June 2012

Everyone Out of the Internet!

by on June 8, 2012 · 8 comments

During the 1970’s, I remember a bumper sticker that summed up the prevailing anti-colonial attitude that had developed during the late 1960’s:  “U.S. Out of North America.”

That sentiment reflects nicely my activities this week, which include three articles decrying efforts by regulators to oversee key aspects of the Internet economy.  Of course their intentions—at least publicly—are always good.  But even with the right idea, the unintended negative consequences always overwhelm the benefits by a wide margin.

Governments are just too slow to respond to the pace of change of innovations in information technology.  Nothing will fix that.  So better just to leave well enough alone and intercede only when genuine consumer harm is occurring.  And provable.

The articles cover the spectrum from state (California), federal (FCC) and international (ITU) regulators and a wide range of  truly bad ideas, from the desire of California’s Public Utilities Commission to “protect” consumers of VoIP services, to the FCC’s latest effort to elbow its way into regulating broadband Internet access at the middle milel, to a proposal from European telcos to have the U.N. implement a tariff system on Internet traffic originating from the U.S.

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More disclosure needed: Why did the US government insist on retaining the International Telecom Regs?

by on June 8, 2012 · 2 comments

In another blog post, I put the International Telecommunication Union’s WCIT into perspective. I ended that discussion with a question that no one else seems to be asking: should there be International Telecommunication Regulations (ITRs) at all? Why do we need them?

I don’t think we do need sector-specific international regulations. I think they can cause more trouble than benefit. To briefly explain why, I noted that every country has its own national regulations regarding interconnection, privacy, antitrust, consumer protection, and so on. Compatibility across platforms and services is much easier technically than it was in the 1930s and before, and tends to get worked out in the market through a variety of bridging technologies and nongovernmental standards forums. International telecommunications is a form of trade in services, and the WTO agreements already provide a sufficient regulatory basis for foreign or multinational providers to enter national markets and offer transnational services. Though not all countries are members of WTO, membership can be expanded and bilateral or regional agreements can supplement it.

Imagine my surprise when someone informed me that the Europeans were calling for the abrogation of the ITRs for exactly those reasons. Apparently they defended that position for years.  But the European drive to get rid of the ITRs was opposed and eventually blocked by — wait for it — the United States of America! The US, I am told, argued that the existing treaty was essential because most of the world’s international communications were regulated by it.

That puts a dramatically new spin on the US’s current campaign to fend off an ITU “takeover” of the Internet. If revision of the ITRs are such a threat to the Internet, why did the US insist on retaining them? If the ITRs are retained, it is inevitable that they would have to be updated and revised. and yet now, the US government is warning us that the revision process poses a major threat to the independence and freedom of the Internet. Something is wrong with this picture.

Most of my information about this is second-hand, from sources that want to remain off the record. But there is proof that the US has defended the importance of the ITRs in an ITU list of documents that can be viewed here. There, in a depository of an ITU expert group that was preparing the grounds for the WCIT, one finds a document submitted by the US entitled the “Continued Critical Role of the ITRs.” Now if you click on the link that I have mischievously placed to that document, you will be taken to a closed, login-required page; before you can read that document, you have to be a TIES member. In other words, this is yet another example of the closed nature of the ITU process. There is another set of papers here that would be of interest in understanding why we even have the ITRs. But they, too, are locked inside TIES.

And that means, this is a job for WCITleaks! The U.S. government should release this document, and if it doesn’t, inside whistleblowers and other people with access to a TIES account need to leak it to us.

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Your right to be forgotten and my right to speak

by on June 7, 2012 · 2 comments

Earlier this week I [interviewed Andrew Keen](http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten) about his new book, [*Digital Vertigo*](http://www.amazon.com/exec/obidos/ASIN/0312624980/jerrybritocom/ref=nosim/), and pressed him on his support for a ‘right to be forgotten.’ I noted that such a right would conflict with free speech rights, and he begged to differ.

“My own data, which I have published on the web, I should have a right, if I choose, for that data to go away,” he said. “That doesn’t impact in any way on your right to speak.”

This is a view of the EU’s proposal that I’ve heard from several folks, and I wanted to take a moment to explain why it’s mistaken. If the proposed EU right only covered information held by you that you wanted to unpublish–from Facebook, Tumblr, a self-hosted blog, etc.–then we wouldn’t need a right. Those services give you that ability right now, and if they didn’t, I don’t think folks would patronize them.

No, the right that Vivianne Redding [has outlined](http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf) is not a right to erase information held *by* oneself, but a right to erase data held *about* oneself. For example, in researching this post, I searched for an essay by Joris van Hoboken, an info law PhD candidate in Amsterdam, that made a great case against the right to be forgotten. As it turns out, the [blog post](http://www.jorisvanhoboken.nl/?m=201112) I was looking for had been removed. His whole site is down, perhaps for technical reasons, but perhaps because he has changed his mind and is now embarrassed by his previous views and wants them erased from the internet. Luckily, I had saved the essay in Evernote and you can [see it here](https://www.evernote.com/shard/s1/sh/6c0ac9a9-a4e5-43a0-a3a5-dd199288f0ed/480384e51c18b5bea3ffffb68c215686).

Now, van Hoboken might have the power under copyright law to make me take down the essay, but he has no right to keep me from writing about the fact that he wrote such a (potentially embarrassing) essay and even summarizing or excerpting it. *That* is the right that the EU would like to confer on citizens, and my right to speak is the one it wants to curtail.

The proposal does state that a “controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary for exercising the right of freedom of expression[.]” The problem with this exemption is that it creates an opportunity for the government to decide what kind of speech qualifies as legitimate expression, and which one does not. I would like to see those opportunities limited.

In his book, Keen [is critical](http://books.google.com/books?id=CUhIjwAYRGoC&lpg=PP1&dq=digital%20vertigo&pg=PA54#v=onepage&q=giggs&f=false) of the twittering masses who disobeyed the British High Court’s [superinjunction](http://techland.time.com/2011/05/21/twitters-super-duper-u-k-censorship-trouble/) on speaking about Ryan Gigg’s extramarital affair. Keen might think that such superinjunctions are legitimate and appropriate, and that the state should sometimes determine what content is and is not appropriate for free expression. But that’s different from pretending that a right to privacy does not conflict with a right to free speech.

Paul Bernal puts his finger on it when [he writes](http://zine.openrightsgroup.org/features/2012/the-right-to-be-forgotten),

>[T]he cultural differences in attitudes to privacy and free speech in the EU and the US. In the EU, and particularly in Germany, privacy is taken very seriously, and the rights that people have over data are considered crucial. In the US, privacy very much takes second place to free speech – anything that can even slightly infringe on free speech is likely to face short shrift. The right to be forgotten has been very actively opposed in the US on those grounds–[Jeffrey Rosen in the Stanford Law Review](http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten) calling it the ‘biggest threat to free speech on the internet in the coming decade’.

>Who is right? Neither, really. The right is not what its more active opponents in the US think it is–but neither has it been written tightly enough and carefully enough to provide the kind of practical, realisable right to delete personal data that the EU would like to see.

Yes, our cultural lenses do make us see free speech in different ways. And yes, maybe we in the U.S. are a bit sensitive about our speech rights. But the way the proposal is written now, we have good reason to be. It would not be too difficult to use such a ‘right’ for censorship.

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Andrew Keen on the negative effects of social media

by on June 6, 2012

On the podcast this week, Andrew Keen, a journalist and author, discusses his new book Digital Vertigo: How Today’s Online Social Revolution Is Dividing, Diminishing, and Disorienting Us. Keen believes that social media is causing us to lose our private lives and turning us into what he calls “the cult of the social.” Keen discusses the growing power of companies like Facebook and his concern about the future of privacy and data ownership; as well as possible market and government driven solutions to this problem.

