June 2008

MINNEAPOLIS, June 6 – The Internet has opened up so many possibilities for communication that the most important concern about the media isn’t broadcast television ownership, but about threats from cable and Bell companies, said Free Press Executive Director Josh Silver.

“The conferences of yesterday [dealt with] blocking consolidation of media ownership, and trying to reform the media,” said Silver, speaking at a press conference at the National Conference for Media Reform at the opening of the conference here on Friday.

Today, by contrast, the non-profit advocacy group Free Press finds that “we have to embrace the reality that every Web site can be a TV network, or a radio network, and that we have an opportunity to fundamentally break the bottleneck” of the media, said Silver.

Continue reading Media Reform Now About Internet, Not Broadcast Ownership, says Free Press

Orin Kerr has a post up on the Volokh Conspiracy addressing my post here on his draft paper defending the third-party doctrine.

He echoes back the divide between us on what should animate analysis of the Fourth Amendment:

I treat the Fourth Amendment as a doctrine about criminal procedure, while Jim treats it as a way of ensuring a free society. The two approaches lead to very different criteria for analyzing Fourth Amendment rules. My approach generally focuses on whether rules pragmatically balance public safety and civil liberties in a regime backed by the exclusionary rule, whereas Jim’s approach looks to what is necessary to protect civil liberties and generally assumes that other legal mechanisms can take care of public safety concerns.

I do treat the Fourth Amendment as a tool for ensuring a free society, but I don’t put the “free society thesis” ahead of the text of the amendment, which I parroted repeatedly in my post. It’s odd – though well within mainstream legal thought – to treat as criminal procedure a part of our fundamental law that makes no mention of criminals whatsoever.

Kerr raises the original meaning of the amendment – actually, what motivated its authors. I’m not sure why he does this – to justify not working with its actual text? According to one scholar, the intent of the Framers in the Fourth Amendment was to prevent general warrants. They did this and proscribed unreasonable searches so, whatever their intention, they included more in the amendment. And I maintain that it was to secure the people against unreasonable searches, because that’s what it says.

“I suspect many criminal procedure scholars are drawn to this notion because many crimpro scholars are strongly civil libertarian,” Kerr says. “But the judges see themselves doing something very different; they see themselves figuring out the rules of criminal investigations. As a result, judges normally find most Fourth Amendment scholarship pretty unhelpful.”

He is writing for these judges: “My general approach is to work within the consensus understanding held by the rulemakers and to think about how to apply that understanding rather than to change it.” Kerr characterizes his work as “descriptive: I think this is what the Fourth Amendment means because this is what the Justices and the judges think it means.”

But there’s a problem with this claim: His paper is called “The Case for the Third-Party Doctrine” (emphasis added) and it provides justification for that doctrine. That’s not description. Would you believe it if a lineman in a football game stood up between plays and said, “Y’know, I’m not really in this.”

But before I’m sucked under by the legal-academic vortex Kerr threw in front of me, I should note that he never addresses my challenge to his theory of technological neutrality:

The interplay of the Fourth Amendment and technology is interesting, but I don’t think technological neutrality is a terribly relevant or useful metric for Fourth Amendment doctrine. Since the Fourth Amendment was adopted, technology has certainly shifted the scope of human enterprise. I imagine that in the late 1700’s most everything of deep import to people’s lives—personal and professional—happened in or near the home, so it was natural that the home was a place of high Fourth Amendment protection, and “home” was a useful proxy for “what should be protected.”

Since then, technological changes of all kinds have given us the freedom to take our lives outward. We move around much more within our communities and from one to another; we stay in different places and move our residences much more often; we communicate and transact using new technologies; and our things—both tangible and digital—come to rest many more places than they used to.

What matters is not maintaining “technological neutrality,” but maintaining people’s security in their persons, houses, papers, and effects despite changes in technology. Kept in place, the third-party doctrine will cause changes in technology to undermine people’s privacy. It must be abandoned to preserve the privacy status quo and to restore the level of privacy sought by the Framers through the language they used in the Fourth Amendment.

Berin Szoka and I just released a short article on the FCC’s proposed follow-up to the failed 700 mhz D Block auction:  a free, nationwide wireless service that would serve public safety users as well as consumers.  It’s attached down below or the PDF can be found here.
_________________________________

What’s Worse Than Rigged Auctions & Internet Censorship?
How About Both in One Package!

a PFF Progress Snapshot
Release 4.12 June 2008

by Adam Thierer and Berin Szoka

The big spectrum policy debate in town these days continues to be the fight about how to redo the botched D block auction. As we all know, FCC Chairman Kevin Martin’s previous effort to micro-manage that auction failed miserably. Sadly, the follow-up plan isn’t much better, as the Wall Street Journal notes in an editorial today:

You’d think Chairman Martin would have learned from this experience. It’s not the role of regulators to pick winners and losers to achieve their preferred social outcomes. Private competition and the price mechanism can most fairly and efficiently find the best use for scarce spectrum. The FCC’s clumsy attempt at social engineering resulted in a failed auction that has prevented otherwise desirable spectrum from being put to commercial use.

