May 2011

On the podcast this week, Micah Sifry, co-founder of the Personal Democracy Forum, editor of, and author of the new book, Wikileaks and the Age of Transparency, discusses government transparency. Sifry talks about the various purposes of government transparency, technology’s effect on it, and bi-partisan competition that can promote it. He also discusses Bradley Manning’s case, the evolution of WikiLeaks, and the transparency, or lack thereof, within the WikiLeaks organization.

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My good friend and mentor Robert Corn-Revere, a First Amendment attorney with the law firm Davis Wright Tremaine, gave a terrific talk on “The High Value of Low Speech” at a recent Reason Foundation event.  Bob is one of the greatest living defenders of freedom of speech and expression and his talks are always inspiring, informative, and entertaining. I recommend you check it out. The video is embedded below or can be found on the ReasonTV website here.

“All First Amendment cases are about the power,” Corn-Revere argues. “Who should have the power to tell individuals what to read, think, believe or feel?” He continues on to explain the recent history of controversial First Amendment jurisprudence — much of which he has been personally responsible for litigating — and explains why even “low speech” is worth defending if we cherish our speech rights.



As Sonia Arrison mentioned here on Friday, the State of California is currently considering legislation that could, in the name of enhancing online privacy, impose burdensome new regulatory mandates on the Internet. Sonia has a nice column at TechNewsWorld discussing this. I also wrote about the same issue in my Forbes column this week, which is entitled, “The State of California Versus the Internet.” Specifically, I discuss SB 242, “The Social Networking Privacy Act,” and SB761, the so-called Do Not Track bill, and argue that: “What unifies these two measures is a general lack of understanding about the way the Internet and digital technology work. Both measures fail to appreciate the global nature of the Internet and would raise a host of unintended consequences.”

While the best of intentions drive these measures, they will be complicated to enforce in practice and could have a devastating impact on the California economy in the process. “If California wants to reestablish itself as the home of high-tech innovation,” I argue, “it needs to realize heavy-handed Net controls are not the ticket to either economic progress or job-creation.” Moreover, “These laws could be challenged in court since state-based regulation of the Internet raise constitutional issues. The Commerce Clause of the Constitution was designed to block the sort of parochial burdens on interstate commerce that these measures would establish.”

Jump over to Forbes to read the rest. Let’s hope California policymakers realize what a mistake they are making before it’s too late. If they don’t, Congress will need to preempt this regulation of interstate commerce if it’s not immediately challenged in Court and overturned.

There is a major controversy rocking the UK over the far-reaching press gag orders known as “super-injunctions,” especially because they’ve been brought to the fore by a sex scandal between famous footballer Ryan Giggs and reality TV star Imogen Thomas. (This blog post is now officially illegal in the UK.) In [my latest Techland post](, I explain the controversy and say that while the injunction is legally enforceable–Facebook has a London office with over 50 employees, and [today comes word]( that Twitter is starting up its UK operation–they are not practically enforceable because once out, the information cannot be controlled. I wrote:

>Controlling information is possible, but only at the margin and at great cost. As information technology advances, that margin at which information can be controlled gets thinner and thinner, and the costs of doing so become greater and greater. So given the apparent futility of keeping facts secret, you’d think officials would look to find better ways of confronting the new reality. That’s unfortunately not the case.

>“Why are we assuming that the world of communication, developing as rapidly as it is, can never be brought under control by other technological developments?” asked the head of the U.K.’s judiciary yesterday. “I am not giving up on the possibility that people who in effect peddle lies about others through modern technology may one day be brought under control.”

>And we should not forget to look in the mirror. While the U.S. has some of the world’s most extensive free speech and press liberties, it seems every week there is a new proposal to control what information can be published online.

Social widgets, such as the now-ubiquitous Facebook “Like” button and Twitter “Tweet” button, offer users a convenient way to share online content with their friends and followers. These widgets have recently come under scrutiny for their privacy implications. Yesterday, The Wall Street Journal reported that Facebook, Twitter, and Google are informed each time a user visits a webpage that contains one of the respective company’s widgets:

Internet users tap Facebook Inc.’s “Like” and Twitter Inc.’s “Tweet” buttons to share content with friends. But these tools also let their makers collect data about the websites people are visiting. These so-called social widgets, which appear atop stories on news sites or alongside products on retail sites, notify Facebook and Twitter that a person visited those sites even when users don’t click on the buttons, according to a study done for The Wall Street Journal.

It wasn’t exactly a secret that social widgets “phone home.” However, the Journal’s story shed new light on how the firms that offer social widgets handle the data they glean regarding user browsing habits. Facebook and Google reportedly store this data for a limited period of time — two weeks and 90 days, respectively — and, importantly, the data isn’t recorded in a way that can be tied back to a user (unless, of course, the user affirmatively decides to “like” a webpage). Twitter reportedly records browsing data as well, but deletes it “quickly.”

