August 2009

Sec. 230 is Required by Justice

by on August 21, 2009 · 13 comments

Alternate title – Sec. 230: Not just good for the consequences any more!

Since Sec. 230 has been a hot topic around here recently, I figured this would be a good time to fire up some controversy and cross-link to an old OpenMarket post. In it, I discuss the Principle of Intervening Action, a principle postulated by Alan Gewirth that states that we are responsible soley for our own actions. I argue that this principle is correct.

I mention its application to Sec. 230 (and to safe harbor under the DMCA), but do not lay out the argument explicity. Essentially, it’s this: if a user does something unjust, it is the user that should be held responsible. The website is not the one that performed the unjust action and thus cannot justly be punished for it. But perhaps PIA points in the opposite direction, in at least some cases. If a user orders a website to do something (e.g. posting an infringing video, though we can argue about whether that’s really unjust), PIA eliminates the “following orders” defense. If you do it, you’re responsible. So, is the user the one “doing” the action or is the user directing the site to “do” it?

Discuss (or Disqus)!

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You Must Fear the Cookie Monster!

by on August 21, 2009 · 20 comments

This clip from Fox News shows why more reporters need to contact the experts here at TLF:

The “security expert” being interviewed in the clip, Robert Siciliano, doesn’t seem to understand what cookies do. He claims that “cookies closest cousin is spyware.” Siciliano also implies that the Obama Administration might somehow be in league with Google to gather our private information.

I think there may be some valid concerns with cookies being implemented on certain government sites, but this sort of hyperbole only feeds into the baseless fears that already exist about technology.

I should note that Judge Andrew Napolitano provides some interesting analysis on the topic after the Siciliano interview, which is included in the clip.

Hat tip: dvorak.org/blog

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Follow the TLF and TLFers on Twitter!

by on August 21, 2009 · 6 comments

twitter_iconAs we’ve noted here before, there are many ways to follow the TLF.  [Did you notice those cool icons over on the upper right-hand side of the page?]  But we wanted to make sure that our readers were aware of our Twitter feed, in particular, as well as the individual feeds of some of our contributors.  So, in case you are interested, here ya go!

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What is “Regulatory Capture”?

by on August 20, 2009 · 12 comments

One of my favorite recurring themes here on TLF is the definitional dispute/clarification. We point out where a term has been used in many different ways and explain the positives and negatives of the various behaviors described by that term. I just did this with privacy.

Of course, it is somewhat pointless to argue about the “true” meaning of a term, but that’s not exactly what’s involved here. Yes, we libertarians can lament when terms that used to describe things we believe in, like “liberal,” “freedom,” “rights,” “choice,” etc., get appropriated by others and terms that used to describe things we don’t believe in, like “coercion,” get ascribed to us. There may be some battles we can win, some terms we can hold onto, but these disputes often end up with two ships passing in the night.

But I’m talking about something a little different. Lots of terms that have, or get, normative connotations – that sound like they describe something good (think “democracy”) or bad (think “terrorism”) – get way overbroadened. Speakers use such terms to describe nearly anything (as long as it’s vaguely related to the original meaning) to which the speaker wants to ascribe the good/bad connotation. We here on TLF catalog those various ways such terms have been used – break the term down – and describe which ways are really good and really bad. As I said, I just did this with privacy. If this were a more lawy, as opposed to techy, blog I’d do it with “activism,” one of my pet peeve words. (Maybe I’ll do it anyway; after all, I posted on the best and worst Supreme Court decisions even though they weren’t especially tech-focused.)

But today, it’s “regulatory capture.” We have discussed it a bit recently, including just tonight. Tim Lee did some great posts on it back in the day. It’s definitely a recurring theme here. We seem to have something fairly specific in mind when we use the term. As Tim put it, it is when “established businesses argue in favor of regulations that they perceive as hurting their competitors (often smaller competitors) more than themselves.” Indeed, I argued with a commenter on one of Wayne’s posts that this definition that makes the most sense given the meanings of the words:

Regulatory capture is when businesses capture regulatory actions and use them as tools, backed by the force of government, for imposing burdens on their competitors. Businesses banding together to oppose government intrusion is not “capture.” Fighting an enemy is not the same as capturing him and using him to do your bidding…

Call Tim’s and my definition the “appropriation” definition. Continue reading →

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Mounting Threats to Internet Oversight on the Horizon

by on August 20, 2009 · 4 comments

TLF readers are undoubtedly familiar with the concept of regulatory capture. It’s a form of government failure, when a regulatory agency becomes overly influenced by the special interests of those (often large companies) it oversees.  Over at the NetChoice blog, my colleague Steve DelBianco talks about a different form of capture that’s equally bad–government capture of private sector management of the Internet’s addressing system. He asserts:

Before the US Government abdicates its oversight of the Internet Corporation for Assigned Names and Numbers (ICANN) it should take a long, hard look at the mounting efforts by world governments to assume greater power over the Internet’s addressing system. If those efforts meet no further resistance, the once-theoretical threat of “capture” could become a reality.

