September 2010

If you store sensitive files on your personal computer which law enforcement authorities wish to examine, they generally cannot do so without first obtaining a search warrant based upon probable cause.  But what if you store personal information online—say, in your Gmail account, or on Dropbox? What if you’re a business owner who uses Salesforce CRM or Windows Azure? How secure is your data from unwarranted governmental access?

Both the U.S. Senate and the House of Representatives are investigating these crucial questions in two separate hearings this week.  Congress hasn’t overhauled the privacy laws governing law enforcement access to information stored with remote service providers since 1986.  The Electronic Communications Privacy Act (ECPA), the key federal law governing electronic privacy, has grown increasingly out of touch with reality as technology has evolved and Americans have grown increasingly reliant on cloud services like webmail and social networking.  As a result, government can currently compel service providers to disclose the contents of certain types of information stored in the cloud without first obtaining a search warrant or any other court order requiring the scrutiny of a judge.

Thus, the Competitive Enterprise Institute has joined with The Progress & Freedom Foundation, Americans for Tax Reform, Citizens Against Government Waste, and the Center for Financial Privacy and Human Rights in submitting a written statement to the U.S. Senate and House Judiciary Committees urging Congress to reform U.S. electronic privacy laws to better reflect users’ privacy expectations in the information age.  The groups also belong to the Digital Due Process coalition, a broad array of public interest organizations, businesses, advocacy groups, and scholars who are working to strengthen U.S. privacy laws while also preserving the building blocks of law enforcement investigations.

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Up on the NetChoice blog, Steve DelBianco writes about how online child safety was a hot topic at the Internet Governance Forum (IGF) last week in Lithuania. There was one workshop on location-based services that allow users to publish their mobile phone location info to their parents or social network pages (e.g. Foursquare, Loopt, and Facebook Places).

The entire workshop reminded Steve of the movie Minority Report, where a ‘precrime’ police unit relies on the visions of psychics to predict future crimes, then arrests the potential perpetrators before they do anything wrong:

In the world of Internet governance, the future is now, as regulators want online services to predict and prevent safety threats before they actually occur. According to some privacy advocates and lawmakers, the precrime problem here is that location data might be seen by someone with bad intentions.  In the name of protecting children, panelists here favor a policy framework that would require innovators to clear new location-based services with regulators before making them available to users.

Think of the irony with this regulatory approach. Lawmakers are not likely to predict all the ways that bad people can abuse a good service, and regulatory approvals are notoriously slow and inflexible.  On the other hand, Internet innovation is marked by rapid development of new services and quick reactions to fine-tune new features or fix unexpected problems.

Thankfully, there was a young person in the audience that actually knows how kids use the Internet and what will help them the most:

More sage advice came from young people – the anticipated victims of precrimes that might use location-based info. Joonas Makinen of the Youth Coalition on Internet Governance told the IGF, “It is better to focus on fighting ignorance and building digital literacy than applying safety strategies based on restriction.”


As the Internet evolves and new data collection technologies emerge, privacy concerns are increasingly in the spotlight. Few doubt that these concerns are, in many cases, legitimate. The major point of contention is which institutions in society are best equipped to address the privacy challenges of the information age. While a number of privacy scholars point to stricter federal regulation as the answer, others are very skeptical of granting government a more expansive role in safeguarding sensitive information on the Internet.

In this week’s issue of Advertising Age, Carolyn Homer and I have a guest column in which we discuss the role of market institutions in addressing privacy concerns:

A series of recent high-profile privacy gaffes involving internet firms such as Google, Microsoft and Facebook has spurred a public outcry for stronger privacy protections. Politicians in Congress have responded with a slew of blustering letters, hearings, and legislative threats. On July 19, Rep. Bobby Rush, D-Ill., introduced a sweeping privacy bill in the House of Representatives, and Sen. John Kerry, D-Mass., has pledged to introduce a similar bill in the Senate. This legislation would stifle the dynamic internet economy and targeted advertising while doing little to improve consumer privacy.

Mr. Rush’s bill, titled the Best Practices Act, would give the Federal Trade Commission broad new powers to regulate nearly any organization that routinely collects even basic data about individuals, including phone numbers and email addresses. The bill would empower the FTC to dictate businesses’ data security practices, perform extensive compliance audits, and even restrict which kinds of information firms can collect and how long they can store it.

