March 2010

John Schwartz of The New York Times called me two weeks ago and asked for comment about a potential controversy involving mobile phone provider Sprint and the charitable organization Catholic Relief Services (CRS). The facts were pretty sketchy at the time, but Schwartz told me that CRS was accusing Sprint of blocking Mobile Commons, the company that connects CRS and 100 other nonprofit organizations with text messaging networks, from getting a short code to create a charitable mobile donation program in the wake of the Haiti earthquake. Here’s the basic background that appeared in Schwartz’s March 24th article, Catholic Charity and Sprint Tangle Over Texting“:

[CRS] wanted to try a twist on the technology: when people sent a text message to donate, they got a reply offering to connect them via phone to the charity’s call center. The group hoped that the calls could build a stronger bond with donors, and garner larger contributions as well. But just three days into the effort after the Jan. 12 earthquake, the charity got word that Sprint Nextel was demanding that the “text-to-call” effort be shut down. The charity had 40 days to abandon the feature or lose access to millions of Sprint customers.  Sprint’s original motivations are murky; it said that an intermediary company had failed to properly fill out a form to verify that it was dealing with a legitimate charity.

It didn’t take long for the regulatory activists at Free Press and Public Knowledge to pounce and claim the Federal Communications Commission (FCC) had to intervene to save our souls from the nefarious scum at Sprint. After all, you do know that Sprint hates Haitians, right?  The company obviously wanted to see Haitians starve and not receive any support from charitable organizations.

No, seriously, come on!  How asinine is this storyline?! Continue reading →

Are you a fellow Twitter addict who also monitors Internet policy and cyberlaw developments closely? If so, have you noticed that there really isn’t a good Twitter hashtag for this broad and growing issue set?   The #FCC and #FTC hashtags have become catch-alls for a great deal of activity in this area, but they don’t really make sense for other Internet policy issues that those agencies don’t cover. For example, Sec. 230-related issues wouldn’t really fit in either of those. Neither would something about Internet governance, e-commerce taxation, or search engine policy concerns. And just using #Internet doesn’t work because it’s far too broad. #Cyberlaw is probably the best hashtag I’ve found to cover this arena, but it doesn’t get much traction and may also be too narrow since some users might not consider it applicable to digital economics.

So, I’d like to propose #NetPolicy as a catch-all Twitter hastag for Internet policy matters. It would be great way to keep track of breaking news, new papers, and upcoming events related to the Internet policy issues.

Anyone have thoughts, or a better alternative??

By Adam Thierer & Berin Szoka

Short but very important essay here from Santa Clara University Law School Prof. Eric Goldman about calls to alter Sec. 230 of the Communications Decency Act (CDA) to address concerns about online harassment. Generally speaking, Sec. 230 immunizes online intermediaries from punishing liability for the content that travels over their networks / services. Specifically, Sec. 230 stipulates that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words: Don’t shoot the messenger!

As we’ve noted here before, it is probably not an overstatement to think of Sec. 230 as the very cornerstone of Internet Freedom, since it makes possible an online “utopia for utopias,” to borrow a phrase from our favorite modern political philosopher, the late Robert Nozick. Without Sec. 230, intermediaries would likely be forced to shut down many avenues of communication and would have to become deputized conduct and morality police for every cyber-street corner.

Goldman, America’s leading expert on Sec. 230-related jurisprudence, correctly notes that, “Frequently, § 230’s critics do not attack the immunization generally, but instead advocate a new limited exception for their pet concern.” He’s got that right. Indeed, we are increasingly hearing calls from numerous quarters these days to “tweak 230” for one pet concern after another. We’ve illustrated some of those concerns in this exhibit.

Deputization of the Middleman

Regulatory advocates can be found for each of these issues who like to see the protections afforded by Sec. 230 scaled back by Congress or he courts. But Goldman rightly warns:

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My good friend and mentor Robert Corn-Revere, a Partner at Davis Wright Tremaine LLP, will be delivering what sounds like a terrific speech on April 5th at 4:00 at the George Mason University School of Law on “The First Amendment and the End of History: Does Media Convergence Mean the End of Regulation or is it Just the Beginning?” It’s a topic I care about deeply and you’ll see how influential Bob’s thinking has been on my own by watching that video down below.  Bob is one of America’s leading free speech scholars and a tireless defender of First Amendment rights. And he’s always entertaining when he steps to a podium to deliver remarks.  Admission to the event is free but RSVPs are requested:  Here are logistical details:

Monday, April 5, 2010, 4 p.m.
George Mason University School of Law (Room 120)
3301 Fairfax Drive, Arlington, Va. (Orange Line: Virginia Square-GMU Metro)

