September 2011

On the podcast this week, Sonia Arrison, writer, futurist, and senior fellow at the Pacific Research Institute, discusses her new book entitled 100+: How the Coming of Age of Longevity Will Change Everything from Careers and Relationships to Family and Faith. The process of aging, according to Arrison, is not set in stone, and the way humans experience age can be changed as technology evolves. She discusses the different types of technology, including tissue engineering and gene therapy, which are poised to change numerous aspects of human life by improving health and increasing lifespan to 150 years and beyond. She also talks about how increased lifespans will affect institutions in society and addresses concerns, such as overpopulation and depletion of resources, raised by critics of this technology.

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In a speech today before the Internet Governance Forum entitled “Taking Care of the Internet,” Neelie Kroes, Vice President of the European Commission, responsible for the Digital Agenda for Europe, argued for “a globally coherent approach” to preserve “the global character of the Internet, and keep it from fragmenting.” That sounds good in theory but, as always, the devil is in the details. No one wants to see a highly balkanized Internet with each country and continent becoming a digital island cut off from the rest of Internet. On the other hand, if “a globally coherent approach” means layers of international red tape and bureaucracy, then fragmentation doesn’t sound so bad by comparison. That’s particularly true for those of us who live in countries to cherish principles of freedom of speech and free enterprise, as we do in the United States.

For example, to most of the rest of the planet, America’s First Amendment is viewed as a pesky local ordinance that simply interferes with the ability of government to establish rules for acceptable speech and expression throughout society. What, then, does “a globally coherent approach” to Internet governance mean when America’s values conflict with other countries and continents? Does it mean that the U.S. should conform to a global norm as established by a “consensus body”? Who would that be? The OECD? The United Nations? The International Telecommunications Union? If so, it is clear that protections for freedom of speech and expression would be sacrificed on the altar of “consensus” or a “coherent global approach” to Net governance. Continue reading →

[Cross posted at Truthonthemarket]

As I have posted before, I was disappointed that the DOJ filed against AT&T in its bid to acquire T-Mobile.  The efficacious provision of mobile broadband service is a complicated business, but it has become even more so by government’s meddling.  Responses like this merger are both inevitable and essential.  And Sprint and Cellular South piling on doesn’t help — and, as Josh has pointed out, further suggests that the merger is actually pro-competitive.

Tomorrow, along with a great group of antitrust attorneys, I am going to pick up where I left off in that post during a roundtable discussion hosted by the American Bar Association.  If you are in the DC area you should attend in person, or you can call in to listen to the discussion–but either way, you will need to register here.  There should be a couple of people live tweeting the event, so keep up with the conversation by following #ABASAL.

Richard Brunell, Director of Legal Advocacy, American Antitrust Institute, Boston
Allen Grunes, Partner, Brownstein Hyatt Farber Schreck, Washington
Glenn Manishin, Partner, Duane Morris LLP, Washington
Geoffrey Manne, Lecturer in Law, Lewis & Clark Law School, Portland
Patrick Pascarella, Partner, Tucker Ellis & West, Cleveland

Wilson Sonsini Goodrich & Rosati, P.C. 1700 K St. N.W. Fifth Floor Washington, D.C. 20006

For more information, check out the flyer here.

For Forbes this morning, I reflect on the publication late last week of the FCC’s “Open Internet” or net neutrality rules and their impact on spectrum auctions past and future.  Hint:  not good.

An important study last year by Prof. Faulhaber and Prof. Farber, former chief economist and chief technologist, respectively, for the FCC, found that the last-minute imposition of net neutrality limits on the 700 MHz “C” block in the FCC’s 2008 auction reduced the winning bid by 60%–a few billion dollars for the Treasury.

Yet the FCC maintained in the December Report and Order approving similar rules for all broadband providers that the cost impact of these “prophylactic” rules would be minimal, because, after all, they simply endorse practices most providers already follow.  (And the need for the new rules, then, came from where?)

Continue reading →

The Cato Institute is doing a live-streamed Capitol Hill briefing this morning—start-time 9:00 a.m. Eastern—on congressional transparency.

You can see and download all the materials being released to Hill staff on a Cato@Liberty blog post summarizing where congressional transparency stands: “needs improvement.”

You can watch the event live (or later on tape) and join the conversation at the Twitter hashtag #RateCongress.

On Wednesday afternoon, it was my great pleasure to make some introductory remarks at a Family Online Safety Institute (FOSI) event that was held at the Yahoo! campus in Sunnyvale, CA. FOSI CEO Stephen Balkam asked me to offer some thoughts on a topic I’ve spent a great deal of time thinking about in recent years: Who needs parental controls? More specifically, what role do parental control tools and methods play in the upbringing of our children? How should we define or classify parental control tools and methods? Which are most important / effective? Finally, what should the role of public policy be toward parental control technologies on both the online safety and privacy fronts?

In past years, I spent much time writing and updating a booklet on these issues called Parental Controls & Online Child Protection: A Survey of Tools & Methods. It was an enormous undertaking, however, and I have abandoned updating it after I hit version 4.0. But that doesn’t mean I’m not still putting a lot of thought into these issues. My focus has shifted over the past year more toward the privacy-related concerns and away from the online safety issues. Of course, all these issues intersect and many people now (rightly) considered them to largely be the same debate.

