In the lead essay for the “Cato Unbound” symposium this month, I analyze recent political movements that have been aided by Internet-based communication by positing a set of questions,

Activists played important roles in bringing down dictators in the Arab world, stopping the Stop Online Piracy Act (SOPA) in Congress and electing Barack Obama—just to name a few examples. But how much did the Internet matter in making these watershed events possible? How effective is it likely to be in the future? And how would we measure whether activism “works” for society—not just the activists?

I respond to the concerns raised by Evgeny Morozov in his iconoclastic 2010 book, The Net Delusion: The Dark Side of Internet Freedom (summarized in his short essay in TechFreedom’s free ebook The Next Digital Decade: Essays on the Future of the Internet).  In general, I suggest that we simply do not yet understand the Internet’s effect on activism well enough to make strong normative judgments about it.  But applying Public Choice theory can help us understand how developments in communication technologies are changing the relationship between an individual and the group in social movements. A few highlights:

• Social media lower organizational costs, especially of recruiting members, but also noticeability: “members’ ability to notice each other’s actions.” Even in 2003, there was little way to tell whether your friends actually followed through when you asked them to help join a cause. But today, it’s easy to encourage them to re-share material on Facebook or Twitter—and to “notice” whether they’ve done so.
• Social media allows members of large groups—think Twitter followers—to be continuously bombarded with propaganda about the worthiness of the cause creating social pressures not entirely unlike those that can be generated in a face-to face group.
• The Internet empowers large, dispersed groups (like dedicated Internet users) to organize against small but concentrated interests. As anyone who works in technology policy in Washington can attest, SOPA’s implosion made Congress more cautious—at least about Internet regulation, where fear of a digital activist backlash is greatest.
• Ultimately, the Internet does make coordination easier among like-minded people to provide reputational feedback about corporations and governments. However we must still be vigilant—governments can and do manipulate the Internet in overt and covert ways to stifle their populations.
• Activism works largely by imposing reputational costs on its targets.  Online reputation markets deliver information much faster and more cheaply than ever before.

I conclude by saying: “The Internet may not necessarily make the world a better place in every way, but the more we understand how it changes our relationships with each other, the better equipped we will be to steer its evolution in more humane directions.”

In the coming days, Jason Benlevi, Rebecca MacKinnon and John O. McGinnis will all respond, leading to a spirited debate on the topic of Internet activism and to what degree technology really does enhance freedom.

Yesterday, the International Center for Law and Economics and TechFreedom jointly filed comments [pdf] with the FCC on the Verizon SpectrumCo deal.  In the comments, ICLE Executive Director Geoffrey Manne and TechFreedom President Berin Szoka counter the primary arguments against the deal:

Critics lament the concentration of spectrum in the hands of one of the industry’s biggest players, but the assumption that concentration will harm to consumers is unsupported and misplaced.  Concentration of spectrum has not slowed the growth of the market; rather, the problem is that growth in demand has dramatically outpaced capacity.  What’s more: prices have plummeted even as the industry has become more concentrated.

While the FCC undeniably has authority to review the license transfers, the argument that the separate but related commercial agreements would reduce competition is properly the province of the Department of Justice.  That argument is best measured under the antitrust laws, not by the FCC under its vague “public interest” standard.  Indeed, if the FCC can assert jurisdiction over the commercial agreements as part of its public interest review, its authority over license transfers will become a license to regulate all aspects of business.  This is a recipe for certain mischief.

The need for all competitors, including Verizon, to obtain sufficient spectrum to meet increasing demand demonstrates that the deal is in the public interest and should be approved.

Today, the FCC issued a Notice of Inquiry, responding to an emergency petition filed last August regarding temporary shutdown of mobile services by officers of the San Francisco Bay Area Rapid Transit (BART) district. The petition asked the FCC to issue a declaratory ruling that the shutdown violated the Communications Act. The following statement can be attributed to Larry Downes, Senior Adjunct Fellow at TechFreedom, and Berin Szoka, President of TechFreedom:

What BART did clearly violated the First Amendment, and needlessly put passengers at risk by cutting off emergency services just when they were needed most. But we need a court to say so, not the FCC.

The FCC has no authority here. The state did not order the shutdown of the network, nor does the state run the network. BART police simply turned off equipment it doesn’t own—a likely violation of its contractual obligations to the carriers. But BART did nothing that violated FCC rules governing network operators. To declare the local government an “agent” of the carriers would set an extremely dangerous precedent for an agency with a long track-record of regulatory creep.

There are other compelling reasons to use the courts and not regulators to enforce free speech rights. Regulatory agencies move far too slowly. Here, it took the FCC six months just to open an inquiry! Worse, today’s Notice of Inquiry will lead, if anything, to more muddled rulings and regulations. These may unintentionally give cover to local authorities trying to parse them for exceptions and exclusions, or at least the pretense of operating within FCC guidelines.

It would have been far better to make clear to BART, either through negotiations or the courts, that their actions were unconstitutional and dangerous. Long before today’s action, BART adopted new policies that better respect First Amendment rights and common sense. But now the regulatory wheels have creaked into motion. Who knows where they’ll take us, or when?

Sen. Carl Levin wants Facebook to pay an extra $3 billion in taxes on its Initial Public Offering (IPO). The Senator claims the Facebook IPO illustrates why we need to close what he calls the “stock-option loophole.” (He explains that “Stock options grants are the only kind of compensation where the tax code allows companies to claim a higher expense for tax purposes than is shown on their books.”) He wants Facebook to pay its “fair share” and insists that “American taxpayers will have to make up for what Facebook’s tax deduction costs the Treasury.”

One could object, on principle, to Levin’s premise that tax deductions “cost” the Treasury money—as if the “national income” were all money that belonged to the government by default. One could also point out that Mark Zuckerberg, will pay something like $2 billion in personal income taxes on money he’ll earn from this stock sale—and that California is counting on the $2.5 billion in tax revenue the IPO is supposed to bring to the state over five years.

But the broader point here is that Sen. Levin wants to increase taxes on IPOs—and any economist will tell you that taxing something will produce less of it. IPOs are the big pay-off that fuels early-stage investment in risky start-ups—you know, those little companies that drive innovation across the economy, but especially in Silicon Valley? So, while Sen. Levin singles out Facebook as an obvious success story, his IPO tax would really hurt countless small start-ups who struggle to attract investors as well as employees with the promise of large pay-offs in the future.

It’s especially ironic that Sen. Levin proposed his IPO tax just a day after GOP Majority Leader Eric Cantor introduced the “JOBS Act,” a compilation of assorted bi-partisan proposals designed to promote job creation by helping small companies attract capital. That’s exactly where we should be heading: doing everything we can to encourage job creation by rewarding entrepreneurship. Sen. Levin would, in the name of fairness do just the opposite—and, in the long-run, almost certainly produce less revenue by slowing economic growth.

And just to underscore the drop-off in tech IPOs since the heydey of the dot-com “bubble” in the late 90s, check out the following BusinessInsider Chart:

The White House’s “Consumer Data Privacy in a Networked World” report outlines a revised framework for consumer privacy, proposes a “Consumer Privacy Bill of Rights,” and calls on Congress to pass new legislation to regulate online businesses. The following statement can be attributed to Berin Szoka, President of TechFreedom, and Larry Downes, TechFreedom Senior Adjunct Fellow:

This Report begins and ends as constitutional sleight-of-hand. President Obama starts by reminding us of the Fourth Amendment’s essential protection against “unlawful intrusion into our homes and our personal papers”—by government. But the Report recommends no reform whatsoever for outdated laws that have facilitated a dangerous expansion of electronic surveillance. That is the true threat to our privacy. The report dismisses it in a footnote.

Instead, the Report calls for extensive new regulation of Internet businesses to address little more than the growing pains of a vibrant emerging economy. “For businesses to succeed online,” President Obama asserts, “consumers must feel secure.”  Yet online businesses that rely on data to deliver innovative and generally free services are the one bright spot in a sour economy. Experience has shown consumers ultimately bear the costs of regulations imposed on emerging technologies, no matter how well-intentioned.

The report is a missed opportunity. The Administration should have called for increased protections against government’s privacy intrusions. Focusing on the real Bill of Rights would have respected not only the Fourth Amendment, but also the First Amendment. The Supreme Court made clear last year that the private sector’s use of data is protected speech—an issue also not addressed by this Report.

Szoka and Downes are available for comment at media@techfreedom.org.

Today, the Supreme Court issued its decision in U.S. v. Jones, unanimously holding that law enforcement violated the Fourth Amendment by affixing a GPS tracker to a vehicle to monitor its movements without obtaining a search warrant from a court. The following statement can be attributed to Berin Szoka, President of TechFreedom:

This was an easy case: law enforcement plainly trespassed on private property protected by the Fourth Amendment. But as the majority notes, today’s holding is only the bare minimum of the Constitution’s protections. The harder question awaits the Court: When does purely electronic surveillance—without physical trespass—violate the Fourth Amendment?

At the very least, the Court must reconsider the “third party” doctrine invented by lower courts, which denies us protection for information we share with trusted third parties like “cloud” services that host our email, photos, and documents. The Court should make clear that Fourth Amendment protections hinge not on keeping information secret, but on whether we take steps to preserve that information as private. That, not the “reasonable expectation of privacy,” is the standard the Court applied in its landmark 1967 Katz decision. It is also the only standard that will effectively protect Americans’ privacy in the digital age.

[Cross posted at TechFreedom.org]

[Cross posted from TechFreedom]

Today, the Digital Advertising Alliance, a group of leading digital ad agencies and online ad networks, unveiled a campaign to bring attention to AdChoices, its icon-based system allowing users to opt-out of behavioral advertising. The following statement can be attributed to Berin Szoka, President of TechFreedom:

In the 1990s, Congress tried and failed to regulate Internet content. Instead, the courts have required an approach grounded in user empowerment, education and enforcement of existing laws against fraud and deception. Today, we’re seeing the the advertising industry build on this approach for consumer protection on privacy. The AdChoices campaign launched last summer empowers consumers to make their own choices on privacy. The ad campaign launched today educates consumers on how to use this tool. The Digital Advertising Alliance has promised to enforce industry’s principles. Consumer advocates should hold them to that promise. It’s also fair to insist that empowerment and education improve over time. But today, for once, let’s give the ad industry credit for doing the right thing.

Tune in here 12-1:45pm today for the livestream (below) of TechFreedom‘s joint Capitol Hill briefing, “Unintended Consequences of Rogue Website Crackdown,” co-sponsored by the Competitive Enterprise Institute and the Cato Institute. Our expert panel will discuss the recent outpouring of public opposition to the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), what’s next for these troublesome bills, possible compromises, and the proposed alternative, Online Protection and Enforcement of Digital Trade (OPEN) Act. Our panelists are:

Follow the discussion on the #SOPAnel hashtag or submit a question for the panel to @Tech_Freedom!

This event is the perfect way to celebrate  TechFreedom‘s one-year anniversary. Our theme for the last year has been two-fold: optimism about how technology can expand our capacity to choose for ourselves and skepticism about government meddling with the Internet. As Hayek famously said about the “curious task” of economics, TechFreedom’s task is to “demonstrate to men how little they really know about what they imagine they can design.”

We’re skeptical of SOPA and PIPA not because we’re against copyright, but for the same reason we’re skeptical of regulations aimed at protecting net neutrality, privacy, competition, and other legitimate values: Tinkering with the Internet is a perilous game—and policymakers rarely see the full implications of their interventions.

That’s why we’ve emphasized the need to consider the trade-offs of regulating extremely carefully—to minimize unintended burdens of any rogue website crackdown on cybersecurity, free speech, entrepreneurship, and global Internet governance. But we also want an open and judicious process for copyright’s sake! As we noted in our coalition letter with CEI and other free market groups, “If the public perceives this copyright legislation to be the product of a hasty and opaque process, respect for copyrights and trademarks will be diminished, not enhanced.”