Assuming the companies effectively anonymize the data they glean from their social widgets, privacy-conscious users have little reason to worry. I’m not aware of any evidence that social widget data has been misused or breached. However, as Pete Warden reminded us in an informative O’Reilly Radar essay posted earlier this week, anonymizing data is harder than it sounds, and supposedly “anonymous” data sets have been successfully de-anonymized on several occasions. (For more on the de-anonymization of data sets, see Arvind Narayanan and Vitaly Shmatikov’s 2008 research paper on the topic).

Continue reading →

For those who wonder about the latest craziness coming from California, here is a summary.  It’s truly shocking that California policy makers are going after Silicon Valley, since it is one of the reasons the economy hasn’t completely tanked.

From my recent TNW column:

Facebook is having a tough month. First, it was revealed that the company hired a PR firm to portray competitor Google in a negative light, and now it is facing an even worse scenario: government regulation.


The Social Networking Privacy Act (SB 242) introduced into the California Senate by Sen. Ellen Corbett, D-San Leandro, would force any social networking site to make new users choose their privacy settings when they register and make the default settings private except for the user’s name and city of residence.

This is a huge challenge to Facebook CEO Mark Zuckerberg who has argued that making personal data public is the new “social norm.”


Clearly, the battle over what constitutes the appropriate social norm is up for grabs. According to Corbett, “you shouldn’t have to sign in and give up your personal information before you get to the part where you say ‘please don’t share my personal information.'”


This might sound like common sense at first, but someone should remind the senator that signing up for Facebook is voluntary. No one is required to log in or give up their data.


In addition to its stipulations about privacy settings, the bill would force social networking sites to remove any personally identifying information that a user wants to delete and would allow parents to edit their children’s Facebook profiles.


Suddenly the horror that “Mom’s on Facebook” could mean a lot more than potential embarrassment for kids. For those under 18, it might mean deletion of one’s online identity.


Read more here.



Every year since 1995, the Federal Communications Commission has released a report on the state of competition in the wireless market. Last year’s report was the first not to find the market “effectively competitive.” As a result, expectations are high for the new annual report. How it determines the state of competition in the wireless market could affect regulatory policy and how the Commission looks at proposed mergers.

Tune in here to watch this afternoon’s panel discussion on these issues, brought to you by the Mercatus Center at George Mason University’s Technology Policy Program.

The panel features:

  • Thomas W. Hazlett, Professor of Law & Economics, George Mason University School of Law
  • Joshua D. Wright, Associate Professor of Law, George Mason University School of Law
  • Robert M. Frieden, Professor of Telecommunications & Law, Penn State University
  • Harold Feld, Legal Director, Public Knowledge

One of my favorite topics lately has been the challenges faced by information control regimes. Jerry Brito and I are writing a big paper on this issue right now. Part of the story we tell is that the sheer scale / volume of modern information flows is becoming so overwhelming that it raises practical questions about just how effective any info control regime can be. [See our recent essays on the topic: 1, 23, 4, 5.]  As we continue our research, we’ve been attempting to unearth some good metrics / factoids to help tell this story.  It’s challenging because there aren’t many consistent data sets depicting online data growth over time and some of the best anecdotes from key digital companies are only released sporadically. Anyway, I’d love to hear from others about good metrics and data sets that we should be examining.  In the meantime, here are a few fun facts I’ve unearthed in my research so far. Please let me know if more recent data is available. [Note: Last updated 7/18/11]

  • Facebook: users submit around 650,000 comments on the 100 million pieces of content served up every minute on its site.[1]  People on Facebook install 20 million applications every day.[2]
  • YouTube: every minute, 48 hours of video were uploaded.  According to Peter Kafka of The Wall Street Journal, “That’s up 37 percent in the last six months, and 100 percent in the last year. YouTube says the increase comes in part because it’s easier than ever to upload stuff, and in part because YouTube has started embracing lengthy live streaming sessions. YouTube users are now watching more than 3 billion videos a day. That’s up 50 percent from the last year, which is also a huge leap, though the growth rate has declined a bit: Last year, views doubled from a billion a day to two billion in six months.”[3]
  • eBay is now the world’s largest online marketplace with more than 90 million active users globally and $60 billion in transactions annually, or $2,000 every second.[4]
  • Google: 34,000 searches per second (2 million per minute; 121 million per hour; 3 billion per day; 88 billion per month).[5]
  • Twitter already has 300 million users producing 140 million Tweets a day, which adds up to a billion Tweets every 8 days[6] (@ 1,600 Tweets per second)  “On the first day Twitter was made available to the public, 224 tweets were sent. Today, that number of updates are posted at least 10 times a second.”[7]
  • Apple: more than 10 billion apps have been downloaded from its App Store by customers in over 77 countries.[8] According to Chris Burns of SlashGear, “Currently it appears that another thousand apps are downloaded every 9 seconds in the Android Marketplace while every 3 seconds another 1,000 apps are downloaded in the App Store.”
  • Yelp: as of July 2011 the site hosted over 18 million user reviews.[9]
  • Wikipedia: Every six weeks, there are 10 million edits made to Wikipedia.[10]
  • “Humankind shared 65 exabytes of information in 2007, the equivalent of every person in the world sending out the contents of six newspapers every day.”[11]
  • Researchers at the San Diego Supercomputer Center at the University of California, San Diego, estimate that, in 2008, the world’s 27 million business servers processed 9.57 zettabytes, or 9,570,000,000,000,000,000,000 bytes of information.  This is “the digital equivalent of a 5.6-billion-mile-high stack of books from Earth to Neptune and back to Earth, repeated about 20 times a year.” The study also estimated that enterprise server workloads are doubling about every two years, “which means that by 2024 the world’s enterprise servers will annually process the digital equivalent of a stack of books extending more than 4.37 light-years to Alpha Centauri, our closest neighboring star system in the Milky Way Galaxy.”[12]
  • According to Dave Evans, Cisco’s chief futurist and chief technologist for the Cisco Internet Business Solutions Group, about 5 exabytes of unique information were created in 2008. That’s 1 billion DVDs. Fast forward three years and we are creating 1.2 zettabytes, with one zettabyte equal to 1,024 exabytes. “This is the same as every person on Earth tweeting for 100 years, or 125 million years of your favorite one-hour TV show,” says Evans. Our love of high-definition video accounts for much of the increase. By Cisco’s count, 91% of Internet data in 2015 will be video.[13]