This approach may sound sensible, but it ignores the crucial role of responsible data collection in the information age. Limiting such practices will impede e-commerce and endanger free internet content backed by advertising. The internet’s ubiquitous information sharing is a feature, not a bug.

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Don’t miss Radley Balko’s run-down on recording law enforcement at work.

The challenge is out there for rights groups and coders: fine-tune camera technology and remote storage so that evidence of police and government-agent behavior remains under the control of citizens and available to the public and courts.

My article for CNET this morning, “The end of software ownership…and why to smile,” looks at the important decision a few weeks ago in the Ninth Circuit copyright case, Vernor v. Autodesk.  (See also excellent blog posts on Eric Goldman’s blog. Unfortunately these posts didn’t run until after I’d finished the CNET piece.)

The CNET article took the provocative position that Vernor signals the eventual (perhaps imminent) end to the brief history of users “owning” “copies” of software that they “buy,” replacing the regime of ownership with one of rental.  And, perhaps more controversially still, I try to make the case that such a dramatic change is in fact not, as most commentators of the decision have concluded, a terrible loss for consumers but a liberating victory.

I’ll let the CNET article speak for itself.  Here I want to make a somewhat different point about the case, which is that the “ownership” regime was always an aberration, the result of an unfortunate need to rely on media to distribute code (until the Internet) coupled with a very bad decision back in 1976 to extend copyright protection to software in the first place.

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On the podcast this week, Kimberley Isbell, a fellow at the Berkman Center for Internet and Society working as a staff attorney with the Citizen Media Law Project, discusses legal implications of news aggregators.  The rise of aggregators amid the transformation of news and journalism spurred Rupert Murdoch to label news aggregation “theft.”  In her recent paper, Isbell classifies various types of news aggregators and examines their roles in light of copyright, fair use, and hot news misappropriation doctrines.  She notes that courts have yet to decide key aspects of the issue, but legal rules that promote flexibility and free access to information are needed to ensure a productive and innovative future for news.

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, Tom Hazlett on spectrum reform, and Tyler Cowen on just about everything.

So what are you waiting for? Subscribe!

By Berin Szoka & Adam Thierer

Yesterday, the Progress & Freedom Foundation (PFF) and Electronic Frontier Foundation (EFF)  filed a joint amicus brief with the U.S. Supreme Court urging the Court to protect the free speech rights of videogame creators and users and asking the justices to uphold a ruling throwing out unconstitutional restrictions on violent videogames.  At issue is a California law that bans the sale or rental of “violent” videogames to anyone under the age of 18, among other regulations. While the law was passed in 2005, it has never taken effect, as courts have repeatedly ruled it unconstitutional. California appealed its loss at the Ninth Circuit Court of Appeals to the Supreme Court.  The case is Schwarzenegger vs. EMA.

This case has profound ramifications for the future of not just videogames, but all media, and the Internet as well. Although we’ve had 15 years of fairly solid Supreme Court case law on new media issues, a loss in the Schwarzenegger case could reverse that tide.  In the amicus brief, we explain how the current videogame content rating system empowers parents to make their own decisions without unconstitutionally restricting this new and evolving form of free speech.  Our brief is focused on three major arguments:

  1. Parental Control Tools, Household Media Control Methods, Self-Regulation and Enforcement of Existing Laws Constitute Less Restrictive Means of Limiting Access to Objectionable Content than Government Regulation of Constitutionally Protected Speech
  2. Videogame Content is Constitutionally Protected Speech Deserving Strict Scrutiny
  3. The State Has Not Established a Compelling Government Interest in Restricting the Sale of Videogames to Minors

The filing can be found online here and it is embedded down below.  As always, the Media Coalition has done an outstanding job summarizing the case and listing all the major briefs filed with the Court in this matter, so check out their Schwarzenegger v. EMA page for everything you need to know about this case. also offers excellent ongoing coverage of the case. Continue reading →

If you follow me on Twitter, you’ll see in among the last several weeks’ dreck some Tweets skeptical of various themes about the Tea Party movement—chiefly that they’re significantly racist/xenophobic, or that they’re handmaidens of figures like Glenn Beck or Sarah Palin.

I may have been bending over backwards to resist attempts to define the Tea Party movement. In secret, I’ve thought about parallels to punk rock, which seemed at times to have as many strains as people. Part of being punk was not fitting into anyone else’s categories, and the Tea Party seems to have this quality—rejecting Washington, D.C.’s party labels and ideological affiliations.

