July 2010

Julius Genachowski is in a hurry.

He is arguing that the commission must act quickly to “restore the longstanding deregulatory—as opposed to ‘no-regulatory’ or ‘over-regulatory’—compact” that governed broadband Internet access services prior to a recent court decision.  Such an approach is urgently needed to “restore the status quo,” he claims.

If the Federal Communications Commission cannot regulate the Internet, it may die.   The telephone and television industries are declining, whereas communications industries which the FCC monitors to some extent but does not regulate, e.g., the Internet backbone, broadband Internet access and wireless, are thriving.  The Internet, which the FCC cannot regulate, is subsuming legacy communications services which the commission can regulate.  That spells doom for legacy regulation.  Career regulators are worried.

Genachowski’s plan would reclassify broadband as a “telecommunications” service subject to blunt, onerous, industrial-era regulation under Title II of the Communications Act of 1934 – which governs common carriers – and then forbear from enforcing most of Title II’s heavy-handed provisions.

Broadband services haven’t been subject to Title II regulation for several years, so reclassification would not restore the status quo.   It would harken back to a bygone era.

Broadband services provided by cable operators have thrived in the absence of common carrier regulation since before 1999, when William E. Kennard (designated FCC chairman by President Bill Clinton) declared:

If we’ve learned anything about the Internet in government over the last 15 years, it’s that it thrived quite nicely without the intervention of government.

If fact, the best decision government ever made with respect to the Internet was the decision that the FCC made 15 years ago NOT to impose regulation on it. This was not a dodge; it was a decision NOT to act. It was intentional restraint born of humility. Humility that we can’t predict where this market is going.

Though under significant pressure to do so, Kennard refused to regulate broadband services provided by cable operators like the broadband services provided by telecommunications carriers.  In 2005 and 2007, respectively, the commission finally admitted that neither telecommunications carriers nor wireless providers provided broadband services that met the statutory definition of a “telecommunications” service under Title II, either.

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I’ve long been a fan of Danny Sullivan, who edits Search Engine Land, and probably knows more about search engines than anyone outside the companies that actually run them. But my respect for his wit, eloquence and perspective  has reached new heights with his latest piece:  The New York Times Algorithm & Why It Needs Government Regulation, a lampoon of the NYT’s foolish call for search neutrality in an editorial yesterday, turning the Times’ arguments right back at them, and pointing out the hypocrisy by which the established press often tries to deny First Amendment protection to newcomers to the speech business. Danny’s post is truly a masterpiece of satire, worthy of Jonathan Swift. But one section deserves special attention:

I’ve been covering the search space closely for nearly 15 years, from before Google itself even existed, so I have seen these types of claims far longer and examined them in far more depth than what went into that New York Times editorial.

My guess is that the editorial staff (the staff that writes the newspaper’s editorials, which are opinion pieces, which is confusing when the newspaper also has an editorial staff that writes “editorial” stories elsewhere that are supposed to be unbiased) spent about an hour or so discussing recent Google news, then someone was probably assigned to write the editorial and invested all of about three hours on it.

That’s not much time or care for a major and well-respected newspaper (in many quarters) to decide the government should evaluate “fairness” when it comes to making editorial judgments in search results, be they from Google or any other search engine.

I’m afraid Danny’s right. What a shameful day for the “Grey Lady.” Anyway, here are a few of the pieces Adam and I have written about the dangers inherent in the seductive idea of search neutrality: Continue reading →

Sen. Amy Klobuchar just released a letter to Facebook demanding the site require “a prominent safety button or link on the profile pages of users under the age of 18″—akin to the so-called “panic button” app launched earlier this week by the UK’s Child Exploitation & Online Protection Centre (CEOP). She doesn’t seem to realize that this app is available to all Facebook users, not just those in the UK. But her focus on empowerment tools and education is admirable, and it’s certainly a fair question to ask what sites like Facebook and MySpace are doing in these areas.

