More From the “What’s the Point?” File

by on November 1, 2007 · 0 comments

Today and tomorrow, the Federal Trade Commission is conducting a “town hall” meeting on privacy issues and behavioral advertising. Except for ideas being floated that might be actually harmful, this thing should be ignored.

First of all, I always find it a little bit annoying when a federal agency holds what are essentially legislative hearings. There is a Congress – it’s authorized in Article I of the U.S. Constitution. If an issue is important enough to be the subject of national policy, the Congress should look at it, not a federal agency. After all, the federal bureaucracy isn’t listed in the Constitution until . . . um . . . oh! It’s not mentioned in the Constitution at all!

But if you don’t care about government conforming to the rule of law, this issue – ‘behavioral advertising’ – is something like ten years old. Behavioral advertising is just trying to learn Web surfers’ interests and serve them advertising that meets those interests. There are privacy issues there, but they’re not new, or even terribly interesting. One can’t help but assume that the bureaucrats and lobbyists involved in this thing are churning the issue just to maintain their own relevance and budget.

The privacy issues that matter – they did ten years ago, but much more so now – are about privacy from government. Sure, data collected by the private sector can be taken by the government, but that is not a reason to retard the private sector. It demands controls on the government.

Then there are the affirmatively bad ideas. A group of the usual suspects have submitted a proposal for a “Do Not Track” list to the Federal Trade Commission, modeled on the popular “Do Not Call” list that was implemented a few years ago.

The analogy between this two is . . . well, there’s no analogy. “Do Not Call” actually promotes seclusion more than true privacy (which, in its strongest sense, is control of information). The concern with Web tracking is control.

Because of the disanalogy, this kind of thing would not get uptake like Do Not Call did. Tracking is not annoying, so lots of consumers don’t know about it – and therefore aren’t annoyed by it.

Reducing tracking would mean reducing the value of advertising, which would impede Web publishing and the provision of Web services. Shrinking the utility of the Internet does not seem like a good idea.

Then there’s the stuff from the unintended consequences file. A “Do Not Track” infrastructure would easily be converted to censorship, a colleague of mine suggested to me today. And Congress has never seen an Internet censorship law that it wouldn’t pass.

This whole thing is more dumb than dangerous, but I think we’re due a tax refund, and a number of Internet companies could probably downsize their government relations staffs and spending.

Update: Writing earlier, I declined to deride having a “town hall” meeting at a federal agency conference room in Washington, D.C., but just now they began a “roundtable” discussion with panelists seated at a row of square tables facing the audience. What’s the next fiction? That the attendees are “the American people”?

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Citizendium Turns One. Point Still Unclear

by on November 1, 2007 · 0 comments

Larry Sanger has an essay touting Citizendium’s accomplishments over the last year. Apparently they’ve amassed a whopping 3,200 articles over the last year, and are adding about a dozen new article per day.

He puts a brave face on this, but it’s really hard to see how this is success. Wikipedia has 2 million articles, about 500 times as many as Citizendium, and it’s growing a lot faster. I decided to check out the articles on a few topics I’m interested, and most of them didn’t exist. No articles on the Cato Insititute, libertarianism, F.A. Hayek, or even copyright. There is an article on Milton Friedman, but it’s extremely short and frankly not very good. Take the first sentence: Friedman didn’t consider himself “a leader of American Conservatism in its libertarian aspect.” He called himself a liberal. The corresponding sentence in Wikipedia is “His political philosophy, which Friedman himself considered classically liberal and consequentialist libertarian, stressed the advantages of the marketplace and the disadvantages of government intervention, strongly influencing the outlook of American conservatives and libertarians.” That’s much more accurate and informative. The Wikipedia article on Friedman is also more than twice as long as the Citizendium article.

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Public Knowledge on Copyright Reform

by on November 1, 2007 · 0 comments

Public Knowledge has proposed some copyright reform principles. I agree with one of them. As for the rest… the “expansion” of copyright law that the proposed reforms are supposed to redress has come about in a context in which traditional enforcement mechanisms for copyright have become almost impossible to use. Given this problem, it is hard to see how the “expansion” as creating an imbalance–rather, it is a result of an imbalance created by technology. Unless one addresses the enforcement problem, one is not really addressing the “expansion” problem.

I do agree that music licensing needs work (proposal 4).

Re 1) Expanding fair use to include personal use etc. would create an exemption that would swallow almost all of copyright law.

Re 2) Why undermine the growth in licensing services since Sony was clarified and updated in Grokster? That is what a codification of the vast oversimplication of letting all and any “substantial non-infringing uses” behind a protective wall would do. If one is fond of the Sony case, one had better read the whole thing–and be aware of what it doesn’t hold, and it’s qualifications. If the law doesn’t keep up with technology, well, it can’t maintain balance very well.

Re 3) How about comparable penalties for overstating the rights of fair use? Or their importance? Or their role in the economy?

