August 2009

Abandoning the Dumb Federal Cookie Policy

by on August 11, 2009 · 10 comments

Today’s Washington Post has a story entitled U.S. Web-Tracking Plan Stirs Privacy Fears. It’s about the reversal of an ill-conceived policy adopted nine years ago to limit the use of cookies on federal Web sites.

In case you don’t already know this, a cookie is a short string of text that a server sends a browser when the browser accesses a Web page. Cookies allow servers to recognize returning users so they can serve up customized, relevant content, including tailored ads. Think of a cookie as an eyeball – who do you want to be able to see that you visited a Web site?

Your browser lets you control what happens with the cookies offered by the sites you visit. You can issue a blanket refusal of all cookies, you can accept all cookies, and you can decide which cookies to accept based on who is offering them. Here’s how:

  • Internet Explorer: Tools > Internet Options > “Privacy” tab > “Advanced” button: Select “Override automatic cookie handling” and choose among the options, then hit “OK,” and next “Apply.”

I recommend accepting first-party cookies – offered by the sites you visit – and blocking third-party cookies – offered by the content embedded in those sites, like ad networks. (I suspect Berin disagrees!) Or ask to be prompted about third-party cookies just to see how many there are on the sites you visit. If you want to block or allow specific sites, select the “Sites” button to do so. If you selected “Prompt” in cookie handling, your choices will populate the “Sites” list.

  • Firefox: Tools > Options > “Privacy” tab: In the “cookies” box, choose among the options, then hit “OK.”

I recommend checking “Accept cookies from sites” and leaving unchecked “Accept third party cookies.” Click the “Exceptions” button to give site-by-site instructions.

There are many other things you can do to protect your online privacy, of course. Because you can control cookies, a government regulation restricting cookies is needless nannying. It may marginally protect you from government tracking – they have plenty of other methods, both legitimate and illegitimate – but it won’t protect you from tracking by others, including entities who may share data with the government.

The answer to the cookie problem is personal responsibility. Did you skip over the instructions above? The nation’s cookie problem is your fault.

If society lacks awareness of cookies, Microsoft (Internet Explorer), the Mozilla Foundation (Firefox), and producers of other browsers (Apple/Safari, Google/Chrome) might consider building cookie education into new browser downloads and updates. Perhaps they should set privacy-protective defaults. That’s all up to the community of Internet users, publishers, and programmers to decide, using their influence in the marketplace. (I suspect Berin is against it!)

Artificially restricting cookies on federal Web sites needlessly hamstrings federal Web sites. When the policy was instituted it threatened to set a precedent for broader regulation of cookie use on the Web. Hopefully, the debate about whether to regulate cookies is over, but further ‘Net nannying is a constant offering of the federal government (and other elitists).

By moving away from the stultifying limitation on federal cookies, the federal government acknowledges that American grown-ups can and should look out for their own privacy.

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Google’s New Opt-Opt

by on August 11, 2009 · 6 comments

You want privacy, do ya’?


Google Opt Out Feature Lets Users Protect Privacy By Moving To Remote Village

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What Unites Advocates of Speech Controls & Privacy Regulation?

by on August 11, 2009 · 23 comments

What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]

by Adam Thierer & Berin Szoka
The Progress & Freedom Foundation, Progress on Point No. 16.19

Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:

  1. People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
  2. All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.

While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.

That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families. Continue reading →

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Regulators Should Approve Microsoft-Yahoo Deal

by on August 11, 2009 · 9 comments

Microsoft and Yahoo’s proposed deal faces a tough antitrust gauntlet. In today’s The Seattle Times, Jonathan Hillel and I have an op-ed in which we argue that trustbusters should let the deal go through:

MICROSOFT and Yahoo want to join forces in Internet search to better compete against Google. But first, they need the blessing of government antitrust enforcers. Senate Antitrust Subcommittee Chairman Herb Kohl, D-Wis., already has threatened “careful scrutiny” of the deal. But trustbusters should not go fishing for problems in the Internet search market. In the relentlessly fast-moving digital economy, government intervention contorts the market and ultimately harms consumers.

Under their proposed decade-long pact, Yahoo searches will be powered by Microsoft’s Bing search engine, which launched this June. The two search firms will maintain separate Web sites, but Microsoft will administer the technical side of both. Microsoft will also gain access to Yahoo’s vast volume of searches and query data. In exchange, Yahoo will receive 88 percent of ad revenues from searches performed on its own site.

