Glen Robinson, my favorite professor back at Virginia Law, will be giving a lecture about “Regulating Communications: Stories from the First Hundred Years” at George Mason Law School this Thursday (2/18) at 4 pm. You simply couldn’t find a better person to give that talk. Robinson isn’t quite old enough to first-hand stories all the way back to the birth of the Federal Radio Commission in 1926 and the FCC in 1934, but he started practicing communications law back in 1961, was an FCC Commissioner 1974-76, and has taught at UVA since 1976 (until finally retiring in 2008).
Reading about his long career is a bit like watching the British comedy series Black Adder: Somehow, like Rowan Atkinson’s character Black Adder, Robinson keeps popping up again and again at pivotal moments in communications law history—most notably, he worked to draft early anti-cable rules in the 1960s and voted for the FCC’s indecency prosecution against George Carlin’s “Filthy Words” monologue. But unlike Black Adder, who always happens to be at the right place at the right time, make the wrong decisions and foolishly learns nothing, Robinson sometimes made the wrong decision, but demonstrated that rare ability to rethink his approach and admit he was wrong—an intellectual honesty most famously exemplified by FA Hayek. Robinson grew to become among the most trenchant, and certainly the most sage, critic of the FCC’s constant evolution towards censorship and curtailing competition in the communications industry. His general skepticism about administrative regulation is perhaps the most thoughtful and refined you’ll find in academe—and not just in communications law. Continue reading →
Since some of my cobloggers have taken to using the phrase “Privacy Paternalists” to describe some advocates of privacy regulation, I want to suggest a distinction growing out of the discussion on Berin’s Google Buzz post below.
I think that it’s clear there is such a thing as a “privacy paternalist”—and there are not a few among folks I consider allies on other issues. They’re the ones who are convinced that anyone who values privacy less highly than they do must be confused or irrational. A genuine privacy paternalist will say that even if almost everyone understands that Amazon keeps track of their purchases to make useful recommendations, this collection must be prohibited because they’re not thinking clearly about what this really means and may someday regret it.
There’s actually a variant on this view that I won’t go into at length, but which I don’t think should be classed as strictly paternalist. Call this the “Prisoner’s Dilemma” view of privacy. On this account, there are systemic consequences to information sharing, such that we each get some benefit from participating in certain systems of disclosure, but would all be better off if nobody did. The merits of that kind of argument probably need to be taken up case-by-case, but whatever else might be wrong with it, the form of the argument is not really paternalistic, since the claim is that (most) individuals have a system-level preference that runs contrary to their preference for disclosure within the existing system.
The objections to Buzz, however, don’t really look like this. The claim is not that people’s foolish choices to disclose should be overridden for their own protection. The claim, rather, is that the system is designed in a way that makes it too easy to disclose information without choosing to do so in any meaningful way. Now, if I can log into your private database as user “J’ OR T=T”, you probably need to learn to set up SQL better. But it is not terribly persuasive of me to argue that criticism of my breach is “paternalistic,” since after all you made your database accessible online to anyone who entered that login. It is substantially more persuasive if I have logged in as “guest” because you had enabled anonymous logins in the hope that only your friends would use them. On the Internet, the difference between protecting information from a user’s own (perhaps ill-advised) disclosure and protecting it from exploitation by an attacker ultimately, in practice, comes down to expectations. (The same is true in the physical world, though settled expectations make this less salient: Preventing me from getting into the boxing ring is paternalism; declaring the park a “boxing ring” by means of a Post-It note at the entrance is a pretext for assault.) Continue reading →
Last week I received Public Knowledge’s press release and letter urging support of a “Bold National Broadband Plan.” I admire PK a great deal on several issues, but remain struck by the arbitrariness of demanding “national plans” for this-or-that technology. It occurred to me that if anybody were to actually ask me (so, don’t), I think I favor a National Elevator Plan instead.