Anyway, to kick off the FOSI event, I offered three provocations about parental control technologies and the state of the current debate over them. I buttressed some of my assertions with findings from a recent FOSI survey of parental attitudes about parental controls and online safety. Continue reading →

by Berin Szoka & Geoffrey Manne

In advance of today’s Senate Judiciary hearing, “The Power of Google: Serving Consumers or Threatening Competition?,” we’ve assembled a list of fallacies you’re likely to hear, either explicitly or implicitly:

  1. Competitors, not Competition.  Antitrust protects consumer welfare: competition, not competitors.  Competitors complain because a practice hurts them, but antitrust asks only whether a practice actually hurts consumers. The two are rarely the same.
  2. Big Is Bad. Being big (“success”) isn’t illegal.  Market share doesn’t necessarily create market power.  And even where market power does exist, antitrust punishes only its abuse.
  3. Burden-Shifting. Google, like any defendant, is presumed innocent until proven guilty.  So Google’s critics bear the burden of proving both that Google has market power and that it has abused that power to the detriment of consumers.  Yet, ironically, it’s Google at the table defending itself rather than the antitrust agencies explaining their concerns.
  4. Ignoring Error Costs. The faster technology moves, the greater the risk of a “false positive” and the more likely “false negatives” are to be mooted by disruptive innovation that unseats incumbents.  Thus, error costs counsel caution.
  5. Waving the Magic Wand.  Google’s critics often blithely assume that Google is “smart enough to figure it out” when it comes to implementing, or coping with, a wide range of proposed remedies.  But antitrust remedies, like all regulation, must be grounded in technological reality, and we must be realistic about real-world trade-offs.

Continue reading →

On the podcast this week, Annemarie Bridy, professor of law at the University of Idaho, and visiting associate professor of law at the University of Pittsburgh, discusses her new paper, “Is Online Copyright Enforcement Scalable?” In it she looks at the advent of peer-to-peer (P2P) file sharing and the copyright enforcement problem it has created through the lens of scalability. In solving difficult problems of scale in their effort to revolutionize the distribution of information goods, the designers of P2P networks created a problem of scale in the form of “massive infringement.” Bridy discusses how to to approach solving that new problem of scale–massive infringement. Bridy argues that the DMCA has proven to be remarkably scalable for enforcing copyrights in hosted content but has altogether failed to scale in the context of P2P file sharing, leading to the dysfunctional workaround of mass John Doe litigation. She discusses alternatives to mass litigation, including dispute resolution systems and “three strikes” proposals.

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The White House’s release of its “Open Government Action Plan” today is timely. I’ll be rolling out the product of several months’ work on government transparency Friday at a Cato Institute event called “Publication Practices for Transparent Government: Rating the Congress.”

The paper we’ll release commences as follows:

Government transparency is a widely agreed upon goal, but progress on achieving it has been very limited. Transparency promises from political leaders such as President Barack Obama and House Speaker John Boehner have not produced a burst of information that informs stronger public oversight of government.

The reason is not lack of planning documents, meetings, or websites, as reading the White House’s announcement today might suggest, but lack of specifically prescribed data publication practices that foster transparency. The government should publish data about its deliberations, management, and results in ways that make it amenable to all the varied uses of websites, researchers, reporters, and the public at large.

We’ll be grading the Congress on how well it’s doing with publication of data about formal legislative process. Congress is first because it’s low-hanging fruit. We’ll soon be turning to information the executive branch can make more transparent: budgets, appropriations, and spending.

The programs featured by the White House today—a new “We the People” petition platform, whistleblower protection, and an “Extractive Industries Transparency Initiative”—are fairly tangential. Fuller government transparency will be a product of specific good publication practices applied to data about the government’s deliberations, management, and results.

More information, and registration for Friday’s event, can be found here.

Yesterday, the Federal Trade Commission (FTC) released its long-awaited proposed revisions to the Children’s Online Privacy Protection rule (the “COPPA Rule”). Below I offer a few brief thoughts on the draft document. My remarks assume a basic level of knowledge about COPPA so that I don’t have to spend pages explaining the intricacies of this complex law and regulatory regime. If you need background on the COPPA law and rule, please check out this paper by Berin Szoka and me: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”

Dodging the COPA / Mandatory Age Verification Bullet

The most important takeaway from yesterday’s proposal involves something the FTC chose not to do: They agency very wisely decided to ignore some requests to extend the coverage of COPPA’s regulatory provisions from children under 13 all the way up to teens up to 18.  An effort to expand COPPA’s “verifiable parental consent” requirements to all teens would have raised thorny First Amendment issues as well as a host of practical enforcement concerns.  In essence, it would have required Internet-wide age verification of children and adults in order to ensure that everyone was exactly who they claimed to be online. We already had an epic decade-long legal battle over that issue when the constitutionality of the Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA, was tested many times over and always found to be in violation of the First Amendment.

Regardless, the FTC didn’t go there yesterday, so this concern is off the table for now. The agency deserves credit for avoiding this constitutional thicket. Continue reading →