February 2011

Following up on my Congressional testimony last week, I’ve written two articles on how the House and Senate are moving forward with plans to undo the FCC’s December 23,2010 “Open Internet” order, aka net neutrality. For my inaugural post for Forbes, I write about the experience of being a witness before the House Judiciary Committee’s Subcommittee on Intellectual Property, Competition and the Internet, and provide some background on how the FCC found itself backed into a corner that led to the unpopular (on both sides) new rules. See “Deep in the Net Neutrality Trenches.”

On CNET this morning, I review in detail the steps taken last week by Congress. These include two hearings, one featuring all five FCC Commissioners. After the hearings, the House approved an amendment to the on-going budget negotiations that would deny the agency any funding to implement or enforce its rules. Later, both the House and Senate issued a Joint Resolution of Disapproval, which, if passed, would nullify the rule-making and deny the FCC future authority to try again. Continue reading →

Tomorrow at noon Facebook will be hosting one of its [“Facebook DC Live” events featuring William Powers](http://www.facebook.com/event.php?eid=168939799819747), author of *[Hamlet’s Blackberry: A Practical Philosophy for Building a Good Life](http://www.amazon.com/gp/product/0061687162?ie=UTF8&tag=jerrybritocom&linkCode=as2&camp=1789&creative=390957&creativeASIN=0061687162)*. I interviewed Powers on [the Surprisingly Free podcast](http://surprisinglyfree.com/2010/10/26/william-powers/) last year about his book.

What I like so much about Powers and his books is that he gracefully tackles what is no doubt a fact: that like all new technologies the Internet comes not just with benefits, but with costs as well. In the Internet’s case the costs that most folks have identified have to do with “what it’s doing to our brains” and attention spans. Unlike other authors on the same topic that I’ve read and interviewed, like Nick Carr, Jaron Lanier, Susan Maushart, and Elias Aboujaoude, Powers doesn’t overplay his concern or sound alarm bells of doom. Instead, he gives a very upbeat account of how great minds throughout history have dealt with technological change.

The punchline: be mindful of your action, and take a break once in a while. Wonderful advice wrapped in great stories and good philosophy; cyber-doom need not apply. So, check him out on the live stream tomorrow and you’ll be able to chat and ask questions.

FTC Chairman says will probe Apple in-app purchases for marketing practices: http://wapo.st/fX3uWnless than a minute ago via TweetDeck

*The Washington Post’s* [Cecilia Kang](http://voices.washingtonpost.com/posttech/2011/02/ftc_chairman_to_probe_apple_ip.html) reports that the FTC will probe Apple for in-app purchases marketing practices. According to Kang,

>FTC Chairman Jon Leibowitz wrote in a letter to Rep. Ed Markey (D-Mass.) that the practice of “in-app purchases” for certain applications on Apple iPhones, iPads and iPods raised concerns that consumers may not fully understand the ramifications of those charges. *The Washington Post* wrote about hefty charges amassed by children using Apple device games that public interest groups said should not be included in software geared for children. Some parents said their children didn’t understand the difference between real and pretend purchases for items such as $99 barrels of Smurfberries on the Capcom Interactive game Smurfs Village.

I’ll skip the question of whether it’s the proper role of the federal government to be a surrogate parent to children given iPhones by their real parents. Instead I’ll simply say that I don’t know how much easier we can expect Apple to make it for parents to supervise their children.

– **Passwords** All purchases on iOS devices require the user to enter a password before it can be completed. Don’t give your child the password and you don’t have to worry about charges.

– **Allowances** If you do want to allow your child to make purchases, but what to set some limits, Apple makes it easy to create an [iTunes allowance](http://support.apple.com/kb/ht2105) account that allows a parent to specify an amount that is added to a child’s account each month. Once the child uses the amount, he can’t spend any more.

What more do we want Apple to do?

On this week’s podcast, Elias Aboujaoude, a psychiatrist and author based at Stanford University, discusses his new book, Virtually You: The Dangerous Powers of the E-Personality. Aboujaoude says that the internet has positive effects, but he’s worried that most of our day-to-day online activities are negatively affecting us. He explains how, in his view, behaviors like compulsive online shopping and angry commenting on blogs is seeping into our offline lives, with profound negative effects. He also talks about why he thinks the internet is different from previous technologies that caused techno-fear, why he thinks it’s often difficult for online norms to develop, and what he thinks proper roles are for medicine, psychiatry, and government in the online sphere.

