May 2009

As I mentioned in a post last month, dozens of comments were filed with the Federal Communications Commission (FCC) as part of the agency’s “Child Safe Viewing Act” Notice of Inquiry.  Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  I filed 150+ pages worth of comments in this matter, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.

Anyway, this week saw many of the same groups that filed before (and some new ones) file reply comments about those earlier submissions.  To make things simple, I have collected most of the notable reply comments down below in case anyone is interested.
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The Computers Freedom & Privacy conference is consistently one of the most interesting and forward-looking privacy conferences. This year, it’s at George Washington University in Washington, D.C. June 1-4.

I helped organize it this time, though by no means does the event skew libertarian. What it does is bring together people of all ideologies to discuss common concerns about the present and future state of privacy.

I’ll be speaking on a panel called “The Future of Security vs. Privacy” on Tuesday, June 2nd. Here’s the program page. And here’s the registration page if any of this whets your appetite.

NebuAd is Dead

by on May 19, 2009 · 14 comments

NebuAd is dead. The company‘s plan to track users through their ISPs for the purpose of targeting advertising met with public and congressional concern that ultimately led to its demise.

I believe that ISPs should stick to serving bits and not get into the business of serving or helping to serve ads, so I’m glad to see NebuAd’s model fail. I’ve been made aware by a similar company – Phorm – of the privacy sensitivity they design into their system, but the answer for me is still “No, thanks.”

In terms of policy, this story is mixed. Fans of government involvement probably believe that concerns expressed by public authorities caused NebuAd’s partners to pull out. ISPs also responded to public concerns expressed directly and in the media, of course, and I believe that consumers’ passive reliance on government authorities for protection is in error.

Google recently experienced failures of its core services — a phenomenon that quickly spawned the hashtag “googlefail” on the popular social networking platform Twitter.  These failures show that a company once thought of as the odds-on favorite for dominating the global market in all things web — the monolith of Mountain View — is looking more and more like a search-only player.

Big firms consistently fail to use their “market dominance” to take over adjacent markets, something that should give antitrust warriors in the Obama administration reason for pause.  The renewed call for tough antitrust enforcement comes at a time when Google, a poster-child for market dominance, simply can’t leverage its position at all.

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My ID Score

by on May 18, 2009 · 23 comments

myidscoreHere’s a very cool little app from Identity Analytics: My ID Score. You enter a bit of identifying information. It checks to see if you know stuff that only you are likely to know. (This is what I called “epistemetric” identification in my book.)And then it spits out an estimate of your risk of being a victim of identity fraud.

I got a 240 when I didn’t give them my SSN, and my score dropped to 40 when I submitted my SSN.

Everybody talks about identity fraud, but nobody does anything about it. This does something about it – specifically, it will help stop the worrying on the part of people who don’t need to. And it will give people who should worry a few things to do to get their situation under control. The more that can be done to demystify identity fraud, the better – and the less likely there will be unwise legislation and regulation that ultimately harm the interests of consumers.

So have a little fun and check out My ID Score. (If you’re worried about submitting personal data over a Web site – you can see for yourself that the transmission is encrypted, and ID Analytics is a company I’ve known for many years. This is not a phishing scam – unless it’s a very, very good one.)

According to respected Guatemalan lawyer Rodrigo Rosenberg, Guatemala’s government is infested with corruption. His message is carried very powerfully to fellow Guatemalans and the world in a video he taped before his murder last week.

YouTube has a role as a powerful engine of dissent and government transparency. It’s a commercial, profit-making business, and it is laying bricks on the path to human rights and the rule of law worldwide.

The Cato Institute’s Juan Carlos Hidalgo writes briefly about developments since then on the Cato@Liberty blog.

As part of our ongoing series that tracks the gradual transition of video content to the boob tube to online outlets, I want to draw everyone’s attention to two excellent articles in today’s Washington Post about this trend.  One is by Paul Fahri (“Click, Change: The Traditional Tube Is Getting Squeezed Out of the Picture“) and the other by Monica Hesse (“Web Series Are Coming Into A Prime Time of Their Own“).  I love the way Paul opens his piece with a look forward at how many of us will be explaining the “old days” of TV viewing to our grand kids:

Sit down, kids, and let Grandpa tell you about something we used to call “watching television.”

Why, back when, we had to tune to something called a “channel” to see our favorite programs. And we couldn’t take the television set with us; we had to go see it!

Ah, those were simpler times.

Oh, sure, we had some technology we thought was pretty fancy then, too, like your TiVo and your cable and your satellite, which gave us a few hundred “channels” of TV at a time. Imagine that — just a few hundred! And we had to pay for it every month! Isn’t the past quaint, children?

Well, it all started to change around aught-eight, or maybe ’09, for sure. That’s when you no longer needed a television to watch all the television you could ever want.

Yes, I still remember it like it was yesterday . . .

