November 2010

Cap. Hill Event on Earmark Transparency – Monday

by Jim Harper on November 9, 2010 · 0 comments

If you’re in the D.C. area, come join the fun next Monday, November 15th, as the Advisory Committee on Transparency kicks off with its first event: The Future of Earmark Transparency (2:00 p.m., 2203 Rayburn House Office Building).

The Sunlight Foundation’s Daniel Schuman moderates a discussion that includes Steve Ellis of Taxpayers for Common Sense and yours truly. My WashingtonWatch.com project crowdsourced over 40,000 earmark requests last year, which we displayed on this map.

Earmarks are a hot topic right now. The new Republican Congress may make a move to ban them, but the Senate leadership may not be ready to go quite that far.

Will full-fledged earmark transparency be the compromise? It might provide a model for far more transparent processes throughout Congress.

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Joseph Isenbergh on open versus closed systems

by Jerry Brito on November 9, 2010

Joseph Isenbergh, a professor at the University of Chicago Law School, discusses his new essay about open versus closed operating systems, their respective marketing strategies, and their influence on the smartphone market. Isenbergh talks about early competition between Macintosh, with its closed operating system integrated with its PC hardware, and Microsoft, with its openly-licensed operating system that could be installed on any PC. He discusses the trade-off between open platforms that offer lots of consumer choice and the ostensible enhanced user experience created by bundling software with hardware. Isenbergh speculates about the future of the smartphone market, Apple’s iOS, and Google’s Android. He also comments on VHS versus Sony Betamax recording systems, tie-in strategies in wine-selling, and Blu-ray versus HD-DVD formats.

Cyberbullying . . . and Mighty Entertaining!

by Jim Harper on November 8, 2010 · 1 comment

At BIGGOVERNMENT.com, Seton Motley takes the effort to regulate Internet service provision in the name of neutrality and stomps on it with both feet.

If this were high school (and politics really sort of is), Net Neutrality would be sitting alone at lunch — shunned even by the members of the marching band and the audio-visual club. Having had its lunch money taken, it would have only enough for milk (and would sadly be unable to open the container). It would be planning to take its aunt to prom.

His brief, unkind history takes the push for Internet regulation from its bright beginnings in 2006 through a four-year-long fade. It ends with the PR catastrophe the Progressive Change Campaign Committee produced when it signed 95 Democratic candidates onto a “Network Neutrality Pledge” and they all lost.

That fiasco doesn’t reveal anything about the merits of the proposal to turn Internet service providers into federally regulated public utilities. But it is emblematic of the immaturity and amateurishness of the push for net neutrality regulation. The effort never fixed on an actual, defined problem. Instead it rotated through corporate missteps with text message services, with web sites, and sometimes with actual Internet service. The movement was long on slogans and short on concrete proposals.

Proponents of net neutrality regulation never answered the conundrum posed by “regulatory capture”—that the FCC they wanted to “control” ISPs might end up controlled by them. They never countered the point that technologists and marketplace actors would husband the behavior of ISPs, a point made ably by Tim Lee in his paper, The Durable Internet.

Motley caps off his cyberbullying of the Internet regulation effort with an Examiner piece today noting that the Progressive Change Campaign Committee raised a pitiful $300 for its efforts.

[W]ith the PCCC’s feeble efforts and Tuesday’s historic pro-freedom Congressional demographic shift – the free market, free speech assault that is Net Neutrality now lies broken on the ash heap of Internet and tech history. To which we say – good riddance to bad rubbish.

If the push for net neutrality regulation survives, it will have to regroup/grow up, identify a concrete problem and a defensible solution, and then carry that credible message beyond its own echo chamber. All in all, the movement to regulate net neutrality seems to have been “playing at” advocacy rather than seriously advocating.

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Should Legislatures, Commissions, and Such Figure Out Privacy Problems?

by Jim Harper on November 7, 2010 · 2 comments

The recent European Commission proposal to create a radical and likely near impossible-to-implement “right to be forgotten” provides an opportunity to do some thinking about how privacy norms should be established.

In 1961, Italian liberal philosopher and lawyer Bruno Leoni published Freedom and the Law, an excellent, if dense, rumination on law and legislation, which, as he emphasized, are quite different things.

Legislation appears today to be a quick, rational, and far-reaching remedy against every kind of evil or inconvenience, as compared with, say, judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be efficacious, too unpredictably far-reaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in “better” statutes instead of in something altogether different from legislation. (page 7, 1991 Liberty Fund edition)

The new Commission proposal is an example. Apparently the EU’s 1995 Data Protection Directive didn’t do it.

Rather than some central authority, it is in vernacular practice that we should discover the appropriate “common” law, emphasizes Leoni.

“[A] legal system centered on legislation resembles . . . a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation. No solemn titles, no pompous ceremonies, no enthusiasm on the part of the applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned. (page 22-23, emphasis removed)

The proposed “right to be forgotten” is a soaring flight of fancy, produced by detached intellects who lack the knowledge to devise appropriate privacy norms. If it were to move forward as is, it would cripple Europe’s information economy while hamstringing international data flows. More importantly, it would deny European consumers the benefits of a modernizing economy by giving them more privacy than they probably want.