Watch the Event in QuickTime (M4V)
Download a Podcast of the Event (MP3)

By Berin Szoka, Geoffrey Manne & Ryan Radia

As has become customary with just about every new product announcement by Google these days, the company’s introduction on Tuesday of its new “Search, plus Your World” (SPYW) program, which aims to incorporate a user’s Google+ content into her organic search results, has met with cries of antitrust foul play. All the usual blustering and speculation in the latest Google antitrust debate has obscured what should, however, be the two key prior questions: (1) Did Google violate the antitrust laws by not including data from Facebook, Twitter and other social networks in its new SPYW program alongside Google+ content; and (2) How might antitrust restrain Google in conditioning participation in this program in the future?

The answer to the first is a clear no. The second is more complicated—but also purely speculative at this point, especially because it’s not even clear Facebook and Twitter really want to be included or what their price and conditions for doing so would be. So in short, it’s hard to see what there is to argue about yet.

Let’s consider both questions in turn.

Should Google Have Included Other Services Prior to SPYW’s Launch?

Google says it’s happy to add non-Google content to SPYW but, as Google fellow Amit Singhal told Danny Sullivan, a leading search engine journalist:

Facebook and Twitter and other services, basically, their terms of service don’t allow us to crawl them deeply and store things. Google+ is the only [network] that provides such a persistent service,… Of course, going forward, if others were willing to change, we’d look at designing things to see how it would work.

In a follow-up story, Sullivan quotes his interview with Google executive chairman Eric Schmidt about how this would work:

“To start with, we would have a conversation with them,” Schmidt said, about settling any differences.

I replied that with the Google+ suggestions now hitting Google, there was no need to have any discussions or formal deals. Google’s regular crawling, allowed by both Twitter and Facebook, was a form of “automated conversation” giving Google material it could use.

“Anything we do with companies like that, it’s always better to have a conversion,” Schmidt said.

MG Siegler calls this “doublespeak” and seems to think Google violated the antitrust laws by not making SPYW more inclusive right out of the gate. He insists Google didn’t need permission to include public data in SPYW:

Both Twitter and Facebook have data that is available to the public. It’s data that Google crawls. It’s data that Google even has some social context for thanks to older Google Profile features, as Sullivan points out.

It’s not all the data inside the walls of Twitter and Facebook — hence the need for firehose deals. But the data Google can get is more than enough for many of the high level features of Search+ — like the “People and Places” box, for example.

It’s certainly true that if you search Google for “site:twitter.com” or “site:facebook.com,” you’ll get billions of search results from publicly-available Facebook and Twitter pages, and that Google already has some friend connection data via social accounts you might have linked to your Google profile (check out this dashboard), as Sullivan notes. But the public data isn’t available in real-time, and the private, social connection data is limited and available only for users who link their accounts. For Google to access real-time results and full social connection data would require… you guessed it… permission from Twitter (or Facebook)! As it happens, Twitter and Google had a deal for a “data firehose” so that Google could display tweets in real-time under the “personalized search” program for public social information that SPYW builds on top of. But Twitter ended the deal last May for reasons neither company has explained.

At best, therefore, Google might have included public, relatively stale social information from Twitter and Facebook in SPYW—content that is, in any case, already included in basic search results and remains available there. The real question, however, isn’t could Google have included this data in SPYW, but rather need they have? If Google’s engineers and executives decided that the incorporation of this limited data would present an inconsistent user experience or otherwise diminish its uniquely new social search experience, it’s hard to fault the company for deciding to exclude it. Moreover, as an antitrust matter, both the economics and the law of anticompetitive product design are uncertain. In general, as with issues surrounding the vertical integration claims against Google, product design that hurts rivals can (it should be self-evident) be quite beneficial for consumers. Here, it’s difficult to see how the exclusion of non-Google+ social media from SPYW could raise the costs of Google’s rivals, result in anticompetitive foreclosure, retard rivals’ incentives for innovation, or otherwise result in anticompetitive effects (as required to establish an antitrust claim).

Further, it’s easy to see why Google’s lawyers would prefer express permission from competitors before using their content in this way. After all, Google was denounced last year for “scraping” a different type of social content, user reviews, most notably by Yelp’s CEO at the contentious Senate antitrust hearing in September. Perhaps one could distinguish that situation from this one, but it’s not obvious where to draw the line between content Google has a duty to include without “making excuses” about needing permission and content Google has a duty not to include without express permission. Indeed, this seems like a case of “damned if you do, damned if you don’t.” It seems only natural for Google to be gun-shy about “scraping” other services’ public content for use in its latest search innovation without at least first conducting, as Eric Schmidt puts it, a “conversation.”

And as we noted, integrating non-public content would require not just permission but active coordination about implementation. SPYW displays Google+ content only to users who are logged into their Google+ account. Similarly, to display content shared with a user’s friends (but not the world) on Facebook, or protected tweets, Google would need a feed of that private data and a way of logging the user into his or her account on those sites.

Now, if Twitter truly wants Google to feature tweets in Google’s personalized search results, why did Twitter end its agreement with Google last year? Google responded to Twitter’s criticism of its SPYW launch last night with a short Google+ statement:

We are a bit surprised by Twitter’s comments about Search plus Your World, because they chose not to renew their agreement with us last summer, and since then we have observed their rel=nofollow instructions [by removing Twitter content results from "personalized search" results].

Perhaps Twitter simply got a better deal: Microsoft may have paid Twitter $30 million last year for a similar deal allowing Bing users to receive Twitter results. If Twitter really is playing hardball, Google is not guilty of discriminating against Facebook and Twitter in favor of its own social platform. Rather, it’s simply unwilling to pony up the cash that Facebook and Twitter are demanding—and there’s nothing illegal about that.

Indeed, the issue may go beyond a simple pricing dispute. If you were CEO of Twitter or Facebook, would you really think it was a net-win if your users could use Google search as an interface for your site? After all, these social networking sites are in an intense war for eyeballs: the more time users spend on Google, the more ads Google can sell, to the detriment of Facebook or Twitter. Facebook probably sees itself increasingly in direct competition with Google as a tool for finding information. Its social network has vastly more users than Google+ (800 million v 62 million, but even larger lead in active users), and, in most respects, more social functionality. The one area where Facebook lags is search functionality. Would Facebook really want to let Google become the tool for searching social networks—one social search engine “to rule them all“? Or would Facebook prefer to continue developing “social search” in partnership with Bing? On Bing, it can control how its content appears—and Facebook sees Microsoft as a partner, not a rival (at least until it can build its own search functionality inside the web’s hottest property).

Adding to this dynamic, and perhaps ultimately fueling some of the fire against SPYW, is the fact that many Google+ users seem to be multi-homing, using both Facebook and Google+ (and other social networks) at the same time, and even using various aggregators and syncing tools (Start Google+, for example) to unify social media streams and share content among them. Before SPYW, this might have seemed like a boon to Facebook, staunching any potential defectors from its network onto Google+ by keeping them engaged with both, with a kind of “Facebook primacy” ensuring continued eyeball time on its site. But Facebook might see SPYW as a threat to this primacy—in effect, reversing users’ primary “home” as they effectively import their Facebook data into SPYW via their Google+ accounts (such as through Start Google+). If SPYW can effectively facilitate indirect Google searching of private Facebook content, the fears we suggest above may be realized, and more users may forego vistiing Facebook.com (and seeing its advertisers), accessing much of their Facebook content elsewhere—where Facebook cannot monetize their attention.

Amidst all the antitrust hand-wringing over SPYW and Google’s decision to “go it alone” for now, it’s worth noting that Facebook has remained silent. Even Twitter has said little more than a tweet’s worth about the issue. It’s simply not clear that Google’s rivals would even want to participate in SPYW. This could still be bad for consumers, but in that case, the source of the harm, if any, wouldn’t be Google. If this all sounds speculative, it is—and that’s precisely the point. No one really knows. So, again, what’s to argue about on Day 3 of the new social search paradigm?

The Debate to Come: Conditioning Access to SPYW

While Twitter and Facebook may well prefer that Google not index their content on SPYW—at least, not unless Google is willing to pay up—suppose the social networking firms took Google up on its offer to have a “conversation” about greater cooperation. Google hasn’t made clear on what terms it would include content from other social media platforms. So it’s at least conceivable that, when pressed to make good on its lofty-but-vague offer to include other platforms, Google might insist on unacceptable terms. In principle, there are essentially three possibilities here:

1. Antitrust law requires nothing because there are pro-consumer benefits for Google to make SPYW exclusive and no clear harm to competition (as distinct from harm to competitors) for doing so, as our colleague Josh Wright argues.
2. Antitrust law requires Google to grant competitors access to SPYW on commercially reasonable terms.
3. Antitrust law requires Google to grant such access on terms dictated by its competitors, even if unreasonable to Google.

Door #3 is a legal non-starter. In Aspen Skiing v. Aspen Highlands (1985), the Supreme Court came the closest it has ever come to endorsing the “essential facilities” doctrine by which a competitor has a duty to offer its facilities to competitors. But in Verizon Communications v. Trinko (2004), the Court made clear that even Aspen Skiing is “at or near the outer boundary of § 2 liability.” Part of the basis for the decision in Aspen Skiing was the existence of a prior, profitable relationship between the “essential facility” in question and the competitor seeking access. Although the assumption is neither warranted nor sufficient (circumstances change, of course, and merely “profitable” is not the same thing as “best available use of a resource”), the Court in Aspen Skiing seems to have been swayed by the view that the access in question was otherwise profitable for the company that was denying it. Trinko limited the reach of the doctrine to the extraordinary circumstances of Aspen Skiing, and thus, as the Court affirmed in Pacific Bell v. LinkLine (2008), it seems there is no antitrust duty for a firm to offer access to a competitor on commercially unreasonable terms (as Geoff Manne discusses at greater length in his chapter on search bias in TechFreedom’s free ebook, The Next Digital Decade).

So Google either has no duty to deal at all, or a duty to deal only on reasonable terms. But what would a competitor have to show to establish such a duty? And how would “reasonableness” be defined?

First, this issue parallels claims made more generally about Google’s supposed “search bias.” As Josh Wright has said about those claims, “[p]roperly articulated vertical foreclosure theories proffer both that bias is (1) sufficient in magnitude to exclude Google’s rivals from achieving efficient scale, and (2) actually directed at Google’s rivals.” Supposing (for the moment) that the second point could be established, it’s hard to see how Facebook or Twitter could really show that being excluded from SPYW—while still having their available content show up as it always has in Google’s “organic” search results—would actually “render their efforts to compete for distribution uneconomical,” which, as Josh explains, antitrust law would require them to show. Google+ is a tiny service compared to Google or Facebook. And even Google itself, for all the awe and loathing it inspires, lags in the critical metric of user engagement, keeping the average user on site for only a quarter as much time as Facebook.

Moreover, by these same measures, it’s clear that Facebook and Twitter don’t need access to Google search results at all, much less its relatively trivial SPYW results, in order find, and be found by, users; it’s difficult to know from what even vaguely relevant market they could possibly be foreclosed by their absence from SPYW results. Does SPYW potentially help Google+, to Facebook’s detriment? Yes. Just as Facebook’s deal with Microsoft hurts Google. But this is called competition. The world would be a desolate place if antitrust laws effectively prohibited firms from making decisions that helped themselves at their competitors’ expense.

After all, no one seems to be suggesting that Microsoft should be forced to include Google+ results in Bing—and rightly so. Microsoft’s exclusive partnership with Facebook is an important example of how a market leader in one area (Facebook in social) can help a market laggard in another (Microsoft in search) compete more effectively with a common rival (Google). In other words, banning exclusive deals can actually make it more difficult to unseat an incumbent (like Google), especially where the technologies involved are constantly evolving, as here.

Antitrust meddling in such arrangements, particularly in high-risk, dynamic markets where large up-front investments are frequently required (and lost), risks deterring innovation and reducing the very dynamism from which consumers reap such incredible rewards. “Reasonable” is a dangerously slippery concept in such markets, and a recipe for costly errors by the courts asked to define the concept. We suspect that disputes arising out of these sorts of deals will largely boil down to skirmishes over pricing, financing and marketing—the essential dilemma of new media services whose business models are as much the object of innovation as their technologies. Turning these, by little more than innuendo, into nefarious anticompetitive schemes is extremely—and unnecessarily—risky.

