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.
I thought Todd Zywicki, a senior scholar with the Mercatus Center at George Mason University, did a nice job on Judge Napolitano’s “Freedom Watch” show addressing the contentious question of whether government should be regulating food advertising in order to somehow make American kids healthier. Todd pointed out how the advertising guidelines currently being developed are anything but “voluntary” and noted that there are many causes of childhood obesity. Watch the clip here:
Washington Post columnist Ezra Klein had a terrific column yesterday (Human Knowledge, Brought to You By…) on one of my favorite subjects: how advertising is the great subsidizer of the press, media, content, and online services. Klein correctly notes that “our informational commons, or what we think of as our informational commons, is, for the most part, built atop a latticework of advertising platforms. In that way,” he continues, “it’s possible that no single industry — not newspapers nor search engines nor anything else — has done as much to advance the storehouse of accessible human knowledge in the 20th century as advertisers. They didn’t do it because they are philanthropists, and they didn’t do it because they love information. But they did it nevertheless.”
Quite right. As I noted in my recent Charleston Law Review article on “Advertising, Commercial Speech & First Amendment Parity,” media economists have found that advertising has traditionally provided about 70% to 80% of support for newspapers and magazines, and advertising / underwriting has entirely paid for broadcast TV and radio media. And it goes without saying that advertising has been an essential growth engine for online sites and services. How is it that we’re not required to pay per search, or pay for most online news services, or shell out $19.95 a month for LinkedIn, Facebook, or other social media services? The answer, of course, is advertising. Thus, Klein notes, while “we see  advertising as a distraction… without the advertising, the information wouldn’t exist. So the history of information, in the United States at least, is the history of platforms that could support advertising.”
And the sustaining power of advertising for new media continues to grow. As I noted in my law review article: Continue reading →
One of the more critically praised films this year has been Shame, which has been in limited release around the country since December. Although it’s an independent production, the film is being distributed by 20th Century Fox, a major studio, and stars Michael Fassbender, an actor who appears to be in the middle of his breakout moment.
The film is also rated NC-17.
Until recently, the Motion Picture Association of America’s NC-17 rating, which restricts admission to theatergoers 18 and older, was the box office kiss of death. Not only did NC-17 carry the notoriety of its predecessor, the X rating, it seriously hampered a film’s marketing. Boys Don’t Cry, The Cooler and Clerks are among the well-known examples of acclaimed films that were cut to win the more commercially acceptable R rating, in spite of protest from their filmmakers and actors that the cuts diminished the power and the point of the scenes in question.
But most newspapers and local TV stations won’t carry ads for NC-17 movies. Some theater chains, such as Cinemark, won’t exhibit them. Major retailers like Wal-Mart nor video rental chains like Blockbuster won’t stock NC-17-rated DVDs.
In Hollywood, art and commerce have always been in tense balance. That balance may shifting as the Web becomes a larger factor in advertising. For example, a newspaper’s policy against advertising NC-17 movies is meaningless if a theater chain no longer uses newspaper advertising at all. AMC, the second biggest chain in the country, has been cutting back on print advertising since 2009. Last June, the company documented its shift from print to Web in a quarterly filing with the SEC. Regal Entertainment Group, another chain, reportedly is following suit.
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:
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)/
For CNET this morning, I offer five crucial corrections to the Protect IP Act, which was passed out of committee in the Senate back in May.
Yesterday, Rep. Bob Goodlatte, co-chair of the Congressional Internet Caucus, told a Silicon Valley audience that the House was working on its own version and would introduce it in the next few weeks.
Protect IP would extend efforts to combat copyright infringement and trademark abuse online, especially by websites registered outside the U.S.
Since Goodlatte promised the new bill would be “quite different” from the Senate version, I thought it a good time to get out my red pen and start crossing off the worst mistakes in policy and in drafting in Protect IP.
The full details are in the article, but in brief, here’s what I hope the House does in its version:
Drop provisions that tamper with the DNS system in an effort to block U.S. access to banned sites.
Drop provisions that tamper with search engines, indices, and any other linkage to banned sites.
Remove a private right of action that would allow copyright and trademark holders to obtain court orders banning ad networks and financial transaction processors from doing business with banned sites.
