At the Computers Freedom and Privacy conference, I moderated a panel on “Do Not Track.” I tried to make sure it was fun, and I think it was. Among other things, yes, I called Ed Felten, “baby.” Check it out.

The nice folks at the New York Times “Room for Debate” feature asked me and a group of bright lights to discuss the Verizon-Google agreement on network neutrality regulation, as it stood at various points in the day.

Read the comments of Tim Wu, Lawrence Lessig, David Gelernter, Ed Felten, Jonathan Zittrain, and myself. Much of my comment owes credit to Tim Lee’s excellent paper “The Durable Internet.”

We’re all over the place, folks . . .

Update: Late addition: Gigi Sohn.

Those of you interested in transparency and “Government 2.0” issues will absolutely want to pick up Open Government: Collaboration, Transparency, and Participation in Practice, a terrific collection of 34 essays edited by Daniel Lathrop and Laurel Ruma. Much like Access Controlled, the collection of essays on global Internet filtering and censorship that I praised here last month, Open Government is a resource like no other in its field. It offers an amazing diversity of viewpoints covering virtual every aspect of the debate over transparency and open government.

The collection was published by O’Reilly Media and Tim O’Reilly himself has one of the best chapters in the book on “Government as a Platform.” “The magic of open data is that the same openness that enables transparency also enables innovation, as developers build applications that reuse government data in unexpected ways.” (p. 25)  This explains why in their chapter on “Enabling Innovation for Civic Engagement,” David G. Robinson, Harlan Yu, and Edward W. Felten, of the Center for Information Technology Policy at Princeton University, speak of “a new baseline assumption about the public response to government data: when government puts data online, someone, somewhere will do something valuable and innovative with it.” (p.84) “By publishing its data in a form that is free, open, and reusable,” they continue, “government will empower citizens to dream up and implement their own innovative ideas of how to best connect with their governments.” (p. 89)

Indeed, just think about some of the many exciting sites and projects (both public and private) that have been developed thanks to government data becoming more accessible in recent years. Here’s a short list of some of the best:

Regulation

• Regulations.gov (public)
• OpenRegs.com (private)

General Spending

• USASpending.gov (public)
• FedSpending.org (private)

Stimulus Spending

• Recovery.gov (public)
• StimulusWatch.org (private)

Legislation / Govt. Activity

• THOMAS (public)
• GovTrack.us (private)
• WashingtonWatch.com (private)
• RealTimeCongress.org (private)

Campaign Spending

• OpenSecrets.org (private)
• MapLight.org (private)
• TransparencyData.com (private)

Court Records

• PACER (public)
• RECAP (private to open-source PACER)

Corporate Financial Information

• EDGAR (now public; was private)

City Affairs

• EveryBlock.com (private)

And there are many additional examples featured throughout the essays in Open Government. As Beth Simone Noveck, the U.S. Deputy Chief Technology Officer for open government in the Obama Administration notes, “Countless civic groups already use new communication and information-sharing tools to promote political action, operate an opposition movement, or mobilize community activism.” (p. 53)

The book also features interesting essays by my TLF blogging colleagues Jerry Brito and Jim Harper. Jerry’s is creatively-entitled, “All Your Data Are Belong to Us: Liberating Government Data” and Jim’s (along with Jeff Jonas) is on “Open Government: The Privacy Imperative.” Both are worthy of your attention (and I’m not just saying that because they paid me to).

I certainly didn’t agree with everything I read in the book. In particular, the chapter on “Open Government and Open Society” by Archon Fung and David Weil troubled me greatly. Fung and Weil make two dangerous arguments that deserve refutation. First, they fear that “the progressive impulse for transparency… may well produce conservative or even reactionary effects of deligitimizing government activity quite broadly as public discourse feeds more and more stories of government waste, corruption, and failure.” (p. 107)  Sorry, but for those of us who question Leviathan and consider “waste, corruption, and failure” to be standard operating procedure for government, it’s hard to have much sympathy for this concern.

Regardless, they argue that “the solution to this problem is not to reduce government transparency, but rather to create a fuller accounting of it.”  They think that will help enlighten the masses and convince them of the many unappreciated benefits of Big Government.  More realistically, in my opinion, it will just lead to even more skepticism about the wisdom of expansive State power — and that’s just fine with me, of course.  But I wonder what Fung and Weil would recommend if increased transparency goes hand in hand with increased distrust in government? Would their passion for (so-called) “progressive” government trump further transparency it it undermined their desire for expansive State power and action?