The Fragmentation Claim

For some, the problem isn’t so much about antitrust but about the fragmentation of the web. John Battelle claims that tensions between search engines and social networking platforms threaten our culture, and we need a “public commons” for social data to set things right. In the abstract (and the real world is never “in the abstract”), the claim has appeal: the Web users of today might, in some sense, be better off if Facebook, Google, Twitter, and Bing could all just “get along” and share social content among themselves seamlessly so that users could find content from any major social media platform on Google (or Bing, for that matter). Instead of facing a choice among major search engines that each only offer a fragment of potentially relevant social networking content, users in this Social Commons Utopia would choose search engines based on the quality of the algorithm, or other features—not on which social networks the search engine indexes. Meanwhile, users active in multiple social networks would enjoy a one-stop shop for searching content shared by their friends.

That all sounds well and good, but it misses the forest for the trees. The question isn’t simply about consumer welfare in a static snapshot of today’s marketplace. From that myopic perspective, commoditizing search might make a lot of sense. But of course, what’s ultimately important is that search keeps evolving to become more social and more … who knows what else the future will bring? Achieving a static “utopia” might end up killing the contentious rivalry that fuels the evolution of the market in ways that dramatically outweigh any short-term gains for consumers. Incorporating a realistic appreciation for that into a court-ordered “reasonable” deal is a Sisyphean task—yet another reason why courts are (and should be) likely to err on the side of extreme caution about meddling here.

To be sure, a “public commons” for social data is an interesting idea, and it may well make sense someday. But how would such a regime, if implemented tomorrow, affect social networking firms looking to grow and innovate? Unlike Microsoft and Google, both among the world’s most profitable companies, Facebook and Twitter are still trying to figure out how to effectively monetize their massive user platforms. Inking creative deals to sell access to social data to search engines, or to other entities such as advertisers, is a logical way to generate the income that social networking companies need. This sort of arrangement may offend diehard believers in information commons, but it should seem perfectly natural to those who recognize that, to serve consumers, web companies need to innovate not just in new technologies but in strategies for monetizing those technologies.

Conclusion

Do we really want to live in a world where companies like Google have to wait to launch innovative new features until they’ve worked out how to to ensure that their competitors get to participate—on their competitors’ terms? This kind of “open access” requirement would be catastrophic for innovation. Even forcing companies to clearly define their terms of access on day one would essentially be equivalent to requiring them to file a rate tariff as if they were an old regulated utility—a recipe for stagnation, not innovation. Condemning Google to antitrust purgatory for failing to accept competitors’ offers to participate when those offers don’t even exist is nothing if not premature.

[Cross posted from Huffington Post]

Does the First Amendment allow the FCC to censor “indecent” content like the occasional curse word or a brief glimpse of a bare butt on broadcast TV? The Supreme Court hears arguments on this question Tuesday in FCC v. Fox—the first time in more than 30 years the Court will squarely confront this constitutional question. The case stems from the use of “fleeting” expletives by Nicole Richie and Cher at the Billboard Music Awards Show nearly a decade ago, which prompted a draconian crackdown on broadcasters by the Bush FCC in 2004.

Our five organizations—which differ widely on many issues—have filed a joint amicus brief urging the Court to recognize that the Constitution demands an end to FCC censorship of television, given the fundamental transformation of the media landscape. In its 1978 FCC v. Pacifica decision, the Court gave broadcasting less protection than other media (like newspapers) because it was both “pervasive” in American culture and “invasive”—an “intruder” in the home from which parents were powerless to protect their children. But that rationale long ago disintegrated.

When a federal appellate court struck down the FCC’s indecency rules last year, it hit the nail on the head: “we face a media landscape that would have been almost unrecognizable in 1978.” Back then, nearly all Americans relied on broadcasting to deliver a limited range of video media to their homes. Today, only 8 to 15% percent of American households rely on over-the-air broadcasting, with the majority subscribing to cable or satellite service. More and more Americans are getting video content online from Netflix, Hulu, YouTube, and countless other sites. These services are not “intruders” in the home, but invited guests.

More importantly, a wide range of tools empower parents to decide what broadcast content their children can access. Since 2000, every television larger than 13 inches has come with the V-Chip. This free technology empowers parents to block content based on ratings that include age-based designations as well as several specific content descriptors (coarse language, sex, violence, etc.). A wide variety of other tools have empowered parents, such as DVD players, digital video recorders and video-on-demand services, which allow parents to build, and even pre-screen, libraries of preferred programming for their children. Similar tools are available for cable content, video games, movies, and the Internet.

Today’s world of converged, customizable video media would have seemed like science fiction to the Pacifica court 31 years ago. But it is precisely the kind of world the Supreme Court contemplated in a 2000 opinion, boldly declaring: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.”

The last decade has vindicated this vision, with parental empowerment tools flourishing even as the media landscape changed dramatically. In a dynamic world, technological tools and parental control methods need not be perfect to be preferable to government regulation.

The Supreme Court has already decided as much for cable television: in 2000, the Court struck down a law that had caused cable operators to restrict adult content on subscription channels to between the hours of 10pm and 6am. While operators scrambled these channels for non-subscribers, Congress worried that children might still be able to see or hear something on these channels during the day. But the Court insisted that total preemption of adult content was excessive, because concerned parents could request targeted blocking of the adult channels:

“[I]t is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.”

That’s precisely the right standard for the digital “revolution.” Anything less will allow the continuation of censorship of a bygone era—and help to validate censorship in countries like China, which is often justified as protecting children. We urge the Supreme Court to affirm that this standard applies just as much to broadcasting as to the Internet or newspapers. That means striking down Pacifica’s double-standard.

Invalidating the FCC’s indecency rules doesn’t mean government can do nothing. It can still assist in improving parental controls, promote awareness of existing tools and methods, and punish companies that fail to live up to their voluntary content labels. But our Constitution requires that government focus on helping parents—rather than choosing for them.

Berin Szoka is President of TechFreedom. Ilya Shapiro is Senior Fellow in Constitutional Studies at the Cato Institute. Emma Llanso is a Policy Counsel at the Center for Democracy & Technology. Lee Tien is a Senior Staff Attorney at the Electronic Frontier Foundation. John Bergmayer is a Senior Staff Attorney at Public Knowledge. All five organizations are public interest non-profits with a focus in technology policy.

[Cross posted at TechFreedom.org]

It’s hard to believe TechFreedom launched just last January. As we begin 2012, let me share with you the mantra that continues to guide our work: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.”

That’s how Justice Kennedy explained the Supreme Court’s 2000 decision to strike down cable television censorship: better that parents choose for themselves what media are appropriate for their children. In short, as technology empowers, regulation should recede.

But except where courts impose this standard, the presumption in most tech policy debates is just the opposite: only government can protect us. In 1999, Larry Lessig predicted that “Cyberspace, left to itself, will not fulfill the promise of freedom. It will become a perfect tool of control.”  That pessimism shapes how most advocates, commentators, regulators, lawmakers, and even judges think about tech policy.

It’s a seductive idea: If only the right policy “levers” can be pulled, in the right way, at the right time, perhaps cyberspace can come closer to fulfilling that “promise of freedom.” Give me a lever large enough, some regulators seem to think, and I’ll free the world!

We’re skeptical—not of their motives, but of their ability to plan a free and thriving Internet.  Just as Hayek said about the “curious task” of economics, we aim “to demonstrate to men how little they really know about what they imagine they can design.” Will those policy levers really do what those pulling them think?  What else will they do? Will cyberspace really turn out better than if it had been left to itself?

This isn’t an merely an argument for self-regulation, but for the broader, more complex process by which market forces check corporate power.  For instance, when a reporter exposes a privacy violation at an Internet company, she may rightly declare that self-regulation has failed consumers. But she, too, is part of the “invisible hand” at work: She is a vital actor in the reputation “market,” driving up or down the value of any Internet company’s most prized asset, its reputation.

In the digital world, even the mightiest fortress of market power is built on the quicksand of a constantly changing technological landscape.  Staying on top requires maintaining one’s good name—and the courage to be daring. Innovation has disrupted the dominance of countless bogeymen—from Prodigy to AOL/Time Warner to Microsoft to MySpace.  Each company thrived by mastering a particular paradigm—but was dethroned when that paradigm gave way to another.

If technological change would just slow down long enough, perhaps one of these companies could finally achieve “perfect control.” But change won’t stop—and as long as it goes on, the scramble to keep up creates a bounty of new products and services for consumers. The last thing Washington should try to do is slow things down. The very messiness and chaos of the Digital Revolution is ultimately the best guarantee that technology will indeed expand our capacity to choose for ourselves.

Government’s primary role should be to ensure our choices are respected by punishing fraud and deception. Further interventions should be narrowly targeted to remedy clear harms to consumers. Education, empowerment and the enforcement of existing laws will always be the best place to start. Antitrust is generally superior to other economic regulations, but only if it serves consumers better than would the ongoing technological churn of digital paradigms. In everything it does, government must respect constitutional limits on its power to invade our privacy, censor our speech, and coerce our behavior.

This has been our message since we launched TechFreedom last January—starting with our book, The Next Digital Decade: Essays on the Future of the Internet, a unique collection of diverse scholarship available as a free download and for purchase in hardcover. Our team has since grown to include eight leading experts in Internet, communications, media and competition law and policy.

We’re proud of the impact we’ve had. Our amicus briefs in defense of free speech over paternalistic regulations put us on the winning side of two key Supreme Court decisions: Entertainment Merchants Association v. Brown (striking down videogame censorship) and U.S. v. Sorrell (striking down censorship about health information). We’ve played a leading role in a number of coalition letters to Congress on policy debates ranging from copyright enforcement to protecting Americans’ privacy from government snooping. These letters, and our other work, have been cited in Congressional markups by Congressmen from across the political spectrum, from Marsha Blackburn (R-TN) to Jared Polis (D-CO) and John Conyers (D-MI).

You’ll see more of this kind of leadership from us in 2012 and the years beyond. Stay tuned, in particular, for a series of “Top Ten” lists looking back at 2011 and thinking forward to 2012.

Berin Szoka President, TechFreedom

P.S.  If you’re not already following us on Twitter and Facebook, or by email, please do! And why not encourage your friends to do the same?

By Geoffrey Manne and Berin Szoka

Back in September, the Senate Judiciary Committee’s Antitrust Subcommittee held a hearing on “The Power of Google: Serving Consumers or Threatening Competition?” Given the harsh questioning from the Subcommittee’s Chairman Herb Kohl (D-WI) and Ranking Member Mike Lee (R-UT), no one should have been surprised by the letter they sent yesterday to the Federal Trade Commission asking for a “thorough investigation” of the company. At least this time the danger is somewhat limited: by calling for the FTC to investigate Google, the senators are thus urging the agency to do . . . exactly what it’s already doing.

So one must wonder about the real aim of the letter. Unfortunately, the goal does not appear to be to offer an objective appraisal of the complex issues intended to be addressed at the hearing. That’s disappointing (though hardly surprising) and underscores what we noted at the time of the hearing: There’s something backward about seeing a company hauled before a hostile congressional panel and asked to defend itself, rather than its self-appointed prosecutors being asked to defend their case.

Senators Kohl and Lee insist that they take no position on the legality of Google’s actions, but their lopsided characterization of the issues in the letter—and the fact that the FTC is already doing what they purport to desire as the sole outcome of the letter!—leaves little room for doubt about their aim: to put political pressure on the FTC not merely to investigate, but to reach a particular conclusion and bring a case in court (or simply to ratchet up public pressure from its bully pulpit).

The five page letter concludes with, literally, three sentences presenting Google’s case, one of which reads, in its entirety, “Google strongly denies the arguments of its critics.” The derision is palpable—as if only a craven monopolist would deign to actually deny the iron-clad arguments of Google’s competitors so painstakingly reproduced by Senators Kohl and Lee in the preceding four pages. This is neither rigorous analysis nor objective reporting on the contents of the Senate’s hearing.

While we worry about particularly successful companies being singled out for punishment, we hold no brief for Google in this debate. Instead, in all our writings, we’ve tried to present a consistently skeptical view about a worrisome trend in antitrust enforcement in high tech markets: error-prone and costly intervention in markets that are ill-understood and fast-moving, to the great detriment of consumers and progress generally. Although our institutions have received financial support from Google among a range of other companies, organizations and individuals, our work is focused on this broad mission; we have no obligation or intention to support any company simply because it finds value in supporting our mission.