Too true.  Anyway, Paul goes on to document how some folks have already completely made the jump to an online-online TV existence and are doing just fine, although the idea of us all gathering around the tube to share common experiences may be a causality of the migration to smaller screens, he notes.

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Google has announced that it will soon begin allowing U.S. advertisers to use trademarked keywords in limited circumstances in text ads, much as Yahoo! already does.  Google currently allow advertisers to bid on trademarked terms as keywords that could cause an ad to appear, either next to Google search results or on a third-party publisher’s website.  That policy will not change, and is discussed here by my PFF colleague Sid Rosenzweig.  The new policy is focused on the text seen by users in ads themselves and applies only if the “landing page” (to which the ad links) is used by a reseller, aggregator or parts supplier to sell only products that are relevant to the mark in question, or if the page is used to provide impartial reviews or other information about the trademarked product.  The new policy does not apply to sites/pages that (a) facilitate the sale of counterfeit goods, (b) allow the sale of a competitor’s goods, (c) criticize the trademarked good, or (d) do not provide substantial information or a purchase option.  Despite these limitations and other safeguards, Google has been sharply criticized by some trademark holders and might even be sued (e.g., for contributory infringement).

I’ll defer to the real trademark lawyers to figure out whether Google is correct that its new policy falls within the bounds of trademark law (particularly the “nominative fair use” doctrine).  But since Adam Thierer and I have been involved in an ongoing defense of online advertising against those who would squelch it through regulation in the name of privacy concerns (not at play here), I think it’s important to highlight the potential benefits to users from this seemingly arcane policy change-and to consider what this episode says about online advertising generally.  I see three main benefits to consumers from the policy change that should be considered alongside the vitally important role that trademarks play in our economy in communicating reputational information.

First, Google’s new policy will allow consumers to find products more easily because advertisers will be able to offer more descriptive and therefore informative ads, mentioning what they sell by name. Continue reading →

Howard Stern swore off free broadcast radio in 2004 in part because of federally mandated decency rules. The self-annointed “king of all media” may have stepped off the throne in doing so. Them’s the breaks in the competitive media marketplace, contorted as it is by government speech controls.

Some would argue that a new king of all media is seeking the mantle of power now that the Obama administration is ensconced and friendly majorities hold the House and Senate. The new pretender is the federal government.

And some would argue that the Free PressChanging Media Summit” held yesterday here in Washington laid the groundwork for a new federal takeover of media and communications.

That person is not me. But I am concerned by the enthusiasm of many groups in Washington to “improve” media (by their reckoning) with government intervention.

Free Press issued a report yesterday entitled Dismantling Digital Deregulation. Even the title is a lot to swallow – Have communications and media been deregulated in any meaningful sense? (The title itself prioritizes alliteration over logic – evidence of what may come within.)

Opening the conference, Josh Silver, executive director of Free Press harkened to Thomas Jefferson – well and good – but public subsidies for printers and a government-run postal system model his hopes for U.S. government policies to come.

It’s helpful to note what policies found their way into Jefferson’s constitution as absolutes and what were merely permissive. The absolute is found in Amendment I: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”

Among the permissive is the Article I power “to establish Post Offices and post Roads.” There’s no mandate to do it and the scope and extent of any law is subject to Congress’ discretion, just like the power to create patents and copyrights which immediately follows.

I won’t label Free Press and all their efforts a collectivist plot and dismiss it as such – there are some issues on which we probably have common cause – but a crisper expression of “dismantling deregulation” is “re-regulation.”

It’s a very friendly environment for a government takeover of modern-day printing presses: Internet service providers, cable companies, phone companies, broadcasters, and so on.

Facebook has been at the center of a controversy involving its moderation policies and The Pirate Bay, a popular Bittorrent tracker that was found guilty of copyright infringement by a Swedish court last month. Since early April, Facebook has enforced a “site-wide” ban on links to The Pirate Bay – including those in private messages.wire_tapping_07

This practice may run afoul of federal wiretapping statutes that bar service providers from “intercepting” private messages, according to an article that appeared on Wired Threat Level last week. Wired quotes Kevin Bankston, a senior attorney for the Electronic Frontier Foundation, who explains that Facebook’s filtering raises “serious questions about whether Facebook is in compliance with federal wiretapping law.”

It’s important to draw a distinction between the traditional notion of “wiretapping” and Facebook’s “interception” of user messages, which doesn’t involve any human intervention. Regardless of how the courts may interpret ancient laws like the 1986 Electronic Communications Privacy Act, an automated computer system flagging and deleting certain strings from user messages simply isn’t comparable to a third party secretly listening in on a private phone conversation.

Besides, Facebook makes clear to its users from the get-go that their messages and postings are subject to a set of rules (which Facebook lays out in plain English). If Facebook believes a message or posting is against the rules, it can block or remove it. This is not an unreasonable rule; many online discussion forums have enforced similar policies since the Web’s early days. Such filtering is possible only if sites can “examine” messages to identify misconduct.

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