February 2011

Cyber-Intrigue and Miscalculation

by Jim Harper on February 11, 2011 · 3 comments

If you haven’t been following the intrigue around Wikileaks and the security companies hoping to help the government fight it, this stuff is not to be missed. Recommended:

“How One Man Tracked Down Anonymous—And Paid a Heavy Price,” on Ars Technica.
“A Disturbing Threat Against One of Our Own,” on Salon.

The latter story links to a document purporting to show that a government contractor called Palantir Technologies suggested unnamed ways that Glenn Greenwald might be made to choose “professional preservation” over his sympathetic reporting about Wikileaks. A later page talks of “proactive strategies” including: “Use social media to profile and identify risky behavior of employees.”

Wikileaks has no employees. I take this to mean that the personal lives of Wikileaks supporters and sympathizers would be used to undercut its public credibility. Because Julian Assange hasn’t done enough…

While we’re on credibility: This may well be Wikileaks’ rehabilitation. Wikileaks erred badly by letting itself and Julian Assange become the story. We’re not having the discussion we should have about U.S. government behavior because of Assange’s self-regard.

But now defenders of the U.S. government are making themselves the story, and they may be looking even worse than Wikileaks and Assange. (n.b. Palantir has apologized to Greenwald.) That doesn’t mean that we will immediately focus on what Wikileaks has revealed about U.S. government behavior, but it could clear the deck for those conversations to happen.

The concept of “miscalculation” seems more prominent in international affairs and foreign policy than other fields, and it comes to mind here. Wikileaks and its opponents are joined in a negative duel around miscalculation. The side that miscalculates the least will have the upper hand.

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Rep. Speier’s “Do Not Track” Privacy Legislation

by Berin Szoka on February 11, 2011 · 0 comments

Rep. Jackie Speier introduced legislation today that would require the Federal Trade Commission to establish standards for a “Do Not Track” mechanism and require online data collectors to obey consumer opt-outs through such a tool.

As I’ll explain in more detail in my comments on the FTC’s privacy report (due next Friday), I’ve argued for the last two and half years that user empowering users to make their own choices about online privacy is, in combination with education and enforcement of existing laws, the best way to start adddressing online privacy concerns. In principle, some kind of “Do Not Track” mechanism could be a valuable user empowerment tool.

But actually implementing “Do Not Track” without killing advertising won’t be easy. Just as consumers need to be empowered to make effective privacy choices, so too must publishers of ad-supported websites be able to make explicit today’s implicit quid pro quo: Users who opt-out of tracking might have to see more ads, pay for content and so on.

Government cannot design a “marketplace for privacy” from the top down, nor predict the costs of forcing an explicit quid pro quo. It would be sadly ironic—as Adam Thierer and I pointed out over a year ago—if the same FTC that has agonized so much about the future of journalism wound up killing advertising, the golden goose that has sustained free media in this country for centuries.

The market is evolving quickly here, with two very different “Do Not Track” tools debuting in Internet Explorer 9 and Firefox 4 just this week. Ultimately, it is the Internet’s existing standards-setting bodies, not Congress or the FTC, that have the expertise to resolve such differences and make a “Do Not Track” mechanism work for both consumers and publishers, as well as advertisers and ad networks.

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Terrific Visualization of Digital Information Explosion

by Adam Thierer on February 11, 2011 · 11 comments

Here’s an amazing graphic that appeared in today’s Washington Post depicting how digital information has grown exploded over the past two decades. It’s better viewed on a large monitor from this link on the Post website. And here’s the accompanying Post article. The underlying data come from a new study by Martin Hilbert and Priscila Lopez of the University of Southern California, which is entitled, “The World’s Technological Capacity to Store, Communicate, and Compute Information.” It appears in the latest issue of Science but is not available without a subscription.

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Goldsmith on Assange, WikiLeaks, the First Amendment & Press Freedoms

by Adam Thierer on February 11, 2011 · 4 comments

There’s a sharp piece in today’s Washington Post from Jack Goldsmith, currently with Harvard Law but formerly an assistant attorney general in the Bush administration, about “Why the U.S. Shouldn’t Try Julian Assange.” Goldsmith points to the sticky First Amendment / press freedom issues at stake should the U.S. try to go after Assange and WikiLeaks:

A conviction would also cause collateral damage to American media freedoms. It is difficult to distinguish Assange or WikiLeaks from The Washington Post. National security reporters for The Post solicit and receive classified information regularly. And The Post regularly publishes it. The Obama administration has suggested it can prosecute Assange without impinging on press freedoms by charging him not with publishing classified information but with conspiring with Bradley Manning, the alleged government leaker, to steal and share the information. News reports suggest that this theory is falling apart because the government cannot find evidence that Assange induced Bradley to leak. Even if it could, such evidence would not distinguish the many American journalists who actively aid leakers of classified information.