Unfortunately, Klobuchar’s letter also engages in blatant fear-mongering:

Recent research has shown that one in four American teenagers have been victims of a cyber predator.  And when teens experience abusive behavior online, only ten percent discuss it with their parents and even fewer report the misconduct to law enforcement.  It’s clear that teenagers need to know how to respond to a cyber attack and I believe we need stronger reporting mechanisms to keep our kids safe.

Klobuchar doesn’t actually cite anything, so it’s not clear what research she’s relying on. The 25% statistic is particularly incendiary, suggesting a nationwide cyber-predation crisis—perhaps leading the public to believe 8 or 9 million teens have been lured into sexual encounters offline. Perhaps the Senator considers every cyber-bully a cyber predator—which might get to the 25% number. But there are two serious problem with that moral equivalence.

First, to equate child predation with peer bullying is to engage in a dangerous game of defining deviancy down. Predation and bullying are radically different things. The first (sexual abuse) is a clear and heinous crime that can lead to long-term psychological damage. The second might be a crime in certain circumstances, but generally not.  And it is even less likely to be a crime when it occurs among young peers, which research shows constitutes the vast majority of cases. As Adam Thierer and I noted in our Congressional testimony last year, there are legitimate concerns about cyberbullying, but it’s something best dealt with by parents and schools rather than prosecutors (like Klobuchar in her pre-Senate career).

Second, a series of official taskforces have concluded that the cyberpredator technopanic is vastly overblown. Continue reading →

This week on the podcast, Catherine White, graduate student at New York University’s Interactive Telecommunications Program, where she is researching productive participatory discussion, talks about her thesis on the Noisy Idiot Dilemma.  White explains the dilemma — how to foster productive online conversation when certain speakers exhibit noisy, unproductive, or unhelpful behavior — and discusses her research on various online forums, weblog comments, effects of humor, anonymity, and empathy online, and characteristics of elastic, oily conversation.

Related Readings

Do check out the interview, and consider subscribing to the show on iTunes. Past guests have included Clay Shirky on cognitive surplus, Nick Carr on what the internet is doing to our brains, Gina Trapani and Anil Dash on crowdsourcing, James Grimmelman on online harassment and the Google Books case, Michael Geist on ACTA, Tom Hazlett on spectrum reform, and Tyler Cowen on just about everything.

So what are you waiting for? Subscribe!

“Live by the sword, die by the sword.”

“Play with fire and you might get burned.”

Those are lines that sprung to my mind as I read this FT article noting how Google’s support for ‘net neutrality regulation has transmogrified into a push for “search neutrality.” Such regulation would be aimed directly at Google’s heart throat nuts business model.

(I was the first to discuss “search neutrality” here on TLF. Ignore Adam’s comment.)

But sloganeering is cheap. Let’s take a minute to try and understand why things like this happen to companies like Google.

First, I think, most executives—certainly executives in tech companies—don’t understand Washington at all. They have a gauzy impression that good people work for the betterment of public policy here.

Actually, that’s true. Just about everyone is good. And everyone is working for the betterment of public policy as they see it. The thing is, everybody sees the betterment of public policy as turning it to their own interests. Washington, D.C. is a war of all against all—each trying to grab the most stuff—using politics instead of clubs, knives, and guns.

Next, I think it’s important to recognize the incentives of the people who advise tech executives. They are people with families and mortgages. They want to have and keep a job. So what do they do? They encourage involvement in public policy. The public policy advisor who says “steer clear of Washington” may be giving better advice, but his consulting contract is small and its term is short.

The government relations/lobbying shop in a company like Google is part of a larger business, yes, but it is a small bureaucracy within the business. It doesn’t produce anything subject to competitive pricing, so (accounting practices notwithstanding) there is little way to measure its value. The fallback measure is activity—the more things happening, the more ‘valuable’ the lobbying shop. (Surprise me, Google, so famous for measurement, testing, and rigor in product development. Have you got a way to measure the true value produced by your lobbying shop, law department, accounting group, etc.?)

