December 2010
This is a response to Nick Carr’s recent piece, “The Attack on Do Not Track,” in which he goes after me for some comments I made in this essay about the trade-offs at work in the privacy and online advertising debates. In his critique of my essay, he argues:
What the FTC is suggesting is that the unwritten quid pro quo be written, and that the general agreement be made specific. Does Thierer really believe that invisible tradeoffs are somehow better than visible ones? Shouldn’t people know the cost of “free” services, and then be allowed to make decisions based on their own cost-benefit analysis? Isn’t that the essence of the free market that Thierer so eloquently celebrates?
My response to Nick follows. Continue reading →
On the podcast this week, Milton Mueller, Professor and Director of the Telecommunications Network Management Program at the Syracuse University School of Information Studies, discusses his new book, Networks and States: The Global Politics of Internet Governance. Mueller begins by talking about Wikileaks’ recent leak of diplomatic cables, using the incident to elaborate on the meaning of internet governance. He notes the distinction between traditional centralized systems of authority and peer-produced, distributed governance that rules much of cyberspace. He also discusses global democracy, contradictions in cyber libertarian views, judicial checks and balances on the internet, and future issues in internet governance.
Related Links
- “Mueller’s Networks and States = Classical Liberalism for the Information Age”, by Adam Thierer
- “How to Discredit Net Neutrality”, by Mueller
- “‘Networks and States’ at the Internet Governance Forum”, by Mueller
To keep the conversation around this episode in one place, we’d like to ask you to comment at the web page for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?
It’s been surprising to me that none of my TLF colleagues has yet ventured a post about this latest WikiLeaks controversy. But perhaps it shouldn’t be so surprising because the Cablegate case presents some very hard questions to which there are no easy answers. I’m not sure that I know myself exactly how I feel about every issue related to leaks. But to try to get some conversation going, and to try to pin down my own feelings, I thought I’d take a stab at writing down some thoughts.
Is it legitimate for states to keep secrets from their citizens? It’s a good question, but not one I’m interested in addressing here. The fact is that they do keep secrets.
Should the disclosure of classified information be a criminal offense? Given state secrets, this is a bit of a moot question because a state’s ability to keep a secret depends on it’s ability to punish disclosure by anyone entrusted with secrets. If nothing else, someone so entrusted has likely made a promise not to disclose. (There should, of course, be whistleblower protections in place that make exceptions to the rule.)
Therefore, the interesting question is this: Should there be liability for third parties who publish disclosed information? Continue reading →
The ACLU of Northern California says it’s time for a privacy check-in on location based-services. Their handy chart compares several of the most popular location-based services along a number of dimensions.
Little of what they examine has to do with civil liberties—cough, cough, ahem (this is a favorite critique of mine for my ACLU friends)—but the report does find that five out of six location-based providers are unclear about whether they require a warrant before handing information over to the government. Facebook is the winner here. Yelp, Foursquare, Gowalla, Loopt, and Twitter are unclear about whether they protect your location data from government prying.
“The do-not-track system could put an end to the technological ‘arms race’ between tracking companies and people who seek not to be monitored.” – David Vladeck, FTC
David Vladeck is right. The Do Not Track system would put an end to the technological “arms race” – but that’s not a good thing. Instead, its the nuclear option that will halt ongoing industry innovation and consumer welfare.
This has been unofficial privacy week in Washington, DC. Wednesday saw the release of the FTC’s privacy report. Yesterday was the House Commerce Committee hearing; phrased in the form of a question, the tile of the hearing was a bit presumptuous: “Do-Not-Track Legislation: Is Now the Right Time?” And today, NetChoice responds with why the answer to that question should be No.
Do Not Track is a Blunt Response, Not an Informed Choice
The FTC’s report calls for a “uniform and comprehensive” way for consumers to decide whether they want their activities tracked. The Commission points to a Do Not Track system consisting of browser settings that would be respected by web tracking services. A user could select one setting in Firefox, for example, to opt out of all tracking online. The FTC wrongly calls this “universal choice.”
Really, it’s a universal response. It’s a single response to an overly-simplified set of choices we encounter on the web. This single response means that tracking for the purpose of tailored advertising is either “on” or “off.” There is no middle setting. But it is the “middle” where we want consumers to be. The middle setting would represent an educated setting where consumers understand the tradeoffs of interest-based advertising – in return for tracking your preferences and using them to target ads to you, you get free content/services. But an on/off switch is too blunt and not, err, targeted enough. There is no incentive for consumers to learn about the positives, they’ll only fear the worst-case scenarios and will opt-out. In return they’ll also opt-out of the benefits. [more on the “middle” below]. Continue reading →
As part of what Politico’s Tony Romm calls this week’s “all-out online privacy blitzkrieg,” Rep. Ed Markey (D-Mass) announced he would be proposing legislation aimed at better protecting kids from the supposed evils of online “tracking” and marketing. Apparently, Rep. Markey’s effort will build on the “Do Not Track” proposal that is garnering so much attention this week.