I say “probably” because I don’t know what European consumers want. I only know how to learn what they want—and that is not by observing the dictates of the people who occupy Europe’s many government bureaucracies.

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Book Review: Kevin Kelly’s What Technology Wants

by Adam Thierer on November 7, 2010 · 4 comments

It’s appropriate that Kevin Kelly’s new book, What Technology Wants, was published in the same year as Jaron Lanier’s You Are Not a Gadget. Although Kelly and Lanier are on opposite sides of the Internet optimist vs. pessimist divide, they come at the issue of technology’s impact on society in thoughtful, but at times quite controversial, ways. I found both books to be remarkably interesting, but also, at times, deeply troubling.

For example, Lanier’s book, which I reviewed here in January, contained an excellent critique of the extreme varieties of quixotic techno-utopianism, which he labels “cybernetic totalism.” Lanier was taking on the belief by some extreme digital age optimists that a “hive mind” or “Noosphere” is coming about. He made a strong case for appreciating individuality and stressed caution when it comes to embracing technology in an over-zealous or quasi-religious fashion. But Lanier’s critique was too sweeping and his worldview too morose. He unfairly indicts the entire digital generation and wrongly claims most modern culture is moribund and little more than “a petty mashup of preweb culture.”

Kelly’s What Technology Wants is basically You Are Not a Gadget in reverse. Kelly does a nice job placing modern technological advances in a more reasonable context, but he is also guilty of some of that kooky “noosphere” thinking Lanier nicely critiqued in his book. Continue reading →

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The Conflict Between a “Right to Be Forgotten” & Speech / Press Freedoms

by Adam Thierer on November 5, 2010 · 10 comments

A report in the U.K. Telegraph notes that the European Union is seeking to create a so-called “right to be forgotten” online, and has “drafted potential legislation that would include new, unprecedented privacy rights for citizens sharing personal data.” Details are sparse at this point, but according to this new 20-page European Commission document, “A Comprehensive Approach on Personal Data Protection in the European Union,” the EU will be:

clarifying the so-called ‘right to be forgotten’, i.e. the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes. This is the case, for example, when processing is based on the person’s consent and when he or she withdraws consent or when the storage period has expired. (p.8)

Two brief comments on this. First, it should be apparent that any “right to be forgotten” conflicts mightily with free speech rights and press freedom. As I discussed at greater length in this review of Solove’s Understanding Privacy as well as my essay on “Two Paradoxes of Privacy Regulation,” the problem with enshrining expansive privacy “rights” into law is that it means there will need to be stricter limits placed on speech and press freedoms. As Eugene Volokh noted in his 2000 law review article entitled, “Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You“: Continue reading →

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Thoughts on Oral Arguments in Schwarzenegger v. EMA Video Game Case

by Adam Thierer on November 4, 2010 · 0 comments

I’m still digesting the transcript from Tuesday’s Supreme Court oral arguments in the important First Amendment video game case, Schwarzenegger v. EMA. [Full transcript is here.] I thought I would post just a couple of quick thoughts here. [Reminder: here is the amicus brief that Berin Szoka and I filed in the case, and here is some analysis of the case by Larry Downes.]

On Defining “Deviant Violence”

Much of the discussion during oral arguments was preoccupied with defining the contours of the term “deviant violence.” I was pleased to see the Justices asking some sharp questions about the interpretation of that term for regulatory purposes. In particular, I enjoyed Justice Scalia’s remarks and questions to California Deputy Attorney General Zackery Morazzini, who argued the case on behalf of the state. Scalia said:

I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create… a whole new prohibition which the American people never — never ratified when they ratified the First Amendment. They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will. But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay? (p. 15-16)

Indeed, that’s what is at stake in this case: The beginning of a new class of exceptions to the First Amendment based upon concerns about children’s exposure to depictions of “excessive” or “deviant” violence.” Once you open up this can of worms, the sky is likely the limit in terms of how far governments might go to regulate speech in the name of “protecting children.” Continue reading →

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How closed is Apple anyway?

by Jerry Brito on November 4, 2010 · 15 comments

Anyone who knows me will attest to my status as an Apple fanboy. (I type this on my new 11″ MacBook Air, which I managed to resist purchasing for a full week after it was announced.) Hopefully they’ll also attest to my ability to put consumer preference aside when considering logical arguments because today I want to suggest to you that Apple’s business strategy is good for the open internet.

