[originally published on Plaintext on June 21, 2017.]
This summer, we celebrate the 20th anniversary of two developments that gave us the modern Internet as we know it. One was a court case that guaranteed online speech would flow freely, without government prior restraints or censorship threats. The other was an official White House framework for digital markets that ensured the free movement of goods and services online.
The result of these two vital policy decisions was an unprecedented explosion of speech freedoms and commercial opportunities that we continue to enjoy the benefits of twenty years later.
While it is easy to take all this for granted today, it is worth remembering that, in the long arc of human history, no technology or medium has more rapidly expanded the range of human liberties — both speech and commercial liberties — than the Internet and digital technologies. But things could have turned out much differently if not for the crucially important policy choices the United States made for the Internet two decades ago. Continue reading →
The idea that the world needs further dumbing down was really the last thing on my mind. Yet this is exactly what Jay Stanley argues for
in a recent post on Free Future
, the ACLU tech blog.
Specifically, Stanley is concerned by the proliferation of “smart devices,” from smart homes to smart watches, and the enigmatic algorithms that power them. Exhibit A: The Volkswagen “smart control devices” designed to deliberately mis-measure diesel emissions. Far from an isolated case, Stanley extrapolates the Volkswagen scandal into a parable about the dangers of smart devices more generally, and calls for the recognition of “the virtue of dumbness”:
When we flip a coin, its dumbness is crucial. It doesn’t know that the visiting team is the massive underdog, that the captain’s sister just died of cancer, and that the coach is at risk of losing his job. It’s the coin’s very dumbness that makes everyone turn to it as a decider. … But imagine the referee has replaced it with a computer programmed to perform a virtual coin flip. There’s a reason we recoil at that idea. If we were ever to trust a computer with such a task, it would only be after a thorough examination of the computer’s code, mainly to find out whether the computer’s decision is based on “knowledge” of some kind, or whether it is blind as it should be.
While
recoiling
is a bit melodramatic, it’s clear from this that “dumbness” is not even the key issue at stake. What Stanley is really concerned about is biasedness or partiality (what he dubs “neutrality anxiety”), which is not unique to “dumb” devices like coins, nor is the opacity. A physical coin can be biased, a programmed coin can be fair, and at first glance the fairness of a physical coin is not really anymore obvious.
Yet this is the argument Stanley uses to justify his proposed requirement that all smart device code be open to the public for scrutiny going forward. Based on a knee-jerk commitment to transparency, he gives zero weight to the social benefit of allowing software creators a level of trade secrecy, especially as a potential substitute to patent and copyright protections. This is all the more ironic, given that Volkswagen
used existing copyright law
to hide its own malfeasance.
More importantly, the idea that the only way to check a virtual coin is to look at the source code is a serious non-sequitur. After all,
in-use testing
was how Volkswagen was actually caught in the end. What matters, in other words, is how the coin
behaves
in
large and varied samples
. In either the virtual or physical case, the best and least intrusive way to check a coin is to simply do thousands of flips. But what takes hours with a dumb coin takes a fraction of a second with a virtual coin. So I know which I prefer.
Continue reading →
I have always found it strange that the ACLU speaks with two voices when it comes to user empowerment as a response to government regulation of the Internet. That is, when responding to government efforts to regulate the Internet for online safety or speech purposes, the ACLU stresses personal responsibility and user empowerment as the first-order response. But as soon as the conversation switches to online advertising and data collection, the ACLU suggests that people are basically sheep who can’t possibly look out for themselves and, therefore, increased Internet regulation is essential. They’re not the only ones adopting this paradoxical position. In previous essays I’ve highlighted how both EFF and CDT do the same thing. But let me focus here on ACLU.
Writing today on the ACLU “Free Future” blog, ACLU senior policy analyst Jay Stanley cites a new paper that he says proves “the absurdity of the position that individuals who desire privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.” The new study Stanley cites says that “advertisers are making it impossible to avoid online tracking” and that it isn’t paternalistic for government to intervene and regulate if the goal is to enhance user privacy choices. Stanley wholeheartedly agrees. In this and other posts, he and other ACLU analysts have endorsed greater government action to address this perceived threat on the grounds that, in essence, user empowerment cannot work when it comes to online privacy.
