On this week’s John Stossel show on Fox Business Network, I debated Internet privacy, advertising, and data collection issues with Michael Fertik of Reputation.com. In the few minutes we had for the segment, I tried to reiterate a couple of keep points that we’ve hammered repeatedly here in the past:

• There’s no free lunch. All the free sites and service we enjoy online today are powered by advertising and data collection. [see this op-ed]
• There is no clear harm in most cases, or what some argue is harm also can have many benefits that are rarely discussed. [see this paper.]
• There’s little acknowledgement of the trade-offs involved in having government create an information control regime for the Internet. [see this filing and these three essays: 1, 2, 3.]
• The ultimate code of “fair information practices” is the First Amendment, which favors free speech, openness, and transparency over secrecy and information control. [see this piece.]
• “Hands Off the Net” is a policy that has served us well. There are dangerous ramifications for our economy and long-term Internet freedoms if we continue down the road of “European-izing” privacy law here in the States. [see this essay and this filing.]
• At some point, personal responsibility needs to come into the equation. With so many privacy enhancing empowerment tools already on the market, it begs the question: If consumers don’t take steps to use those tools, why should government intervene and take action for them?

Anyway, here’s the 7-min video of the debate between Fertik and me:

San Antonio too.

According to the Threat Level blog, the Obama Administration has declared the text of a proposed Anti-Counterfeiting Trade Agreement a national security secret.

Thing is . . . it can’t be. And that would also be contrary to Obama administration policy.

I’ve been catching up on Radio Berkman, the podcast produced by our friends at the Berkman Center for Internet & Society and a great companion to the TLF’s own Tech Policy Weekly Podcast.  There’s been a lot of talk about government transparency on the TLF lately, including TPW 40: Obama, e-Government & Transparency.  But that conversation has been mainly focused on how to make “public” records accessible.

The most recent Radio Berkman episode, “Can you Keep a Secret?” explores the thorny questions about what should be deemed public in the first place, and what should be classified:

The government keeps secrets. We take that for granted. But should we? Some speculate that intelligence agencies and elected officials are a little bit trigger happy with the “Top Secret” stamp, and that society would benefit from greater openness. With the government classifying millions of pages of documents per year – in a recent year the U.S. classified about five times the number of pages added to the Library of Congress – a great deal of useful human knowledge gets put under lock and key. But some argue that secrecy is still crucial to our national security. Radio Berkman pokes its head into a recent talkback with the directors of the film  Secrecy, Harvard University professors Peter Galison and Robb Moss. They are joined by Harvard Law School professors Jonathan Zittrain, Martha Minow, and Jack Goldsmith.

I look forward to seeing the film (when it comes out on Netflix).  

What I found most interesting was the discussion of the essential trade-off in the relationship between the media and the state has always been between the media’s “independence” and its “responsibility” (~33:30 in).  Even the staunchest critics of the national security state would probably accept that there are some stories in the media shouldn’t publish because they’d jeopardize the safety of Americans.  But we all want the media to blow the whistle on the bad stuff that goes on behind a veil of secrecy.  Drawing that line is a terribly difficult task.  But it becomes even more complicated with the decline of traditional professional investigative journalism and the rise of blog/amateur journalism.  

I’m generally not very sympathetic to the chicken-littleism of those who bemoan the fact that journalism is being forced to evolve and innovate by technological change, but on this point, it does indeed seem more likely that the increasingly diffuse media will act less “responsibly” by running stories that really shouldn’t be run.  As one of the panelists points out, the problem is not so much that journalists (of whatever kind) don’t want to be responsible; it’s that they can’t possibly know enough about the context of their story to appreciate why publishing the story might be damaging in surprising ways (such as exposing the capability of U.S. spy satellites by publishing a photo of a Soviet tank).  In the “good” old days of media scarcity, the small number journalists whose beat touched on national security had the luxury of being able to think through their stories and having personal relationships with someone inside the government who could be relied on to tell them whether the story really shouldn’t be run or, even more importantly, which particular aspect of a story truly deserved secrecy.  

The panelists also touched on a separate danger:  the “independence” of media will suffer from economic dependence on the government.  Would a newspaper sucking at the teet of government bail-outs really have run photos of American soldiers torturing prisoners at Abu Ghraib, for example?  Herein lies a secondary danger of the rise of Internet journalism—that traditional media will become less effective watchdogs as their bottom line suffers and government starts to supplement income once provided by advertising revenue.  Were classified ads the very thing that kept newspapers independent?  What will happen if newspapers cannot shed their physical distribution costs, or find new sources of revenue in the form of smarter advertising, subscriptions, micro-payments or donations?  Adam Thierer has discussed these tough questions and others.

Other interesting points:

• Protective orders no longer offer an effective safety valve by which certain parties can gain access to classified materials because the ease of Internet publishing means that such orders too often lead to disclosure.
• 80% of leaks of classified documents are made by persons inside the Executive branch for political purposes (usually in order to advance a pet policy).  If that’s true, then maybe the “problem” (to the extent that leaks really are a problem, as some leaks certainly are) is more on the “supply” side (at the leaks’ source) and less on the “demand” side (investigative journalism).  If so, perhaps the ethics of journalistic responsibility matter less than we might think.