Re 5) Presumably consumers would get notice of contractual limits if they read the contracts… This no more needs to be legislated than any other aspect of the terms of sale. I do expect that market forces will continue to lead to improvements–there is room for those. In the end, though, what gets put front and center on the packaging ought to be determined by demand. Wrapping the entire package in fine print about what the technology can and can’t do (you can’t play it backwards like a movie reel… etc. etc.) is not likely to help anyone. It won’t get read.

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Further Notes on Patent Reform

by on November 1, 2007 · 2 comments

A letter signed by a number of groups nationwide, opposing the current reforms.

And Claude Barfield and John Calfee weigh in via the Wall Street Journal Online (subscription required). They argue among other things:

Before rushing to enact major changes, Congress should remember that its past reforms have often spawned new problems. For example, the Court of Appeals for the Federal Circuit, a specialized intellectual property court, was created in 1982 in order to centralize judicial decisions on patents and end forum-shopping. It accomplished that, by and large — but at the cost of producing a court, peopled largely by patent attorneys, that instinctively sided with patent holders, strengthened patent protection, lowered the bar for inventiveness (“non-obviousness” in patent-law jargon), and paved the way for large damages against alleged patent infringers.

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Bloggingheads.tv

by on October 31, 2007 · 4 comments

The media business in general and punditry in particular are currently seeing an explosion of clever new ways to deliver content. One of the most intriguing is bloggingheads.tv, a “diavlog,” meaning a blog featuring videos of pairs of talking heads. For example, my friend Will Wilkinson had a fascinating discussion with BH.tv founder Robert Wright about libertarianism and what’s wrong with Ron Paul. (Incidentally, everything Will says about Paul is true, but he’s still head and shoulders above the other candidates)

What prompted me to plug them here, though (aside from the shameless hope that sucking up to them will land me an invitation to participate) is that they’ve recently had a significant technology upgrade. They ditched the irritating WMP-based format they had before and replaced it with a Flash-based video player. Meaning that at least Mac users can watch videos without having to install proprietary plugins. (Linux users might still be screwed). They’ve also introduced “dingalinks,” which are permalinks for video. Awesome.

But best of all, they’ve added a feature that lets you watch videos at 1.4 times normal speed. That means I can watch Bob and Will have 75 minutes of conversation in 54 minutes. It’s absolutely fantastic. The biggest flaw with video-based blogging is that it takes so long to watch videos. I can read faster than most people can talk, so it’s an incredibly wasteful way to consume punditry. However, it turns out that people are perfectly understandable speaking at 1.4 times their normal speed. So I saved 20 minutes at the cost of Will’s voice being slightly squeakier than normal.

They post interesting discussions from insightful people several times a week, so I encourage you to check them out.

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The Other Holt Bill

by on October 31, 2007 · 0 comments

I’m a little slow on this, but I’ve finally had a chance to read through Rush Holt’s alternative to the House leadership’s (now shelved) FISA bill, and it’s a real breath of fresh air. It increases executive power in two relatively modest ways: by allowing domestic interception of foreign-to-foreign communications without a warrant and extending the deadline for getting after-the-fact “emergency” warrants from 3 to 7 days. The rest of the legislation is focused where this debate should have been focused from the outset: on ensuring that the executive and judicial branch actually have the resources required to do their job without sacrificing anyone’s civil liberties. It increases the number of judges on the FISA court, authorizes the DNI and the attorney general to hire more lawyers to fill out warrant requests, and requires that the FISA court decide on warrant requests within 24 hours.

Notably, unlike the House Democrats’ RESTORE Act, the Holt bill does not require the executive branch to file a blizzard of quarterly reports on all aspects of its surveillance activities. (It does require the president to immediately disclose to Congress what programs are already being undertaken) It doesn’t require them because they aren’t needed: individualized warrant applications are a much more reliable check on executive branch abuses. The RESTORE Act, in contrast, gave the executive branch much broader discretion to engage in warrantless wiretaps when one end of a call was overseas, and the reporting process was essentially a stopgap to paper over that deficiency.

In a sane world, the Holt bill would be the reasonable compromise between a White House that wanted more authority and liberal Democrats who are wary of a White House with a dismal civil liberties record. Instead, we live in a bizarro world in which the Democrats’ initial offer is significantly more permissive, and the White House is complaining that even that doesn’t give them nearly enough power.

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Unsavory Domain Tasting – ICANN Starts to Take Action

by on October 31, 2007 · 2 comments

Domain name tasting was on today’s ICANN agenda at the meeting in LA. The GNSO Council, which represents commercial and noncommercial interests, considered this unsavory issue and voted to take a more thorough look at domain name tasting.

What is domain name tasting? It refers to an abusive practice in which speculators look for the best domain names where they can park ads, and take advantage of a five-day grace period between the time a new domain name is reserved and the time the registration fee must be paid.

Speculators routinely register large numbers of potentially attractive domain names and then carefully track how many accidental hits they generate. If a site fails to generate much traffic, the speculator can let the domain name lapse without paying anything.  But if the site generates a lot of traffic, the speculator can use it to park ads, often from one of the large managed Web advertising networks like Google, and generate significant revenue with no effort.