We’ve defended (and one of us has even worked for) Microsoft in the past, and just yesterday, we lamented the fact that the Obama Justice Department and the FCC have effectively blocked Google’s arch-rival, AT&T, from buying T-Mobile. Rather than defend any particular company, our goal, to paraphrase Hayek, is to “demonstrate to [regulators] how little they really know about what they imagine they can design”—lest they undermine how competition actually works in the name of defending outdated models of how they think it should work. Unfortunately, the letter from Senators Kohl and Lee does nothing to assuage our concern and suggests instead that crass politics, rather than sensible economics, could determine the outcome of cases like this one—if not in a court of law, then in the court of public opinion and extra-legal intimidation.

To begin with, the letter asserts that “Google faces competition from only one general search engine, Bing,” suggesting that only Bing (and it, only ineffectively) could keep Google in check. In essence, the Senators are prejudging an essential question on which any case against Google would turn: market definition. But why would the market not include other tools for information retrieval? Is it not at least worth mentioning that more and more Internet users are finding information and spending time on social networks like Facebook and Twitter, while more and more advertisers are spending their money on these Google competitors? Isn’t it clear that search itself is evolving from “ten blue links” into something more social, multi-faceted and interactive?

In a remarkable leap, the senators then identify the specific alleged abuse that Google’s alleged market power leads to: search bias. That’s remarkable because, other than the breathless claims of disgruntled competitors (given plenty of air time at the September hearing), there is actually no evidence that search bias is, in fact, harmful to consumers—which is what antitrust is concerned with. (Read both sides of this debate in TechFreedom’s free ebook, The Next Digital Decade: Essays on the Future of the Internet.)

As our colleague, Josh Wright, has thoroughly demonstrated, this “own-content” bias is actually an infrequent phenomenon and is simply not consistent with an actionable claim of anticompetitive foreclosure. Moreover, among search engines, Google references its own content far less frequently than does Bing (which favors Microsoft content in the first search result when no other search engine does so more than twice as often as Google favors its own content).

Of course, none of this is even hinted at in the Senators’ letter, which seems intended to condemn Google for “preferencing” its own content (under the pretense of withholding judgment). It’s a little like condemning Target for deigning to use its trucks to supply inventory only to its own stores instead of Wal-Mart’s, or, say, condemning a congressman for targeting earmarks for his own state or district. Earmark bias!

In Google’s case, the fundamental basis for these claims, according to the letter, is that “Google’s business model has changed dramatically in recent years.” This is a remarkably candid admission: a company that successfully advances its organization, keeping up with rapidly-shifting technology and mercurial demand, can be condemned—and its business practices adjudged illegal—simply by virtue of the fact that it has, indeed, evolved to offer products it didn’t offer before. Never mind that those products didn’t previously exist and, in some cases, were in fact invented by that company! How would punishing this serve consumers?

To add insult to injury, the story is “corroborated” by the senators’ parroting, without caveats, claims by Google’s rivals that they are harmed by Google’s favoring its own content, and that “they would not attempt to launch their companies today given GoogIe’s current practices.” As a general matter, antitrust law treats such self-interested claims of competitors with the skepticism they deserve. You wouldn’t know it from reading the letter (nor from reading the transcript from the September hearing), but harm to competitors is not the same thing as harm to consumers or competition more generally (which is what antitrust law cares about). The reason is simple: nothing harms competitors more than effective, vigorous competition. Reasoning backward from harm to competitors to infer anticompetitive conduct is the height of irresponsible antitrust enforcement.

The letter also reports, again with no caveats, claims by the CEOs of Yelp! and Nextag that “75 percent of Yelp!’s web traffic consists of consumers who find its website as a result of Google searches, and . . . 65 percent of Nextag’s traffic originates from Google searches,” and that losing this much traffic to Google preferencing its own content would be catastrophic. But the letter fails to mention that most searches for brand names on Google are “navigational” rather than “informational.” As Google competitor Expedia’s CEO recently explained:

The majority of, at least Expedia’s, and I believe Hotel.com’s traffic that comes from search to our site actually come through people searching for Expedia, for example. So in typing in Expedia in Google or so on, typing in Hotels.com in Google. So of the 25% for Expedia, for example, the majority of that traffic is someone who’s already looking for Expedia, and that person is going to find Expedia one way or the other because they are searching for something very specific. (Expedia earnings call, 10/28/10, quoted here).

Indeed, a recently published independent academic study conducted across search engines concluded that 52% of “business queries” (and 72% of organizational queries) were navigational. In other words, most of the Google traffic going to these sites was likely from users who simply typed in “Yelp” or “NextTag” as a convenient way of getting to those sites. Such searches are not diverted (and not even claimed to be diverted) to Google’s own sites, and the first search result for the search term “Expedia” will always be expedia.com. Thus, the majority of these searches that are claimed to make up 75% and 65% of the complaining companies’ traffic is not in any way threatened by Google’s business model, and is completely irrelevant to assessing the effect of Google preferencing its own content.

Furthermore, the letter does not mention Yelp’s recent boast that over 40% (and growing) of its searches are now conducted on its mobile app—insulating it from whatever “power” Google might exercise over traditional searches. While generic search may be the default navigational tool for many desktop users, a great many users seem to prefer searching with apps like Yelp’s on their mobile devices, further underscoring the complexity of the markets at issue and the problem with the kind of facile market definition on display here.

Moreover, who really knows what anyone might have done in 1999 (Nextag) or 2004 (Yelp)? It is facile and meaningless for the companies to imply that Google’s conduct is stifling today the same business models that emerged 7 or 12 years ago, before the ensuing evolution of the market. It would be a shame, in fact, if those same companies were emerging only today, and one shouldn’t be surprised in a rapidly evolving marketplace to find that many once-brilliant ideas turn out to be bested by the vagaries of uncertain, innovative markets. Remember, it wasn’t so long ago that Yahoo! ruled the “portal market,” which morphed into the “search” market “controlled,” in turn, by AOL and AltaVista. A static snapshot of the market at any given moment might have inspired the sort of hand-wringing Google inspires today. But the market kept evolving—without government intervention—each time rendering today’s tech titans tomorrow’s has-beens. Nostalgia and a reflexive preference for the status quo are the worst vices of regulating any evolving market, especially high-tech ones. Estimates that Yelp’s upcoming IPO may put the company at a valuation of $1-2 billion should at least make us somewhat skeptical of such claims, anyway.

It is for this reason—the disconnect between the interests of competitors and those of “competition” and the consumers it serves—that it’s particularly disingenuous for the letter to identify Tom Barnett only as “the Assistant Attorney General for Antitrust in the administration of President George W. Bush.” This is an ostentatious attempt to appeal to Republicans normally skeptical of government meddling, giving him the last word to claim that “the ultimate result of Google’s practices will be an Internet with fewer choices for consumers and business, higher prices, and less innovation.” (Sen. Lee himself seems to have fallen prey to claims by soi disant conservatives like Rick Rule (also, coincidentally, antitrust attorney to several of Google’s complainants) that antitrust meddling is a core part of capitalism—rather than another form of government regulation prone to capture by incumbents and politicization, precisely as Judge Bork warned in the Antitrust Paradox.)

A fairer letter would have noted the far more salient fact that Barnett is counsel for Expedia Inc., a member of the anti-Google Fairsearch coalition, for which he has served as spokesman. As Josh Wright has ably demonstrated, AAG Barnett and counsel-to-Expedia Barnett have wildly divergent views. While AAG Barnett is rightly celebrated as a thoughtful and restrained antitrust expert (indeed, he taught Berin antitrust law!), counsel-to-Expedia Barnett is a faithful and diligent advocate for his client (as well he should be). It is no disrespect to him to say that his client’s interests are not necessarily the same as those of the consumers Senators Kohl and Lee purport to represent; it is, however, questionable to hold out his views on this matter as representative of consumer interests.

The letter goes on to highlight mobile search as a particularly problematic arena. Why? Because “Google may, as a condition of access to the Android operating system, require phone manufacturers to install Google as the default search engine.” But . . . they haven’t actually done that! The mobile phone market is remarkably competitive and ever-shifting. (One can easily imagine this same letter being written to raise pressing, irreversible concerns about Apple’s iPhone a year or two ago—just before Google’s Android operating system managed to seize the 43% of smart phone operating system share about which this letter is so concerned). Nevertheless, the FTC is urged to “ensure robust competition” in a market marred only by the senators’ purely speculative story about what could conceivably happen some day in the future. Is this really a responsible use of antitrust law?

It certainly isn’t responsible analysis. The Senators’ professed concern for robust competition and protection of the free market is undermined by the letter’s uncritical repetition of attacks on Google made by its competitors. At best, this letter is a missed opportunity to fairly present both sides of this complex case. For this reason, as well as the inconvenient fact (oddly completely absent from the letter) that the FTC is, as we noted, already actually investigating Google, we urge Chairman Leibowitz to investigate nothing more pertaining to this letter than the shape of the arc it makes as it flies through the air into his office wastebasket.

Today, AT&T announced they had abandoned their planned acquisition of T-Mobile after the DOJ sued to block the deal and the FCC published a report sharply critical of the deal. The following statement can be attributed to TechFreedom Fellows Larry Downes, Geoffrey Manne and Berin Szoka:

Nearly two years ago, the Obama FCC declared a spectrum crisis. But Congress has refused to authorize the agency to reallocate underused spectrum from television broadcasters and government agencies—which would take years anyway. The AT&T/T-Mobile merger would have eased this crisis and accelerated the deployment of next-generation 4G networks. The government killed the deal based on formalistic and outdated measures of market concentration—even though the FCC’s own data show dynamic competition, falling prices, and new entry. The disconnect is jarring. Those celebrating the deal’s collapse will wake up to a sober reality: There is no Plan B for more spectrum. All the hand-wringing about “preserving” competition has only denied consumers a strong 4G LTE competitor to compete with Verizon—and slammed the brakes on continued growth of the mobile marketplace. Unfortunately, this is just part of a broader pattern of regulators attempting to engineer technology markets they don’t understand. The letter sent today by the Senate Antitrust Subcommittee urging the Department of Justice to investigate Google’s business practices relies on similar contortions of market definition to conclude that the search market is not competitive. In both cases, regulators are applying 1960s economics to 21st century markets. Ultimately, it’s consumers who will lose from such central planning.

Yesterday, TechFreedom, the Competitive Enterprise Institute, Americans for Job Security, and Americans for Limited Goverment sent a joint letter (pdf) to U.S. House Judiciary Committee Chairman Lamar Smith and Ranking Member John Conyers urging them not to rush deliberations on the Stop Online Piracy Act (SOPA). The Committee is set to hold markup on the bill on Thursday, December 15, less than three days after SOPA’s sponsors released a manager’s amendment containing major changes to the lengthy bill.

In their letter, the free market groups note that members have yet to hear testimony from experts versed in the bill’s implications for cybersecurity, free speech, due process, Internet governance, innovation, and job creation. The letter follows in its entirety:

Dear Chairman Smith and Ranking Member Conyers:

As public interest groups dedicated to free enterprise and property rights, we strongly support legislative efforts to ensure the meaningful protection of copyrights and trademarks. Yet we have also raised serious concerns about the unintended consequences of the Stop Online Piracy Act (SOPA), consistent with our general skepticism of all Internet regulation. While we applaud the manager’s amendment proposed by Chairman Smith, there simply has not been time to properly evaluate its real-world consequences. Although the proposed changes would indeed improve the bill, they leave several legitimate objections unaddressed. Thus, we urge Members of the Committee not to report the bill to the full House until these concerns have been resolved through further hearings and a second markup.

Enforcing copyrights online is an extremely provocative issue: witness the massive grassroots campaign mounted in recent weeks against so-called “Internet censorship,” as allegedly provided for by SOPA. Underlying this opposition to the bill is profound public skepticism about the unintended consequences of enhanced copyright enforcement in terms of collateral damage to legitimate expression and innovation. This skepticism has been galvanized by recent high-profile mistakes involving the improper seizure of innocent websites by federal officials in “Operation In Our Sites.”