Alas, Mr. Martin has now proposed another wireless auction for a separate piece of spectrum. And this time he wants to require the winner to offer free Internet access that filters out pornography–conditions that obviously would decrease the value of the license and turn off potential bidders. It just so happens that Mr. Martin’s proposed auction seems tailor-made for the business plan put forward by M2Z, another politically connected Silicon Valley start-up looking to enter the wireless broadband telecom market.

Continue reading →

Remember the Sirius-XM deal?   It was in all the papers March before last, when the two satellite radio firms asked the FCC for permission to merge.   The FCC still hasn’t made a decision on the issue (the Justice Department approved the deal earlier this year.)

Yesterday on CNBC, FCC chairman Kevin Martin was asked when an answer might be forthcoming.  “We’re taking a close look at that and I suspect the commission will act soon,”  Martin stated.   CNBC’s Mark Haines was a bit taken aback by the vague response, asking how it could possibly take nearly a year and a half to review the transaction.  “Aren’t you under some obligation to answer these guys, if not today, tomorrow or very soon?, ”  he asked.  

Martin wasn’t at all plussed, responding: “I do hope we’ll be able to get back to them soon.” 

Hope to get back to them soon?   Talk about putting someone on hold.  One can just imagine it:  “Thank you for calling the FCC.  Your $4 billion transaction is very important to us.  A regulator will get back to you very soon.”  

After 445 days of consideration, you’d think the FCC could do better than this.  This is an agency, after all, that used to brag about it’s 180 day “shot clock” for merger review.   But that clock has long expired (even though the FCC didn’t even formally start the ticker until the 78th day).

XM and Sirius deserve more than “we’ll get right back to you on that” platitudes.   The FCC needs to decide on the merger — yes or no.  Then it needs to review it’s merger review procedures to find out what’s gone so terribly wrong.   Although there’s no telling how long that could take.

Peter Swire of the Center for American Progress has a paper out called “No Cop on the Beat: Underenforcement in E-Commerce and Cybercrime.” He identifies how local law enforcement lacks the ability and incentive to address various wrongs done on the Internet because of their complexity and their multi-jurisdictional nature.

Swire has identified a real problem. Just like everyone else, law enforcement struggles to keep up in the changing online environment. And it’s true that local law enforcement lacks incentive to expend efforts going after a distant cybercrime ring for the benefit of one local complainant and thousands of strangers.

(He calls this a “commons problem” and I understand how he means it to illustrate that law enforcement personnel and organizations are economic actors. Crime victims are a sort of public good to them and they can’t enjoy the benefits of caring for most of those who would benefit from their work. I think this fits more neatly in the public choice box: local law enforcement in one jurisdiction doesn’t get any benefit – budgetary, political, or otherwise – from helping strangers, so they won’t.)

His conclusion is that there should be more federal law enforcement – such as by the Federal Trade Commission and Justice Department – or “federated” law enforcement, combinations of state and federal authorities: “A more federated approach recognizes the usefulness of enforcement task forces that draw on multiple jurisdictions. Federal?state task forces, for instance, have been used widely for drug prosecutions and, more recently, in fighting terrorism.”

While these are logical conclusions, I would be reluctant to call for greater federal law enforcement. There isn’t authority for it in the constitution, and the uses of “federated” law enforcement he identifies – in the “War on Drugs” and the “War on Terror” – have not been shining examples we ought to follow.
Continue reading →

In his own special way, the always-provocative Mark Cuban throws down the gauntlet on bandwidth hogs:

When it comes to broadband internet access, you can have speed or large volumes of data transfer. You can’t have both. One certainty in the broadband world is that for those of us with cable or DSL modems connecting us to the internet, there is still a finite amount of bandwidth available. When a user consumes a disproportionate and significant amount of bandwidth, it can and will slow down everyone. I hate that.

If the choice is between your being able to download more movies or other video and my getting the best possible speed from my internet connection, I’m thrilled when you get kicked off. It can’t happen soon enough. Speed is what I need. Take all your P2P downloads and get the hell off my internet.

I have no sympathy for bandwidth hogs. You all are productivity killers for the rest of us. People who are working, people who are trying to play games, people who are in virtual worlds, people who are networking, people who are just trying to watch a Youtube video or their favorite TV show, you all are the reason why we get incredibly annoyed by slowdowns and buffering.

Leave and take your bit torrent client with you.

Well, we’re not quite that hard-nosed about it here, but we’ve written a few things about broadband metering / tiering that you might find of interest: Drew, Cord, Ryan, and me (1, 2, 3, 4, 5).

Last week I noted how I struggled to get through a 5-day vacation without the Internet, blogs, e-mail and my other daily informational inputs. I was both trying to see if I could do it and also giving in to the pleading of my family, who had been asking me to stay away from the Net and electronic gadgets for at least one vacation.

