October 2007

Freedom of Speech

by on October 29, 2007 · 4 comments

John McCain cuts an ad:

Fox News sends him a nastygram

Here’s a way Hillary Clinton can earn some geek brownie points at effectively no cost:

As the networks who have promised to (effectively) deliver free presidential debates have shown (CNN, NBC, ABC), even when free, it is still worth it enough to at least some. And in a world with YouTubes and p2p technologies, some networks are plainly enough. If Fox demands control, presidential debates don’t need Fox. It is time that the presidential candidates from both parties stand with Senator McCain and defend his right to use this clip to advance his presidential campaign. Not because it is “fair use” (whether or not it is), but because presidential debates are precisely the sort of things that ought to be free of the insanely complex regulation of speech we call copyright law. Indeed, as the target of the attack, and as one who has been totally AWOL on this issue from the start, it would be most appropriate if this demand were to begin with Senator Clinton. Let her defend her colleague’s right to criticize her, by demanding that her party at least condition any presidential debate upon the freedom of candidates and citizens to speak.

On the other hand, it’s hard to imagine a more favorable test case for fair use of video, so I’m sort of hoping neither party backs down and we get a solid ruling that making short clips of prominent public policy discussions is a fair use.

In the heat of the Comcast Kerfuffle last week, Steve R. made some comments that I thought were important. In response to my “Market Meme” post, for example, he said:

Regulatory intervention is the outgrowth of companies doing underhanded and unethical behavior on a consistent and long term basis. So if we don’t want regulation why are there no calls for these companies to act ethically to begin with?????

Since there are no posts suggesting that these companies act ethically, the implicit assumption is that it is OK for companies to “steal” from customers until caught. Once caught, to quickly apologize (as a demonstration of how the free market works to regulate itself) and to then initiate a new hidden scheme to defraud the consumer until caught again, and again, and again, and again.

Consumer vigilance it a vital ingredient to a free market, but so is ethical and open corporate behavior. If you don’t want regulation, behave responsibly.


[I]f the posters on TLF want a free market, without regulation, they must demand that corporations act ethically.

These are fair comments that deserve some consideration. Where’s the call for ethical business practices in the TLFosphere?!

Here’s my thinking:

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Has anyone actually found anything on the FCC’s website? If so, they should consider themselves lucky. Fcc.gov has long been a source of frustration for me as I constantly find myself going in cybercircles looking for the simplest of documents or information. Apparently, I’m not alone in my frustration — Mike Marcus — a former FCC staffer — recently ranted about the site in his blog. Calling the it the “nation’s communications policy attic” he dissects the problems with the website, ranging from the lack of a usable search engine to the endless clutter. Anyone who has tried to extract information from the site — god forbid without already knowing by heart the magic docket number of the specific proceeding they are interested in — will find themselves nodding in agreement.

How ironic that the nation’s communications policy agency — whom many want to take responsibility for regulating the Internet — cannot itself communicate on the web.

Kudos to Marcus for bringing this up. When he was with the FCC, Marcus (with whom I had the opportunity to work) was among the rarest of breeds — a professional bureaucrat who fought against bureaucracy. He apparently hasn’t changed now that he’s in the private sector.

(Hat tip to Jerry Brito for pointing me to Marcus’ piece.)

A few links to discussions of the current patent reform legislation:

From Matt Buchanan’s Promote the Progress; cheaper iPods, fewer cures?

Robert Armitage on how the courts have beaten Congress to the punch.

And a quote from Robert Cresanti, now with Ocean Tomo:

“[Ocean Tomo] will still proceed with the exchange (even if pending Congressional reforms pass), but many patents may be devalued.”, he warned. “Our hope is the Senate will come around to the same conclusion we have – that there is no pressing need for reform in light of what the courts and USPTO have done.”, he added.

Forget blogs and podcasts. The Free State Foundation and the Institute for Policy Innovation are hosting a good old-fashioned teraspace policy conference this Tuesday, October 30 in Washington D.C. Titled the “Federal Unbundling Commission?” (you can do the acronym on your own), the theme of the half-day event is the FCC’s penchant for unbundling communications services — from broadband to telephony to television. With Sen. Jim DeMint, Rep. Marsha Blackburn and FCC Commissioner Deborah Tate on the agenda, it promises to be an interesting and informative morning. (I’m also on the agenda, but try not to let that deter you.)

Hope to see you there. Click here to RSVP.

Wow. A brief 36 days is all it took New York Governor Eliot Spitzer (D) to abandon his stance on driver licensing and New Yorkers’ public safety. As I wrote at the time, Spitzer got it right when he announced that he would de-link driver licensing and immigration status because of the safety benefits to the state’s drivers.

But shrill attacks from anti-immigrant groups came fast and furious. A small group of 9/11 victims’ family members, grief curdled into hatred of immigrants, regularly bandy fear and their loved ones’ memories for political purposes. And they did so with relish when Spitzer announced his plan. It’s crassness that one would expect a New York pol to stare down.

But Spitzer, unable to withstand the heat, seems to have gone scrambling for an out. The New York Times reports that Spitzer will team up with DHS officials today to announce New York’s planned compliance with the REAL ID Act. It requires proof of legal presence to get a compliant license.

This a flat out reversal of the position Spitzer took just over a month ago. The justification he gave – correctly – for de-linking licensing and immigration status was New Yorkers’ safety. With driver licensing treated as an immigration enforcement tool, illegals don’t get licensed, don’t learn the rules of the road or basic driving skills, and don’t carry insurance. When they cause accidents, they flee the scene, leaving injured and dead New Yorkers and causing higher auto insurance rates. As I noted a few weeks ago during his brief flirtation with principle and fortitude, “Spitzer is not willing to shed the blood of New Yorkers to ‘take a stand’ on immigration, which is not a problem state governments are supposed to solve anyway.”