Even more disturbing — but hardly surprising once they reveal their true colors — is the argument Fung and Weil make in favor of imposing the identical transparency requirements on private organizations that are imposed on government. They argue that:

a very substantial part of the energies of transparency advocates should be redirected toward making corporations and other organizations in society meet the same standards increasingly demanded of open government. This shift requires the transparency movement to reorient itself in several substantial ways. Government assumes a different role in the political imagination. Rather than a looming specter of threat that society must tame through transparency, government becomes an ally of society whose strength is required to make businesses transparent. In many cases, private and civic organizations will not disclose information voluntarily, and the force of law and policy — and the kind of authority that can only come from government — will make them do so. (p 109)

Not once in the essay — not once — do Fung and Weil stop to reflect upon the core difference between state power and corporate power: the scope of coercive powers and the possibility of escape. That is, the State has the power to tax, fine, punish, imprison, wage war, etc.  Corporations have none of these things.  And if you hate or fear a certain company, you almost always have another choice to turn to. Not so with the State.  Escape from its tentacles is not so easy.  They even have the audacity to claim that, “In American society, the threats to citizens individually and to society generally come as much — perhaps much more — from powerful private sector actors as from government.” Really? That’s certainly news to me.  Were companies locking up people in Gitmo, storming compounds in Waco, TX, or raiding people’s homes in outrageous drug busts?  Uh, no.

This is not to say that companies don’t make profound mistakes or that more transparency isn’t a beneficial thing even at the corporate level, but Fung and Weil are engaged in a dangerous game of moral equivalency here that we should not let them get away with.  Moreover, they completely ignore the many good reasons why companies shouldn’t be perfectly transparent. Business plans and methods, for example, need to be kept somewhat secret for obvious reasons.

Finally, when they make the argument that, “This shift requires the transparency movement to reorient itself in several substantial ways” and asking us to welcome government “as an ally,” they are essentially politicizing the transparency movement and fracturing what, at least so far, has been a very non-partisan affair. If they succeed in leading the movement down their preferred path, it will destroy that alliance. I certainly realize that the majority of people in the transparency and “Govt 2.0” movement do not share my radical pacifism when it comes to the dangers of State power, but I would hope they would want to keep at least some of my type in the movement and maintain a non-partisan approach to the issue. I think transparency and open government advocates should check their ideologies at the door, so to speak, when they approach these issues.

Regardless, don’t let my disdain for that particular chapter discourage you from picking up Open Government. (In fact, I think it’s great that the editors included one such extreme chapter in there to give a flavor for what some people at the fringe of the transparency movement are likely thinking.) Overall, this is a terrific set of essays and it deserves a place on your bookshelf if you care about transparency and Government 2.0 issues.

P.S. #1: This is probably a “no-duh” recommendation for those of you who already actively follow “Gov 2.0” developments, but for those who are not already aware of Alex Howard and his prodigious and impressive output on this front, start reading him now.  Alex is the Government 2.0 Correspondent for 
O’Reilly Media, and he’s a machine. I’m not sure how he manages to crank out so much material on these issues but he is an indispensable resource and not to be missed.

P.S. #2:  As always, you find all my book reviews here. Next up: Shirky’s Cognitive Surplus.

Google has—as I noted it would last June—finally released (PCWorld, Google’s policy blog)  its eagerly-awaited suite of tools available for free (of course) at MeasurementLab.net that allow users to monitor how their ISP might be tweaking (degrading, deprioritizing, etc.) their traffic—among other handy features.  Huzzah!

So, now that we have visibility into traffic management practices on a large scale, remind me again why the FCC would need to  mandate “net neutrality” requirements?  Why not just leave the matter up to the FTC to enforce each ISP’s terms of use under the agency’s existing authority to punish unfair and deceptive trade practices?  Won’t the threat of users switching to another broadband provider discipline ISPs’ traffic management?  (As long as ISPs have traffic nationwide traffic management policies, even those users in areas lacking meaningful broadband competition will be protected from discriminatory network management practices by pressure in other markets.)

“If you believe that network neutrality government regulation is not needed, if you believe that the market will handle this … then you should also welcome Measurement Labs,” [Princeton Center for Information Technology Policy director Ed] Felten said. “What you are appealing to is a process of public discussion … in which consumers move to the ISP [Internet service provider] that gives them the best performance. It’s a market that’s facilitated by better information.”

Yes, it’s true (as PCWorld article linked to above points out) that a consumer might not be able to discern whether apparent degradation of their traffic was actually caused by the ISP or whether it might be the result of, say, spyware or simple Internet congestion.  But they don’t need to figure that out for themselves.  Although the relatively small percentage of users who install this tool are likely to be highly sophisticated (at least the early adopters), all they need to is “sound the alarm” about what they think might be a serious violation of “net neutrality” principles, and a small cadre of technical experts can do the rest:  examining these allegations to determine what ISPs are actually doing.  

Sure, there will be false alarms and of course many advocates of “net neutrality” regulation will still insist that ISPs shouldn’t be allowed to practice certain kinds of network management, no matter how transparently the ISPs might disclose their practices.  But the truth will emerge, and in the ongoing tug-of-war between public pressure and ISPs’ practical needs to manage their networks smartly, between the desire of some to have practices disclosed very specifically and the ISPs’ desire to maintain operational flexibility, I suspect we’ll find a relatively stable (if constantly-evolving) equilibrium.  It won’t be perfect, but do we really think government bureaucrats will do a better job of finding that happy medium?

The video of last week’s Cato policy forum can be viewed here. (Check out TLFer Jerry Brito’s fine presentation.)

If your preference is for a briefer taste of the transparency issues, a podcast with Ed Felten recorded that day is here: