Berin has already done a fine job tearing apart this latest effort by 10 activist groups to break the Internet by imposing burdensome regulation or punishing legal liability on Internet operators for the crime of trying to deliver relevant advertising to users that can actually pay for the content and services given away to users for free. To that, I would add my deep disappointment that the Electronic Freedom Foundation (EFF) choose to join this cabal.  After all, the other members of the coalition are frequently heard calling for regulation of one variety or another. But EFF always prides itself on supposedly avoiding online regulatory schemes.  That’s what makes it so surprising that they chose to jump on this bandwagon for an Internet industrial policy in the name of “protecting privacy.”

EFF’s embrace of regulation is particularly inconsistent given their excellent filing in the FCC’s “Child Safe Viewing Act” proceeding this summer.  As I’ve previously noted, this proceeding raises the specter of “convergence-era content regulation” with Congress authorizing the FCC to look into “advanced blocking controls” for “wired, wireless, and Internet” platforms.  EFF’s comments rightly stressed dangers of expanded content controls or Internet regulation, and noted the many “less-restrictive means” available to the public that provide compelling alternatives to government regulation:  “Blocking technologies are widely available in the market and do not require further government support.”  And EFF has been instrumental throughout the years of making the case in courts for applying the less-restrictive means test and strict scrutiny when it comes to government efforts to regulate speech.

Why, then, does EFF take the diametrically opposite position when privacy concerns enter the picture? Berin and I appreciate the concerns some people have about their online privacy, just as we appreciate the concerns others have about media content or online child safety. But the only really important question here from a legal perspective is: Do people have tools and methods at their disposal to handle these concerns for themselves, or must government intervene and play Big Momma for them?

Berin and I have argued that citizens have more tools and methods at their disposal than ever before that enable them to make decisions for themselves and their families—both for parental controls and privacy-protecting technologies. In fact, we believe a good case can be made that privacy controls are actually superior to parental controls in terms of providing protection against the concerns at issue. That doesn’t mean privacy controls are perfect, but when properly configured, they can actually do a better job protecting user privacy than parental controls can against objectionable content.

So then, if current-generation privacy controls represent superior “less-restrictive means” to current generation parental control technologies, why does EFF support government regulation for privacy but not for child safety? It doesn’t make any sense to me.  They should be consistent in their support for real Internet freedom.

Texting while driving is generally a bad idea, since it involves taking one’s hands off the wheel and eyes off the road. While not wearing your seatbelt in a car or a helmet on a motorcycle probably only risks your own life, there’s a good argument to be made that distracted drivers put the lives of others at risk. The WSJ reports that 17 states have banned texting while driving outright. But is such regulation really the best way to address the problem?

Technological Empowerment. The WSJ highlights innovative technological solutions that:

1. Block calls and texts while the user is driving; OR
2. Let drivers “speak” their texts using voice-to-text technology.

Those who consider even hands-free cell phone use unsafe will probably insist on the more draconian blocking solution—and want government to mandate it! Such mandates would indeed probably be more effective than relying on the police write tickets to drivers they see texting while driving (especially since such offenses, like calling while driving, usually require some other, more serious offense before an officer can pull over a driver). But do we really need the government telling us when we can use a technology that really might be essential in certain circumstances, or totally safe in others (say, when we’re behind the wheel but stopped at a long light or in a traffic jam)?

The fascinating thing is that these solutions need not be mandated by government: At least some users will actually pay for them! Why? Because, sometimes we’re better off by being able to “bind” our future selves—just as Ulysses asked his crew to tie him to his ship’s mast so he could enjoy the Siren’s enchanting song without giving in to their spell. Similarly, these texting-blocking technologies empower users in three senses:

1. Some users know they shouldn’t text while driving but—like smokers and people who casually pick their noses—just can’t stop, so they want external discipline;
2. Others just want the monthly discount on their car insurance; and
3. Parents want to make sure they can discipline their children, who have a hard time resisting the impulse to pick up the phone.

Obviously, there are limits to how far reasons 1 and 3 can go.  Reason #1 requires at least a desire to change: As the young playboy Saint Augustine prayed, “Lord, make me chaste—but not yet!” Reason #3 requires private sector paternalism in the most literal sense. But reason #2 requires nothing more than the self-interest of users and insurance companies, which can happily coincide with road safety given the right technology. I suspect this solution is much more likely to be effective than simple government mandates, much as insurance company discounts for having smoke detectors, fire extinguishers and sprinkler systems in your home or office are probably more effective at promoting such technologies than the threat of a fine from a government inspector.

Education. Here, as elsewhere, the “less restrictive” alternative to regulation isn’t technological empowerment alone, but empowerment in combination with education. As Adam said in 2007 of anti-cell phone effort: “Banning In-Car Technologies Won’t Work.”

The proper solution here is education, not regulation. During driver training education, teenagers and other new drivers need to be taught the importance of keeping both hands on the wheel and their eyes pointed straight ahead at the road. Operating a vehicle is serious business with serious repercussions if you ignore basic rules of driving safety. But that doesn’t mean you shouldn’t have access to communications / entertainment devices while in your car. We just need to teach new drivers how (and when) to use them properly. For example, set up playlists in your iPod and start them running before you pull out of the driveway. And program the preset buttons on your car stereo or satellite radio device so you can switch stations without looking. If you have to scroll to find something new to listen to, try to do it when you’re at a stop light, not when you’re driving down a busy street with a lot of pedestrians around.