[1]     Ken Deeter, “Live Commenting: Behind the Scenes,”, February 7, 2011,

[4]     eBay, “Who We Are,”

[5]     Matt McGee, “By The Numbers: Twitter Vs. Facebook Vs. Google Buzz,” SearchEngineLand, February 23, 2010,

[7]     Nicholas Jackson, “Infographic: A Look at Twitter’s Explosive Five-Year History,” The Atlantic, July 18, 2011,

[9]     “10 Things You Should Know about Yelp,”, [accessed July 18, 2011]

[10]   “Wikipedia: Edit Growth Measured in Time between Every 10,000,000th Edit,”

[11]   Martin Hilbert and Priscila Lopez, “The World’s Technological Capacity to Store, Communicate, and Compute Information,” Science, February 10, 2011,

[12]   Rex Graham, “Business Information Consumption: 9,570,000,000,000,000,000,000 Bytes per Year,” UC San Diego News Center, April 6, 2011,

[13]   Julie Bort, “10 Technologies That Will Change the World in the Next 10 Years,” Network World, July 15, 2011,

Hanno F. Kaiser, a U.S. and EU antitrust lawyer and partner with Latham & Watkins LLP, has just released an important essay on a topic I have devoted much time to here over the years: the debate over the relative advantages of “open” vs. “closed” technological systems and the Lessig-Zittrain-Wu school of thinking about these issues.

Kaiser’s essay is entitled, “Are Closed Systems an Antitrust Problem?” and it appears in the latest edition of Competition Policy International.  This essay is not to be missed. Kaiser’s terrific paper helps us better understand and debunk many of the myths and misperceptions that continue to riddle this debate. Here’s Kaiser’s key insight:

At bottom, the bad reputation of closed systems or walled gardens in the “open versus closed” debate is quite undeserved. Walled gardens generally benefit their environments—both in the real world and the digital realm. The primary purpose of a garden wall, after all, is to shelter plants from wind and frost, not to keep intruders out. In the protected space of the garden, flowers can grow that would not otherwise survive in the wild. Walled gardens thus deliberately create a microcosm that is different from the surrounding ecosystem. Therefore, as long as the garden does not take over the entire ecosystem, walled gardens increase, not reduce, overall diversity. From a competition policy perspective, enjoying the fruits of a walled garden is generally not a guilty pleasure.

Therefore, “as a policy matter, ‘open’ is not necessarily better than ‘closed’,” Kaiser argues, and elaborates as follows: Continue reading →

TechFreedom, CEI and ATR’s just put out the following statement about ECPA reform, something Ryan and I have blogged about here and here. Also check out the larger coalition letter we released in April with seven other leading free market groups and

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WASHINGTON D.C. – Sen. Patrick Leahy (D-Vt.) today introduced legislation (S. 1011) to reform the Electronic Communications Privacy Act (ECPA).  The law, enacted in 1986, was designed to protect individuals’ privacy by limiting governmental access to electronic data stored or sent using platforms or computers owned by third parties.

“Several lawmakers have proposed sweeping new regulation of how companies collect and use data to fund and improve the online content and services cherished by consumers,” said TechFreedom President Berin Szoka.  “The costs to consumers of such regulations could be enormous, yet the harms supposedly justifying new regulations remain largely amorphous.  Today, finally, we see a bill that focuses on the one clear harm that seems to underlie most online privacy concerns: law enforcement’s access to personal data without judicial scrutiny.  Addressing that very real problem should unite everyone who cares about privacy.”

Sen. Leahy’s proposed legislation would amend ECPA to protect Americans’ private information stored remotely or in the “cloud” from unwarranted search and seizure, and limit unwarranted governmental access to mobile location information.  The reforms would implement two of the four consensus principles advocated by the Digital Due Process coalition, a diverse coalition of public interest organizations, free market groups, high-tech companies, and scholars. Continue reading →