that yes, backhaul is a “multiplier” problem for the deal.

(Sprint says they would like the deal blocked, but that is mere posturing.  What they really want is to use the FCC’s bloated and unprincipled merger review process to sneak in as many private concessions for themselves as they can get.   And who can blame them for trying?  More on that in a moment.)

For those who don’t know, backhaul is the process of moving cellular traffic (voice and data) to other high-speed networks (traditionally landline copper but now including cable, fiber, microwave and local Ethernet) to transport them to their ultimate destination.  As mobile use increases, of course, the necessity of reliable, high-speed backhaul to keep overall performance up becomes more critical than ever.

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Reform Sarbox To Galvanize High-Tech IPOs

by on May 24, 2011 · 5 comments

Last week’s blockbuster LinkedIn IPO valued the company at nearly $9 billion, surprising many investors, especially given the company’s initial valuation of about $4 billion. While some analysts have pointed to LinkedIn’s valuation as evidence that we may be headed into another tech bubble (a la 2000), it’s important to remember that major tech IPOs remain far less frequent in comparison to their heyday in the dot com boom. While there are many good reasons behind the recent reduction in IPO frequency, ill-conceived public policies have distorted the decision-making process of thriving startups.

In an op-ed in tomorrow’s Investor’s Business Daily, Jacque Otto and I elaborate on this argument:

Silicon Valley is teeming with budding startups whose user bases and valuations are skyrocketing. As these companies seek breathing room to grow, they will face a tough decision: stay private, seek out a buyer or go public.

Making this complex choice all the more challenging is government uncertainty. Filing for an initial public offering is harder than ever due to the onerous regulations and burdensome laws Washington has handed down over the past decade. Microsoft’s $8.5 billion purchase of Skype surprised analysts, many of whom had predicted Skype would seek an IPO or a deal with Facebook or Google.

Meanwhile, Facebook has kept quiet in face of speculation over whether it might file for an IPO. So far, the social networking giant has focused on raising capital privately. Given the risks of going public in this environment, Facebook’s decision is understandable.

While some tech firms — including LinkedIn, Kayak and Demand Media — have gone public or filed for IPOs in the past year, many others — including Hulu, Zynga, and Twitter — are reportedly leaning against going public this year. Some of these may be acquired, as happened with AdMob, a mobile advertising startup rumored to be pondering an IPO until Google bought it for $750 million in 2009.

Why do tech companies appear more reluctant to go public today than they were during the tech sector’s heyday of the early 2000s?

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video & slides from Hill Briefing on Online Privacy Policy

by on May 24, 2011 · 1 comment

Last week, I spoke to a group of Capitol Hill staffers about the current debate over online privacy policy. The topic is red-hot right now with 6 major bills pending and plenty of international and state-based activity percolating. I offered the staffers an overview of these issues as well as an alternative vision for how we might handle privacy concerns going forward.

I have embedded the video of my briefing below and it can also be found on the Mercatus website here. And the slide deck I used that day can also be found down below or over on Scribd here.

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