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Today we’re launching WCITLeaks.org

by on June 6, 2012 · 3 comments

As you may have heard, the UN is trying to take over the internet. Well, that’s not really true, but member states of the UN’s International Telecommunications Union (ITU) are definitely going to negotiate an agreement related to the Internet at the World Conference on International Communications (WCIT – pronounced ‘wicket’) this December in Dubai. [U.S. officials have warned](http://online.wsj.com/article/SB10001424052970204792404577229074023195322.html) that some member states, including Russia and China, have put forth proposals to regulate the Internet. Vint Cerf [has warned](http://www.nytimes.com/2012/05/25/opinion/keep-the-internet-open.html) that “Such proposals raise the prospect of policies that enable government controls but greatly diminish the ‘permissionless innovation’ that underlies extraordinary Internet-based economic growth to say nothing of trampling human rights.”

So what are these proposals? Well, we don’t know exactly. To see them, you have to have access to the ITU’s password protected website. This lack of transparency brings to mind secret negotiations like the one that gave us ACTA, and several civil society groups [have written](http://wcitleaks.org/) to the ITU demanding access to the documents.

The proposals are not classified and it’s not illegal to share them. In fact, they often are shared. At a [recent panel discussion](http://www.c-span.org/Events/Dubai-Conference-Could-Change-How-Internet-Operates/10737431086/) that I attended, the State Department’s Richard Beaird said, “Access to the proposals, of course, as I have done and others have done, is if you ask me, I will give you those proposals. I don’t want to have a flood of requests coming in from the room or those int he television audience.”

At the time, I [tweeted](https://twitter.com/jerrybrito/status/207889003171684352): “If someone will pass them to me, I volunteer to host a site with gov WCIT proposals.” It seemed weird to me that someone wasn’t collecting and publishing the documents, like how opencrs.com does with Congressional Research Service reports. I promptly forgot about the idea, but was reminded yesterday when Milton Mueller wrote [this post](http://www.internetgovernance.org/2012/06/05/we-want-td64-itu-transparency-begins-at-home/) urging the U.S. to make documents available. He wrote:

>Today, IGP has learned that the U.S. government is in possession of a document that brings together descriptions of all the WCIT proposals emerging from the ITU’s Council Working Group. The document, known as TD 64, compiles all the proposals on the table into a single document without attributing them to any specific government. No law or treaty stops the US government from making this document available to the public. We urge the U.S. government to release TD 64 of the ITU Council Working Group immediately.

Of course, while it’s not illegal, publishing these documents is probably not considered polite in the rarefied diplomatic circles of the ITU. So, I thought we’d give folks with access to the documents a helping hand.

Yesterday Eli Dourado and I spent a couple of hours putting together a website at [WCITLeaks.org](http://wcitleaks.org). The idea is simple: If you have a WCIT or ITU related document you’d like to share, submit it anonymously and we will publish it. That’s it. We hope you find it useful and that you’ll spread the word.

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Microsoft Pushes “Do-Not-Track”

by on June 2, 2012 · 3 comments

The world does not owe targeted advertising networks a business model, so I am agnostic about Microsoft’s decision to ship Internet Explorer 10 with “Do-Not-Track” enabled by default. Ryan Singel has a good write-up on Threat Level that covers many dimensions of the issue.

Decisions like this are never driven by a single motivation, but I’m interested in the likelihood that Microsoft made this choice hoping to drive a dagger into Google’s business model. To the extent it did, it’s a nice illustration of how competition among companies can serve consumers’ privacy preferences. There is some demand for privacy, though less than most regulatory types believe. Microsoft saw an angle to get some pro-privacy PR, improve consumers’ privacy by a small margin, and hamstring a competitor. You go, girl. Er, Microsoft.

Now, consumers aren’t falling over themselves for protection from the benign practice of tracking for the purpose of delivering targeted ads. I suspect that counter-punches from ad networks and Google will send the Do Not Track header into the dustbin of privacy history right along with P3P. The idea of putting a signal into the header that says “please do not track” is clumsy, to put it charitably.

If you want to avoid tracking, you can do that already. Use Tracking Protection Lists.

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