One reason journalists have never been prosecuted for soliciting and publishing classified information is that the First Amendment, to an uncertain degree never settled by courts, protects these activities. Convicting Assange would require courts to resolve this uncertainty in a way that narrows First Amendment protections. It would imply that the First Amendment does not prevent prosecution of American journalists who seek and publish classified information. At the very least it would render the First Amendment a less certain shield. This would – in contrast to WikiLeaks copycats outside our borders – chill the American press in its national security reporting.

Quite right, and it’s a point bolstered by another editorial that also appeared in the Post a few weeks ago by Adam Penenberg of New York University, in which he made the case for treating Assange as a journalist. Penenberg asks: “What constitutes “legitimate newsgathering activities”? How do you differentiate between what WikiLeaks does and what the New York Times does?”

Continue reading →

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Some Sense on Sexting

by Steven Titch on February 10, 2011 · 10 comments

Bucking a trend seen in other states, Texas lawmakers are taking steps to separate teen “sexting,” the sending and receiving sexually explicit photos via cell phone or email, from child pornography.

A bill proposed by State Sen. Kirk Watson of Austin, and backed by Texas State Attorney General Greg Abbott, would classify sexting as a Class C misdemeanor for first time violators under 18. Under current law, sexting is a Class C felony carrying penalties of two to 10 years in prison, a fine up to $10,000 and lifelong registration as a sex offender.

The Lone Star State deserves credit for taking a sensible approach to addressing what is without doubt stupid behavior that comes with serious consequences, but is far from the predation that child pornography laws are intended to target.

Continue reading →

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The Regulated Internet: How We Got Here

by Steven Titch on February 10, 2011 · 1 comment

In the March issue of Reason, Peter Suderman takes us on a tour of the recent telecom and Internet regulatory scene as he looks at the Federal Communications Commission Chairman and Obama hoops buddy Julius Genachowski and his push to regulate the Web.

The article, which recaps the five-year network neutrality battle that reached a watershed moment this December when Genachowski all but rammed through the new rules as the rest of D.C. was heading out for the holidays, punctures many of the myths of the network neutrality rationale–including the notion that it is a small site-vs.-large-site issue and that large ISPs were exploiting their bottlenck position.

Suderman succintly shows how Genachowski, following the lead of groups like Free Press, framed what is essentially a geeky tug-of-war about network engineering concepts as wholesale market failure that demanded regulation, with himself as top Intenet cop.

But the net neutrality debate doesn’t really pit the Goliaths against the Davids. It’s a battle between the edge of the Internet and the center, with application and content providers (the edge) fighting for control against infrastructure owners (the center). Large business interests dominate both sides of the debate. Google, for example, has long favored some form of net neutrality, as have Facebook, Amazon, Twitter, and a smattering of other big content providers, who prefer a Web in which the network acts essentially as a “dumb pipe” to carry their content. Mom-and-pop sites aren’t the issue.

Google makes its support sound as simple and earnest as its corporate motto of “don’t be evil.” Much like Genachowski, it defines net neutrality as “the concept that the Internet should remain free and open to all comers.” But the freedom and openness that Google claims to prize bear a distinct resemblance to regulatory protection. An Internet in which ISPs can freely discriminate between services, prioritizing some data in order to offer enhanced services to more customers, is an Internet in which content providers may have to pay more to reach their customers. Under Google and Genachowski’s net neutrality regime, ISPs may own the network, but the FCC will have a say in how those networks are run, with a bias toward restrictions that favor content providers.

The entire article can be found here,

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Tim Wu to the FTC: What does it mean?

by Geoffrey Manne on February 9, 2011 · 10 comments

As Adam notes, Columbia lawprof and holder of the dubious distinction of having originated the term and concept of Net Neutrality, Tim Wu, is headed to the FTC as a senior advisor.

Curiously, his guest stint runs for only about four and a half months. As the WSJ reports:

Mr. Wu, 38, will start his new position on Feb. 14 in the FTC’s Office of Policy Planning, and will help the agency to develop policies that affect the Internet and the market for mobile communications and services. The FTC said Mr. Wu will work in the unit until July 31. Mr. Wu, who is taking a leave from Columbia, said that to work after that date he would have to request a further leave from the university.

Mr. Wu’s claim that the source of the date constraint is Columbia doesn’t pass the smell test. Now, it is possible that what he says is literally true–and therefore intentionally misleading. Perhaps he asked only for leave through the end of July and would indeed have to request further leave if he wanted it. But the implication that Columbia would have trouble granting further leave–especially during the summer!–and thus the short tenure seems very fishy to me.

