July 2009

In response to Professor Jonathan Zittrain’s op-ed in The New York Times last Monday about online privacy and open platforms (which Adam thoroughly refuted last week) I have a letter to the editor in today’s The New York Times:cloud

To the Editor:

Re “Lost in the Cloud” (Op-Ed, July 20):

In discussing the privacy risks that have accompanied the growth of the Internet, Prof. Jonathan Zittrain rightly bemoans the willingness of governments to violate individuals’ privacy rights. Unfortunately, he proposes new legal restrictions that would stifle online innovation while doing little to enhance consumer privacy.

Mr. Zittrain proposes a “fair practices law” that would require companies to release personal data back to users upon request. Such a rule may sound workable, but purging specific data across globally dispersed server farms is no simple endeavor. Who is to pay for the implementation of such privacy procedures — especially for free services like Facebook or Twitter that have yet to turn a profit?

A better approach to online privacy is to educate users on safeguarding personal information. Ultimately, however, the only foolproof approach to protecting sensitive data online is to simply not disclose it.

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The Obama administration has been greeted with enthusiasm by scientists who see the potential for “research-based policy.” Reason, not ideology, will govern. The New Scientist, among other zines, headlines “Let Science Rule: the Rational Way to Run Societies.” (May 28, p. 40-43) This is part of a larger theme: Behavioral economics is taking off. Continue reading →

Maine has just enacted a law severely restricting marketing to kids: the Act To Prevent Predatory Marketing Practices against Minors, summarized by Covington & Burling. Adam and I released a major paper in June about such laws: COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech. Maine is following the lead of several other states that have tried to expand the Children’s Online Privacy Protection Act (COPPA) of 1998 to cover nost just kids under 13 but adolescents as well and potentially all social networking sites. We discussed at length the problems such laws create, particularly the possibility that large numbers of adults would, for the first time, be subject to age verification mandates before accessing (or participating in) the growing range of sites with social networking capabilities.  This, in turn, would significantly “chill” free speech online by undermining anonymity.

Like COPPA 2.0 proposals in New Jersey (simply extending COPPA to cover adolescents) and Illinois (applying COPPA to most social networking sites), the Maine law tries to build on COPPA’s “verifiable parental consent” requirement for the 13-17 audience as well as those under 13.

On the one hand, the Maine law goes much further than these other COPPA 2.0 proposals. While the original bill was limited to the Internet and wireless communications, the final bill’s scope applies to all communications.  The bill also covers “health-related” information (HRI) as well as “personal information” (PI). On the other hand, the Maine law is thus somewhat narrower than other COPPA 2.0 proposals and COPPA itself in that it applies only to “marketing or advertising products, goods or services.” While COPPA is commonly misunderstood to cover only marketing, it actually covers essentially any “collection” (broadly defined) of personal information from kids for any purpose—including merely giving kids access to communications functionality that might let them share personal information with other users (even if the site itself is not “collecting” that information in the commonly understood sense).

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Any time I’ve heard government officials talk about the future of Recovery.gov, I’ve heard them mention maps. Maps that will let you drill down to your neighborhood and see the stimulus spending right around you. Well, the maps were rolled out last Thursday, and there was even a congratulatory press release from Vice President Biden. Tell me if you notice anything interesting in this map of federal grant recipients from Recovery.gov.


Geography wizzes will recognize that almost all the bubbles on the map, which represent federal grants, neatly coincide with state capitals. Check it out for yourself right here. What this highlights is a deeper problem of stimulus spending data: reporting is only required to go to two levels down. Sure, we can see that the Department of Education gave the state of California (displayed on the map as a bubble in Sacramento) so many millions of grant dollars. And we may even know that California gave a subgrant to the Los Angeles School Board. But what happens after that is missing, and will likely remain missing under the Act’s transparency requirements and OMB guidance.

These maps are great, but I’d rather have deep, meaningful data in a structured format so I can make my own maps.

kids_watching_tvThe Senate Commerce Committee held a hearing yesterday where a number of Senators as well as Julius Genachowski, the new Chairman of the Federal Communications Commission, did a lot of fretting about the state of the modern children’s television programming marketplace.  According to the Wall Street Journal, Senate Commerce Committee Chairman Jay Rockefeller (D-WV):

suggested that a “little red button” be required on TVs so that a child could push the button to find out how a show is rated. Democratic Sen. Mark Pryor of Arkansas agreed that a red button might help since parents often have difficulties figuring out which shows are appropriate for their children to watch.

Well, I have some good news for the Senators: There are already quite a few little buttons on every remote control made today, and at least one of those buttons can pull up an on-screen guide to get more program info! (Another of them can turn the TV off!) Moreover, the ratings for just about every program already appear at the beginning of each show, and sometimes in between. And you can find out plenty more online about every TV show under the sun if you care to look.  So, I’m not sure what that fuss is all about, and we certainly don’t need to mandate “little red buttons” on every TV set when program information can be found in so many other ways.

What is more troubling about all the hand-wringing taking place at the hearing, as well as the talk of reopening the Children’s Television Act of 1990 to potentially impose more content mandates on video programmers and distributors, is that: (1) there doesn’t seem to be much appreciation for just how much wonderful children’s programming is out there today compared to the past, and (2) there doesn’t seem to be much recognition of the serious First Amendment issues at stake when government gets involved in the messy business of regulating video programming.

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From the Portland Press Herald:

Wanted: 250 Maine drivers willing to let a stranger put a black box under their dashboard.