Too many Americans live in two-story homes, and/or have basements, yet have no easy access to the upstairs bathroom and Halloween decorations in the attic, or to the aunt living up there. They are forced to rely on outdated “stairs” technology. (And stairs are dangerous! So this is far more urgent than broadband! Show your outrage! Etc.!) So I ever-so-slightly tweaked the letter; this bold new campaign is meant to rectify this injustice and I hope you’ll sign on and spread the word. Continue reading →
I’m a big fan of CNET’s “Buzz Out Loud” podcast and often enjoy co-host Molly Wood’s occasional “Molly Rant” but I’m disappointed to see her jumping on the Google-bashing bandwagon with her latest rant: “Google Buzz: Privacy nightmare.” Instead of appreciating the “privacy by design” features of Buzz, she seems to be rushing to privacy paternalism—just as I feared many would when I blogged about the Buzz launch.
Molly’s primary complaint, repeated several times, is that “you automatically follow everyone in your Gmail contact list, and that information is publicly available in your profile, by default, to everyone who visits your profile.” Actually, while Buzz does automatically follow some users your contact list, it does so only for the ones you chat with most using Gmail (which I believe means only other Gmail users). After that, Buzz simply tells you when other users follow you, and makes it easy to follow them.
So what’s the big deal? Molly’s concern, shared by a number of other bloggers, is that, before a user can start Buzzing, they have to set up Google Profile (another Google product launched last August, which typically appears on the bottom of the first page of Google search results for that name) and the default setting for Google profiles is to “Display the list of people I’m following and people following me.” In this respect, your Google Profile is a lot like your Facebook profile, except that users can decide to hide their followers/followees on their Google profile. (On Facebook, that information is part of the limited bucket of “publicly available information” and can’t be hidden by the user from their profile, but users can opt-out of having their profile accessible at all through search engines or Facebook search.)
There are essentially three ways of dealing with this concern about inadvertent sharing of sensitive contacts: Continue reading →
The Reason Foundation releases my policy brief today looking at the effect network neutrality regulation will have on wireless applications and services.
Much has been written about the deleterious effect that regulating network management would have on broadband investment and innovation, and when applied to wireless, which is what FCC Chairman Julius Genachowski proposes to do, problems would only get worse.
The non-discrimination principle that Genachowski seeks to mandate would prohibit service providers such as AT&T, Verizon Wireless, T-Mobile and Sprint from using their network resources to prioritize or partition data as it crosses their networks so as to improve the performance of specific applications, such as a movie or massive multiplayer game. Yet quality wireless service is predicated on such steps. The iPhone, for example, would not have been possible if AT&T and Apple did not work together to ensure AT&T’s wireless network could handle the increase in data traffic the iPhone would create.
Continue reading →
If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.
Declan McCullagh reports:
In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.
The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.
I wrote about these cases, and the courts’ misunderstanding of privacy since 1967’s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine“:
These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”
This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.
At least that’s how my former colleague Tom Miller, now at the American Enterprise Institute, used to put it. Still another government/business funded report, this one called “Nanotechnology: a UK Industry View” reaches yet again the same conclusions about nanotechnology as the ones that pop out occasionally like the U.S. Environmental Protection Agency’s “Nanotechnology White Paper” or the Food and Drug Administration’s “Nanotechnology.”
The conclusions always secure an open-ended role for political bodies to govern private endeavors, and since the business parties are so dependent on political funding, they have to go along with it, cut off from envisioning an alternative approach.
The reports say–brace for it–that governments should fund nanotechnology and study nanotechnology’s risks; and that they should then regulate the technology’s undefined and unknown risks besides. This approach, so different from, say, the way software is produced and marketed, assures that there will never be a “Bill Gates of nanotechnology” (or in another sector, a Bill Gates of biotechnology, as CEI’s Fred Smith often puts it). If every single new advance requires FDA medical-device-style approvals, this is an industry that cannot begin to reach its potential. Continue reading →
It’s not the highest-toned debate the world of public policy has ever seen, but the WashingtonWatch.com discussion on Public Law 111-92, the Unemployment Compensation Extension Act of 2009, has now reached over 100,000 comments.
I’ve discussed the astounding level of commentary—and all the efforts to keep it civil—in a post on the WashingtonWatch.com blog.