Mark Glaser of MediaShift has taken it a step further and is experimenting with the idea of a “technology sabbath,” i.e., taking one day at week to relax and get away from technology to ponder or experience other things. Here’s how he explains it:

So, being that I am Jewish — though not very religious — I decided to shut down the computer each Friday night at sunset until Saturday at sunset, the traditional time of the Jewish Sabbath. I make exceptions when I need to get directions or check for a personal email. I still use my cell phone but try to limit it to personal calls only. While this day of technological rest can be a difficult routine, it has allowed me to stretch my time, spend more hours outside and be with people more in face-to-face settings.

And I’m not alone. The concept of a “Technology Sabbath” is becoming more widespread, both in religious circles and among bloggers and media people who are overwhelmed with the always-on nature of the broadband Internet and smartphones. And that overwhelming feeling is exacerbated by instant messaging, social networking and services such as Twitter, that allow us to do more informal communications electronically rather than in person.

Boy, I just don’t think I could do it. At least not on a set basis. Some weekends, mostly without even thinking about it, I don’t turn on my computer or any gadgets because I’m playing with the kids, busy doing home renovations, driving my sports car, or entertaining guests. But it’s still pretty rare for me to make it through the entire day–even on the weekend–without ever cracking open my laptop. Not sure I would be able to set aside an entire day on a regular basis to go techno-free.

Jamie Plummer points me to this story suggesting that Libertarian vice presidential candidate Wayne Allen Root is a patent troll. The patent looks like your typical software patent:

A method and apparatus for facilitating electronic commerce between suppliers of predictions and consumers of predictions. Suppliers provide their predictions on the outcomes of future events in one or more categories, and each supplier’s accuracy is tracked. Consumers interested in obtaining predictions for one of more of those categories are allowed to selectively choose which suppliers’ predictions they wish to view. The suppliers are compensated based on the number of consumers who view their predictions. In one embodiment, the consumers pay for the predictions that they view while the suppliers are paid a portion of the revenue obtained from the consumers. In another embodiment the consumers are not charged and all revenue is derived from advertisers. The system in accordance with the present invention includes a controller which automatically credits each supplier’s account, aggregates earnings for that supplier, and automatically sends an electronic pay order to the Federal Reserve’s automated clearinghouse to thereby facilitate payment.

I was already unenthusiastic about the Barr-Root ticket. This is another reason to be skeptical.

E-commerce advertising, meet sales tax. Sales tax, meet e-commerce advertising. And they are talking amongst themselves–in a New York court.

Last week Overstock.com filed a lawsuit against New York to overturn the state’s recently implemented sales tax law. Overstock’s suit is in addition to a lawsuit filed by Amazon.com, with both companies saying that New York’s law is unconstitutional and should be overturned.

Overstock’s complaint highlights the disconnect that regulators have with how technology creates new ways to drive business and enhance revenues. Overstock has affiliates, which are websites that contain a link to Overstock.com in exchange for the possibility of earning a commission from purchases made by those visitors who access the Overstock website form the affiliate’s website. New York says these websites, if in New York, are soliciting business sufficient to create a legal nexus for sales tax purposes. Overstock says it’s just advertising.

Here’s where technology makes it interesting. Overstock says:

  • It can’t determine whether affiliates are actual legal residents of NY
  • It doesn’t control the affiliate websites, and can’t determine whether a specific ad is a direct or indirect solicitation for business.
  • Websites aren’t location specific. Are New York websites even soliciting New York consumers?

Continue reading →

Profiles in Innovation

by on June 5, 2008 · 4 comments

As if on cue, I tried to follow a link to a citation to a document on the BEA website, and I got this helpful message:

The BEA Web site has taken on a new look and feel as part of a redesign.

It is understood that many users create ‘bookmarks’ or ‘favorites’ for their most frequently accessed pages on our site. However, due to some alterations to our directory structure, some ‘bookmarked’ URLs may no longer house the information they did prior to the redesign.

The links provided below will assist you in locating information within the new BEA site. Should you be unable to locate the information you want, please contact us at webmaster@bea.gov and let us know the web page you were looking for.

Now, the Technology Liberation Front has been hosted for the last four years by PJ Doland Web Design, a small web design company that you really should check out if you’re in the market for that sort of thing. We recently upgraded from Movable Type to WordPress, and in the process we broke a lot of permalinks. Fortunately, PJ and his team whipped up a script to create redirects from each of our old posts to our new posts. That means that if anyone follows an old permalink, they’ll be silently redirected to the correct page.

Did I mention PJ did this for us for free? In contrast, I rather doubt the people who re-designed the BEA website did it for free. Setting up re-directs is a pain, but it’s not that much of a pain, and especially for a site full of economic statistics, maintaining stable URLs ought to be a priority. If our volunteer webmaster can manage it for our insignificant little blog, somehow a federal agency should be able to manage the same feat.

In my latest piece for Ars, I write up the Princeton paper I pointed out on Monday, and also discuss Jerry’s paper on the same subject. The BEA’s less than spectecular web savvy nicely illustrates the point that governments should focus on providing data and leave the web design to the private sector.