You see how the dynamics quickly get perverse. A public policy advisor or lobbyist makes him- or herself ‘valuable’ by getting the client into trouble.

Google is not in trouble. The FT story is premature, and it’s overstatement to say that Google has been “hoisted by its own petard.”

But imagine a controlled experiment in which another Google in a parallel universe didn’t draw attention to itself in Washington, D.C., didn’t push for conditions in the 700 MHz spectrum auction, didn’t advocate for ‘net neutrality regulation, and so on. That Google might not have created—or might have delayed—the need for a permanent lobbying/government relations cost center.

Earlier this year, while I was preparing this mega-filing to the Federal Communications Commission in its “Future of Media” proceeding, I read Uninhibited, Robust, and Wide-open: A Free Press for a New Century, by Lee C. Bollinger, who is the president of Columbia University.  I had planned on reviewing it since I try to review almost every book I read, but it was hard for me to believe that anyone would take this book too seriously, so I just moved along.

I hate to be that dismissive of any text but this is a book, after all, that proposes the creation of a massive U.S. propaganda machine.  Bollinger doesn’t just want our government to help out a bit at the margins like it currently does; he wants the State to get under the covers, cuddle tight and become intimate lovers with the Press.  And then he wants the Big Press to project itself more, especially overseas, to compete with other State-owned or subsidized media enterprises. Again, it’s a propaganda machine, pure and simple.  In a new Wall Street Journal editorial today entitled, “Journalism Needs Government Help,” he argues:

To me a key priority is to strengthen our public broadcasting role in the global arena. In today’s rapidly globalizing and interconnected world, other countries are developing a strong media presence. In addition to the BBC, there is China’s CCTV and Xinhua news, as well as Qatar’s Al Jazeera. The U.S. government’s international broadcasters, like Voice of America and Radio Free Europe, were developed during the Cold War as tools of our anticommunist foreign policy. In a sign of how anachronistic our system is in a digital age, these broadcasters are legally forbidden from airing within the U.S.  This system needs to be revised and its resources consolidated and augmented with those of NPR and PBS to create an American World Service that can compete with the BBC and other global broadcasters.

China’s CCTV and Xinhua news? Qatar’s Al Jazeera?  Really?!  As Jeff Jarvis rightly asks in his terrific response essay, “No American BBC,”: “In what sane world is the Chinese government’s relationship with news a model?”  Indeed, this is frightening stuff.  Has Bollinger not studied the Chinese system of state media meddling? Needless to say, it’s not pretty. And while I would agree that the BBC model shows that some State-funded media can be quite impressive and free of most meddling, that’s not been the case across the board. Continue reading →

Adam and I have been pretty hard on the FTC’s current leadership for pushing to dramatically expand regulation of online data use with little thought to the impact on ad-supported media, while in the next breath opening the door to dramatic expansion of direct government support of media, and all the while seeking sweeping new regulatory powers from Congress.

After all that complaining (and bashing their Soviet Realist-style statue, “Man Controlling Trade”), you might think we had it in for the agency. But as I’ve said repeatedly, we’re actually big fans of the FTC’s core consumer protection mission: holding companies to their promises. (Indeed, we want to make sure they stay focused on that mission, and have the staff, resources and technological tools to pursue it effectively—which might mean, as I’ve pointed out, increased funding rather than increased powers.) We’ve also repeatedly praised the FTC’s efforts to educate kids, parents, and Internet users in general about things like online privacy, advertising, spyware, user empowerment tools, online scams, etc.

But I don’t want to be accused of being only a fair-weather friend of the agency. So I wanted to point out a particularly good concrete example of the FTC doing what we talk about in the abstract: holding companies to their promises.  Grant Gross notes that the FTC sent a stern letter earlier this month to the company that is seeking to buy the subscriber info and photos and other assets of the now-defunct XY Magazine, which served primarily gay U.S. teens, warning them that the FTC would hold them to the terms of the privacy policy under which XY collected information from its subscribers.