Scale back current enforcement abuses by the Department of Homeland Security under the existing PRO-IP Act of 2008.
Focus the vague and overinclusive definition of the kind of websites that can be banned, limiting it to truly criminal enterprises.
Do-Not-Track is not inconceivable itself. It’s like the word “inconceivable” in the movie The Princess Bride. I do not think it means what people think it means—how it is meant to work and how it is likely to offer poor results.
Take Mike Swift’s reporting for MercuryNews.com on a study showing that online advertising companies may continue to follow visitors’ Web activity even after those visitors have opted out of tracking.
“The preliminary research has sparked renewed calls from privacy groups and Congress for a ‘Do Not Track’ law to allow people to opt out of tracking, like the Do Not Call list that limits telemarketers,” he writes.
If this is true, it means that people want a Do Not Track law more because they have learned that it would be more difficult to enforce.
That doesn’t make sense … until you look at who Swift interviewed for the article: a Member of Congress who made her name as a privacy regulation hawk and some fiercely committed advocates of regulation. These people were not on the fence before the study, needless to say. (Anne Toth of Yahoo! provides the requisite ounce of balance, but she defends her company and does not address the merits or demerits of a Do-Not-Track law.)
Do-Not-Track is not inconceivable. But the study shows that its advocates are not conceiving the complexities and drawbacks of a regulatory approach rather than individually tailored blocking of unwanted tracking, something any Internet user can do right now using Tracking Protection Lists.
Vivek Wadhwa, who is affiliated with Harvard Law School and is director of research at Duke University’s Center for Entrepreneurship, has a terrific column in today’s Washington Post warning of the dangers of government trying to micromanage high-tech innovation and the Digital Economy from above.
For reasons I have never been able to understand, the Washington Post uses different headlines for its online opeds versus its print edition. That’s a shame, because while I like the online title of Wadhwa’s essay, “Uncle Sam’s Choke-Hold on Innovation,” the title in the print edition is better: “Google, Twitter and the Best Regulator.” By “best regulator” Wadhwa means the marketplace, and this is a point we have hammered on here at the TLF relentlessly: Contrary to what some critics suggest, the best regulator of “market power” is the market itself because of the way it punishes firms that get lethargic, anti-innovative, or just plain cocky. Wadhwa notes:
The technology sector moves so quickly that when a company becomes obsessed with defending and abusing its dominant market position, countervailing forces cause it to get left behind. Consider: The FTC spent years investigating IBM and Microsoft’s anti-competitive practices, yet it wasn’t government that saved the day; their monopolies became irrelevant because both companies could not keep pace with rapid changes in technology — changes the rest of the industry embraced. The personal-computer revolution did IBM in; Microsoft’s Waterloo was the Internet. This — not punishment from Uncle Sam — is the real threat to Google and Twitter if they behave as IBM and Microsoft did in their heydays.
It might be tempting to laugh at France’s ban on words like “Facebook” and Twitter” in the media. France’s Conseil Supérieur de l’Audiovisuel recently ruled that specific references to these sites (in stories not about them) would violate a 1992 law banning “secret” advertising. The council was created in 1989 to ensure fairness in French audiovisual communications, such as in allocation of television time to political candidates, and to protect children from some types of programming.
In the United States, banning words seems too blatant an affront to our First Amendment, but the United States has a fairly lively “English only” movement. Somehow, regulating an entire communications protocol doesn’t have the same censorious stink.
So it is that our Federal Communications Commission asserts a right to regulate the delivery of Internet service. The protocols on which the Internet runs are communications protocols, remember. Withdraw private control of them and you’ve got a more thoroughgoing and insidious form of speech control: it may look like speech rights remain with the people, but government controls the medium over which the speech travels.
The government has sought to control protocols in the past and will continue to do so in the future. The “crypto wars,” in which government tried to control secure communications protocols, merely presage struggles of the future. Perhaps the next battle will be over BitCoin, an online currency that is resistant to surveillance and confiscation. In BitCoin, communications and value transfer are melded together. To protect us from the scourge of illegal drugs and the recently manufactured crime of “money laundering,” governments will almost certainly seek to bar us from trading with one another and transferring our wealth securely and privately.
So laugh at France. But don’t laugh too hard. Leave the smugness to them.