It’s been a busy week in the Googlesphere. Google made headlines earlier this week when it aired a televised ad for the first time in the company’s history, and again yesterday when it unveiled Buzz, its new social networking platform. Today, Google announced bold plans to build an experimental fiber-to-the-home broadband network that’s slated to eventually deliver a whopping gigabit per second of Internet connectivity to 500,000 U.S. homes.
Google’s ambitious broadband announcement comes as welcome news for anybody who pines for greater broadband competition and, more broadly, infrastructure wealth creation in America. To date, Google has dabbled in broadband in the form of metro Wi-Fi, but hasn’t embarked on anything of this scale. Laying fiber to residences is not cheap or easy, as Verizon has learned the hard way, and Google will undoubtedly have to devote some serious resources to this experiment if it is to realize its lofty goals.
It’s important to remember, however, that Google is first and foremost a content company, not an infrastructure company. Google’s generally awesome products, from search to video to email, attract masses of loyal users. In turn, advertisers flock to Google, spending billions in hopes of reaching its gigantic, precisely-targetable audience. This business model enables Google to invest in developing a steady stream of free services, like Google Voice, Google Apps, and Google Maps Navigation.
So it won’t be too surprising if Google’s broadband experiment doesn’t initially generate enough revenue to cover its costs. In fact, I’m skeptical that Google even anticipates its network will ever become a profit center. Rather, chances are Google won’t be at all concerned if its broadband service doesn’t break even as long as it bolsters the Google brand and spurs larger telecom companies to get more aggressive in upgrading their broadband speeds (which, indirectly, benefits Google).
Google’s broadband agenda is great news for consumers, of course. Who can complain if Google is willing to invest in building a fiber-to-the-home broadband network and is willing to charge below-cost prices? Not me!
Continue reading →
By Berin Szoka & Adam Thierer
We learned from The Wall Street Journal yesterday that “Federal Communications Commission Chairman Julius Genachowski gets a little peeved when people suggests that he wants to regulate the Internet.” He told a group of Journal reporters and editors today that: “I don’t see any circumstances where we’d take steps to regulate the Internet itself,” and “I’ve been clear repeatedly that we’re not going to regulate the Internet.”
We’re thankful to hear Chairman Julius Genachowski to make that promise. We’ll certainly hold him to it. But you will pardon us if we remain skeptical (and, in advance, if you hear a constant stream of “I told you so” from us in the months and years to come). If the Chairman is “peeved” at the suggestion that the FCC might be angling to extend its reach to include the Internet and new media platforms and content, perhaps he should start taking a closer look at what his own agency is doing—and think about the precedents he’s setting for future Chairmen who might not share his professed commitment not to regulate the ‘net. Allow us to cite just a few examples:
Net Neutrality Notice of Proposed Rulemaking
We’re certainly aware of the argument that the FCC’s proposed net neutrality regime is not tantamount to Internet regulation—but we just don’t buy it. Not for one minute.
First, Chairman Genachowski seems to believe that “the Internet” is entirely distinct from the physical infrastructure that brings “cyberspace” to our homes, offices and mobile devices. The WSJ notes, “when pressed, [Genachowski] admitted he was referring to regulating Internet content rather than regulating Internet lines.” OK, so let’s just make sure we have this straight: The FCC is going to enshrine in law the principle that “gatekeepers” that control the “bottleneck” of broadband service can only be checked by having the government enforce “neutrality” principles in the same basic model of “common carrier” regulation that once applied to canals, railroads, the telegraph and telephone. But when it comes to accusations of “gatekeeper” power at the content/services/applications “layers” of the Internet, the FCC is just going to step back and let markets sort things out? Sorry, we’re just not buying it. Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
WashingtonWatch.com: Over 100,000 Comments on One Bill
by Jim Harper on February 11, 2010 · 4 comments
It’s not the highest-toned debate the world of public policy has ever seen, but the WashingtonWatch.com discussion on Public Law 111-92, the Unemployment Compensation Extension Act of 2009, has now reached over 100,000 comments.
I’ve discussed the astounding level of commentary—and all the efforts to keep it civil—in a post on the WashingtonWatch.com blog.