Steve Forbes has an entertaining essay out today about the agenda of Free Press and its founder, the Marxist media scholar Robert McChesney. Forbes notes that McChesney has expressed a great deal of sympathy for the Venezuelan dictator Hugo Chavez and has even defended some of his tactics to control the press. This leads to his fear that McChesney and Free Press will convince the Obama Administration to use similar tactics here in the U.S.:

Once the federal government starts subsidizing our own free press, how long until the feds start revoking broadcast licenses of government opponents and bringing pesky reporters up on charges of say, “corruption” or “subversion”? According to McChesney and the Free Press folks, it apparently can’t happen soon enough.

To be fair, I haven’t heard anyone from Free Press defending Hugo Chavez or his tactics. But I do wonder why the organization continues to associate itself with such a radioactive figure like Mr. McChesney. After all, Forbes isn’t making up anything about McChesney, who is an outspoken, and self-described, Marxist media theorist. McChesney really has expressed sympathy for Chavez and said that, “If [Venezuelan broadcaster] RCTV were broadcasting in the United States, its license would have been revoked years ago. In fact its owners would likely have been tried for criminal offenses, including treason.” Far more troubling are Mr. McChesney’s views regarding how to reform media going forward, which I’ve documented in past essays in more detail. (See, “Free Press, Robert McChesney & the “Struggle” for Media,” “What the Media Reformistas Really Want,” and “Socializing Media in Order to Save It,.”) One need look no further than this lengthy interview with McChesney that appeared in an online newsletter called “The Bullet” produced by the Canada-based “Socialist Project.”

The whole thing is quite troubling to read, but here are a couple of jaw-droppers that make it clear just how radical Mr. McChesney’s worldview and agenda are:

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Congresswoman Diane E. Watson, who serves as Chair of the House Government Management, Organization, and Procurement Subcommittee, has just introduced new legislation proposing the creation of a “National Office for Cyberspace” within the Executive Office of the President.  Rep. Watson’s bill, “The Federal Information Security Management Act of 2010” (H.R. 4900) amends the Federal Information Security Management Act (FISMA) of 2002 in an attempt “to strengthen and harmonize the federal government’s efforts to ensure the integrity of its information infrastructure.”

It’s hard to argue against that goal, and I won’t here. Clearly, our government needs to get it’s own house in order when it comes to network and data security. Nonetheless, an “Office for Cyberspace” gives me pause. Although I always try to be careful with slippery slope arguments (per Eugene Volokh’s excellent advice here), I think there are good reasons to fear that any Executive Branch-level “Office for Cyberspace” would quickly come to take on a wide variety of other policy matters beyond just federal cyber-security issues.  The Federal Communication Commission’s past and recent history of regulatory mission creep is not encouraging in this regard. The agency has always looked to grow its mission and powers, and it has often succeeded. Of course, to be fair, the fundamental ambiguity of certain clauses and phrases within the agency’s charter document– the Communications Act of 1934 — left the door open to creative readings of things like what was in “the public interest,” or what constituted “fair and non-discriminatory” practices.

If, by contrast, the powers of this new “National Office for Cyberspace” are tightly limited to the mission of simply ensuring that the federal government keeps its own house in order — and doesn’t try to regulate our digital houses at the same time — then perhaps we have nothing to worry about. But, I remain a bit paranoid about these things and fear that the old “Hands Off the Net!” dream dies a little more each day because of bills like this.

By Adam Thierer & Berin Szoka

As we mentioned yesterday, in a new series of essays, we will be examining proposals being put forward today that would have the government play a greater role in sustaining struggling media enterprises, “saving journalism,” or promoting more “public interest” content. With many traditional media operators struggling, and questions being raised about how journalism in particular will be supported in the future, Washington policymakers are currently considering what role government can and should play in helping media providers reinvent themselves in the face of tumultuous technological change wrought by the Digital Revolution. We will be releasing 6 or 7 essays on this topic leading up to our big filing in the FCC’s “Future of Media” proceeding (deadline is May 7th).

In the first installment of our series, we will critique an old idea that’s suddenly gained new currency: taxing media devices or distribution systems to fund media content. We argue that such media income redistribution is fundamentally inconsistent with American press traditions, highly problematic under the First Amendment, difficult to implement in a world of media abundance and platform convergence, and likely to cause serious negative side effects.  Bottom line: Don’t tax our iPhones or broadband to subsidize media!

We’ve attached the entire text of the piece below. (Installment #2, on broadcast spectrum taxes to subsidize public media, will be released next week.)