Continue reading →

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Free Press, Robert McChesney & the “Struggle” for Media

by on August 10, 2009 · 49 comments

I’ve spent a lot of time here deconstructing and criticizing the proposals set forth by the Free Press, the radical media “reformista” group founded by the prolific Marxist media theorist Robert McChesney.  I have been trying to shine more light on their proposals and activities because I believe they are antithetical to freedom of speech and a free society.  That’s because, as media scholar Ben Compaine has noted, “What the hard core reformistas really want, it seems, is not diversity or an open debate but a media that promotes their own vision of society and the world.”  That’s exactly right and, more specifically, as I argued in my 2005 Media Myths book, the media reformistas want to impose this control by taking the fantasy that “the public owns the [broadcast] airwaves” and extending it to ALL media platforms and outlets.  In other words, McChesney and the Free Press want an UnFree Press.  To cast things in neo-Marxist terms that they could appreciate, they want to take control of the information means of production.  And it begins, McChesney argues, by all of us having to give up this “sort of religious attachment to the idea of a ‘free-press'” from which we all suffer.

Some people accuse me of “red-baiting” or “McCarthyite” tactics when I use the “M-word” (Marxism) or the “S-Word” (socialism) to describe McChesney, the Free Press, and the movement they have spawned.  But these are labels with real meaning and ones that McChesney himself embraces in his work. In his 1999 book Rich Media, Poor Media, he says that “Media reform cannot win without widespread support and such support needs to be organized as part of a broad anti-corporate, pro-democracy movement.” He casts everything in “social justice” terms and speaks of the need “to rip the veil off [corporate] power, and to work so that social decision making and power may be made as enlightened and as egalitarian as possible.”  What exactly would all that mean in practice for media? In his 2002 book Our Media, Not Theirs: The Democratic Struggle against Corporate Media with John Nichols of The Nation, McChesney argues that media reform efforts must begin with “the need to promote an understanding of the urgency to assert public control over the media.” They go on to state that, “Our claim is simply that the media system produces vastly less of quality than it would if corporate and commercial pressures were lessened.”

If you want additional proof of his intentions, then I encourage you to read this lengthy interview with McChesney that appears in the new edition of The Bullet, an online newsletter produced by the Canada-based “Socialist Project.”  (If you ask me, there’s something strangely appropriate about a socialist newsletter named “The Bullet” in light of the millions of people who died while living under socialist tyranny!)  Anyway, let’s ignore that and focus on what neo-Marxist media reform entails according to McChesney.  Because never before has he laid his cards on the table as clearly as he does in this interview. Continue reading →

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Free Willie?

by on August 10, 2009 · 31 comments

Thanks to comments on my earlier post, Copyright Duration and the Mickey Mouse Curve, I’ve been encouraged to reflect on what would happen if, in fact, Steamboat Willie had fallen into the public domain. Could we then reuse Mickey Mouse, the star of that show, without facing any liability to the Walt Disney Company? I drafted this answer for my book, Intellectual Privilege (here edited for blogging):

Scholars have made surprisingly strong arguments that Steamboat Willie, a cartoon that the Walt Disney Company cites as establishing its copyright rights in Mickey Mouse, has fallen into the public domain. As a thought experiment, let us assume the truth of that claim. What would happen if Walt Disney Company—if, indeed, nobody—held a copyright in Steamboat Willie? Certainly, each of use would by default enjoy complete freedom to copy, distribute, display, or perform the cartoon, because the expiration of the work’s copyright would also end the exclusive rights of the Walt Disney Company and its assigns the exercise those statutory privileges. So, too, would we escape copyright’s limitations on making derivative versions of Steamboat Willie—versions that might show Mickey standing at a lectern rather than at a pilot’s wheel, for instance, or have him expounding on copyright law.

The Walt Disney Company would retain its copyrights in later, plumper versions of the Mickey Mouse, of course. Contemporary artists wanting to reinterpret the character free from the company’s veto would thus have to draw inspiration primarily from the earlier, skinnier, version. Given that the characters would share a common ancestor, however, even mice derived solely from Steamboat Willie would often strongly resemble the modern-day Mickey Mouse.

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iPhone-Google Voice Flap a Reminder of Why DMCA Needs Fixing

by on August 10, 2009 · 9 comments

We’ve discussed extensively the controversy that recently erupted when Apple rejected Google Voice applications from the iPhone App Store. With the FCC sniffing around and tech pundits around the blogosphere weighing in on the merits of possible government intervention, it’s important to remember that jailbreaking an iPhone may be illegal under the Digital Millenium Copyright Act (DMCA). In other words, if you use a hack or workaround that enables you to run banned apps like Google Voice on your iPhone, you could be violating federal law.

The DMCA hasn’t stopped millions of iPhone owners from jailbreaking their phones and installing Cydia, an unofficial alternative to the official iPhone App Store. Cydia, which lets users download banned iPhone apps like Google Voice, has been installed on a whopping one in ten iPhones, according to its developers.

But jailbreaking programs and applications like Cydia are in risky legal territory. Developers who circumvent the iPhone’s copy protection systems are at risk of being sued by Apple, as are users who run jailbreaking software. Apple maintains that jailbreaking software is illegal under federal law, though it has not taken legal action against any unauthorized iPhone developers to date.