Again, this represents a very different position from the one that ACLU has staked out and brilliantly defended over the past 15 years when it comes to user empowerment as the proper and practical response to government regulation of objectionable online speech and pornography. For those not familiar, beginning in the mid-1990s, lawmakers started pursuing a number of new forms of Internet regulation — direct censorship and mandatory age verification were the primary methods of control — aimed at curbing objectionable online speech. In case after case, the ACLU rose up to rightly defend our online liberties against such government encroachment. (I was proud to have worked closely with many former ACLU officials in these battles.) Most notably, the ACLU pushed back against the Communications Decency Act of 1996 (CDA) and the Child Online Protection Act of 1998 (COPA) and they won landmark decisions for us in the process. Continue reading →
May 2012
TECHNOLOGY AND LIBERTY DIRECTOR
(Full-time)
The ACLU of Washington (ACLU-WA) seeks a self-motivated public policy advocate to lead its work to protect civil liberties in the face of society’s increasingly advanced technologies. The ACLU-WA’s staff of 30 employees and numerous volunteers work in a fast-paced, friendly and professional office in downtown Seattle. Continue reading →
As a cyber-libertarian, I’ve been lucky enough to work with people of all ideological stripes in pursuit of various public policy objectives. I’ve made selective alliances with people on the Right on economic policy issues (like opposing Net Neutrality regulation, Internet taxes, etc) and also worked closely with folks on the Left on speech and culture issues (content controls, anonymity, online safety concerns, etc).
While engaging with with people on both sides of the political fence, I’m often struck by some of their internal inconsistencies. Conservatives, for example, talk about a big game about personal responsibility on some issues, but quickly abandon that notion when they claim media content or online speech should be regulated by the State (typically “for the children.”) In this essay, I’d like to discuss interesting inconsistencies on the political Left, especially among advocates of strong privacy regulation (most of whom tend to be Left-leaning in their worldview). In particular, here are the two things I find most interesting about modern privacy advocates:
(1)
Most privacy advocates are vociferous First Amendment supporters, yet they abandon their free speech values and corresponding constitutional tests when it comes to privacy regulation. When it comes to proposals to regulate media content or online speech, most folks on the Left have a very principled, clear-cut position: people (or parents) should take responsibility for unwanted information flows in their lives (or the lives of their children). In particular, they rightly argue that the many user empowerment tools on the market (filters, monitoring software, other parental control technologies) constitute a so-called “less-restrictive means” of controlling content when compared to government regulation.
Advocacy groups that I have a great deal of respect for and work with quite closely on these issues–such as EFF, CDT and ACLU—all take this position. Generally speaking, they argue that, when it comes to speech regulation, “household standards” (user-level controls) should trump “community standards” (government regulation). And in Court—where I frequently file joint amicus briefs with them—they repeatedly employ the “less-restrictive means” test to counter government efforts to regulate information flows.
But when it comes to privacy, they throw all this out the window! Continue reading →
Today’s Online Safety Technical Working Group (OSTWG) meeting included some heated debate about whether online intermediaries should be doing more to assist law enforcement to help track down child predators and those producing and distributing child pornography. (It’s not clear whether or when NTIA will actually put the archived video or a transcript online at this point).
Most interesting was the third panel of the day (agenda), which devolved into a shouting match as Dr. Frank Kardasz (resume) of the Arizona Internet Crimes Against Children (ICAC) Task Force basically accused Internet intermediaries of being willing accomplices in crimes of sexual abuse against children—and suggested that they could be charged as co-defendants in child porn prosecutions. A few industry folks in the room expressed their outrage at such slander. A retired law enforcement officer perhaps put it best when he said that he had never dealt with an ISP that didn’t sincerely want to help law enforcement stop this monstrous crime.
Apart from those pyrotechnics, and a superb morning presentation by the Pew Internet Project’s Amanda Lenhart about “Social Media & Young Adults,” the most interesting part of the day concerned data retention mandates. Even as a debate rages in Washington about how much collection and use of online data should be permitted, Dr. Kardasz suggested online service providers should be required to hold user data for 5 years. A number of attendees noted the staggering costs of such a mandate given the sheer volume of information shared every day by use, especially for startups for whom building monitoring and compliance infrastructure can be a significant barrier to entry. Of course, practical objections are always answered with practical counter-solutions—in this case, several attendees asked why we couldn’t just provide tax incentives or stimulus money to defray such costs. One attendee joked that we’d have to devote the entire state of Montana just to house all the necessary server farms.
But the strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.