Related Links

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?

To believe some of the worrywarts around Washington, we find ourselves in the midst of a miserable mobile marketplace experience. Regulatory advocates like New America Foundation, Free Press, Public Knowledge and others routinely claim that the sky is falling on consumers and that far-reaching regulation of the wireless sector is needed to save the day.

I hope those folks are still willing to listen to facts, becuase those facts tell a very different story. Specifically, I invite critics to flip through the latest presentation by Internet market watchers Mary Meeker and Matt Murphy of Kleiner Perkins Caufield & Byers on “Top Mobile Internet Trends” and then explain to me how we can label this marketplace anything other than what it really is: One of the greatest capitalist success stories of modern times. Just about every metric illustrates the explosive growth of technological innovation in the U.S. mobile arena. I’ve embedded the entire slideshow down below, but two particular slides deserve to be showcased.

Continue reading →

There has been much hand wringing about Apple’s new in-app subscription system for publishers and even [one report](http://online.wsj.com/article/SB10001424052748704657704576150350669475800.html) that antitrust enforcers have begun looking into the matter.

The purpose of the antitrust laws is to protect consumers, not companies, so the simple fact that Apple will take a 30% cut from publishers who want to offer subscriptions on iOS devices should not be enough to trigger scrutiny. So, my guess at what a theory of consumer harm against Apple might be is this: Apple not only takes a 30% cut of any subscription purchased in-app on an iOS device, it also requires publishers to offer as low a price on iOS as they offer anywhere else. Therefore, a case could be made that a publisher faced with Apple’s 30% fee (and unable to simply raise prices by 30% just on Apple’s devices) might raise prices on all platforms enough to cover Apple’s cut. So, assuming market power of course, Apple’s new policy could affect all digital subscription pricing.

Yet it’s hard to talk about market power in such a nascent sector. Digital subscriptions didn’t exist 5 years ago, and they do now in large part thanks to Apple. The right market structure is sorting itself out right now and yes, Apple does seem to have a well-earned lead as the innovator in the space. But if the original Mac taught us anything, is that a lead in a nascent sector is no guarantee of monopoly and regulators would be creating serious disincentives to innovation if they meddle.

Digital publishing is very much a contestable market. I hardly need to point out that the day after Apple’s announcement, [Google made public](http://news.cnet.com/8301-17938_105-20032217-1.html) its own very competitive subscription service. And while the iPad is ahead of the game right now, Android tablets are only now beginning to hit the market. If [declining iPhone market share](http://thenextweb.com/apple/2010/02/01/iphone-shedding-market-share-increasingly-competitive-market/) is any indication, Android will nip at Apple’s heels in the tablet space as well. And let’s not forget other formidable (and somewhat-formidable) competitors in the likes of HP’s WebOS, Microsoft-Nokia, and RIM.

Moreover, while the consumer harm is speculative, the potential consumer benefits of Apple’s subscription service are pretty clear:

– **Ease of Use & Security:** Apple’s app store is a tremendous innovation if nothing else because it creates a simple payment system consumers trust. iPad users will tell you they much prefer one-click subscriptions managed through Apple than having to create many accounts with disparate publishers, which incidentally improves security.
– **Privacy:** One thing that sets Google’s offering apart from Apple’s is that they will share with publishers information about subscribers. Apple, on the other hand, gives users the choice of sharing information with publishers, and then it’s only limited information. This should please privacy conscious consumers.
– **Subsidized Devices:** As a [recently viral article in Wired](http://www.wired.com/gadgetlab/2011/02/ipad-price/) suggests, the reason Apple is able to offer the iPad entry price of $500 (which rivals are having a hard time meeting) is that Apple is a vertically integrated company. This means that the 30% from subscriptions potentially subsidizes the iPad’s low price, thus benefitting consumers.

For better or worse, my first post here is going to be a rather urgent call to action. I’d like to encourage everyone who reads this blog to register their support for this petition. Entitled, “Say no to the GAC veto,” it expresses opposition to a shocking and dangerous turn in U.S. policy toward the global domain name system. It is a change that would reverse more than a decade of commitment to a transnational, bottom-up, civil society-led approach to governance of Internet identifiers, in favor of a top-down policy making regime dominated by national governments.

