My latest Forbes column is a celebration of 47 U.S.C. §230, otherwise known as “Section 230.” Sec. 230 turns 15 years old this year and I argue that this important law has “helped foster the abundance of informational riches that lies at our fingertips today” and has served as “the foundation of our Internet freedoms.”  Sadly, however, few people have even heard of it. Worse yet, as I note in my essay, this important law is under attack from various academics and organizations who want it modified to address a variety of online problems. But, as I note:

If the threat of punishing liability is increased, the chilling effect on the free exchange of views and information would likely be quite profound. Many site administrators would immediately start removing massive amounts of content to avoid liability. More simply, they might just shut down any interactive features on their sites or limit service in other ways.

Head over to Forbes to read the rest. And here’s a graphic I put together illustrating all the new fault lines in the war against Sec. 230. It will be included in a new paper on the issue that I am wrapping up right now.

Last November, I penned an essay on these pages about the COICA legislation that had recently been approved unanimously by the U.S. Senate Judiciary Committee. While I praised Congress’s efforts to tackle the problem of “rogue websites” — sites dedicated to trafficking in counterfeit goods and/or distributing copyright infringing content — I warned that the bill lacked crucial safeguards to protect free speech and due process, as several dozen law professors had also cautioned. Thus, I suggested several changes to the legislation that would have limited its scope to truly bad actors while reducing the probability of burdening protected expression through “false positives.” Thanks in part to the efforts of Sen. Ron Wyden (D-Ore.), COICA never made it a floor vote last session.

Today, three U.S. Senators introduced a similar bill, entitled the PROTECT IP Act (bill text), which, like COICA, establishes new mechanisms for combating Internet sites that are “dedicated to infringing activities.” I’m glad to see that lawmakers adopted several of my suggestions, making the PROTECT IP Act a major improvement over its predecessor. While the new bill still contains some potentially serious problems, on net, it represents a more balanced approach to fighting online copyright and trademark infringement while recognizing fundamental civil liberties.

Continue reading →

Sometimes free-marketeers are branded “free market fundamentalists” or something similar by their ideological opponents. The implication is that our preference for a society in which free people interact voluntarily to organize society’s resources is an irrational desire or a religion. I’m sure there’s a similar epithet we give to nanny staters—oh, there’s one, “nanny staters”—who we believe to have excessive faith in government solutions.

Market processes have decent theoretical explanations, such as Friedrich Hayek’s essay, “The Use of Knowledge in Society.” It’s not the easiest read, but lovers of the Internet, who see the genius of its decentralization, should see similar genius in markets as a method for discovering society’s wants and uniting to achieve them—without coercion.

From time to time, we also point out examples of how market processes work to deliver even intangible goods like privacy. So, for example, I noted market pressure against Facebook’s privacy-invasive “beacon” advertising system in 2007. Berin pointed out in 2008 that market forces caused Google to remove an oppressive clause from the Chrome end user license agreement. Google competitor Cuil made a run at the search behemoth based on privacy that year, something I noted briefly then (and Ryan and I discussed in the comments). I’ve also noted the failure of many to find true market failures.

As Cuil illustrates, not every privacy play works, but companies routinely pitch the public on the privacy merits of their products and the demerits of others’. It’s not a highly visible process, but it sometimes gets a little more visible when it fails. So thank you, Facebook, for a big #FAIL in the privacy competition area this week. You provide us a nice lesson in one of the ways markets work to meet consumer privacy demands.

You see, Facebook hired PR firm Burson-Marsteller to do a whisper campaign on the privacy demerits of a Google product called Social Circle. By pushing the story of privacy problems with a Google effort in the social networking space, Facebook hoped to thwart a competitor that it fears. Success would also be a success for privacy protection. If Google were doing something wrong, and Facebook were to make the case to the public, Google would lose face and it would lose business. Most importantly, a privacy-invasive product—as determined by public consensus—would recede. Markets often work by silently shunning products that don’t cut it. (Again, hard to see if you’re not looking for it, or if you’re committed to disbelieving it.)

Facebook appears not to have succeeded. Prickly privacy advocate Chris Soghoian outed the Burson-Marsteller campaign. Dan Lyons of the Daily Beast cornered Facebook into confessing its role in the attack on Google. And privacy commentator Kashmir Hill gives the privacy issues with Social Circle a “meh.”

When it happens differently, you get a change in a service like Social Circle—the way Facebook changed “beacon” and Google changed the Chrome EULA. These are anecdotes, and they reflect but one element of the market processes that shape products and services. But it’s something that “market denialists” should consider as they dig deep to explain to themselves and others how various mechanisms in our society work.

In [a post at Techland yesterday](http://techland.time.com/2011/05/10/new-emergency-alert-system-comes-to-your-phone/) I noted that the FCC and FEMA’s new “PLAN” text-based emergency alert system might do little good since new media seems to always beat government to get out critical information:

>If history is any guide, however, you may not get any messages from 1600 Pennsylvania. Since the Emergency Alert System was created in 1963, it’s never been activated, despite hurricanes, earthquakes, tornadoes, the Cuban Missile Crisis, the Oklahoma City bombing, and 9/11. Why?