Lost in the smoke surrounding that privacy blitzkrieg is an important distinction between these two proposals: There is a very big difference between re-engineering browsers and websites to comply with a “Do Not Track” mandate and a new regulatory scheme aimed at identifying the ages or identities of individuals using certain online sites or services. Namely, the latter likely necessitates some sort of mandatory age verification or online authentication regime for the Internet.
Let’s take a step back for some context. Markey helped author the Children’s Online Privacy Protection Act (COPPA) of 1998, which dealt with the collection of information for kids under 13 online. But COPPA wasn’t a strict age verification or online authentication regime for the Internet. Instead, COPPA mandated a “verifiable parental consent” regime which the Federal Trade Commission (FTC) later enforced using a so-called “sliding scale” approach. Essentially, sites that are “directed at” kids under 13 are supposed to get parental consent using a variety of mechanisms (credit cards, sign and fax forms, phone calls, etc) before any collection of information takes place. Of course, there are some devilish details here regarding what counts as “directed at” or “collection,” but the crucial point here is that COPPA does not require the formal authentication of web surfer identities or ages — whether they kids or parents.
So, the really tricky question here is how one goes about expanding the COPPA regulatory regime without stumbling into the legal thicket that tied up the Child Online Protection Act (COPA) of 1998, a law which did mandate such an authentication regime and, as a result, witnessed a grueling decade-long legal battle over its constitutionality. Ultimately, the courts rejected COPA as inconsistent with America’s tradition of anonymous speech, something central to our evolution as a democracy, pre-dating even the First Amendment that protects it from government interference. Thus, we have, at least for now, closed the book on COPA. But are we about to re-open it with COPPA expansion a la the forthcoming Markey bill? Continue reading →
There’s a sharp piece by Fred Wilson in the New York Times today pointing out the benefits of online “tracking.” It’s part of a series of essays in one of their “Room for Debate” series about the FTC’s new “Do Not Track” regulatory proposal. (Our own Jim Harper also has a good essay worth reading.)
In Wilson’s essay, “Tracking Personalizes the Web,” he argues:
“Tracking helps services like the Weather Channel give you the information you are looking for without having to enter a lot of data every time you use the service. Tracking can make sure you don’t see the same news story twice.
Tracking is the technology behind some of the most powerful personalization technologies on the Web. A Web without tracking technology would be so much worse for users and consumers.”
He’s right, “tracking” makes personalization possible–and much more effective. But the really important point here is the one I made early today in my essay on “No-Cost Opt-Outs & Online Content & Culture“: data collection and advertising drive the free online content, sites, and services we take for granted today. Personalization of all those things is great, but we might not have some (most?) of them at all without data collection and advertising, or we’d at least have fewer that were entirely gratis.
Free isn’t really free, people!
In his essay today, “Go On, Opt Out. Just Don’t Come Cryin’ To Me …,” John Battelle has some very sensible thinking on the “Do Not Track” idea and privacy regulation more generally:
Look, if you want to, you can put yourself on a “do not track” list in the Real World. As you walk around in our Real World, where small shopkeepers and Starbucks alike attempt to lure you into their stores, you can simply decide to ignore their come ons. You can refuse to get a grocery card, and forego the discounts they offer. You can forego the countless coupons, come ons, and catalogs that come through your newspaper, browser, or your community mailer, and if you work at it, you can even opt out through some specialized services (with more coming soon, if the FTC gets its way). And you can turn off your television (cause lord knows even the shows are trying to influence you now), and you can ignore your friends when they talk about the latest, coolest promotion that Verizon or ATT has pushed them through their cell phones. If folks insist on talking about stuff that might smack of someone selling you something, heck, you can start to dress like the Unabomber and withdraw entirely from our obviously commercial culture. You might look weird, but at least folks will leave you alone. And if you do, your world will either be better, or it will suck more. Your call.
But don’t come crying to me when you realize that in opting out of our marketing-driven world, you’ve also opted out of, well, a pretty important part of our ongoing cultural conversation, one that, to my mind, is getting more authentic and transparent thanks to digital platforms. And, to my mind, you’ve also opted out of being a thinking person capable of filtering this stuff on your own, using that big ol’ bean which God, or whoever you believe in, gave you in the first place. Life is a conversation, and part of it is commercial. We need to buy stuff, folks. And we need to sell stuff too.
Amen, brother. This is a point Berin Szoka and I have made repeatedly here in the past: The debate over privacy regulation is fundamentally tied up with the future of online content and culture. The idea of a cost-free opt-out model for the all online data collection / advertising may sound seductive to some, but we must take into account the opportunity costs of regulation. The real world is full of trade-offs and, despite what the Federal Trade Commission seems to think, there is no such thing as a free lunch.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.