November 2009

Yo people, help me build this list of the best Internet and digital technology (“Info-Tech”) policy reporters on Twitter:

I’m trying to make sure I’m following the best reporters out there who cover public policy developments related to the Internet, cyberlaw, digital media, and so on. I’ve got just under 50 reporters on there currently, but I’m sure I’m missing some.  I would love to get some other suggestions about who is missing from my list, and I encourage others to follow my list if they find it a useful way to keep track of some of the best reporters on this beat.

Incidentally, I do understand it is hard to define exactly who counts as a “reporter” these days, but my general rule of thumb here is that (I think) almost everybody on my list actually gets paid to write about these issues.  In other words, I kept tech policy bloggers off this list. There’s just too many of them to count.

I was just digging through some old files and came across a quote that I found entertaining. Back in 2003, when he was still president and chief operating officer of Viacom, Mel Karmazin said with reference to Microsoft, AOL-Time Warner, and Comcast:  “I can’t imagine being a competitor with any of these guys.”  At the time, some media worrywarts made great hay of Mel’s quip and claimed, as Gene Kimmelman of Consumers Union argued at the time, that it proved how “Media moguls themselves admit their desire to avoid real competition within their industry.”

Utter rubbish. In fact, just six years after Karmazin spoke those words, Microsoft finds itself in a heated war with Google on all fronts, AOL-Time Warner has crumbled (even Time Warner Cable and Time Warner Entertainment got divorced!), and Comcast is now squaring off against telco and online video competitors that were unfathomable at the time (not to mention traditional satellite TV competitors.)  In the meanwhile, Karmazin abandoned Viacom and today, as CEO of Sirius XM, is struggling to find a way to make the satellite radio universe survive the ongoing digital music bloodbath thanks to unforeseen competition from online music services and a little thing called the iPod!

It’s proof positive that media markets and digital technologies always evolve faster than most people — even smart industry titans like Karmazin — anticipate.

Rep. Bart Stupak, (D-MI) recently introduced the ‘‘Online Age Verification and Child Safety Act’’ (H.R. 4059), which would require mandatory online age verification for “any pornographic website accessible by any computer located within the United States to display any pornographic material, including free content that may be available prior to the purchase of a subscription or product.”  The measure does not specify how such verification is to be administered, saying only that “any website or online service” must “establish and maintain a system of internal policies, procedures and controls to ensure that no such material is displayed to any user attempting to access their site without first verifying that the user is 18 years or older.”

In essence, the Stupak bill is the “Son of COPA,” or the Child Online Protection Act of 1998, a law that has been constitutionally tested and come up short during an epic, decade-long legal battle in which it was made clear that mandatory age verification is unwise, unworkable, and unconstitutional under the First Amendment.

COPA sought to make it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. COPA was immediately challenge, however, and a 10-year court battle ensued.  The law was blocked by lower courts because it was too sweeping in effect and because courts held that there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

COPA’s decade-long legal battle finally concluded in January 2009 when the U.S. Supreme Court refused to revisit the law.  COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal in January, lower court rulings stood and COPA remained unconstitutional and unenforceable. The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

Many, many times here before I have documented my serious ongoing reservations about mandatory age verification.  [In particular, see this lengthy white paper and this event transcript for all the details.]  Moreover, as I pointed out in a recent PFF white paper (“Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer“), every major online safety task force that has studied the possibility of mandatory age verification for the Internet has come to the same conclusion: It won’t work, it’s unconstitutional, and it raises serious privacy concerns. Down below the fold I have pulled some of the relevant language from the five online safety task forces that have met since 2000 and considered this issue.  Continue reading →

As I noted in a recent paper with my PFF colleague Barbara Esbin (“An Offer They Can’t Refuse: Spectrum Reallocation That Can Benefit Consumers, Broadcasters & the Mobile Broadband Sector“) an official at the Federal Communications Commission (Blair Levin) recently suggested that it might be possible to craft a grand bargain whereby television broadcasters get cash for some (or all) of their current spectrum if they return it to the FCC for reallocation and auction.  Such a deal could, eventually, open up significant amounts of prime spectrum for next-generation mobile broadband and data services.

Is such a deal feasible and in the best interests of broadcasters?  Is the arrangement necessary to encourage growth in broadband penetration consistent with the goals of the Recovery Act?  Will Congress go along with the deal, or would it be blocked as contrary to “the public interest?” Alternatively, would lawmakers back the deal but seek a significant cut of the auction proceeds, leaving less available for broadcasters?  These and other policy issues will be discussed at “Let’s Make a Deal:  Broadcasters, Mobile Broadband, and a Market in Spectrum,” a congressional seminar hosted by The Progress & Freedom Foundation. The event will be held Tuesday, December 1st from 9:00am to 11:00am in the Holeman Lounge, 13th Floor, at the National Press Club, 529 14th Street, NW in Washington, DC.

Panelists confirmed so far for the event include:

  • Blair Levin, Executive Director, Omnibus Broadband Initiative, Federal Communications Commission
  • Coleman Bazelon, Principal, The Brattle Group
  • David Donovan, President, Association for Maximum Service Television
  • Kostas Liopiros, Principal, The Sun Fire Group
  • John K. Hane, Counsel, Pillsbury Winthrop Shaw Pittman LLP
  • and 1 or 2 more to come!

I will be moderating the event.  Those interested in attending can register here.  Should be a spirited debate.

Be prepared next week for a cacophony of hand-wringing and prognosticating about retail sales figures reported on “Black Friday.” Retailers traditionally count on holiday shoppers to put them “in the black” for the year with a surge of purchases on the Friday after Thanksgiving.

But if you really want to understand this year’s retail sales picture, wait til the Monday after Thanksgiving. “Black Monday” is day a lot of people return to work, fire up the computer, and begin their online holiday shopping. 