If the U.S. Commerce Department has its way, not only would national governments call the shots regarding what new domains could exist and what ideas and words they could and could not use, but they would be empowered to do so without any constraint or guidance from law, treaties or constitutions. Our own U.S. Commerce Department wants to let any government in the world censor a top level domain proposal “for any reason.” A government or two could object simply because they don’t like the person behind it, the ideas it espouses or they are offended by the name, and make these objections fatal. This kind of direct state control over content-related matters sets an ominous precedent for the future of Internet governance.

On February 28 and March 1, ICANN and its Governmental Advisory Committee will meet in Brussels to negotiate over ICANN’s program to add new top level domain names to the root. The U.S. commerce Department has chosen to make this meeting a showdown, in which the so-called Governmental Advisory Committee (GAC) will demand that the organization re-write and re-do policies and procedures ICANN and its stakeholder groups have been laboring to achieve agreement on for the past six years. The GAC veto, assailed by our petition, is only the most objectionable feature of a long list of bad ideas our Commerce Department is dragging into the consultation. We need to make a strong showing to ensure that ICANN has the backbone to resist these pressures

For those concerned about the role of the state in communications and information, I can’t think of a better, clearer flashpoint for focusing your efforts. A great deal of the Internet’s innovation and revolutionary character came from the fact that it escaped control of national states and began to evolve new, transnational forms of governance. As governments wake up to the power and potential of the Internet, they have increasingly sought to assert traditional forms of control.

The relationship between national governments and ICANN, which came into being during the Clinton administration as an attempt to “privatize” and globalize the policy making and coordination of the Internet’s domain name system, has always been a fraught one. Whatever its flaws (and they are many), ICANN at least gives us a globalized governance regime that is rooted in the Internet’s technical commnunity and users, and one step removed from the miasma of national governments and intergovernmental organizations. The GAC was initially just an afterthought tacked on to ICANN’s structure to appease the European Union. It was – and is still supposed to be – purely advisory in function. Initially it was conceived as simply providing ICANN with information about the way its policies interacted with national policies.

Those of you with long memories may be feeling a sense of deja vu. Didn’t we think we were settling the issue of an intergovernmental takeover of ICANN back in 2005, during the World Summit on the Information Society? Wasn’t it the U.S. government who went into that summit playing to fears of a “UN takeover of the Internet” and swearing that it was protecting the Internet from “burdensome intergovernmental oversight and control”? Wouldn’t most Americans be surprised to learn that the Commerce Department is now using ICANN’s Governmental Advisory Committee to reassert intergovernmental control over what kind of new web sites can be created? Ironically, the US has become the most formidable world advocate of burdensome government oversight and control in Internet governance. And it has done so without any public consultation or legal authority.

Please spread the word about this petition and use whatever channels you have to isolate the Commerce Department’s illegitimate incursions on constitutional free expression guarantees.

It seems peculiar to me that some of the same individuals and groups who so vociferously opposed a “broadcast flag” technological mandate in past years are now in a mad rush to have federal policymakers mandate a “Do Not Track” regulatory regime for privacy purposes. The broadcast flag debate, you will recall, centered around the wisdom of mandating a technological fix to the copyright arms race before digitized high-definition broadcast signals were effectively “Napster-ized.” At least that was the fear six or seven years ago. TV broadcasters and some content companies wanted the Federal Communications Commission (FCC) to recognize and enforce a string of code that would have been embedded in digital broadcast program signals such that mass redistribution of video programming could have been prevented.

Flash forward to the present debate about mandating a “Do Not Track” scheme to help protect privacy online. As I noted in my filing last week to the Federal Trade Commission, at root, Do Not Track is just another “information control regime.” Much like the broadcast flag proposal, it’s an attempt to use a technological quick-fix to solve a complex problem. When it comes to such information control efforts, however, there aren’t many good examples of simple fixes or silver-bullet solutions that have worked, at least not for very long. The debates over Wikileaks, online porn, Internet hate speech, and Spam all demonstrate how challenging it can be to put information back into the bottle once it is released into the digital wild.

