February 2009

The Courts Have an Embarrassingly Bad Web Presence

by on February 6, 2009 · 13 comments

Steve Schultze and I don’t agree about network neutrality regulation, but he and Shubham Mukherjee recently gave a fantastic talk on public access to court records. By law, federal court proceedings are not subject to copyright protection. However, the federal courts have a byzantine web-based reporting system called PACER that offers 1990s-era search functionality and charges eight cents per page for access to court documents. Astonishingly, this includes search results. Run a search on PACER that turns up no results, and the federal judiciary will charge you eight cents for the privilege of learning that your search returned no results. Run a search on PACER that turns up a lot of results and you get charged as much as $2.40 for a single search. The system has no keyword search, and there isn’t a single, integrated PACER system: each district and circuit court maintains its own records, and so you must already know which court’s PACER web site to visit before you conduct your search.

The system generates about $60 million per year in revenues for the court system, at an incalculable cost to the rest of us. Access to these documents is essential to understanding the laws that govern us. They are not subject to copyright, and they should be made as widely and cheaply available as technically feasible. Twenty years ago, PACER was a great step forward when it was first implemented more than a decade ago, but it’s now painfully behind the times. Steve and Shubham are working on a paper on this topic, and I’m looking forward to reading it.

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CwF + RtB = $$$$

by on February 5, 2009 · 147 comments

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Generativity Alive and Well with the IPhone

by on February 5, 2009 · 8 comments

I’ve been hammering Jonathan Zittrain pretty hard here over the past year for the thesis he sets forth in The Future of the Internet and How to Stop It that digital “generativity” is at risk today. The reason I have been doing so is because all signs point in the exact opposite direction, and more so with each passing day. Contrary to Jonathan’s fear that the Internet and digital technologies are growing more closed, tethered, and sterile, I have argued that the facts on the ground show us how the world is actually becoming far more open, untethered, and innovative.  And that’s true even for the technology that Jonathan singles out in the book for special scorn — the iPhone.

Consider David Pogue’s post today on the New York Times‘ technology blog today entitled “So Many iPhone Apps, So Little Time.” Pogue reports that:

there are now 15,000 programs available on the App Store, and so many more are flooding in that Apple’s army of screeners can’t even keep up. I keep meaning to write a thoughtful, thorough roundup of the very best of these amazing programs, but every day that I don’t do it, the job becomes more daunting.

[…]

Apple, which runs the store, keeps 30 percent of each sale. Even so, Ocarina [an application Pogue discusses in his essay] demonstrates that a programmer can make a staggering amount of money from the iPhone store. It’s a crazy new software model that I don’t remember seeing anywhere else. It’s not a boxed software program for $600, or even a shareware program you download for $25. It’s a buck a copy.

The beauty here is that at these prices, there’s very little risk in trying something out. How many software programs have you bought for your Mac or PC? Two? Four? Well, the average iPhone owner may wind up installing 10, 20 or 30 programs. In all, according to Apple, iPhone owners have downloaded 500 million copies of these programs. Half a billion–since last July.

There’s a lot of gloom in the tech industry (and every industry, for that matter). But even when the economy is crashing down around us, there’s still amazing power in a single good idea. And the one on display here–pricing software so low that millions of people buy it without batting an eye–is turning a few clever programmers into millionaires.

I ask you: Does this sound like a world that is growing less generative, as Zittrain argues? Because it sure doesn’t sound like it to me.  Moreover, if you still don’t think the iPhone is open enough, then there’s always a simple solution to that: just buy another phone!

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The Winners of the Big Economic Stimulus Contest

by on February 5, 2009 · 8 comments

. . . have been announced on the WashingtonWatch.com blog.

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Harper: One to Watch in 2009

by on February 5, 2009 · 7 comments

I’m pleased and humbled to have been named one of the Ars Technica/Tech Policy Central “People to Watch” in 2009. Along with my opposition to the REAL ID national identification scheme, they cite my work opposing the E-Verify national worker background check system (which would ultimately require a national ID).

Considering how the economic stimulus bill may be a vehicle for mandating broader use of E-Verify, the first thing you might see from watching me in 2009 might be an angry and disappointed advocate for liberty.

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President Signs SCHIP – No Five-Day Review

by on February 4, 2009 · 8 comments

Here’s a screen grab of the Whitehouse.gov five-day review page. I figured I should preserve it because it is not likely to be on the site for long. President Obama just signed his second piece of legislation into law, and it didn’t get the five-day review either.

Here’s what that page says:

FIVE DAY REVIEW

President Obama wants you to get involved in the legislative process.

The Obama-Biden Administration is committed to bringing new levels of openness, transparency, and participation to our government. That’s why the President has pledged to post all nonemergency bills that come before his desk on WhiteHouse.gov for five days, where members of the public will be able to read, review, and comment before he takes any action on them.

There is currently no legislation awaiting the President’s signature. We hope you’ll come back to this page frequently, and share your input on the important legislation that will affect you, your community, and the nation in the years to come.

In the meantime, please use the form below to share your ideas on any issue that matters to you.

Uh, yeah, there’s no legislation awaiting the President’s signature because he signed it right away!