If SOPA is ultimately enacted, any public perception that Congress failed to carefully balance the competing interests of copyright enforcement, free speech, due process, and Internet freedom will further erode public support not only for Congress, but also for copyright itself. The erosion of public respect for copyright is a primary factor behind the dramatic increase in infringement in recent years. Even a perfect bill cannot cure this cultural problem, to be sure, but ill-considered legislation can exacerbate it. If the widespread conflation of copyright enforcement with censorship is to be dispelled, SOPA must be refined carefully through a transparent process, with ample time for deliberation and consideration of all relevant expertise.

However, since SOPA was introduced in October, the Committee has held just one hearing on the bill. To date, no Internet engineers have testified as to the bill’s implications for the Domain Name System (DNS). Rep. Dan Lungren expressed his frustration about the absence of such experts at that hearing, stating that “[i]f we’re going to [report SOPA] we ought to at least talk about it. … Saying we’re not going to take a position or we’re not experts on this is upsetting.” Similarly, no law professors have testified as to the bill’s constitutional concerns, and no venture capitalists have testified as to how it would impact Internet start-ups at home and abroad. No Internet governance experts or U.S. diplomats have testified as to how our “going it alone” approach to DNS filtering might undermine U.S. efforts to maintain the current multi-stakeholder system of Internet governance as an alternative to control by the ITU or another inter-governmental bureaucracy.

The manager’s amendment proposed by Chairman Smith would improve SOPA in important respects. In particular, the proposed changes to section 103 would substantially reduce the likelihood that law-abiding sites based around user-generated content might face adverse judgments in actions brought by private rights holders. The amendment would also exempt most domestic websites from SOPA’s private right of action.

Despite this amendment, however, many aspects of the bill remain hotly contested among major technology firms, Internet engineers, legal scholars, and venture capitalists. Critics have noted, among other objections, that section 102 still encompasses a vast range of legitimate foreign websites, and includes domain name remedies that may endanger U.S. policy goals on Internet governance and cybersecurity. Whatever the merits of these concerns, the Committee simply has not spent enough time on this legislation to properly address the complex and important issues at stake.

Although the bill’s sponsors have worked to address such concerns through the manager’s amendment, that amendment — made public only three days before Thursday’s scheduled markup of the bill — is a complex proposal spanning over 14,000 words. It raises a slew of new questions that the Committee cannot, in good faith, resolve in markup without the benefit of expert witnesses. Thus, the Committee will not yet be in a position to report to the entire House a complete legislative proposal based on a thorough factual and legal record.

Therefore, we urge the Committee to schedule further hearings in early 2012 on the bill as amended in Thursday’s markup. These hearings should include the kind of experts mentioned above, and be followed by an additional markup scheduled far enough in advance to allow careful consideration of proposed amendments. There is ample time in the legislative calendar to move this legislation to the floor in early 2012, reconcile House and Senate versions, and enact a final bill.

Whatever rogue websites legislation Congress ultimately adopts will profoundly impact the development of the Internet as a vehicle for innovation, expression, and democratization — for better and worse. If the public perceives this copyright legislation to be the product of a hasty and opaque process, respect for copyrights and trademarks will be diminished, not enhanced.

Sincerely,

Berin Szoka TechFreedom

Ryan Radia Competitive Enterprise Institute

Stephen DeMaura  Americans for Job Security

William Wilson Americans for Limited Government

I just released the following statement regarding Facebook’s settlement with the Federal Trade Commission of complaintsover changes the company made in December 2009 to what information would appear on users’ profiles:

For years, many privacy advocates have insisted that holding companies to their own privacy policies won’t protect consumers because companies can change those policies at a whim. Today’s settlement makes clear that changes to what a company may do with information already collected require informed user consent—provided the changes are material. This builds on a similar settlement with Google last month over the use of Gmail information in the Buzz social network without consent, among earlier FTC actions, such as preventing the transfer of sensitive information when a company goes into bankruptcy.

Thus, while Congress struggles to craft ‘comprehensive baseline privacy’ legislation in the European model, the FTC is using its existing 1938 authority over unfair or deceptive trade practices to build a common law of privacy. This is a process of discovery: what’s the right balance between protecting privacy and the consumer benefits of encouraging the development of new services? That process won’t be perfect or easy, but it’s much more likely to keep up with technological change than legislation or prophylactic regulation would be, and less likely to fall prey to regulatory capture by incumbents as a barrier to competition.

Case-by-case adjudication is a venerable American tradition—one that’s more, not less, vital in the rapidly changing field of consumer privacy. Rather than rushing to write new laws, Congress should focus on ensuring the FTC has the resources it needs to use its existing authority effectively. That means, most of all, having a larger core of technologists on staff to guide what is supposed to be our expert agency on privacy.

I spoke at the MSU/Quello Center’s “Governance of Social Media” workshop on November 11.  My talk runs 21 minutes and starts at 1:16:54 in this video. The Q&A begins at 1:41:00.

My presentation follows below.

Downloadable slides (PDF)

I just posted the following comment in response to Scott Cleland’s piece on Forbes: Why Anti-Piracy Legislation Will Become Law.

Scott, have you read my colleague Larry Downes dissection of SOPA over on CNET?  The problem isn’t that the bill is too hard on pirates, but that trying to punish piracy in such a crude and draconion manner has plenty of negative unintended consequences:

SOPA effectively introduces new monitoring requirements for all websites that allow user content, even comments posted to blogs. Rightsholders.. need only “a good faith belief that a Web site is ‘avoiding confirming’ infringement, and they can demand that payment systems and advertising networks cease doing business with the Web site.”

Larry suggests that lawmakers’ focus is simply misguided:

If parasitic foreign Web sites are truly costing the U.S. economy significant losses (a claim made regularly by content industries but without credible data to back it up), then the best use of government resources is not to surgically remove hyperlinks and DNS table entries. Rather, we should step up the pressure on foreign governments to enforce their own laws and international treaties extending U.S. protections abroad.

And indeed, one positive development in SOPA is a provision that does just that. It requires both the State and Commerce Departments to make protection of U.S. copyright and trademark a priority in both diplomatic and trade negotiations. To fulfill SOPA’s stated goal of reducing foreign infringement of U.S. interests, that section should have been the beginning and the end of the bill.

The proposed legislation, unfortunately, goes much farther, losing sight of any actual harms in need of legislative correction, and invoking repeatedly the likely application of the law of unintended consequences.

Larry’s focus on the unintended consequences of regulation, and his emphasis on finding narrow solutions to clearly defined problems is what prudent policymaking should be about.  In fact, that’s why Larry and I at TechFreedom have been so critical of net neutrality regulations as a sweeping, prophylactic remedy for an ill-defined problem when less restrictive alternatives like enforcing antitrust laws and consumer protection laws would work better.  In fact, I seem to recall that you on the same side as us in those arguments!

But I’m sorry to say that I realized long ago that, while we arrived at the same place on net neutrality, we came to it from profoundly different places.  I won’t presume to speculate as to exactly what motivates you, but it sure isn’t the prudent conservatism of Edmund Burke or F.A. Hayek’s focus on the limitations of human knowledge and the dangers of top-down planning.

If anything, you seem to fall into precisely the same mentality that always motivates regulatory advocates: that intentions matter more than results.  The question here isn’t whether the law is well intentioned, or even whether piracy is a huge problem (I’d agree it is). The question is whether this particular approach to combating piracy is worth its costs.  I am, as always, highly skeptical, for the reasons Larry explains (and has explained in his past work in this area).

Perhaps after you’ve read his work, you could enlighten us as to why he’s mistaken about these apparently significant unintended consequences of draconian copyright enforcement.  The same concerns are shared by many other copyright lawyers and folks who’ve worked at the very companies that will have to try to figure out what this poorly-worded law means.  (Where did you study copyright law, again?  Or, which Internet companies have you worked at?)

In the meantime, I will limit myself to objecting to this paragraph:

Opponents’ intimations that the Tea Party movement is somehow a strong ally against property rights enforcement is deceptive and does not withstand scrutiny. The Tea Party stands for the limited government principles of the Founding Fathers embodied in the U.S. Constitution. To see for yourself that this bill is completely aligned with the U.S. Constitution, which is clearly pro-property rights and property rights enforcement, just look at Article I Section 8: where it says: “The Congress shall have the power… to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” and “…to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”

Your argument seems to be: this bill is pro-copyright, the Constitution is pro-copyright…. therefore… this bill is “completely aligned” with the Constitution!  This is precisely the sort of wooden application of the Constitution that gives serious constitutionalists such a bad name.  Our nation’s framers, including Thomas Jefferson, thought it extremely important that any government action aimed at securing the exclusive rights of authors and investors be carefully and cautiously tailored to benefit society as a whole.  For example, see Jefferson’s refutation of the suggestion that inventors “have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs” (which is how the Europeans still conceive of both copyright and patents).  Thus, if the the Copyright clause is “clearly” anything, it is utilitarian.  That is, Congress is granted the power to create and enforce copyrights “to promote the progress of science and the useful arts.”

Thus, the questions about trade-offs Larry raises are precisely the questions the Constitution requires Congress to ask in legislating new copyright regulations—and make no mistake about it: however much you value rewarding content creators, copyright laws are regulations.  Like all regulations, they are subject to regulatory capture by special interests and to the law of unintended consequences.  (I know you get this in the context of net neutrality, but why not here?)

So, please, spare us your simplistic attempt to reduce this all to a “political clash between pro-IP forces and anti-IP forces.”  There certainly are leftist groups criticizing the bill who never met a copyright law they liked; some might go so far as to defend clear examples of piracy.  I certainly would not.  My message on copyright is the same as my message on all attempts to regulate the Internet: Congress should (1) identify clear harms, (2) look for narrowly tailored solutions, (3) ask whether the regulation’s benefits outweigh its costs, considering its likely unintended consequences, and (4) focus on finding the least-restrictive solutions available.

This is what it means to fight for “tech freedom”—and what we at TechFreedom try to do across the board.  What are you fighting for, exactly?  Where’s that healthy skepticism that made you worry about the unintended consequences of net neutrality regulation?  WWHS (What Would Hayek Say)?

Put more simply: good intentions don’t matter. You should know this better than anyone from having watched the FCC become a rogue agency because of the vague and broadly worded language of the Communications Act.  Sorting out this mess can’t be left up to the courts: betting the Internet’s future on the unpredictable whims of federal judges is a recipe for disaster and an affront to the rule of law.

Yesterday, President Barack Obama announced two nominations to the Federal Communications Commission: Jessica Rosenworcel, replacing Democratic Commissioner Michael Copps, and Ajit Pai, replacing Republican Commissioner Meredith Attwell Baker.

The FCC faces a unique challenge: Because it regulates the communications industry, essentially every rule it issues implicates the free speech values at the heart of our Constitutional heritage. The First Amendment was intended to be a shield against government meddling, not a sword for regulatory activism, however well-intentioned. Moreover, the FCC regulates an industry being transformed by the Digital Revolution.

We at TechFreedom look forward to working with these new Commissioners to ensure that FCC regulations serve consumers by advancing competition and innovation while respecting free speech rights. The Commission should ask, and explicitly answer, the following questions whenever considering the need for new, or existing, regulations:

1. What free speech rights are at stake?
2. How substantial is the government’s interest? Has the market failed?
3. Can regulation, always slow to start and slower to adapt, really address the problem better than technological change?
4. Will the regulation’s benefits outweigh its costs, considering its likely unintended consequences?
5. Are there less-restrictive and more speech-protective ways government can achieve its interest, such as enforcing existing antitrust and consumer protection laws, supporting consumer education, empowering users to make their own decisions, or compelling disclosure to consumers?

TechFreedom is calling on all Americans to stand up for their digital Fourth Amendment rights. The Constitution delicately balances privacy with the needs of law enforcement by making judges responsible for determining whether law enforcement has established ‘probable cause.’ This judicial warrant requirement has always been the crown jewel of our civil rights. Our Founding Fathers would be appalled to learn that this fundamental principle does not extend to our electronic communications and location. After all, they fought–and won–a revolution to prevent similar abuses by British authorities.