Apple has come under fire by some supporters of an open internet and open software platforms such as Jonathan Zittrain and Tim Wu, who argue that Apple’s walled garden approach to devices and software will lead us to a more controlled and less innovative world. In particular, they point to the app store and Apple’s zealous control over what apps consumers are allowed to purchase and run on their devices. Here’s the thing, though: Every Apple device comes with a web browser. A web browser is an escape hatch from Apple’s walled garden. And Apple has taken a backseat to no one in nurturing an open web. Consider this: Continue reading →

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Boycotting Apple is not irrational

by Jerry Brito on November 4, 2010 · 4 comments

[Last week’s episode of Econtalk](http://www.econtalk.org/archives/2010/10/hazlett_on_appl.html) featured Russ Roberts talking to Tom Hazlett about Apple vs. Google and open vs. closed business models. Tim Lee has already [addressed](http://www.econtalk.org/archives/2010/10/hazlett_on_appl.html#c122115) some concerns about Russ and Tom’s treatment of the topic, which I won’t rehash here. But I did want to comment on this statement by Russ (at minute 33):

>The idea that you shouldn’t buy Apple stuff, which I’ve actually seen people say, because it’s somehow immoral because [Steve Jobs] is so controlling, is a bizarre idea. I’m not quite sure where it comes from. It comes from some of the freedom of the internet and the stuff we’ve become accustomed to.

Russ then likens a personal conviction to avoid closed products to some of his readers’ feelings of entitlement that they have a right to post a comment on his blog, and to a stranger thinking he has the right to take hot dogs from Russ’s backyard grill. I don’t think I have to explain why these analogies don’t hold up. What I would like to point out is that abstaining from certain products on moral grounds (and even hectoring friends to do the same) is not at all bizarre behavior. We see it all the time by animal lovers who won’t buy leather or products tested on animals, or people who avoid buying diamonds from conflict areas. I’m sure there are products Russ wouldn’t buy on moral grounds.

So if you honestly believe (and I don’t) that patronizing Apple will help contribute to the closing of the Internet, and you value that openness, especially for political reasons, you would be acting perfectly rationally by boycotting Apple. And such an act would have nothing to do with anti-capitalism because, as Tom Hazlett points out, open business models are perfectly compatible with capitalism.

Now stay tuned. In another post later today I’ll suggest why in fact Apple may be good for the open internet.

4 comments

Thoughts on the Election

by Jim Harper on November 3, 2010 · 3 comments

Tech issues don’t move the needle in national elections like yesterday’s, but below I’ll make some general observations, followed by a few on ~~winners and~~ losers in issue areas I cover.

All in all, I think it’s a good election result.

We’re back to divided government. The acute tension between the Republican House and Democratic Senate and president is likely to produce fiscal rectitude, and only legislation on which there is something close to true national consensus will pass.

Neither the Republicans nor the Tea Party movement were awarded any kind of sweeping victory, so they are unlikely to overplay their hands or take public support for granted. They must work to advance their aims by persuading more Americans that their philosophies and leadership are meritorious.

Democrats should, of course, be chastened. They’re rightly paying the price for the careless, go-for-broke strategy they used in the 111th Congress, to pass their sprawling, intrusive health care regulation, for example.

Here’s to at least two years of welcome gridlock.

Now, there were some notable losses among tech-focused representatives. The most worrisome loss is Senator Russ Feingold (D-WI), who has been a consistent and persistent overseer and skeptic of the growing surveillance state. I don’t see anyone to step up and take his place. Privacy lost big in the Wisconsin election.

I’m bucking consensus on the loss of Rick Boucher (D-VA) in the House, at least as far as privacy goes. (On copyright and some telecom issues, I’ll take Mike Masnick’s word.) Boucher is a nice guy and a careful legislator, but his popularity among the Washington, D.C. tech lobby, I think, was a product of lobby-legislator symbiosis, not his actual backing for the interests of tech innovators.

For at least a decade, Boucher has been an advocate of “baseline privacy legislation” that never actually had a serious chance of passing. The result was that tech lobbyists could always report to the home office that they had something to do, and tech trade associations could garner corporate support for all those noon-time strategy meetings over sandwiches—without generating a true threat to the business models of the companies they (purport to) represent.

My point is not that Boucher should have advanced his privacy legislation—it’s not going to be federal law that delivers privacy. I’m just not unhappy that he’s gone. (Not that far gone. Watch for him to take a job somewhere in the D.C. tech lobby. Knowing nothing about his plans, I’d give it a greater than 50% chance.)

The tech lobby will actually have some work to do under Boucher’s likely successor in the role of Democratic tech/consumer protection leader. Ed Markey (D-MA) is a partisan and an ideologue who will actually require the tech lobby to defend itself. He’s canny enough to have decent influence even from his perch in the minority.

UPDATE w/additional thought: Democrat Richard Blumenthal, elected to the Senate from Connecticut, is a technophobe demagogue—or plays one on TV, which is what matters. He went to war against Craigslist to boost his campaign, and his win is a notable loss for tech and free speech.

But—really—the fate of our privacy, the fate of our tech sector, and the fate of our country and society shouldn’t turn on elections. We are not defined by these people, who go to Washington, D.C. to sit atop the coercive authority machine for a while. Elections come and go. I’ll continue to work on returning power to civil society where it belongs.

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