So what? In place of U.S. oversight, there are those that wish to create an international government bureaucracy to run ICANN:

In place of U.S. Government management, the [European] Commission recommends the creation of a multi-governmental tribunal with authority over ICANN. The European Commission posits that this new bureaucratic structure would not involve itself in “day-to-day” activities, but the distinction between “day-to-day” and other activities is utterly meaningless from a policy standpoint. Also, given the activism of the countries involved in such an effort, it would be ludicrous to expect such an entity to use its newfound power sparingly.

Steve’s post has a lot of background and explains things in detail, but I’ll share his ultimate conclusion:  our Commerce Dept. should be working with ICANN to retain the protective aspects of the JPA while ICANN develops permanent mechanisms to prevent external capture. It better hurry…it has only until the end of September to do something!

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Innovation Yin and Yang

by on August 20, 2009 · 8 comments

There are two key mistakes in the public policy arena that we don’t talk enough about. They are two apparently opposite sides of the same fallacious coin.

Call the first fallacy “innovation blindness.” In this case, policy makers can’t see the way new technologies or ideas might affect, say, the future cost of health care, or the environment. The result is a narrow focus on today’s problems rather than tomorrow’s opportunities. The orientation toward the problem often exacerbates it by closing off innovations that could transcend the issue altogether.

The second fallacy is “innovation assumption.” Here, the mistake is taking innovation for granted. Assume the new technology will come along even if we block experimentation. Assume the entrepreneur will start the new business, build the new facility, launch the new product, or hire new people even if we make it impossibly expensive or risky for her to do so. Assume the other guy’s business is a utility while you are the one innovating, so he should give you his product at cost — or for free — while you need profits to reinvest and grow.

Reversing these two mistakes yields the more fruitful path. We should base policy on the likely scenario of future innovation and growth. But then we have to actually allow and encourage the innovation to occur.

All this sprung to mind as I read Andy Kessler’s article, “Why AT&T Killed Google Voice.” For one thing, Google Voice isn’t dead . . . but let’s start at the beginning. Continue reading →

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Good Advice for Parents & Kids about Online Privacy & Reputation

by on August 20, 2009 · 6 comments

I like this new document about guarding your online reputation that has just been jointly published by Reputation Defender and the Internet Keep Safe Coalition (iKeepSafe). They list these “3 Key Tips for Parents” for how to deal with concerns about their children’s online safety, privacy, and reputation:

1. Keep Current with Technology: Talk to teachers about what forms of Internet safety tools they implement in computer labs and technology classes, consider these safety tools for home use, and stay up-to-date on the capabilities of any mobile devices your child may have.

2. Keep Communicating with Your Kids: Find out who your child talks to online, educate your kids about the permanence of any “digital footprints” they leave behind, limit the use of social networks, and make it a habit to engage your kids in critical conversation—the more you talk to your kids about their online usage, the more they will learn to use digital products in a safe and healthy manner.

3. Keep Checking Your Kid’s Internet Activity: Keep computers in a central public location, check your child’s browsing histories, and limit your child’s computer time—there’s a whole world of outdoor and offline activities where they should be involved!

All good advice. I especially like their focus on getting parents to communicate early and often with their kids. It’s something I have beat the drum about quite a bit in my own work on the subject. Continue reading →

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A Fairness Doctrine for the FCC Blog?

by on August 19, 2009 · 9 comments

I wonder, now that the FCC has a blog, shouldn’t the Fairness Doctrine apply? I want my equal time on that soapbox!  Every citizen should be given a chance to have their say.  It’s only fair, right?

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New gTLDs: Let the Gaming Begin – Part I: TLD Front Running

by on August 19, 2009 · 4 comments

My PFF colleague Mike Palage just released a paper about a series of recent applications for national trademark rights in terms that correspond to likely strings for new top-level domain names, or TLDs, (e.g., “.BLOG”). These attempts highlight just one way in which ICANN’s new generic TLD (gTLD) application process is likely to be “gamed.” But it is also a strategy to which some trademark holders may feel compelled to resort to defend their rights to that string. Unfortunately, it does not appear that ICANN is addressing these important public policy considerations. In fact, based upon some of the provisions in the proposed draft registry agreements, it appears that ICANN staff’s actions may increase, rather than decrease, the ambiguity that opens the door to such gaming of the system.

Continue reading →

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Open Data a Political Virtue

by on August 19, 2009 · 6 comments

Regarding San Francisco’s open data portal, DataSF, @cordblomquist astutely notes that open data is becoming a political virtue.

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