TechFreedom has joined with a philosophically diverse coalition of public interest groups in supporting the “Not Without a Warrant” grass-roots petition, which reads as follows:

The government should be required to go to a judge and get a warrant before it can read our email, access private photographs and documents we store online, or track our location using our mobile phones. Please support legislation that would update the Electronic Communications Privacy Act of 1986 (ECPA) to require warrants for this sensitive information and to require the government to report publicly on the use of its surveillance powers.

Today marks the 25th anniversary of ECPA’s passage. Anyone can sign the petition at NotWithoutAWarrant.com or show their support by liking the Facebook version.

TechFreedom Senior Adjunct Fellow Charlie Kennedy spoke at a Cato Institute event on Wednesday about modernizing ECPA. The video is archived here.

While policymakers rush write new Net regulations to protect privacy, we keep suggesting the FTC use its existing authority more effectively to punish unfair and deceptive trade practices. The FTC has just sued FrostWire for designing their peer-to-peer software to trick users into oversharing:

FrostWire for Android… was likely to cause a significant number of consumers installing and running it on their mobile computing devices to unwittingly share files stored on those devices.  The Defendants had configured the application’s default settings so that, immediately upon installation and set-up, many pre-existing files on the mobile device were designated for sharing.  These files could be shared through the Internet, and through any given… WiFi… network… with other FrostWire for Android users…  These shared files thus were available to other people in the consumer’s immediate vicinity and throughout the world to download and share further. Nothing in the installation and set-up process… adequately informed consumers of the immediate consequences of installing FrostWire for Android; nor could consumers be expected to know these consequences from any prior experience with other software.

The FTC has made a pretty good case that this qualifies as an unfair practice:

Under Section 5(n) of the FTC Act, an act or practice is “unfair” if it causes or is likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and is not outweighed by countervailing benefits to consumers or to competition

In particular, the FTC notes the potential harms caused by inadvertently sharing all the files on your phone:

Public exposure of the types of user-originated files that FrostWire for Android shared following a default installation and set-up could increase consumers’ vulnerability to identity theft; reduce their ability to control the dissemination of personal or proprietary information (e.g., voice recordings or intimate photographs); and increase their risk of legal liability based on prohibitions against, or limitations on, making any such files publicly available for download.

Tom Sydnor raised similar concerns about the design of P2P software in Congressional testimony on HR 1319, the “Informed P2P User Act” two years ago.

So if the FTC already has the authority to punish such unfair software design, why does it need sweeping new powers, again? Maybe policymakers should focus on ensuring the agency has the eforcement resources it needs to punish such unfair practices. That might start, for instance, with hiring more technologists to monitor such practices.

But one thing’s clear: This case will set a strong precedent to encourage companies to think about “privacy by design” much more effectively than a government mandate that they design their sites in certain ways. That’s thecommon law of privacy at work.

Yesterday’s Wall Street Journal’s story on the legal challenge to Net Neutrality regulation opens as follows:

Efforts by public interest groups to get a legal challenge to the Federal Communications Commission’s new “net neutrality” rules heard somewhere other than the U.S. Court of Appeals for the D.C. Circuit belly-flopped Thursday when the D.C. Court won the case in a random lottery.

I’ve responded with the following comment:

The first sentence of this article reinforces the common misconception that “public interest” groups support net neutrality regulations while only corporations oppose them.

In fact, many large corporations have supported these regulations, while a wide array of public interest, non-profit groups oppose the FCC’s net neutrality regulations. Those include a variety of free market groups such as TechFreedom (my own think tank), the Competitive Enterprise Institute, FreedomWorks and Americans for Tax Reform, but also left-leaning civil liberties groups such as the Electronic Frontier Foundation, which called the FCC’s rules a “Trojan Horse” for other regulation because they set a dangerous precedent that would give the FCC broad powers in other areas, such as content regulation or copyright.

If a Democratic FCC can invent the authority to issue Net Neutrality rules, an FCC Chairman appointed by a socially conservative president could implement the agenda of censorship advocates such as the Parents Television Council’s founder Brent Bozell—which might explain why those groups have supported the Net Neutrality regulation.

FCC Commissioner Robert McDowell demolished the idea that these Internet regulations would serve the “public interest” in a scathing dissent when the FCC issues these illegal rules. He emphasized that real net neutrality problems could be handled first through mediation processes and, if necessary, through consumer protection and antitrust laws.

A year ago, I filed a joint amicus brief with the Electronic Frontier Foundation urging the Supreme Court to overturn California’s paternalistic law on the dangerous grounds that videogame depictions of violence constituted “obscenity” unprotected by the First Amendment. Fortunately, we won. Thus, the First Amendment protects all media, while parents have a variety of tools available to them to limit what content their kids can consume, or games they can play.

But in case you’re wondering what the world might look like had the decision gone the other way, check out the contrast between the US version of Maroon 5′s hit song “Misery” and the UK version. First, here’s the (raucous and sexy) US version:

Now, here’s the UK version, where the sexually suggestive parts remain (kids love that stuff) but all the “violent” parts have been replaced with, or covered by, ridiculous cartoon images. Really, it’s just too funny. The best part is where the knife she uses to stab the gaps between his fingers on the table has been replaced with a cartoon ice cream cone. Don’t try that at home, kids—you’ll make a chocolatey mess!

In case you were wondering, the US version has nearly 47 million views while the UK version  has a paltry half million views. Gee, I wonder why… (Actually, I suspect that most of the UK version’s viewers watched it because it’s so hilariously stupid.)

Parents can easily turn on  YouTube’s safe search tool to block many objectionable videos—and lock it so kids can’t turn it off.  (CBS made a great video explaining how to do this for parents.)

Given the enormous scale of videos on YouTube, Safe Search isn’t perfect: It wouldn’t block this particular video, probably because the video doesn’t trigger any obvious keywords like “porn” and not enough users have complained about it to bring it to the attention of Google’s human review team. But it’s easy to find a wide variety of tools that will restrict kids’ access to specific domains, such as YouTube. This allows parents to supervise their kids’ use of those sites.

Now, if you don’t think Google’s blocking enough, it’s easy to flag a video as inappropriate by clicking on the flag below the video, which expands a dialogue box, like so:

Like all web tools, parental controls are always evolving. In the next update, I’d love to see Google allow parents to restrict their kids’ use of YouTube to certain playlists, either set up by the parents themselves or by, say, third party groups dedicated to screening content for parents. That would empower parents to configure YouTube as they see fit and trust that their kids can use the site wisely, without parents having to watch the whole time or rely on a necessarily imperfect (but still pretty darn good) tool like SafeSearch.

As a constitutional matter, the important point here is the one Adam Thierer always makes: parental control tools need not be perfect to be preferable to government regulation. That’s an (accurate) paraphrase of the Supreme Court’s clear 2000 decision on this subject in U.S. v. Playboy:

 It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

That’s freedom for you! As the Court went on to add:

Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.

Parental controls aren’t perfect but they’re getting better all the time. Would you rather live in the UK’s world of crude, cartoonish and clumsy censorship?

by Berin Szoka & Geoffrey Manne

In advance of today’s Senate Judiciary hearing, “The Power of Google: Serving Consumers or Threatening Competition?,” we’ve assembled a list of fallacies you’re likely to hear, either explicitly or implicitly:

1. Competitors, not Competition.  Antitrust protects consumer welfare: competition, not competitors.  Competitors complain because a practice hurts them, but antitrust asks only whether a practice actually hurts consumers. The two are rarely the same.
2. Big Is Bad. Being big (“success”) isn’t illegal.  Market share doesn’t necessarily create market power.  And even where market power does exist, antitrust punishes only its abuse.
3. Burden-Shifting. Google, like any defendant, is presumed innocent until proven guilty.  So Google’s critics bear the burden of proving both that Google has market power and that it has abused that power to the detriment of consumers.  Yet, ironically, it’s Google at the table defending itself rather than the antitrust agencies explaining their concerns.
4. Ignoring Error Costs. The faster technology moves, the greater the risk of a “false positive” and the more likely “false negatives” are to be mooted by disruptive innovation that unseats incumbents.  Thus, error costs counsel caution.
5. Waving the Magic Wand.  Google’s critics often blithely assume that Google is “smart enough to figure it out” when it comes to implementing, or coping with, a wide range of proposed remedies.  But antitrust remedies, like all regulation, must be grounded in technological reality, and we must be realistic about real-world trade-offs.

1. The Nirvana Fallacy. These two—ignoring error costs and ignoring the very real problems of fashioning effective remedies—create the Nirvana Fallacy: the belief that any problem must be fixed, without considering that the fix may be worse than the problem.  We learned this the hard way with the aborted, 13-year travesty of an antitrust case against IBM.
2. Overly-Narrow Market Definition. Shrinking the size of the market is the easiest way to exaggerate market power.  Google competes not just with Bing but with many other consumer research tools.  Some, like Yelp, share Google’s focus on keyword searches, but others, like Facebook, offer wholly new paradigms for finding information.  Consumers generally want information, not URLs, and keyword search is one of many tools available to find useful information.
3. Leveraging Dominance. This oft-repeated phrase comes from EU competition law, which lacks a rigorous focus on consumer welfare.  It’s frequently used to attack big companies for expanding into new markets—here, customer reviews, mobile handsets, operating systems, etc.  But there’s essentially no empirical evidence (pdf) that this has ever been bad for consumers—or that efforts to thwart it have been beneficial.
4. Downplaying Business Model Innovation. New technologies are great, but most innovation involves a process of discovering better ways to offer existing technologies.  Search results have evolved from a list of URLs (“ten blue links”) to a varied presentation of both information and links (from maps to reviews of local shops to flight information) not only because the technology evolved to enable it, but also because the business case was made to support it.
5. Stasis Mentality. Many assumed IBM and Microsoft would rule tech forever, or that a combined AOL and Time Warner would be unstoppable.  Google, for all its might, is already playing catch-up with Facebook.  Even seemingly simple products change rapidly, and competitors emerge from the most unexpected places.
6. Antitrust Isn’t Regulation. Like any form of government economic intervention, the limited knowledge of government regulators makes antitrust prone to “government failures,” which are often worse than the “market failures” they intend to correct.  (see the Nirvana Fallacy, above).  If antitrust is superior to other forms of regulation, it’s only because of the rigorous economic analysis of consumer welfare that has developed in recent decades to replace “Big is Bad” thinking.  Without that, antitrust can be much, much worse than regulation.  This thinking is especially common on the philosophical Right as a way to reconcile otherwise-healthy regulatory skepticism with antitrust activism.

(We just couldn’t resist throwing in a bonus fallacy to round out the list.  Call it a baker’s 10.)

We’ll try to tweet (hashtag #GAntitrust; follow us at @Tech_Freedom) anytime someone falls into one of these fallacies at the hearing.  You can get your own Google Antitrust Fallacy Bingo card here.  The first two to tweet with a picture of a completed card (quotes or times scrawled in the margin of each square would be nice!) win a copy of The Next Digital Decade: Essays on the Future of the Internet, a unique and philosophically diverse collection of essays published earlier this year.

For Bingo purposes (to fill out the cards), also be on the look out for participants using these ill-defined or otherwise problematic (yet cavalierly tossed-around) terms:

1. “Search Neutrality”
2. “Scraping”
3. “Black Box”
4. “Search Fairness”
5. “Disclosure”
6. “Transparency”
7. “Conflicts of Interest”
8. “Level Playing Field”
9. “Corporate Responsibility”
10. “Deceptive Practice”
11. “Federal Search Commission”
12. “Privacy Violation”
13. “Market Power”

We do not recommend turning this into a drinking game.

Berin Szoka is Founder and President and Geoffrey Manne is Senior Adjunct Fellow at TechFreedom, a non-profit, non-partisan technology policy think tank launched in 2011.