I wrote more about this step away from transparency here.

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DHS Privacy Committee – A Little More Notice This Time

by on February 4, 2009 · 5 comments

The DHS Privacy Committee will be meeting in Washington, D.C. – well Arlington, VA, actually – on February 26th.

Here’s the meeting notice in the Federal Register.

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In Maryland, a Bill that Fixes Nothing (Except Competition in Favor of Big Box Retailers)

by on February 4, 2009 · 10 comments

Yesterday I testified before the Maryland General Assembly to oppose HB 114. It’s a bad bill for consumers and online companies, and another iteration of the continuing war that traditional retailers have waged against e-commerce for the past few years. Last year NetChoice testified before Congress to oppose legislation that would would give retailers the power to force online marketplaces to interrogate their own customers about how they obtained items listed for sale.

HB 114 would require Maryland businesses and residents selling cosmetics, medicines, baby food and infant formula via an Internet auctions to notify the Department of Health & Mental Hygiene at least seven days prior to the auction. The bill applies only to sales using Internet auctions, not fixed-price format, and not newspaper classified ads. That right there makes you wonder.

The bill has been introduced under the theory of product safety. Safeway, Target, and the state retailers association all trumped up the dangers of selling baby food and infant formula online without citing any sort of actual harm. Or at least harm that is disproportionate to what exists at the physical store retail level.

There was also a lot of desperate hyperbole. A representative from Mars supermarkets (a Maryland chain) asserted that Internet auctions fund heroin addiction! Yes, testifying before state legislatures can be fun!

When you have bill proponents demonizing the Internet, it’s easy to see that the bill is about competition prevention. Namely, to prevent Internet auction sites from benefiting Maryland consumers and helping businesses compete with traditional retailers in the sale of food and drug items.

Getting back to the window dressing of public health, Continue reading →

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Wide of the Mark

by on February 3, 2009 · 9 comments

Wall Street Journal columnist Gordon Crovitz writes that

In Japan, wireless technology works so well that teenagers draft novels on their cellphones. People in Hong Kong take it for granted that they can check their BlackBerrys from underground in the city’s subway cars. Even in France, consumers have more choices for broadband service than in the U.S.??

The Internet may have been developed in the U.S., but the country now ranks 15th in the world for broadband penetration. For those who do have access to broadband, the average speed is a crawl, moving bits at a speed roughly one-tenth that of top-ranked Japan. This means a movie that can be downloaded in a couple of seconds in Japan takes half an hour in the U.S. The BMW 7 series comes equipped with Internet access in Germany, but not in the U.S.

Then he adds that the economic stimulus package before Congress will not fix the real reason the U.S. now ranks 15th in the world for broadband penetration because

nothing in the legislation would address the key reason that the U.S. lags so far behind other countries. This is that there is an effective broadband duopoly in the U.S., with most communities able to choose only between one cable company and one telecom carrier. It’s this lack of competition, blessed by national, state and local politicians, that keeps prices up and services down.

A couple of observations come to mind.

One is that the U.S. has the most successful wireless market in the world. Cellphone calls are significantly less expensive on a per minute basis in the U.S. (6 cents per minute) than in France (17 cents) or Japan (26 cents), according to the FCC’s latest analysis of wireless competition (Table 16). U.S. mobile subscribers continue to lead the world in average voice usage by a wide margin.

The explanation for why fourth generation wireless technology is further along in Japan than it is here would have to include the fact that the Japanese government years ago decided to make leadership in 4G wireless technology a national priority and invested heavily with taxpayer money (see, e.g., this).

This is a form of industrial policy, which involves picking winners and losers, and it is how the Japanese do things. Back in the late 1980s or early 1990s the Japanese government decided Japan needed to be the world-leader in high-definition television, which prompted some in our own government to argue we couldn’t afford to let that happen, so we needed a public-private partnership and a national high-definition television transition plan (which some now want to postpone).??

The good news is that AT&T, Clearwire and Verizon Wireless have all successfully acquired spectrum for the rollout of their own 4G services over the next couple years without government subsidies and oversight.??

Continue reading →

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Republican Nominees for FCC

by on February 3, 2009 · 25 comments

Senate Republican Leader Mitch McConnell and Senate Commerce Ranking Member Kay Bailey Hutchison, I hear, have received approximately one dozen recommendations for filling the vacant seat on the FCC which, by law, must be filled by a Republican.  Although the president will make the appointment, the views of the Senate Republican Leader, in particular, are usually accorded significant weight.  

The most prominent candidates include Lee Carosi Dunn (Senator McCain’s assistant for communications policy), Brian Hendricks (Hutchison’s assistant for communications policy), Ajit Pai (Senator Brownback’s assistant for judiciary matters) and two officials from the Bush administration (David Gross, ambassador for international communications and information policy; and Meredith Baker, former acting assistant secretary of commerce for  telecommunications and information policy).  All sound like good choices.  The Senate staffers have the inside track. 

Aside from the current vacant seat, it’s also possible  one of the candidates could replace current FCC Commissioner Robert M. McDowell, whose term expires in June.  By law his seat would also have to be filled by a Republican.

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