October 2004

In case you missed it, the FCC released two very important broadband policy orders yesterday, one on broadband over powerline systems and one on “last mile” fiber deployment by telco operators. The thrust of both orders was quite deregulatory or “hands-off” in nature. In response to the fiber freedom order, Bell companies immediately announced plans to deploy more fiber-to-the-curb across America. This is not surprising; if you give companies firm property rights in their own lines and networks, they will deliver more services to customers. If you make them share their systems with all their competitors, they will be slow to innovate and deploy new networks and services to the public. Luckily, FCC regulators are finally learning this lesson.

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My latest C:\Spin article develops a methodology for determining when new legislation is needed to address bad online conduct. The skinny – first examine existing law, then consider whether new legislation will add not just a new law but a new ability or tool for law enforcement, and finally, assess educational opportunities and market initiatives.

Now that the Induce Act is dead, all eyes will be on spyware.

Much as we complain about government interference in the Internet here at home, its sobering to take a look at what’s happening abroad–most notably in China. Heritage last week released a Backgrounder by research fellow John Tkacik on “China’s Orwellian Internet,” outlining the situation there. According to the paper:

“The Internet once promised to be a conduit for uncensored information from beyond China’s borders, and for a brief, shining instant in modern Chinese history, it was a potential catalyst for political and human rights reform in China. However, for China’s 79 million Web surfers–the most educated and prosperous segment of the country’s population–the Internet is now a tool of police surveillance and official disinformation”.

It’s worth a look. And, if you missed it, you also should take a look at Adam’s excellent post on China the other day.

The FTC opened a new front in the war against spyware yesterday, filing charges against Sanford Wallace, claiming he has distributed software surreptiously installs itself on PCs, changed user’s home pages, install advertising programs, and even cause CD trays to fly open. Then, in what the FTC calls the very definition of “online chutzpah“–the programs would trigger ads offering to sell the victim anti-spyware programs at $30 a pop.

Reportedly, the fine could be 10,000 per violation. Given the vast number of computers thus infected, that could tote up pretty fast. Good. I hope its in the trillions. This is exactly the sort of case that the government should be bringing–against Internet vermin that are violating the rights of web surfers.

Notably, the case was brought under the FTC’s current authority to stop “unfair or deceptive” practices,” without any no new legislation from Congress. Supporters of legislation nevertheless argue that future cases may be harder to make under existing laws. Perhaps true, but we should try them before rushing in with new rules. That’s exactly what the FTC is doing, to Mr. Wallace’s chagrin, and to the delight of the rest of us.

FCC Commissioner Michael Copps jumped into the Sinclair imbroglio yesterday, calling the broadcaster’s decision to air an anti-Kerry documentary an “abuse of the public trust,” and decrying the power of media conglomerates.

Casual observers of this teapot tempest may be forgiven for thinking of the FCC as a white knight here, defending robust debate of the issues. In truth, the FCC’s own pot is more than a little black. Case in point: thanks to the FCC, presidential debates were, in effect, banned before 1976. This is because the Commission interpreted the “equal time” rule so as to forbid TV coverage of debates that didn’t include all candidates. Given that there are typically dozens of nutcases running for president, that made meaningful debates impossible.

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For those of you in the Washington area, on October 20th at 11:00, I will be moderating a debate about the Induce Act and contributory liability theories in copyright law. The event will take place at the Cato Institute (1000 Massachusetts Ave., NW) in our auditorium. It is open to the public.

The event will feature David Green of the MPAA and Mitch Glazier of the RIAA versus Markham Erickson of NetCoalition and Gigi Sohn of Public Knowledge. Should be a good debate. Please RSVP if you plan to attend because seats are going fast. Here’s the link to do so.

(By the way, for those of you too far away to join us, a few days after the event we’ll likely have a video of the event online).

According to this AP report, Chinese officials are now encouraging the entire population to rat each other out to stamp out online porn.

“Some 445 people have been arrested and 1,125 Web sites shut down with the help of public tips since July,” the story notes. The Ministry of Public Security gives people rewards of $60 to $240 for becoming good little servants of the state and infomring on their fellow citizens.

It’s all quite sad, but also somewhat silly. How far can this approach really take them? As many authors noted in the last book I co-edited, Who Rules the Net? Internet Governance and Jurisdiction, these geographic-based cyber-regulatory regimes are doomed to fail in the long-run. Barring a government mandate requiring all Net traffic to flow through centralized state servers (which is the approach Saudia Arabia has adopted), there’s no way to entirely bottle up the free flow of information (especially porn!) As wireless & satellite technologies proliferate, this will certainly be the case. But even in a predominately wireline world, the censors will have their hands full.

More on RFID

by on October 12, 2004

Here is a speech I gave on RFID the other day. I followed Katherine Albrecht of spychips.org, who is probably the world’s leading critic of RFID.

She’s very well-spoken and her presentation is thorough, but she makes a singular error: She takes at face value all the fantastic (at times, farcical) claims of people who are trying to build RFID systems and applications.

If I believed all the sales pitches that are out there, I’d be freaked out too. But I don’t, so I’m not. Please join me, dear readers.

Some groups and politicians are making a big stink about Sinclair Broadcasting’s decision to air a supposedly anti-Kerry documentary with the presidential election quickly approaching. Critics assert that:

(1) Sinclair is just another big media, pro-Bush lackey hell-bent on influencing the outcome of the election by airing this so close to voting day.

(2) It’s unfair for Sinclair to demand that its TV affiliates preempt other programming to air the documentary.

(3) It might be illegal for Sinclair to air the documentary less than 60 days before the presidential election since it could be considered “electioneering communication.” Under our current post-McCain-Feingold campaign finance election laws, “electioneering communication” refers to any form of communication that mentions candidates for federal office and is distributed within 60 days before a general election. Such forms of communication are banned on the theory that they “corrupt” our political system. News coverage is exempted from this ban, but debate over what constitutes “news” leaves the door open to much interpretation, as is the case here.

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I released a short essay today regarding the impact of Howard Stern’s move to satellite radio ont he future of media regulation and First Amendment jurisprudence. Is attached below. Here’s the formatted Cato link.

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