Come hear the other side of the privacy debate! Rep. Marsha Blackburn (R-TN) will lead a discussion among policy experts united by a desire to address demonstrated dangers of data abuse without giving up the value created by data as the vital currency of the digital economy. The Roundtable  is Wednesday, September 14, 8-9:30 am in Congressional Visitors Center Meeting Room North, CVC 268:

The roundtable discussion will cover online privacy issues in anticipation of the final reports to be released this fall by the Department of Commerce and the Federal Trade Commission. Invited participants will consider questions and policy issues related to the value of data, where government should or shouldn’t be involved in regulating online privacy, and alternatives to government regulation. Congressman Blackburn, a member of the House Energy and Commerce Subcommittee on Telecommunications and vice chair of the Subcommittee on Commerce, Manufacturing, and Trade, pledged to conduct a national series of tech industry roundtables in a speech to the Telecommunications Industry Association earlier this year. Her first roundtable was held in late June at the Interactive Advertising Bureau’s new online advertising community center in New York City. Congressman Blackburn also recently wrote an op-ed titled “The FTC’s Internet Kill Switch” that addresses why any proposed privacy regulation must consider the costs of diminished competition and innovation.

I shared my thoughts on Rep. Blackburn’s healthy skepticism of regulation in a CNET editorial in June: On Online Privacy and Avoiding overregulation. The TLF’s Ryan Radia (Competitive Enterprise Institute), Jim Harper (Cato), Larry Downes and I (both TechFreedom) will be there.  Joining us will be Howard Beales (George Washington University School of Business), Daniel Castro (Information Technology and Innovation Foundation), Harold Furchgott-Roth (Hudson’s Center for Economics of the Internet), Tom Lenard (Technology Policy Institute) and Randy May (Free State Foundation)/

Republished from The Mark News

Privacy advocates are attacking Google again, this time for requiring that field-testers of its new, invite-only Google+ social network use “the names they commonly go by in the real world.” After initially suspending Google+ accounts flagged as pseudonymous, Google has clarified that such users will be given four days to add their real names to their profiles. Users who don’t like the policy can export all data they’ve put into Google+ and leave.

Cyber-sociologist Danah Boyd calls “real name” policies “an authoritarian assertion of power … [by] privileged white Americans … over vulnerable people [like] abuse survivors, activists, LGBT people, women, and young people.” In 2003, she denounced the “Fakester genocide” perpetrated by Friendster, the first major “real name” social network. Facebook later faced similar criticism from her and others for its purge of “Fakebookers” – those using fake names on the popular social network.

Boyd and others are right that anonymity can be “a shield from the tyranny of the majority,” as the U.S. Supreme Court has said while striking down laws requiring speakers to identify themselves. But, like the rest of the First Amendment, the right to anonymous speech limits government, not private actors. In other words, while the First Amendment bars government from forcing us to identify ourselves, those who sign up for Google+ must play by Google’s rules.

Boyd wants to regulate social-media giants as public utilities, but – unlike government bans – we can opt out of these services. Google and Facebook merely offer trusted communities that compete with sites like Twitter, where pseudonyms thrive alongside real names. With over 200 million users, Twitter has met the very demand Boyd cites –but she’s not satisfied.

As a gay activist myself, I’m sympathetic to her privacy concerns. But, as much as I respect Boyd, I find her obsession with “privilege” unhelpful. The engineers who design new social-networking tools may indeed tend to under-value the concerns of particularly privacy-sensitive users or groups. But their critics under-value authenticity’s benefits even more – or simply refuse to acknowledge that privacy is in tension with civility and usability, among other values.

We are more civil when those around us know who we are, and Google+ aims to “make connecting with people on the web more like connecting with people in the real world.” When we interact regularly, we hold each other accountable through the same “reputation markets” that discipline companies. We don’t shout obscenities or slurs in quiet restaurants or “spam” other patrons with useless product offers. In general, the more users disguise themselves with aliases, the less responsible they feel for their own actions – and the more spam, incivility, hatred, and outright defamation will reign online.

For some, the problem isn’t so much privacy as “regimentation.” Boyd even refuses to capitalize her name – for “political” reasons. But all social interaction rests on conventions like capitalization of proper names, which make even unique and exotic names like mine, Szoka, “usable” in print.

We navigate real-world interaction by putting faces to names. A “real name” social network allows us to connect with, and keep up with, each other much the same way: through common names (orpseudonyms – you can list both on Google+). The more work we have to do to map online identities to real life, as on Twitter, the less useful the site is as a map of the real world. “Wait, who’s PreciousPony1987, again?”

Common names are the most basic structure of social interaction, and the key to the usability of Facebook and Google+. Expression can certainly suffer if users lack control over content they share. My gay friends and I might well use Facebook Pages (even) more if we could limit visibility of our interest in sensitive subjects. If Facebook doesn’t keep evolving, some might switch to Google+, which doesn’t allow sharing of interests (“Sparks”) at all. Personally, I hope they’ll both find a happy balance between sharing and privacy; between usability and empowerment.

At worst, pseudonyms shield trolls, bullies, and stalkers. At best, for most who use them, they’re a poor proxy for what users really want: easy control over who sees which aspects of their identity. Facebook has developed tools that allow users to decide who can see which update, photo, etc. It’s up to users to take the time to configure such lists and choose an appropriate audience for the things they share.

Such sorting is optional on Facebook, but unavoidable on Google+: When one user “connects” with another, sharing content with them requires adding them to a “Circle.” Even better for privacy-worriers is the fact that, on Google+, just because someone adds you to his or her “Circle” doesn’t mean you have to reciprocate, meaning there’s less inadvertent sharing.

In short, technology is increasingly empowering users to make privacy choices for themselves. Reputational pressure and competition should keep both Google+ and Facebook working to make these privacy controls more useful. The one threat that privacy controls can’t manage is government snooping.

Pseudonyms are valuable for dissent – in Egypt, China, colonial America, and for whistleblowers inside corporations and labour unions. Better legal protections would help to protect our rights by ensuring that courts weigh legitimate demands of law enforcement with user privacy before granting access to private content. But, ultimately, companies have little ability to resist government demands for user data – so why lull users into the false security pseudonyms can create?

In general, as with most “privacy” debates, the “real name” wars can’t be reduced to “fundamental rights” or “power.” Ultimately, users are best served by competing services continually innovating to find the right balance of competing interests. Google+ and Facebook’s answer to privacy-sensitive users is right, however harsh it sounds: “This isn’t the right social network for your particular needs.” Twitter is just one of many platforms available for those who feel they need online pseudonyms, with niche services like BlackPlanet and Gay.com catering to minority users.

Fortunately for Boyd, Twitter is an open platform, which she and others could extend to offer more of the functionality of Facebook and Google+. But no service can be all things to all people. This is the cardinal rule of usability for all users, from the most “privileged” to the most “vulnerable.”

Republished from the Daily Caller

U.K. Prime Minister David Cameron has declared “everything necessary will be done to restore order” in Britain’s riot-racked cities. With respect to the right honorable gentleman, what distinguishes free from unfree societies is not order, but ordered liberty. As the great Tory philosopher Edmund Burke taught, reconciling liberty and order is the fine art of democratic statecraft. Tweaking that balance as technology evolves requires the most careful and judicious deliberation. Only where cooler heads prevail can ordered liberty thrive.

Cameron’s government has hesitated to escalate physical force with rubber bullets and water cannons, lest they lend moral sanction to the brutal tactics used by China and in the Middle East to suppress dissent. Yet however noble his intentions, Cameron could do more to undermine ordered liberty with “bloodless” measures targeting social media services like Twitter and Facebook, and improperly using photo identification.

Cameron, who championed Internet-driven revolutions in Egypt and Tunisia, told Parliament that the “free flow of information can be used for good, but it can also be used for ill.” His vague response: “We are working with the police, the intelligence services and industry whether it will be right to stop people communicating via these websites and services.”

So far, the only clear call for shutting down social media outright came from a Labour MP, not Cameron’s Tories. David Lammy, who represents the London neighborhood where rioting began, has demanded the suspension of BlackBerry Messenger (BBM) service for “helping rioters outfox Police.” Such a response befits Beijing, not Britain, the birthplace of ordered liberty.

Free societies can and should silence those who incite acts of violence — but not by shutting down speech platforms for all users. Even America’s speech-protective First Amendment allows punishment of speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That standard protects legitimate expression without preventing prosecution of those individuals stoking and organizing riots. The same standard should determine when government may properly force social media systems to take down seditious posts, photos and videos.

Cameron rightly wants to ban lawless rabble-rousers from social media. For those convicted of online incitement, such a sentence would fit the crime, and could be enforced just like any other condition of probation. Indeed, making this penalty clear now could prove a powerful deterrent — especially among social media-obsessed youth, who might consider a ban of even a few years to be “social death.”

Of course, police most want to squelch incitement quickly. But the “prior restraint” of individual voices is perhaps the most dangerous tool any government could have; it demands close judicial scrutiny based on the presumption of innocence. Temporarily suspending users without meeting the “imminent incitement” standard would be the digital equivalent of detaining prisoners without trial — a violation of the sacred Anglo-American right to habeas corpus. Instead, Britain and other democracies must give law enforcement the resources to prosecute incitement quickly and ensure the courts can apply meaningful scrutiny in emergencies.

The harder question is surveillance. Congress artfully balanced privacy (liberty) with the needs of law enforcement (order) back in 1986 with the Electronic Communications Privacy Act. While technologically outdated in some respects, the law’s core principles remain sound: Law enforcement can monitor non-private postings, but must establish probable cause to intercept private communications and, eventually, notify the suspect. That standard doesn’t change in emergencies, but government has 48 hours to “show cause” to a court. ECPA rightly forbids digital dragnets — say, demanding private messages by all teens in certain riot-rocked London neighborhoods.

Offline, Cameron would allow British police to order the removal of facemasks not merely in a specific geographical location or for a limited time. While this troubles privacy advocates, it seems justified, since police must still establish reasonable suspicion of criminal activity. The U.S. Supreme Court has allowed police to require those stopped upon probable suspicion to identify themselves — essentially the same as unmasking someone. A vital philosophical question unites this debate with that over social media: Should citizens of free societies expect privacy in their appearances in public?

The answer, again, lies in balancing liberty with order. Cameron wants police to use facial recognition technology to identify rioters so they can be apprehended and prosecuted. Such technology allows services like Facebook to predict, with increasing accuracy, that the same person appears in multiple photos — so a user need only “tag” his or friend once. Police could use even more accurate tools to identify suspects who appear in multiple photos or videos of rioting.

Such automatic association simply enhances traditional sleuthing and should be unobjectionable on its own, or when police ask the public “Have you seen this person?” Legitimate concerns arise when police associate a composite appearance with a database of photos tied to known identities — be that a driver’s license system or Facebook. Here again, the “probable cause” standard should be the bulwark of liberty — without crippling law enforcement.

Courts can address concerns about inaccurate photo identification through the normal evidentiary process. Private citizens who attempt to “crowdsource” identification of rioters, as some Britons attempted, can play a helpful role as a digital “neighborhood watch” — so long as they do not turn to vigilantism, leaving punishment to the courts. This will maintain the presumption of innocence in the age of ubiquitous photography and photo identification.

Such radical transparency is, however, a two-way street. Cameron can claim the moral high ground by affirming that police will not interfere with Britons who passively record police activity or share such photos and videos online. In free societies, it is we, the people, armed with cell phone cameras, who “watch the watchmen.” Sunlight, truly, is the best disinfectant.

Finally, Cameron should remember the wisdom of F.A. Hayek, to whose book The Constitution of Liberty Margaret Thatcher once dramatically pointed, saying, “This is what we believe.” Hayek warned that crisis-driven decisions about the balance between liberty and order will ultimately take us down “the road to serfdom.”

A month ago, Rep. Mary Bono Mack introduced a bill (and staff memo) “To protect consumers by requiring reasonable security policies and procedures to protect data containing personal information, and to provide for nationwide notice in the event of a security breach.” These are perhaps the two least objectionable areas for legislating “on privacy” and there’s much to be said for both concepts in principle. Less clear-cut is the bill’s data minimization requirement for the retention of personal information.

But as I finally get a chance to look at the bill on the eve of the July 20 Subcommittee markup, I note one potentially troubling procedural aspect of the bill: giving the FTC authority to redefine PII without the procedural safeguards that normally govern the FTC’s operations. The scope of this definition would be hugely important in the future, both because of the security, breach notification and data minimization requirements attached to it, and because this definition would likely be replicated in future privacy legislation—and changes in to this term in one area would likely follow in others.  

