October 2009

I’ve been meaning to say something about this new paper by Renee Newman Knake of Michigan State University College of Law, which calls for a new paradigm to analyze, and then likely regulate, video game content. Knake’s paper is entitled, “From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations.” In it, she proposes to extend an emerging legal philosophy known as “ecogenerism” to the field of video games and the First Amendment treatment thereof. “Ecogenerism” is largely the creation of Barbara Bennett Woodhouse and the theory argues that we should apply lessons or legal frameworks from the field of environmental law to the area of media and children. “Under an ecogenerist model,” states Knake, “media harm decisions should prioritize concern about the level of ‘toxic’ media which children are exposed over free speech interests.”  Simply stated, we should treat “toxic media” like toxic chemicals.

There have been other efforts to get courts to relax the legal scrutiny applied to video game content from “strict” to something more relaxed or intermediate in character. For example, there is the “violence as obscenity” approach proposed by Kevin Saunders, who, like Knake, is also with the Michigan State University College of Law. But whereas Saunders has proposed applying an adjacent legal theory or framework (obscenity law) to legal analysis of the constitutionality of regulation of video game content, Woodhouse and now Knake propose a much broader, and more radical, reformulation of First Amendment law along the lines of entirely different body of jurisprudence — again, environment law and regulation.

Of course, this is nuts. The notion that words or images are as “toxic” as chemicals is preposterous, and yet that is exactly what Knake and Woodhouse want us to accept. We can determine with a great deal of certainly the physiological impact of too much mercury or lead on the development of the human brain or body. Generally speaking, we know what dose would kill or deform. The same cannot possibly be said of media, and the very allusion to toxic materials or chemicals is ludicrous to begin with since words and images have never directly killed anyone. EVER! Continue reading →

There was some buzz earlier this year when the White House used the free, open-source Drupal content management platform for Recovery.gov. Now the administration’s marquee Web site Whitehouse.gov will be using it.

The AP story linked just above does a good job of recounting the benefits of open source in this application: chiefly, low cost and high security.

Arnold Kling wrote recently on the Library of Economics and Liberty blog relating the work Elinor Ostrom did to win the nobel prize in economics to how the Internet enables private provision of public goods—no regulation, little to no centralized authority at all.

Open source is nothing if not an example of that, and it’s good to see this use of open source joining many others across the big, beautiful Internet.

A large group of privacy advocacy groups and individuals sent a letter to the leadership of the House Homeland Security Committee today, suggesting that the role of Chief Privacy Officer at the Department of Homeland Security should be scrapped.

The DHS CPO has shown an extraordinary disregard for the statutory obligations of her office and the privacy interests of Americans. Outreach is certainly important, but the job of Chief Privacy Officer is not to provide public relations for the Department of Homeland Security. The job as defined in the statute is to protect the privacy of American citizens, through investigation and oversight. If an internal office cannot achieve this, then the situation calls for an independent office that can truly evaluate these programs and make recommendations in the best interests of the American public.

The current CPO, Mary Ellen Callahan, has not been on the job long enough to lay all these concerns at her feet, but the substance of the complaint is valid. Does the Privacy Office actually help protect privacy, or has it, over years, favored the paperwork function over privacy protection, falling into the role of apologist for DHS programs?

I serve on the DHS Privacy Committee, which advises the CPO. The views stated here, of course, are my own.

I wrote on Privacilla in 2001: “As a management matter, government privacy officers may become antagonistic to the agencies with whom they deal, and lose effectiveness, or they may be captured by agencies and become professional apologists for government erosion of privacy.”

And when I joined the committee four years later, I expressed my concern with the potential for co-option, saying in a Privacilla press release: “I have asked friends and family members to beat me up if I change or mute my advocacy for privacy, civil liberties, and freedom.”

A Better Pencil book coverI very much enjoyed Dennis Baron’s new book, A Better Pencil: Readers, Writers, and the Digital Revolution, and highly recommend you pick it up. Baron does a wonderful job exploring the history of techno-pessimism and the endless battles about the impact of new technologies on life and learning, something I have written about here before in my essays on “Internet optimists vs. pessimists” (See: 1, 2, 3).

I have a complete review of Baron’s A Better Pencil now up on the City Journal‘s website here.  I’ve also pasted it down below.