WIkipedia describes the controversy:

The practice is controversial as practitioners typically register many hundreds of thousands of domain names under this practice, with these temporary registrations far exceeding the number of domain names actually licensed. In April 2006, out of 35 million registrations, only a little more than 2 million were permanent or actually purchased. By February 2007, the CEO of GoDaddy reported that of 55.1 million domain names registered, 51.5 million were canceled and refunded just before the 5 day grace period expired and only 3.6 million domain names were actually kept.

All this tasting taxes the DNS network, and increases the costs and burdens on legitimate registrants. Moreover, the ICANNWiki describes the consumer harm as follows:

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Sticky Technology and Patent Policy

by on October 31, 2007 · 2 comments

Yesterday I had the pleasure of attending a Show-Me Institute conference on education policy. One theme that was echoed by a number of conference participants is that after decades of study, researchers have been unable to quantify what makes a good teacher or a successful school. We know that certain schools, such as KIPP, work much better than other schools. But replicating those successes at scale has proven maddeningly difficult. When someone tries to take a successful school and use it as a model for producing a large number of equally successful schools, something invariably gets lost in translation. Generally speaking, a successful school can only be replicated through a labor-intensive process of apprenticeship, in which key personnel for the new school spend several years at the existing school learning the details of how it works. Obviously, that makes the process of replicating successful agonizingly slow.

I’ve read (although I can’t find a good source right now) that development economists in the mid-20th century discovered similar problems when they tried to export American technology to third-world countries. They hoped that if they helped poor countries build American-style factories and sent them manuals and technical advisors to explain how to use them, that those third-world countries could start producing manufactured goods and rapidly increase their standard of living. Unfortunately, things didn’t work out that way. Duplicating American infrastructure overseas turns out to be a lot more complex than anyone imagined.

In short, a central problem in both education policy and development economics is that technology is surprisingly sticky. Merely observing someone do something innovative is almost never sufficient to replicate that innovative activity elsewhere. Policy wonks in both fields would love to find a way to mass-produce successes, but that turns out to be maddeningly difficult. Tacit knowledge turns out to be surprisingly important.

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Spitzer Angles for an Exit

by on October 31, 2007 · 0 comments

I imagine New York Governor Eliot Spitzer wishes he never stepped in the driver’s license issue. His original decision to use the New York driver’s license as a driver’s license rather than an immigration enforcement tool was correct. But it was met with caterwauls of derision by the virulent anti-immigrant crowd. He backed down and committed his state to the federal REAL ID Act, a national ID scheme that is basically in collapse.

In an interview on CNN this morning, I think he revealed how he intends to split the difference. Describing the two kinds of licenses he intends to have in the state beyond the passport card (for “Buffalo and along the Canadian border”), he said:

A Real ID license that people will get if they want to have perhaps an easier time at an airport. Another one if you already have a passport. You will not need to pay the extra fees, et cetera. So, two separate licenses. Both valid, both legitimate.

My read of that is that he will not encourage New Yorkers to get REAL ID-compliant licenses. Those will cost more and be more difficult to get, so perhaps the majority of New Yorkers won’t have them. They will use passports for those rare “U.S. government purposes.”

Though he blew it when he caved to the anti-immigrant groups, Governor Spitzer is right to suggest that New Yorkers wanting a REAL ID-compliant license should pay the full cost of getting one.

Especially when a significant number of New Yorkers decline to go the REAL ID route, the cost per card will be enormous and, ultimately, I doubt that New York will actually implement REAL ID. When the governor and state legislature discover the cost of what he’s committed them to, they’ll get together on declining to participate in the national ID system.

Update: Here’s an article roughly confirming my thesis about Spitzer’s strategy.

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What Should ICANN do about WHOIS?

by on October 30, 2007 · 11 comments

One of the largest issues to be considered here at the Los Angeles ICANN meeting is about WHOIS. As the AP reports, there are proposals to eliminate the WHOIS database, modify the information process, or call for more studies. Indeed, there’s a lot of people interested in this topic, particularly privacy advocates on the one side and trademark owners on the other.

But there’s more to this issue than privacy and IP rights. The reality is that WHOIS is important for law enforcement to track criminals that steal personal information.

What is WHOIS? It’s the publicly available database that reveals the contact information for who owns a domain name.  ICANN has grappled about what to do with WHOIS for a long time, and this week we’ll see action by ICANN’s board of directors as to whether to approve a new proposal to create an operational point of contact (OPoC) or to even eliminate WHOIS, so that registrants don’t have to provide their contact information for the whole world — or the dictator in an authoritarian country — to see.

This is a controversial proposal. Registrars – the websites that you go to to register a name – would love to see OPoC because it gives them another point of revenue. They’d be the ones that could operate the systems to designate an OPoC. But there are a lot of questions raised. How does a point of contact relay information to the registrant? How quickly would it have to respond to law enforcement? Or a trademark owner?

In addition to the OPoC supporters, there are those that would like to abandon WHOIS entirely. This would be a mistake, as Saul Hansell writes in his New York Times blog:

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