He may try, but Spitzer can’t honestly claim that he’s being consistent. New York’s compliance with REAL ID, were it actually to materialize, would put REAL ID compliant cards in the hands of citizens and make New York driver data available to the federal government. Thus, possession of a non-REAL-ID-compliant license would be tantamount to a confession of illegal status. Thanks to Spitzer’s flip-flop, illegal aliens will now recognize that getting a license merely provides federal authorities the address at which to later round them up for deportation.

Needless to say, they’re not going to get licenses, and the safety benefits Spitzer correctly sought for New Yorkers just 36 days ago will not materialize. The result is what’s known in regulatory circles as risk transfer. There will be more injuries on New York’s roadways so that the U.S. can have a national ID system. Alas, the security benefits of that system, as I showed in testimony to the Senate Judiciary Committee, are negative.

I was impressed and surprised by how right Spitzer had gotten it when he delinked driver licensing and immigration status in New York. I’m once again impressed, but in a much different way, by how quickly he went scampering away from this good policy. The reactionary critics of his policy obviously really got to him.

Update: The ACLU has issued a release slamming Spitzer’s decision.

Update II: The ACLU has blogged it up too.

We Didn’t Start the Viral

by on October 26, 2007 · 0 comments

And neither did Julian.

Just when you think the debate over media ownership regulation in this country can’t get any more absurd, along comes this letter from FCC Commissioner Michael Copps arguing that Rupert Murdoch’s deal for the Wall Street Journal should be blocked to somehow save the nation (especially those poor New Yorkers) from an evil media monopoly. “It will create a single company with enormous influence over politics, art and culture across the nation and especially in the New York metropolitan area.”

PUH-LEASE! How can someone make such an argument with a straight face? Rupert Murdoch is going to control “the politics, art and culture” of the nation with the WSJ?? Come on, get serious. The Journal isn’t exactly the standard-bearer when it comes to setting artistic or cultural trends for the nation. And the argument that Murdoch is somehow going to control “the politics, art and culture” of the New York area with the Journal is even more absurd. Is there really any shortage of inputs in the New York area when it comes to those things? Are the artsy-fartsy liberals of NYC suddenly going to wake up one day, start reading the Journal, and completely change their lifestyles? Please.

Anyway, I wrote a much longer essay for the City Journal back in August predicting all this “Chicken Little” nonsense would be coming. As I said then:

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Over at Ars, I have a new article pointing out that there’s probably an inverse relationship between the number of people on the government’s various terrorist-suspect lists (the GAO just reported that there are now 750,000 people on the largest “watch” list) and the effectiveness of those lists. There can’t be anywhere close to three-quarters of a million terrorists in the world, so all a list that size accomplishes is to dilute law enforcement and intelligence resources and ensure that the real terrorists won’t get the required scrutiny.

I also argue that while there’s a pretty good argument for an international watch list, it’s awfully hard to justify using such a list domestically:

If government officials have concrete evidence that an American person is engaged in terrorist-related activities, then the government should be doing a lot more than putting that individual on a no-fly list. They should be actively investigating the individual, tapping his phone, reading his email, monitoring his financial transactions, and generally gathering the evidence required to either clear his name, deport him, or arrest him.

If, on the other hand, the government doesn’t have enough evidence of terrorist ties to justify starting an investigation against an individual, then it’s unreasonable, not to mention a waste of law enforcement resources, to ban him from flying on airplanes or subject him to heightened scrutiny every time he goes to an airport. The sheer number of people on the selectee list and the high rate of false positives may be one reason that screeners do a legendarily bad job finding simulated weapons in security tests. The resources now spent on screening tens of thousands of selectees—most of whom turn out to be false positives—would be far better spent on additional FBI agents to do in-depth investigations of people with actual terrorist ties.

This argument is, of course, cribbed from my colleague Jim Harper’s excellent book on ID cards and privacy.

Regulations.gov, the federal government’s centralized regulatory docketing system that I look at in my new transparency paper, recently won an award from Government Computer News for “combining vision and IT innovations with an attention to detail and a willingness to collaborate.” The result of that award-winning combination, however, is not impressing everyone. A few days later the Congressional Research Service issued a report that catalogs the site’s shortcomings.1 (Another great dissection of Regulations.gov was performed by BNA and reported that “Cornell students studying human-computer interaction, when asked to evaluate the E-Rulemaking Web site’s public interface in early 2006, rated it ‘absolutely horrific[.]'”)

What’s striking to me is how what many believe is an unsatisfactory product is hailed as a success. Despite the hard work that many civil servants no doubt expended trying to make Regulations.gov a useful site, one has to admit it is confusing and difficult to use. Increased traffic is often cited by OMB in reports to Congress (PDF) as a measure of success. Increased web traffic was also mentioned in the GCN story about the award.

Looking at traffic, however, is tallying output, not outcomes; measuring activity, not results. One could conceivably build a website so unnavigable that it results in the number of “web hits” quadrupling because users have such a hard time finding what they need or because they have to click through many links before getting to what they want. Also, a total traffic number is difficult to judge. Are 150 million “hits” a good thing? Relative to what? Who knows.

Instead, what I’d like to know is whether Regulations.gov is making it easier for citizens to find and comment on regulatory proceedings. I see from the site’s “What’s New” section (I’d link to it but I can’t because the site uses 1990s-style frames technology2) that they conduct a regular “customer satisfaction survey.” I’d like to see those results published on the web. That sounds to me like a much better measurement of the site’s effectiveness.

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