Recent reports suggest that the recession has boosted rather than harmed electronic commerce, for one simple reason: the Internet makes it a lot easier to find the best price for many common purchases. Numerous recent posts tell this story:

Harsh Economy Can’t Shake Love for Online Retailers

Internet Supermaket Booms in Bad Times

Is Online Shopping Affected by a Recession?

The most popular online sites on STORES Magazine’s list include those of established merchants, such as Walmart, Best Buy, JC. Penney, and Target. They also include the pure online plays, such as, eBay, and  Craigslist — the site where I hunt for used and free stuff — made Stores’ “Top 50” list for the first time this year.  That’s surely a sign that the recession has been a boon to online shopping!

Great story in Wired about how Apple disrupted Microsoft’s mobile OS lead, again illustrating how quickly today’s leaders can, and probably will, become tomorrow’s laggards in the topsy-turvy tech biz.

And on the benefits of Apple’s heretical “closedness”:

The iPhone operates on a closed system, which can only run on Apple hardware, meaning third- party developers can produce apps and games that work exclusively with the iPhone Therefore, despite Apple’s questionable and controversial approval policy for iPhone apps developers can code one app that works with 40 million iPhone and iPod Touch devices which is less time consuming than developing several versions of one app for a variety of Windows Mobile smartphones. In turn, that spells out to a larger number of  apps in the App Store, which enables Apple’s hardware to cater to a larger and broader audience.

I wrote here a couple of months ago about the shady practice among a few Internet retailers of handing off customers who accept a “special offer” to a company that charges people a monthly fee for some kind of credit monitoring service. And I argued hopefully that maybe technologists and the Internet community could generate a response to this problem:

Being a smart, informed, and aggressive consumer is each person’s responsibility if a free market is to operate well. The alternative is a negative feedback loop in which government authorities protect us, we rely on that protection and stop policing retailers. Thereby we abandon the field of consumer protection to government authorities, who—try as they might—can never do as good a job for us as we can for ourselves.

The Senate Commerce Committee is having a hearing today on “Aggressive Sales Tactics on the Internet and Their Impact on American Consumers.”

Adam has done yeoman’s work for years pointing out, and arguing against, the phenomenon of techno-panic as it relates to children. That’s not the only area in which techno-panic can tighten its grip on the neck of common sense and the constitution, of course.

But here’s a delight I ran across this morning: the Los Angeles Times arguing against techno-panic despite the use of Web sites to research and case potential burglary victims (by the “bling ring,” soon to be the subject of a major motion picture).

The Times editorializes:

[T]hieves [did not] have to wait for the invention of Google maps to reconnoiter neighborhoods in search of easily accessible homes. That’s worth remembering if, as we fear, some legislator decides that a law should be passed to prevent Internet surfers from looking at houses they easily could scope out from the sidewalk. . . . . A law against photographing a home or what occurs outside it in plain sight — or disseminating the images to others — would be overreaching, not to mention unconstitutional.

What a delight—a major newspaper arguing to keep a hot issue in perspective and citing the constitution as a limit on government power! Thank you, L.A. Times.

Great NPR story today on how online social networking is helping to bring medical patients together to talk about their conditions and compare treatments.

The story quotes Susannah Fox of the Pew Internet and American Life Project:

“They are posting their first-person accounts of treatments and side effects from medications,” says Fox. “They are recording and posting those podcasts. They’re tagging content. They are part of the conversation. And that, I think, is an indicator of where we could be going in terms of the future of participatory medicine.”

For every story that talks about the bad on the Internet, there are are hundreds of positive examples about how online communities improves lives. If only we can get the doctors to use online technology more often….

This will be a busy week for those who follow privacy policy in Washington:

  1. Monday (11/16) 11 am: the coalition of 10 so-called “privacy advocacy” groups that recently demanded sweeping regulation of online data collection and use will be holding a briefing for congressional staffers on their demands in 2322 Rayburn House Office Building.
  2. Wednesday (11/17), 4 pm: A “bipartisan briefing for staff of Members on the Subcommittees” in 2322 Rayburn, followed by a Democratic staff briefing.
  3. Thursday (11/18), 10 am: The House Energy & Commerce Committee’s Subcommittee on Communications, Technology & the Internet and Subcommittee on Commerce, Trade & Consumer Protection will hold a joint hearing on “Exploring the Offline and Online Collection and Use of Consumer Information” in 2123 Rayburn.

The witness list for Thursday’s hearing has not yet been released, but reportedly includes Pam Dixon of the World Privacy Forum and Prof. Chris Hoofnagle of Berkeley Law, as well as three industry representatives (but no skeptics of regulation from outside of industry, who might ask “whether privacy advocates” really have consumers interests at heart). Dixon and Hoofnagle may well be the only two people on the planet who could rival Jeff Chester in their paranoia about online advertising.

Jell-oSo I suspect the hearing will consist largely of the two of them trying to dodge the question Adam Thierer and I keep asking: What’s the harm that requires government regulation? For them—and for David Vladeck—the new head of the FTC’s Bureau of Consumer Protection—the answer seems to be that no real harm need be established to justify regulation, whatever the cost to consumers of regulation, because “harm” may be defined by anecdote and in terms of “dignity interests”—a legal standard that has all the intellectual and factual rigor of a plate full of Jell-O shots (intoxicating and fun for parties but squishy with little real substance).

Adam and I will be raising this and other questions at the FTC’s Exploring Privacy workshop on December 7.  I will be participating in the online behavioral advertising panel, and PFF President Adam Thierer will be participating in the consumer expectations/surveys panel. Check out my comments to the FTC for more on our perspective. Continue reading →