Then the riposte from advocates of data retention mandates: Aren’t online intermediaries
already retaining huge amounts of consumer information? If they can do that, why can’t they retain the data we need to track down child predators and child porn distributors? Continue reading →
As I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about “Speech, Democratic Engagement, and the Open Internet.” It was a shockingly one-sided affair with the deck being stacked almost entirely in favor of advocates of Net neutrality regulation. Worse yet, those advocates shamelessly made up spooky stories about a future of “private censorship” that could only be remedied by using the First Amendment as a club to beat private players into submission. The token opposition at this Chicken Little circus was Robert Corn-Revere, a Partner at the law firm of Davis Wright Tremaine LLP in Washington, D.C. Bob set the record straight–both in terms of baseless accusations that were flying that day as well as the revisionist histories of the First Amendment that were being put forward. I’m happy to report that Bob allowed PFF to reprint his remarks as a new white paper entitled, “The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For.”
In his essay, Corn-Revere discusses the relationship between the First Amendment and regulatory policy, particularly the treatment of new communications technologies, and he warns that government regulation of broadband networks could “provide the vehicle for advancing new First Amendment theories for media regulation” and online speech and expression more generally. “It should not be forgotten,” he argues, “that the federal government’s initial impulse was to censor the Internet and to subject it to a far lower level of First Amendment protection. It pursued this agenda for more than a decade but was blocked by a series of First Amendment rulings.” The Communications Decency Act and the Child Online Protection Act are just two notable examples. Luckily, the courts determined that “the open Internet would be at great risk if the government is allowed to exercise such power,” he notes, and they struck down such laws.
Continue reading →
Adam Thierer & I have just released a detailed examination (PDF) of brewing efforts to expand the Children’s Online Privacy Protection Act of 1998 to cover adolescents and potentially all social networking sites—an approach we call “COPPA 2.0.”
As Adam explained on Larry Magid’s CNET podcast, COPPA mandates certain online privacy protections for children under 13, most importantly that websites obtain the “verifiable consent” of a child’s parent before collecting personal information about that child or giving that child access to interactive functionality that might allow the child to share their personal information with others. The law was intended primarily to “enhance parental involvement in a child’s online activities” as a means of protecting the online privacy and safety of children.
Yet advocates of expanding COPPA—or “COPPA 2.0″—see COPPA’s verifiable parental consent framework as a means for imposing broad regulatory mandates in the name of online child safety and concerns about social networking, cyber-harassment,
etc. Two COPPA 2.0 bills are currently pending in New Jersey and Illinois. The accelerated review of COPPA to be conducted by the FTC next year (five years ahead of schedule) is likely to bring to Washington serious talk of expanding COPPA—even though Congress clearly rejected covering adolescents age 13-16 when COPPA was first proposed back in 1998.
We’ll discuss some of the key points of our paper in a series of blog posts, but here are the top nine reasons for rejecting COPPA 2.0, in that such an approach would:
- Burden the free speech rights of adults by imposing age verification mandates on many sites used by adults, thus restricting anonymous speech and essentially converging—in terms of practical consequences—with the unconstitutional Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA;
- Burden the free speech rights of adolescents to speak freely on—or gather information from—legal and socially beneficial websites;
- Hamper routine and socially beneficial communication between adolescents and adults;
- Reduce, rather than enhance, the privacy of adolescents, parents and other adults because of the massive volume of personal information that would have to be collected about users for authentication purposes (likely including credit card data);
Continue reading →
This week I was pleased to join a diverse collection of think tanks and public interest groups in submitting joint comments to the FCC opposing the proposed content filtering mandate that would be part of a future AWS-3 auction. That’s the proposed auction that would create a “free” nationwide wireless broadband service. As part of the deal, the company would need to need to take steps to provide a “clean” Internet connection by filtering content. This joint filing points out why that is a bad idea:
- the reach of the filtering mandate is extraordinarily broad, and would attempt to censor content far beyond any content regulation regime that has been previously upheld in the face of constitutional challenge.
- even if the scope of the filtering mandate were more narrowly focused, it would conflict with the First Amendment analysis that the Supreme Court applied to Internet access in the seminal
Reno v. ACLU decision.
- even if the Commission were to require filtering on an “opt out” or “opt in” basis, the Constitutional problems would not be avoided. Opt-out filtering would impose an unconstitutional burden on listeners and recipients of Internet communications, and both opt-out and opt-in filtering would violate the First Amendment rights of speakers and other content providers on the Internet. Simply put, the First Amendment does not allow a government mandated “blacklist” of websites to be blocked.
- would also violate the terms and intent of two federal statutes – 47 U.S.C. § 326 (which prohibits the Commission from “interfer[ing] with the right of free speech”) and 47 U.S.C. § 230 (which promotes user control over content and limits burdens on service providers).
- would also limit what people could do online using the free AWS-3 service so dramatically that the usefulness of the service would be radically reduced.
- would also certainly lead to legal challenges that would delay the implementation of the proposed access service.
Continue reading →
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