Well, I’ve finally come across a careful assessment of the Tea Party movement. National Journal‘s Jonathan Rauch spent a good deal of time studying the Tea Party movement and came up with the article (and video), “How Tea Party Organizes Without Leaders.”

The winner paragraph for me:

“Essentially what we’re doing is crowd-sourcing,” says Meckler, whose vocabulary betrays his background as a lawyer specializing in Internet law. “I use the term open-source politics. This is an open-source movement.” Every day, anyone and everyone is modifying the code. “The movement as a whole is smart.”

I do believe there is something special about the Tea Party movement. Somewhat like the Internet regards censorship as damage and routes around it, the Tea Party routes around centralizers’ attempts to capture its mojo.

There are plenty working to capture its mojo: Right-wing and Republican leaders are using it to aggrandize themselves, marching in front of the Tea Party for TV cameras and newspapers. Left-wing groups and progressives are searching for—and finding—the racism and xenophobia that unfortunately does exist in any large collection of average Americans. The decentralized character of the Tea Party movement makes it easy for charlatans to claim its mantle and fund-raise deceptively on the “Tea Party” brand.

There are some bad people in the Tea Party movement, just like there are some bad users of the Internet. But overall a self-organizing political/cultural network will produce better things—and faster—than a hierarchical organization.

I’d love to have the Tea Party movement push for exquisitely libertarian outcomes, and I regret hearing Tea Party participants veer into anything resembling racism, fear of Islam, or anti-immigration rhetoric, but I don’t get to own the Tea Party either.

If there is a theme that doesn’t unfairly push the Tea Party movement into a box, I think it’s “self-government.” It seems like Tea Partiers are tired of being told how to do their politics, tired of being told how their government is going to run them. On the whole, I’ll stand up for a network of people who think like that—but don’t try to push me into a box either.

Update: David Boaz has written an excellent post at Cato@Liberty about the Tea Party movement’s relationships to libertarianism and social conservatism.


by on September 15, 2010 · 0 comments

I’m in front of a non-TiVo-enabled television this evening, which has permitted me to see ads for a search site called It’s a rebranded, affiliated with AT&T, and it’s organized to be a search engine for the things in your life—dining, travel nightlife—distinguished from Google’s utilitarian-tech web search. Meanwhile Microsoft’s Bing has overtaken Yahoo! as the number two search engine. I was surprised to learn that “undisputed search king” Google has only 65 percent of the search market. Google is doing well, of course, but it can’t be comfortable with all these well-funded rivals circling it.

This is good news for consumers. These competitors are driving Google to improve, and they can pull consumers away from Google by serving search niches such as lifestyle search (as YP does), more privacy protective search, and so on. Competitors will threaten and cut into Google’s advertising profits, too.

Television ads also remind us that HughesNet is offering broadband Internet via satellite. It’s mostly aimed at moving rural Internet users off of dial-up, but it’s an outlet for consumers anywhere who are unsatisfied with cable or DSL service. Critics will point out that it’s not very fast, kind of expensive, and includes daily usage caps. But this doesn’t deny HughesNet’s role as competition for cable and DSL.

Internet service provided badly enough by the major ISPs would make satellite broadband a viable competitor. If HughesNet’s investors were confident that they could sign up enough customers, they would make the investments that bring satellite broadband to the economy of scale it needs to be price-, speed-, and usage-competitive.

The spur of competition does not have to pierce the horse’s belly to have its effect.

Americans are increasingly cutting the cord on their phones.   By the most recent estimates, 40 percent Americans  rely primarily on their wireless phone for voice calls, and most of those don’t have a wireline phone at all.

 But don’t count me in that number.   Its not that I wouldn’t like to cut the cord.  It’s that I can’t.   I live in a cellular hole, one of those thousands of places where wireless connections are weak or non-existent.   The reason isn’t geography – I live in a well-developed part of the Washington metro area, not an igloo in Alaska.   Nor is the problem the Federal Communications Commission, though its efforts to regulate wireless may do damage in the future.

 No, the problem is much closer to home – my local zoning authorities.   Wireless carriers, as it turns out, had not forgotten my corner of the world, and have been trying to build a cellular transmission site to erase the dead zone for some time, but have been been stymied by an infinitely elastic approval process. Continue reading →