If governments really want to “do something” for road safety, they should build awareness of technological empowerment solutions, especially among parents and kids. They can also fund public service announcements like this one, which is not for the faint of heart:

http://www.youtube.com/v/DGE8LzRaySk&eurl

By Adam Thierer & Berin Szoka

Whatever ordinary Americans actually think about online privacy, it remains a hot topic inside the Beltway. While much of that amorphous concern focuses on government surveillance and government access to information about web users, many in Washington have focused on targeted online advertising by private companies as a dire threat to Americans’ privacy — and called for prophylactic government regulation of an industry that is expected to more than double in size to $50.3 billion in 2011 from $21.7 billion last year.

In 1998, when targeted advertising was in its infancy, the FTC proposed four principles as the basis for self-regulation of online data collection: notice, choice, access & security. In 2000, the Commission declared that too few online advertisers adhered to these principles and therefore recommended that Congress mandate their application in legislation that would allow the FTC to issue binding regulations. Subsequent legislative proposals (indexed by CDT by Congress here along with other privacy bills) have languished in Congress ever since. During this time self-regulation of data collection (e.g., the National Advertising Initiative) has matured, the industry has flourished without any clear harm to users and the FTC has returned to its original support for self-regulation over legislation or regulatory mandates.

But over the last year, the advocates of regulation have succeeded in painting a nightmarish picture of all-invasive snooping by online advertisers using more sophisticated techniques of collecting data for targeted advertising. The Federal Trade Commission (FTC) has responded cautiously by proposing voluntary self-regulatory guidelines intended to address these concerns, because the agency recognizes that this growing revenue stream is funding the explosion of “free” (to the user) online content and services that so many Americans now take for granted, and that more sophisticated targeting produces ads that are more relevant to consumers (and therefore also more profitable to advertisers).

The Hill has responded by holding hearings, sending out angry letters to online advertisers, and demanding that ISPs cease experimenting with a new form of online behavioral advertising (OBA) based on packet inspection. Some in the think tank community have cheered this on, demanding draconian regulation. But before rushing to regulate — and potentially choking the economic engine fueling “free” online content and services — policymakers should be asking whether alternatives to command-and-control regulation can adequately address privacy concerns.

We are in the process of penning a major study on this debate, which will challenge those who are calling for regulation to:

(1) Show us the harm or market failure.

(2) Prove to us that no less restrictive alternative to regulation exists.

(3) Explain to us how the benefits of regulation outweigh the costs.

It is that second point that we would like to focus more on in a series of upcoming (and likely ongoing) blog entries.
Building on the excellent work of our TLF colleague Ryan Radia, we plan to detail the many “technologies of evasion” (i.e, empowerment or user “self-help” tools) that allow web surfers to better protect their privacy online — and especially to defeat tracking for OBA purposes. These tools and methods form an important part of a layered approach that, in our view, provides an effective alternative to government-mandated regulation. Such an approach would also include user education, self-regulatory schemes like the National Advertising Initiative, and FTC enforcement of privacy policies.

Before one can determine the true necessity for government intervention (and, indeed, its constitutionality), one must understand the availability, sophistication and convenience of the technologies of evasion we will describe. In an important 2001 Cato Institute paper, our TLF colleague Tom Bell argues that web surfers must bear some of the responsibility for protecting themselves online, just as they do with regards to potentially objectionable (i.e., “indecent”) online content:

Digital self-help makes unnecessary state action limiting speech that is indecent or harmful to minors. The same argument applies to state action that would limit speech by commercial entities about Internet users. Digital self-help offers more hope of protecting Internet users’ privacy than it does of effectively filtering out unwanted speech, and the availability of such self-help casts doubt on the constitutionality of legislation restricting speech by commercial entities about Internet users. From the more general point of view of policy, moreover, digital self-help offers a better approach to protecting Internet privacy than does state action.

What Bell means is that the digital “self-help” tools that consumers rely on to protect themselves or their children from objectionable content must always confront the subjective problems associated with defining what is indecent or obscene. Thus, even though Internet filtering tools and other parental controls can generally offer a very effective means of blocking access to objectionable content, at the margins there will always be definitional controversies. By contrast, the privacy self-help tools we will describe are much more likely to provide an effective shield because those consumers who are truly sensitive about their online privacy can make far more definitive choices about allowing or disallowing cookies or certain types of personal information from being collected/tracked for targeted advertising purposes.

Finally, Bell correctly notes that “digital self-help” is more likely to be effective than regulatory solutions for a variety of reasons–not least of which is the fact that truly “bad” actors on the Internet are rarely stopped or even discouraged by regulation from doing bad things online where we are talking about the pure exchange of bits (as opposed to purchases or shipments) because they can generally continue their activities from off-shore. In such cases, technical means are the only way of stopping such activities.

We invite you to share examples of technologies of evasion with us as we go along.
And we hope that our TLF colleagues might chime in with entries of their own as they find examples of privacy-enhancing technologies that privacy-conscious web surfers can employ to take privacy in their own hands.

– Adam Thierer & Berin Szoka