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The Federal Trade Commission (FTC) today announced the release of an 18-page Request for Public Comment (embedded below) on its implementation of the Children’s Online Privacy Protection Act or 1998 (COPPA), which governs online sharing by, and collection of information from, children under age 13. The FTC had previously announced that it would accelerate the review, which had been planned for 2015, particularly because of concerns about the mobile marketplace, as noted in the FTC’s report on that topic released in February.

COPPA has undoubtedly succeeded in its primary goal of enhancing parental involvement in their child’s online activities in order to protect the privacy and safety of children online.  Yet these benefits have come at a price, as COPPA’s considerable compliance costs (estimated at $45/child, which can be crushing in the era of “free”) have likely reduced the digital media choices available for children.  So I’m glad to see the Commission recognize these trade-offs by asking about the costs and benefits of COPPA and any proposed changes right off the bat (Questions 1-5). Such trade-offs are an inevitable part of life and policymakers can’t simply ignore them, even when it’s “for the children.”

The Potential for COPPA Expansion

I look forward to seeing comments on the important questions raised by the Commission about precisely how best to implement the framework enacted by Congress.  But I do worry that the Commission has explicitly invited proposals for legislative changes to the statute itself. In particular:

6. Do the definitions set forth in Part 312.2 of the Rule accomplish COPPA’s goal of protecting children’s online privacy and safety? …

28. Does the commenter propose any modifications to the Rule that may conflict with the statutory provisions of the COPPA Act? For any such proposed modification, does the commenter propose seeking legislative changes to the Act?

Note that question #6 does not include the critical limitation “consistent with the Act’s requirements,” which appears no less than 17 times in subsequent questions about specific aspects of the current rules. Whatever the FTC intended, this will omission, combined with question #28, will be taken as an open invitation by many to propose not just changes in how the COPPA rules are implemented, but wholesale revisions to the COPPA statute itself. Continue reading →

Noting that the Telecom Act has become ” irrelevant to the ecosystem that has developed,” Verizon’s Executive Vice President Tom Tauke today called for Congress to overhaul the nation’s archaic communications laws and the regulatory regime that the Federal Communications Commission (FCC) is currently attempting to pigeonhole the Internet and entire Digital Economy into.  It’s an excellent speech, and I encourage you to read the entire thing (which I have embedded down below the fold in a Scribd reader).

“[T]he test for government intervention in the marketplace is to prevent either harm to users or anti-competitive activity,” he said. He rightly noted that, in an age of technological convergence and vigorous cross-platform competition, the old silo-based approach of the Telecom Act — with its various Titles for outmoded market definitions — no longer makes any sense. He noted:

by the very nature of the Internet Ecosystem, many are working together or competing in other company’s turf. Computer companies sell phones, and quite successfully. Search engines sell open operating systems. Network providers create their own apps stores. That means that the value proposition to the consumer is really a package created by many companies acting together with little, if any, regard to their previous corporate histories. So no set of companies should be immune from scrutiny.

Of course, a regulatory regime already exists that accomplishes this goal: antitrust law. But Tauke’s proposal isn’t quite that sweeping. He doesn’t call for the FCC to be dynamited the ground and to just shift everything into the antitrust bucket, which some of us would prefer. Instead, he speaks generically about the need for a more sensible process — most likely still enforced by the FCC — that would work as follows:

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Google v. Everyone

by on March 23, 2010 · 9 comments

I had a long interview this morning with the Christian Science Monitor. Like many of the interviews I’ve had this year, the subject was Google. At the increasingly congested intersection of technology and the law, Google seems to be involved in most of the accidents.

Just to name a few of the more recent pileups, consider the Google books deal, net neutrality and the National Broadband Plan, Viacom’s lawsuit against YouTube for copyright infringement, Google’s very public battle with the nation of China, today’s ruling from the European Court of Justice regarding trademarks, adwords, and counterfeit goods, the convictions of Google executives in Italy over a user-posted video, and the reaction of privacy advocates to the less-than-immaculate conception of Buzz.

In some ways, it should come as no surprise to Google’s legal counsel that the company is involved in increasingly serious matters of regulation and litigation. After all, Google’s corporate goal is the collection, analysis, and distribution of as much of the world’s information as possible, or, as the company puts it,” to organize the world’s information and make it universally accessible and useful.” That’s a goal it has been wildly successful at in its brief history, whether you measure success by use (91 million searches a day) or market capitalization ($174 billion).

As the world’s economy moves from one based on physical goods to one driven by information flow, the mismatch between industrial law and information behavior has become acute, and Google finds itself a frequent proxy in the conflicts.

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