This is a great example of how the FTC can effectively use its existing authority to protect consumers against clear harms involved in the disclosure of truly sensitive data, sometimes even prophylactically—in this case, outing around 100,000 gay youths and young adults—collected by companies that make unambiguous promises to protect users’ data. This incident also illustrates how privacy law can evolve in an organic fashion from a growing body of such well-justified preemptive warnings, enforcement actions brought against truly bad actors, and ultimately court decisions that decide whether the FTC has properly weighed the interests at stake. In other words, just because we don’t have a privacy code enforced by a Data Protection Authority as in Europe doesn’t mean our legal system doesn’t protect privacy!

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The Second Circuit just threw out the FCC’s broadcast indecency rules—which had led to heavy fines for “fleeting expletives”—as “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” What’s ultimately most important about this decision is not what the court did, but what it said: The Constitutional framework that has allowed broadcast censorship has been rendered obsolete by the rise of the Internet and parental empowerment tools for new and old media.

In short, the court utterly rejected the Supreme Court’s 1978 Pacifica decisionwhich gave the FCC great discretion in regulating indecency on broadcast radio and television in order to protect children who might be in the audience during daytime and early evening hours, citing the unique “pervasiveness” and “invasiveness” of broadcasting into the home.  The court fully embraced what we’ve been saying for years—neither rationale holds true anymore:

we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in thelives of all Americans.”

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast….  The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs…. Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. (15-16)

Thus, the Second Circuit all but begged the Supreme Court to throw out Pacifica completely, but quickly noted that it is “bound by Supreme Court precedent, regardless of whether it reflects today’s realities” (17). Fortunately, the court was able to reach the same result on vagueness grounds. It’s worth reading this key passage to see what a consistent approach to the First Amendment would look like: Continue reading →

Better late than never, I’ve finally given a close read to the Notice of Inquiry issued by the FCC on June 17th.  (See my earlier comments, “FCC Votes for Reclassification, Dog Bites Man”.)  In some sense there was no surprise to the contents; the Commission’s legal counsel and Chairman Julius Genachowski had both published comments over a month before the NOI that laid out the regulatory scheme the Commission now has in mind for broadband Internet access.

Chairman Genachowski’s “Third Way” comments proposed an option that he hoped would satisfy both extremes.  The FCC would abandon efforts to find new ways to meet its regulatory goals using “ancillary jurisdiction” under Title I (an avenue the D.C. Circuit had wounded, but hadn’t actually exterminated, in the Comcast decision), but at the same time would not go as far as some advocates urged and put broadband Internet completely under the telephone rules of Title II.

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[cross-posted from BigGovernment.com]

In the battle over media and communications freedom, no group poses a more serious threat to a free and independent press than the insultingly misnamed regulatory activist group Free Press. Along with their founders, the prolific neo-Marxist media theorist Robert W. McChesney and Nation correspondent John Nichols, Free Press has engaged in relentless agitation for a truly radical media and communications policy agenda, and their influence is now spreading throughout the Obama Administration.

The Free Press-McChesney blueprint for media “reform” reads more like a script for State servitude. On the regulatory side, they call for media ownership restrictions, “localism” mandates, “Net neutrality” regulations, price controls on broadband, advertising and copyright restrictions, and layers of additional regulatory edicts.  Once all that red tape smothers the life out the independent press and private communications providers, they plan to have the State step in become the primary benefactor of the Fourth Estate and high-tech infrastructure. For starters, McChesney and Nichols advocate a $35 billion annual “public works” program for the press modeled after the Works Progress Administration of the New Deal era. Their media WPA would include a “News AmeriCorps” for out-of-work journalists, a “Citizenship News Voucher” to funnel taxpayer support to struggling media entities, a significant expansion of postal subsidies, a massive new subsidy for journalism schools, corporate welfare for newspapers sufficient to pay 50 percent of the salaries of all “journalistic employees,” municipal government ownership of press and infrastructure, and many more bureaucratic programs. Continue reading →