Plato Wrote it Down
by Adam Thierer

a review of A Better Pencil: Readers, Writers, and the Digital Revolution, by Dennis Baron (Oxford University Press, 280 pp., $24.95)

In the beginning, Dennis Baron reminds us in his new book, A Better Pencil, there was the word—the spoken word, that is. Oral tradition, the passing of knowledge through stories and lectures, was the primary method of instruction and learning throughout early human civilization. But then a few innovative souls decided to start writing everything down on stones and clay. Almost as soon as they did, a great debate began on the impact of new communications technology on culture and education. And it rages on today, with a new generation of optimists and skeptics battling over the impact that computing, the Internet, and digital technologies have on our lives and on how we learn about the world.

Continue reading →

Just read this AP article that reported on a Tuesday hearing of the Ohio Supreme Court about an Ohio “harmful to minors” law. According to the article, the statute makes it illegal to distribute harmful material to minors through “direct communications by people who know or have reason to believe the recipient is a minor.”

The case is in the 6th Circuit Court of Appeals, which has asked the Ohio Supreme Court to interpret “mass distribution” and “personally directed devices.” Per the law:

2) A person remotely transmitting information by means of a method of mass distribution does not directly sell, [etc.] … if either of the following applies:

(a) The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
(b) The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.

In the hearing (see the video) Justice Robert Cupp coins this beauty of a statement:  “It’s not really the statute that’s confusing here, it’s the technologies.” Judge say what?

Isn’t the whole point of a statute to be applied to factual situations? Anything can make sense in the abstract (even law!). But applied to everyday life, the simplistic becomes complex — and can have unintended consequences. Continue reading →

Pre-release rumors and press reports were making it sound like the Obama administration let Rep. Ed Markey draft the FCC’s Notice of Proposed Rulemaking to “Preserve the Free and Open Internet.”

Maybe there was a last-minute change of plan.

There were rumors and/or reports that the NPRM would contain a “viewpoint diversity” mandate and only allow forms of network management which someone has managed to prove to the FCC satisfy a “strict scrutiny” test.

In the Markey-Eshoo bill, the strict scrutiny test is defined as follows:

[A] network management practice is a reasonable practice only if it furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available.

But in paragraph 137 of the NPRM, the commission declines to adopt a strict scrutiny standard.

We recognize that in a past adjudication, the Commission proposed that for a network management practice to be considered “reasonable,” it “should further a critically important interest and be narrowly or carefully tailored to serve that interest.” We believe that this standard is unnecessarily restrictive in the context of a rule that generally prohibits discrimination subject to a flexible category of reasonable network management. We seek comment on our proposal not to adopt the standard articulated in the Comcast Network Management Practices Order in this rulemaking.

There were also reports the NPRM would include a carve-out for application and service giants like Google. But the definitions in the draft regulations included in the NPRM are so broad that many applications and services arguably could be included:

Broadband Internet access. Internet Protocol data transmission between an end user and the Internet. For purposes of this definition, dial-up access requiring an end user to initiate a call across the public switched telephone network to establish a connection shall not constitute broadband Internet access.

Broadband Internet access service. Any communication service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public.

Continue reading →

by Berin Szoka & Adam Thierer, Progress Snapshot 5.11 (PDF)

Ten years ago, Nobel Prize-winning economist Milton Friedman lamented the “Business Community’s Suicidal Impulse:” the persistent propensity to persecute one’s competitors through regulation or the threat thereof. Friedman asked: “Is it really in the self-interest of Silicon Valley to set the government on Microsoft?” After yesterday’s FCC vote’s to open a formal “Net Neutrality” rule-making, we must ask whether the high-tech industry—or consumers—will benefit from inviting government regulation of the Internet under the mantra of “neutrality.”

The hatred directed at Microsoft in the 1990s has more recently been focused on the industry that has brought broadband to Americans’ homes (Internet Service Providers) and the company that has done more than any other to make the web useful (Google). Both have been attacked for exercising supposed “gatekeeper” control over the Internet in one fashion or another. They are now turning their guns on each other—the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates. Unless we find a way to achieve “Digital Détente,” the consequences of this increasing regulatory brinkmanship will be “mutually assured destruction” (MAD) for industry and consumers.