The bill (p. 28) provides a fairly common-sensical definition of ”personal information”:

an individual’s first name or initial and last name, or address, or phone number, in combination with any 1 or more of the following data elements for that individual… [including a social security number, driver's license or other identity number, financial account number, etc.]

Then the bill then gives the FTC the authority to redefine PII in the future. The bill limits that authority to situations where:

(i) … such modification is necessary … as a result of changes in technology or practices and will not unreasonably impede technological innovation or otherwise adversely affect interstate commerce; and (ii) … if the Commission determines that access to or acquisition of the additional data elements in the event of a breach of security would create an unreasonable risk of identity theft, fraud, or other unlawful conduct and that such modification will not unreasonably impede technological innovation or otherwise adversely affect interstate commerce.

This is an admirable attempt to make the statute flexible and forward-looking without giving the FTC carte blanche to redefine “PII”—easily the single most important term in when it comes to regulating the flow of data in our information economy. But I fear even these prudent measures may not be enough if the FTC can use the streamlined Administrative Procedures Act (APA) rulemaking process. Yes, of course, that’s the same process used by most federal agencies, but it’s not what the FTC generally uses—and for good reason. Commissioner Kovacic explained “Mag-Moss” in his 2010 Senate  testimony on this issue:

Magnuson-Moss rulemaking, as this authority is known, requires more procedures than those needed for rulemaking pursuant to the Administrative Procedure Act.  These include two notices of proposed rulemaking, prior notification to Congress, opportunity for an informal hearing, and, if issues of material fact are in dispute, cross-examination of witnesses and rebuttal submissions by interested persons.

Kovacic isn’t against all grants of APA authority to the FTC:

In addition, over the past 15 years, there have been a number of occasions where Congress has identified specific consumer protection issues requiring legislative and regulatory action. In those specific instances, Congress has given the FTC authority to issue rules using APA rulemaking procedures…. Except where Congress has given the FTC a more focused mandate to address particular problems, beyond the FTC Act’s broad prohibition of unfair or deceptive acts or practices, I believe that it is prudent to retain procedures beyond those encompassed in the APA [i.e., Magnuson-Moss].

Kovacic’s cautiousness about this largely stems from his desire to protect the FTC from repeating the over-reach in the late 1970s that caused even the Washington Post to brand the agency the “National Nanny” and a heavily Democratic Congress to try to briefly shut down the agency, heavily slash its funding and require additional procedural safeguards—a history I’ve written about here and here, and the subject of a PFF event I ran in April 2010. (Of course, Howard Beales wrote the definitive history of this saga.) Kovacic continues:

The lack of a more focused mandate and direction from Congress, reflected in legislation with relatively narrow tailoring, could result in the FTC undertaking initiatives that ultimately arouse Congressional ire and lead to damaging legislative intervention in the FTC’s work…. Through specific, targeted grants of APA rulemaking authority, Congress makes a credible commitment not to attack the Commission when the agency exercises such authority

So what might Commissioner (and former FTC Chairman) Kovacic say about Rep. Bono-Mack’s bill? Unfortunately, he’s retiring from the Commission in September, so we may not actually hear an official answer from him (and FTC Commissioners generally don’t opine about pending legislation anyway unless asked to do so). But I’ll wager he’d applaud the requirements for redefinition and, in principle, he’d be open to giving the FTC APA authority in a narrow area. But I think he’d wonder whether redefining a term so critical as “personal information” is really a “specific”, “targeted” or “focused” given what’s at stake—in particular, the data minimization requirement, which could swallow much of online data collection if “personal information” were defined too broadly.

Rep. Bono-Mack is clearly well aware of these dangers, given the evident thought that went into writing the twin requirements for redefinition I quoted above. But it’s well worth asking whether they’ll be enough to prevent abuse of the power to redefine PII. At the very least, this seems like a question worth considering very, very carefully before the bill moves forward.

Other thoughts?

Update: It appears that an amendment passed today sponsored by Reps Marsha Blackburn (R-TN) and Pete Olson (R-TX) removing the grant of APA rulemaking authority at issue here—a relief!

Adam Thierer has already provided an excellent overview of the Supreme Court’s decision in Brown v. Entertainment Merchants Association, striking down a California law requiring age verification and parental consent for the purchase of “violent” videogames by minors. It’s worth calling attention to two key aspects of the decision.

First, the Supreme Court has clearly affirmed that the First Amendment applies equally to all media, including videogames and other interactive media. The Court has, in the past, often accorded lesser treatment to new media, as Cato’s excellent amicus brief explains [pp 3-15]. This approach, if applied consistently by the Court in the future, will ensure that free speech continues to be protected even as technology evolves in ways scarcely imaginable today.

Second, the Court correctly rejected California’s attempt to justify governmental paternalism as a supplement for parental responsibility [Brown at 15-17]. The existing content rating system and parental controls in videogame consoles already empower parents to make decisions about which games are appropriate for their children and their values. As in the Sorrell decision handed down last week, the Court has rejected what amounts to an opt-in mandate—this time, in favor of letting parents “opt-out” of letting their kids play certain games or rating levels rather than requiring that they “opt-in” to each purchase. This is the recurring debate about media consumption—from concerns over violent or offensive speech to those surrounding privacy. And once again, speech regulation must yield to the less-restrictive alternatives of empowerment and education.

Both these points were at the heart of the amicus brief I filed with the Supreme Court in this case last fall (press release), along with Adam (my former Progress & Freedom Foundation colleague) and Electronic Frontier Foundation Staff Attorney Lee Tien and Legal Director Cindy Cohn. Here’s the summary of our argument in that brief, which provides as concise an overview of our reasoning as we could manage, broken down into separate bullets with quotations referencing the Court’s decision on that point. As you’ll see, the Court’s decision reflected all our arguments except for one, which the Court’s decision did not reach.

• Our Brief, Point 1: This Court has long held that content-based regulation of speech must yield to less restrictive means that do not affect First Amendment interests of speakers and willing listeners. Here, amici explain how a highly descriptive content rating system, an extensive array of parental empowerment tools, numerous household media control methods, and enforcement of existing consumer deception laws together constitute a less restrictive alternative to California’s law. Indeed, survey research conducted by the Federal Trade Commission shows that the videogame industry’s official rating and labeling system is not only widely recognized and used by parents but is also well enforced. Whatever the state’s interest, parents today already have the capacity to choose and control their children’s videogame consumption based on their own household standards. Government can help build awareness of parental control tools and methods, and punish deception, but there is no Constitutional justification for restricting this new and evolving form of speech.
• The Court: California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games … [noting the FTC report in particular]. This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest [Brown at 15-16].

• Our Brief, Point 2a. Videogames are speech fully protected by the First Amendment, and both the “violence” and “interactivity” feared by California are integral, expressive aspects of books, plays and movies, as well as videogames.
• The Court: [W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears. [2-3, internal quotation omitted]

While Justices Kennedy, Ginsburg, Sotomayor and Kagan joined this majority opinion, written by Justice Scalia, I must note my concern here with the concurrence written by Justice Alito and Chief Justice Roberts:

In considering the application of un-changing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution. [1-2] When all of the characteristics of video games are taken into account, there is certainly a reasonable basis forthinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand. [16-17]

Fortunately, the five-vote majority carried the day, clearly establishing the principle that the First Amendment is medium-neutral over Alito & Roberts “wait and see, evaluate each new medium afresh” approach. Anyway, back to the good stuff: how well the Court lined up with our arguments!

• Our Brief, Point 2b. Every state “violent” videogame law has therefore failed strict scrutiny, and the Ninth Circuit’s decision was wholly consistent with the considered judgment of numerous courts.
• The Court: Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” [5-6] … California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors [17].

• Our Brief, Point 2c. Amici fear that California’s age-based restrictions will migrate to the Internet, where the ineffectiveness of age-verification tools could inspire identity-verification requirements that would chill adults’ access to fully protected speech.
• The Court: [This is the one argument the Court did not reach, which is hardly surprising, given the complicated issues online age verification raises, going back to the extensive COPA litigation.]

• Our Brief, Point 3a. The laboratory research on which California bases its legislative findings—to which California now asks this Court to defer—does not support harm to any compelling state interest. Social scientists hotly debate the methodological validity of media-violence research, and that research defines “violence” and “aggression” in ways that conflict with society’s understandings: Research that classifies the well-known children’s videogame “Super Mario Brothers” as “violent” is of dubious relevance to real-world concerns about violence.
• The Court: The State’s evidence is not compelling. California relies primarily on … studies [that] purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. [12-13]

• Our Brief, Point 3. Moreover, Turner deference is completely inapplicable to content-based regulation of fully protected speech.
• The Court: [California's] reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. California’s burden is much higher, and because it bears the risk of uncertainty, ambiguous proof will not suffice. [12] … Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an “actual problem” in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” [11]

In conclusion, let me again simply quote from the conclusion of our brief: “California’s legislature has succumbed to moral panic, as lawmakers have so often done when confronted with the media of a new generation. Speech is undoubtedly powerful, and new forms of speech are always controversial. Time and again, however, the feared harms of new forms of expression have proven to be fears, not harms. This case is no different.”

The Supreme Court yesterday handed down a 6-3 decision in Sorrell v. IMS Health Inc. striking down a Vermont law restricting marketing to doctors based on their past history of writing drug prescriptions. The law required that doctors opt in before drug companies could use data about their prescription patterns to market (generally name-brand) drugs to them.

I’ve been closely following this case, having filed TechFreedom amicus curiae brief with the Supreme Court earlier this year, written by First Amendment expert litigator Richard Ovelmen, and previously joined with other free speech groups in an amicus brief before the Second Circuit.  Our media statement on the Supreme Court brief provides a pretty concise summary of our views and what’s at stake in this case, and Jane Yakowitz’s initial blog reactions are especially worth reading.

The lopsided decision should surprise no one: Vermont’s law was a brazen effort to suppress speech disfavored by the state based on the paternalist assumption that name-brand drug marketing is “too effective.”  In essence, the Court has reaffirmed the core meaning of the First Amendment: government must trust the marketplace of ideas unless fraud or deception occurs.  Anyone who takes the First Amendment seriously should be roused to applaud when Justice Kennedy writes, for the majority, that “fear that speech might persuade provides no lawful basis for quieting it.”  Clearly, this principle is as true for commercial advertising as for any form of speech. I’m particularly glad to see that Justice Sotomayor joined in this decision.

This is just the latest in a line of cases upgrading protection for commercial speech stretching back over 30 years since Central Hudson and including Lorillard (2001) and 44 Liquormart (1996).  But the opinion will also surely be remembered as the beginning another line of cases that attempt to guide lawmakers trying to protect legitimate privacy interests without suppressing speech.  The First Circuit, upholding a similar law, had previously deemed prescriber-identifying information “as a mere ‘commodity’ with no greater entitlement to First Amendment protection than “beef jerky.’” But the Supreme Court rejected this, unequivocally declaring that “information is speech,” including both its creation and dissemination, even while recognizing the privacy problems raised by the “capacity of technology to find and publish personal information.”

Thus, restrictions on data collection, use and transfer must satisfy First Amendment scrutiny.  Future courts will therefore strike down privacy laws that burden too much speech, such as by requiring opt-in rather than opt-out (one of the things hinted at by the Sorrell court).  The government must clearly establish the need for privacy regulation and consider the availability of less-restrictive alternatives, such as user empowerment, education and the enforcement of existing laws—which has been our message on privacy generally all along. Or, for example, government might set basic standards for the de-identification of data, as Jane Yakowitz has proposed, before rushing to implement draconian mandates such as rigid purpose specification requirements that make difficult or impossible many unexpected, serendipitous uses of data for pro-consumer innovations like Google Flu Trends.

Policymakers should carefully consider the values recognized by the Court today before further clamping down on the flow of data that drives speech throughout the information economy.  Unfortunately, in all the frenzy in Washington over proposed privacy legislation, and the FTC’s staff report on privacy, little attention has been paid to how to reconcile privacy protections with the First Amendment.  I hope this decision spurs a serious consideration of that challenge.  To that end, TechFreedom will shortly be announcing an event discussing this case and what it means for privacy and the free flow of data. Stay tuned!