The reward: $895 and the opportunity to speak their minds about the highway tax experiment to a researcher.

University of Iowa researchers are seeking 250 motorists in Cumberland, York and Sagadahoc counties willing to have a computer tracking system installed in their cars for 10 months. The system could someday be used to tax drivers according to the number of miles they drive, rather than the amount of gasoline they consume.

This is not only gets the award for most Orwellian government program of the week, but also the irony in incentives bonus prize. The new tax is meant to make up for the loss in gas revenue from more fuel efficient cars and folks using less gas during the recession. In doing so, this black-box tax would essentially be punishing motorists for driving more efficient cars, which is supposed to be a goal of the gas tax (other than raising revenue).

Bottom line: If you need more money for highways, build more tolls or raise the gas tax, don’t track your citizens.

Hat tip: siliconANGLE

Great piece in Wired by Fred Vogelstein asking “Why Is Obama’s Top Antitrust Cop Gunning for Google?” It paints a pretty good picture of the coming antitrust ordeal that Google is likely to be subjected to by the Obama Administration. And, as usual, I couldn’t agree more with the skepticism that Eric Goldman of Santa Clara University Law School articulates when he notes: “The problem for antitrust in high tech is that the environment changes so rapidly. Someone who looks strong today won’t necessarily be strong tomorrow.”  More importantly, as Vogelstein’s article notes, we’ve been down this path before with less than stellar results when you look at the IBM investigation in the 70s and the Microsoft case from the 90s (a fiasco that is still going on today):

After the government initiated its case against IBM, the company spent two decades scrupulously avoiding even the appearance of impropriety. By the time the suit was dropped in the early 1980s, company lawyers were weighing in on practically every meeting and scrutinizing every innovation, guarding against anything that could be seen as anticompetitive behavior. A decade later, innovation at Big Blue had all but ceased, and it had no choice but to shrink its mainframe business. (It has since reinvented itself as a services company.)

Microsoft took the opposite approach. Gates and company were defiant, to the point of stonewalling regulators and refusing to take the charges seriously. “Once we accept even self-imposed regulation, the culture of the company will change in bad ways,” one former Microsoft executive told Wired at the time. “It would crush our competitive spirit.” Gates put it even more directly: “The minute we start worrying too much about antitrust, we become IBM.” Microsoft’s hostility to the very idea of regulation resulted in several avoidable missteps—including remarkably antagonistic deposition testimony from Gates—that ultimately helped the DOJ rally support for its ongoing antitrust suit against the company. Although Microsoft ultimately settled, the public beating appears to have taken a toll on the company, which has been unable to maintain its reputation for innovation and industry leadership.

Read the whole article for all the gory details.  This is going to be the biggest antitrust case of all-time once it is finally launched and I feel confident predicting that it will make many lawyers and consultants very, very rich while doing absolutely nothing to help consumer welfare.  But perhaps those DOJ lawyers can at least get Google to lower the prices for all those services they offer. Oh, wait, they’re all free.  But don’t worry, I’m sure Beltway bureaucrats will do a great job of running something as complex as search algorithms and online advertising markets.  Right.

Well, here we go again. Harvard’s Jonathan Zittrain has penned another gloomy essay about how “freedom is at risk in the cloud” and the future of the Internet is in peril because nefarious digital schemers like Apple, Facebook, and Google are supposedly out to lock you into their services and take away your digital rights.  And so, as I have done here many times before (see 1, 2, 3, 4, 5 + video!), I will offer a response arguing that Jonathan’s cyber-Chicken Little-ism is largely unwarranted.

Zittrain’s latest piece is entitled “Lost in the Cloud” and it appears in today’s New York Times.  It closely tracks the arguments he has set forth in his book The Future of the Internet–And How to Stop It, which I named the most important technology policy book of 2008, but not because I agreed with its central thesis.  Zittrain’s book and his new NYT essay are the ultimate exposition of Lessigite technological pessimism.  I don’t know what they put in the water up at the Berkman Center to make these guys so remarkably cranky and despondent about the future of of the Internet, but starting with Lawrence Lessig’s Code in 1999 and running through to Zittrain’s Future of the Internet we have been forced to endure endless Tales of the Coming Techno-Apocalypse from these guys.  Back in the late 90s, Prof. Lessig warned us that AOL and some other companies would soon take over the new digital frontier since “Left to itself, cyberspace will become a perfect tool of control.”  Ah yes, how was it that we threw off the chains of our techno-oppressors and freed ourselves from that wicked walled garden hell?  Oh yeah, we clicked our mouses and left! And that was pretty much the end of AOL’s “perfect control” fantasies. [See my recent debate with Prof. Lessig over at Cato Unbound for more about this “illusion of perfect control,” as I have labeled it.]

But Zittrain is the equivalent of the St. Peter upon which the Church of Lessigism has been built and, like any good disciple, he’s still vociferously preaching to the unconverted and using fire and brimstone sermons to warn of our impending digital damnation. In fact, he’s taken it to all new extremes. In Future of the Internet, Jonathan argues that we run the risk of seeing the glorious days of the generative, open Net and digital devices give way to more “sterile, tethered devices” and closed networks. The future that he hopes to “stop” is one in which Apple, TiVo, Facebook, and Google — the central villains in his drama — are supposedly ceded too much authority over our daily lives because of a combination of (a) their wicked ways and (b) our ignorant ones.

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