So what else could be going on, while we’re reading inscrutable tea leaves? Well, for one thing, it could be that Wu has already signed on for some not-yet-public role at Columbia that he prefers not to imperil. Maybe associate dean or something like that.

But I have another, completely unsupported speculation. I think the author of The Master Switch (commented on by Josh and me here) and one of the most capable (as far as that goes) proponents of Internet regulation in the land is being brought in to the FTC to help the agency gin up a case against Google.

I think with Google-ITA seemingly approaching its denouement, the FTC knows or believes that Google is either planning to abandon the merger or else enter into an (insufficiently-restrictive for the FTC) settlement with the DOJ. In either case, not a full-blown investigation and intervention into Google’s business. So the FTC is preparing its own Section 5 (and Section 2, but who needs that piker when you have the real deal in Section 5?) (for previous TOTM takes on Section 5, see, e.g., here and here) case and has brought in Wu to help. Given the switching back and forth between the DOJ and FTC in reviewing Google mergers, it could very well be (I haven’t kept close tabs on Google’s proposed acquisitions) that there’s even already another merger review in waiting at the FTC on which the agency is planning to build its case.

But the phase of the case requiring Wu’s full attention–the conceptual early phase–should be completed by the end of July, so no need to detain him further.

More concretely, I would point out that it says a lot about the agency’s mindset that it is bringing in the likes of Wu to help it with its ongoing forays into the regulation of Internet businesses. By comparison, I would just point out that Chairman Majoras’ FTC brought in our own Josh Wright as the agency’s first Scholar in Residence. Sends a very different signal, don’t you think?

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Congrats Tim Wu! But Please Don’t Toss “The Regulatory Switch”

by Adam Thierer on February 8, 2011 · 6 comments

Congrats are due to Tim Wu, who’s just been appointed as a senior advisor to the Federal Trade Commission (FTC). Tim is a brilliant and gracious guy; easily one of the most agreeable people I’ve ever had the pleasure of interacting with in my 20 years in covering technology policy. He’s a logical choice for such a position in a Democratic administration since he has been one of the leading lights on the Left on cyberlaw issues over the past decade.

That being said, Tim’s ideas on tech policy trouble me deeply. I’ll ignore the fact that he gave birth to the term “net neutrality” and that he chaired the radical regulatory activist group, Free Press. Instead, I just want to remind folks of one very troubling recommendation for the information sector that he articulated in his new book, The Master Switch: The Rise and Fall of Information Empires. While his book was preoccupied with corporate power and the ability of media and communications companies to posses a supposed “master switch” over speech or culture, I’m more worried about the “regulatory switch” that Tim has said the government should toss.

Tim has suggested that a so-called “Separations Principle” govern our modern information economy. “A Separations Principle would mean the creation of a salutary distance between each of the major functions or layers in the information economy,” he says. “It would mean that those who develop information, those who control the network infrastructure on which it travels, and those who control the tools or venues of access must be kept apart from one another.” Tim calls this a “constitutional approach” because he models it on the separations of power found in the U.S. Constitution.

I critiqued this concept in Part 6 of my ridiculously long multi-part review of his new book, and I discuss it further in a new Reason magazine article, which is due out shortly. As I note in my Reason essay, Tim’s blueprint for “reforming” technology policy represents an audacious industrial policy for the Internet and America’s information sectors. Continue reading →

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Susan Maushart on pulling the plug

by Jerry Brito on February 8, 2011 · 2 comments

On the podcast this week, Susan Maushart, a columnist, author and social commentator, discusses her new book, The Winter of our Disconnect. Maushart talks about her experience unplugging herself, and her three teenagers, from most screen-based technologies for 6 months. She discusses how she got her kids to go along with the plan, how she found support in Thoreau’s Walden, what boredom is, and whether she found balance through the experience. Maushart also talks about limits to allowing your children the luxury of choice, commenting on Amy Chua’s Tiger Mother philosophy.

Two Years on the Internet is an Eternity

by Larry Downes on February 8, 2011 · 1 comment

Video is now available for all of the excellent programming at this year’s State of The Net 2011 conference. (Programming will also be available over time on C-SPAN’s video library.) The Conference, organized by the Advisory Committee to the Congressional Internet Caucus, featured Members of Congress, leading academics, Administration, agency, and Congressional staff and other provocateurs. Topics this year ranged from social networking, Wikileaks, COICA, copyright, privacy, security, broadband policy and, of course, the end-of-the-year vote by the FCC to approve new rules for network management by broadband providers, aka net neutrality. Continue reading →

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