To clear up the muddy legal waters surrounding iPhone jailbreaking, Fred von Lohmann of the Electronic Frontier Foundation has asked the U.S. Copyright Office to grant a legal exemption to iPhone jailbreaking on the grounds that users should be able to install apps of their choice on the phone without risking civil or criminal sanctions. In a recent DeepLinks post, von Lohmann argues that the FCC should throw its weight behind EFF’s call for exempting jailbreaking from anti-circumvention rules.

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Want Recovery? Remember Antitrust is Anti-Economy

by on August 10, 2009 · 23 comments

More restraint is in order when it comes to the Obama administrations intent to escalate “antitrust” enforcement against business and enterprise in America.

A skeptical interpretation of antitrust’s realities—up to and including recent campaigns targeting Intel, Google, XM-Sirius; and earlier campaigns against Microsoft and the AOL Time Warner merger, as well as rejected mergers like Echostar/DirecTV—is that antitrust often advances the well being of various species of political predators rather than consumers.

Antitrust is a form of economic regulation. And like all economic regulation, it transfers wealth from somebody to somebody else, often in response to special-interest urging. Partly in recognition of such shortcomings, many economic sectors like transportation and telecommunications were (partly) deregulated and liberalized during the last quarter of the 20th century. But antitrust regulation typically gets a pass. Even in the “new economy,” this century-old smokestack era concept is used to justify constraints and conditions imposed on vigorously competitive modern companies. Antitrust is wrongly seen as being in the public interest, as having a superior role to play in policing markets relative to the alternatives.

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If NCMEC’s Going to Regulate the Internet for Child Porn, It Should At Least Be Subject to FOIA

by on August 9, 2009 · 11 comments

Last year, my PFF colleague Adam Thierer asked whether State AGs + NCMEC = The Net’s New Regulators? Adam noted that NCMEC, the National Center for Missing and Exploited Children, a private non-profit organization, was playing a law enforcement role in regulating child pornography—but without any clear mechanisms for ensuring its accountability and effectiveness. Adam’s point wasn’t just that transparency is a good thing, but that when it comes to a cause as important as protecting children from exploitation, it’s vital to ensuring that we’re that we’re actually doing a good job at it!

Yesterday, Emmanuel Lazaridis commented on that post:

Given the increasing regulatory and investigative powers of the NCMEC, it is no longer clear whether or not the [Freedom of Information Act] applies to NCMEC records. We are about to find out. I am right now bringing a case against the NCMEC in federal court for access to records under the FOIA and, failing that, for discovery under 28 U.S.C. § 1782(a).

Mr. Lazaridis’s complaint in the D.C. District Court claims that Lazaridis (a Greek national) has been unfairly deemed a fugitive from U.S. justice for having taken his daughter to Greece over the objections of the girl’s American mother, Lazaridis’s ex-wife. NCMEC got involved by placing the girl on their MissingKids.com registry of abducted children. Lazaridis wants the court to recognize his custody, deem him not to be a fugitive, and to order NCMEC to turn over all their records on the girl.

This is, of course, just one side of the story (and such cases are usually so complicated as to be indecipherable to outsiders). But even if Lazaridis’s case were wholly without merit, his basic argument would be a sound one: Why shouldn’t NCMEC, in exercising any of its essentially governmental functions, be subject to the same accountability requirements through FOIA as the FBI would be?

When the issue is the Lazaridis family’s trans-Atlantic custody battle, it may seem easy to ignore this question. But when NCMEC is essentially making policy regarding filtering Internet content, blacklisting websites, turning over user logs to law enforcement, or “cleaning up” Craigslist, the question of NCMEC’s accountability under FOIA cannot be avoided as a critical decision about the future of Internet governance. Continue reading →

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ClaimMyName: Self-Help Against Name-Squatting on Social Media Services

by on August 8, 2009 · 11 comments

The proliferation of Web 2.0 social media services has magnified the old problem of cyber-squatting: Every new service represents the possibility that someone else might claim your name, or your organization’s trademark, as a user name before you do! This problem is especially significant where user names correspond to vanity URLs, as with Twitter and, more recently, Facebook.

So I was intrigued to discover that the market is responding to this need: ClaimMyName (CMN) will take care of user registrations on 30 Web 20 services for $329 or on an astounding 300 services for $799. CMN is a “freemium” service offered by DandyID.com, a nifty free service that allows users to organize all their social media profiles for something like 390 services so that buttons for each service can easily be added to an author bio page on a blog, as we’ve done at the TLF. So if I really wanted to make sure that no one else registered http://<WEB2.0service>.com/berinszoka, or /techliberation or /ProgressFreedom, this service would allow me to do so with just a few clicks—at a price of either $10.97/service for thirty or $2.66/service for 300 services.

CMN is essentially a mini-Mark Monitor, the international company famous for protecting trademarks online—except that CMN facilitates self-help by users outside of trademark law: No registration is required; everything is done on a first-come-first-serve basis. Pretty cool.

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