New Fronts in the Neutrality Wars

The FCC’s proposed rules would apply to all broadband providers, including wireless, but not to Google or many other players operating in other layers of the Net who favor such broadband-specific rules. With this rulemaking looming, AT&T came after Google with letters to the FCC in late September and then another last week accusing the company of violating neutrality principles in their business practices and arguing that any neutrality rules that apply to ISPs should apply equally to Google’s panoply of popular services. In particular, AT&T accused Google of “search engine bias,” suggesting that only government-enforced neutrality mandates could protect consumers from Google’s supposed “monopolist” control.

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. Continue reading →

We’ve talked here before about the dangers of a government-subsidized press as a way of “saving journalism.” But I don’t think I’ve ever read anything quite as eloquent on the issue as Seth Lipsky’s editorial in today’s Wall Street Journal entitled “All the News That’s Fit to Subsidize.”  Mr. Lipsky is a member of the adjunct faculty at the Columbia Journalism School. In his essay today, he warns of the very real slippery slope associated with proposal to have government step in and somehow bailout newspapers as they find themselves in a time of crisis.Specifically, Mr. Lipsky addressees a new report (“The Reconstruction of American Journalism“) by Leonard Downie (former executive editor of the Washington Post) and co-author Michael Schudson (also of Columbia Journalism School), in which the authors call for a mixture of legal and regulatory changes as well as government subsidies to help prop up failing news operations.

Mr. Lipsky argues that they have “stepped onto an exceptionally slippery slope”: Continue reading →

Two recent trends evidence the importance of targeted Internet advertising–more money going toward Internet ads, and fewer people that click on display banner ads.

First, the good news is that Internet advertising is rebounding (or at least seeing a reversal in the the decline of ad $). Tough economic times has decreased ad dollars among all marketing mediums. But online ads will be the first to see new demand from marketers. And some online companies are weathering the bad economy just fine. Google’s ad revenue rose 7 percent in the third quarter.

Compare with McClatchy (the U.S.’s 3rd largest newspaper company), where according to the AP article print advertising plunged 32 percent in the third quarter, but its online ad sales increased 3 percent.

So ad dollars are increasing. Where will money be spent? On targeted ads.

comScore released a study earlier this month that showed most people don’t click on display advertisements. As someone who never does either, I don’t find this surprising. According to comScore:

“The act of clicking on a display ad is experiencing rapid attrition in the current digital marketplace,” said Linda Anderson, comScore VP of marketing solutions and author of the study. “Today, marketers who attempt to optimize their advertising campaigns solely around the click are assigning no value to the 84 percent of Internet users who don’t click on an ad.”

This is huge. Online companies rely on advertisements to pay the bills and will need to better target ads to their users if they want to stay in business.

If we want to see the next generation of online content and services, then we need to stay vigilant to convince members of Congress (Boucher) and the FTC not to impose more restrictions on interest-based advertising, such as opt-in requirements.

This morning, I testified before the House Committee on Energy and Commerce’s Subcommittee on Communications, Technology, and the Internet about “Video Competition in a Digital Age.” The focus of the hearing was to “examine competition in the video programming marketplace, including access by multichannel video programming providers and consumers to programming both via television and the Internet.” Testifying along with me were: Verizon Vice President Terrence Denson; Sunflower Broadband CEO Patrick Knorr; “Battlestar Galactica” executive producer Ronald Moore; Disney Media Networks President of Global Distribution Benjamin Pyne; and Cablevision Chief Operating Officer Thomas Rutledge.

I my remarks, I argued that the critical question that should govern debates about the state of the media marketplace is: “Do citizens have more news, information, and entertainment choices at their disposal today than in the past?” As  told the Committee, “all the evidence suggests the answer to that question is, unambiguously, “yes.””

Indeed, although humans have lived in a state of extreme information poverty for most of history, we now live in a world of unprecedented media abundance: Increasingly, we can obtain and consume whatever media we want, wherever and whenever we want. Citizens of all backgrounds and beliefs benefit from this modern media cornucopia.

Nowhere has this abundance been more evident than in video programming. … we have more video options and diversity at our disposal today than ever before, and generally at falling prices. In sum, there’s more competition for our eyes than ever before. […]

America’s video marketplace should be viewed as a pro-consumer success story. With an abundance of choices, competition, and diverse viewing options, the only real scarcity remaining today is our personal time and attention spans—not video options.

My full testimony, including all the exhibits and tables I referenced in my remarks, is pasted down below. Continue reading →