To be clear, I am not opposed to technological solutions like broadcast flag or Do Not Track, but I am opposed to forcing them upon the Internet and digital markets in a top-down, centrally-planned fashion. While I am skeptical that either scheme would work well in practice (whether voluntary or mandated), my concern in these debates is that forcing such solutions by law will have many unintended consequences, not the least of which will be the gradual growth of invasive cyberspace controls in these or other contexts. After all, if we can have “broadcast flags” and “Do Not Track” schemes, why not “flag” mandates for objectionable speech or “Do Not Porn” browser mandates? Continue reading →

It’s my great pleasure to welcome Milton Mueller to the TLF as an occasional contributor. Milton is a professor at the School of Information Studies at Syracuse University. Cyberlaw and Internet policy scholars are certainly familiar with Milton’s impressive body of research on communications, media, and high-tech issues over the past 25 years. You can find much of it on his website here.  Regular readers of the TLF will also recall that I have praised Milton’s one-of-a-kind research on Internet governance issues, going so far as to label him the “de Tocqueville of cyberspace.”  His work with the Internet Governance Project and the Global Internet Governance Academic Network is truly indispensable, and in books like Ruling the Root: Internet Governance and the Taming of Cyberspace (2002) and his more recent Networks and States: The Global Politics of Internet Governance (2010), Milton brilliantly explores the forces shaping Internet policy across the globe. (Also, make sure to listen to this podcast that Jerry Brito did with Milton about the book and his ongoing research.)

More importantly, as I noted in my review of Network and States last year, Milton has sought to breathe new life into the old cyber-libertarian philosophy that was more prevalent during the Net’s founding era but has lost favor today. In the book, he notes that his “normative stance is rooted in the Internet’s early promise of unfettered and borderless global communication, and its largely accidental and temporary escape from traditional institutional mechanisms of control.”  He has also given our little movement its marching orders, arguing that “we need to find ways to translate classical liberal rights and freedom into a governance framework suitable for the global Internet.  There can be no cyberliberty without a political movement to define, defend, and institutionalize individual rights and freedoms on a transnational scale,” he says.  Terrific stuff, and I very much look forward to Milton developing this framework in more detail here at the TLF in coming years.

Milton will continue to do much of his blogging over at the Internet Governance Project blog, but will drop by here on occasion to cross-post some of those writings or to comment on other pressing Internet policy issues of the day. Welcome to the TLF, Milton!

Experienced debaters know that the framing of an issue often determines the outcome of the contest. Always watch the slant of the ground that debaters stand on.

The Internet kill-switch debate is instructive. Last week, Senators Lieberman (I-CT), Collins (R-ME) and Carper (D-DE) introduced a newly modified bill that seeks to give the government authority to seize power over the Internet or parts of it. The old version was widely panned.

In a statement about the new bill, they denied that it should be called a “kill switch,” of course—that language isn’t good for their cause after Egypt’s ousted dictator Hosni Mubarak illustrated what such power means. They also inserted a section called the “Internet Freedom Act.” It’s George Orwell with a clown nose, a comically ham-handed attempt to make it seem like the bill is not a government power-grab.

But they also said this: “The emergency measures in our bill apply in a precise and targeted way only to our most critical infrastructure.”

Accordingly, much of the reportage and commentary in this piece by Declan McCullagh explores whether the powers are indeed precisely targeted.

These are important and substantive points, right? Well, only if you’ve already conceded some more important ones, such as:

1) What authority does the government have to seize, or plan to seize, private assets? Such authority would be highly debatable under any of the constitutional powers kill-switchers might claim. Indeed, the constitution protects against, or at least severely limits, takings of private property in the Fifth Amendment.


2) Would it be a good idea to have the government seize control of the Internet, or parts of it, under some emergency situation? A government attack on our private communications infrastructure would almost certainly undercut the reliability and security of our networks, computers, and data.

The proponents of the Internet kill-switch have not met their burden on either of these fundamental points. Thus, the question of tailoring is irrelevant.

I managed to get in a word to this effect in the story linked above. “How does this make cybersecurity better? They have no answer,” I said. They really don’t.

No amount of tailoring can make a bad idea a good one. The Internet kill-switch debate is not about the precision or care with which such a policy might be designed or implemented. It’s about the galling claim on the part of Senators Lieberman, Collins, and Carper that the U.S. government can seize private assets at will or whim.