>The chairman of the FCC during the 9/11 attacks, Michael Powell, says that “The explosion of 24-hour-a-day, 7-day-a-week media networks in some ways has proven to supplant those original conceptions of a senior leader’s need to talk to the people.”

>Given that it was Twitter, and not the President’s address, that recently broke the killing of Osama Bin Laden, you have to wonder whether the new service will be just as swiftly supplanted.

Another thing occurred to me talking to a colleague today. The PLAN system relies on cell carriers’ ability to track your geographic location so that targeted warning messages can be sent to your phone depending on where it is you are at the moment. Also, as far as I can tell from [the FCC’s fact sheet](http://docs.google.com/viewer?url=http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0510/DOC-306417A2.pdf), you’re automatically signed up for the system when you buy a phone and you cannot opt-out of presidential messages. I wonder if we’ll see a congressional hearing on the use of geo data without consumer consent?

San Francisco, often the breeding ground for “interesting” public policy proposals, decided recently to back off its mandate the would have required retailers of cell phones to label them with radiation levels and pass out material explaining the level of SAR in each device (SAR= Specific Absorption Rate).

This has not been done anywhere else and faced stiff opposition from the wireless industry, which filed suit against the ordinance last year.

We’ve commented on the ridiculous nature of this ordinance before. Suffice to say, in the year since this issue hit, there has still been no evidence offered that cell phones pose any sort of carcinogenic threat. This great piece in the NY Times Magazine goes into more detail on the problems of testing this hypothesis but also highlights the common error of confusing causality with coincidence. The author’s main point: Continue reading →

POLITICO reports that a bill aimed at combating so-called “rogue websites” will soon be introduced in the U.S. Senate by Sen. Patrick Leahy. The legislation, entitled the PROTECT IP Act, will substantially resemble COICA (PDF), a bill that was reported unanimously out of the Senate Judiciary Committee late last year but did not reach a floor vote. As more details about the new bill emerge, we’ll likely have much more to say about it here on TLF.

I discussed my concerns about and suggested changes to the COICA legislation here last November; the PROTECT IP Act reportedly contains several new provisions aimed at mitigating concerns about the statute’s breadth and procedural protections. However, as Mike Masnick points out on Techdirt, the new bill — unlike COICA — contains a private right of action, although that right may not permit rights holders to disable infringing domain names. Also unlike COICA, the PROTECT IP Act would apparently require search engines to cease linking to domain names that a court has deemed to be “dedicated to infringing activities.”

For a more in-depth look at this contentious and complex issue, check out the panel discussion that the Competitive Enterprise Institute and TechFreedom hosted last month. Our April 7 event explored the need for, and concerns about, legislative proposals to combat websites that facilitate and engage in unlawful counterfeiting and copyright infringement. The event was moderated by Juliana Gruenwald of National Journal. The panelists included me, Danny McPherson of VeriSign, Tom Sydnor of the Association for Competitive Technology, Dan Castro of the Information Technology & Innovation Foundation, David Sohn of the Center for Democracy & Technology, and Larry Downes of TechFreedom.

CEI-TechFreedom Event: What Should Lawmakers Do About Rogue Websites? from CEI Video on Vimeo.

This morning, the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law had a hearing entitled: “Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy.” It was a remarkably scattered affair, and I blogged three key—and very distinct—elements of it on the Cato@Liberty blog:

  • The Department of Justice used this “mobile privacy” hearing to call for increased surveillance of Internet and mobile phone users.
  • To escape a prosecutorial dead-end, Senator Blumenthal (D-CT) strongly suggested that he would outlaw the collection of radio signals. Where this government power would lead is quite profound.
  • Ignoring mobile privacy, Senator Schumer (D-NY) touted his hobby-horse, mobile app censorship.

Valid concerns with what mobile operating system providers Google and Apple have done with location information were somewhat lost in this disjointed and confused hearing.

I’m reading David Brin’s 1998 classic [The Transparent Society](http://www.amazon.com/gp/product/0738201448/ref=as_li_ss_tl?ie=UTF8&tag=jerrybritocom&linkCode=as2&camp=217145&creative=399349&creativeASIN=0738201448) and I’d like to share a passage that I found especially interesting in light of the [recent Do-Not-Track bill](http://thehill.com/blogs/hillicon-valley/technology/160035-rockefeller-unveils-do-not-track-bill) introduced by Sen. Rockefeller.

On this blog, Adam Thierer has often written about the [implicit quid pro quo](http://www.google.com/search?q=site:techliberation.com+quid+pro+quo) between tracking and free online services. It seems to me that many folks find this an abstract concept. Here is Brinn writing in the late 90s about the possibility of an explicit quid pro quo:

>An Economy of Micropayments? I cannot predict whether such an experiment would succeed, though using a “carrot”—or what chaos theorists call an “attractor state”—offers better prospects than the [IP owner’s] coalition’s present strategy of saber rattling and making hollow legal threats. In fact, the same approach might be used to deal with other aspects of “information ownership,” even down to the change of address you file with the post office. Perhaps someday advertisers and mail-order corporations will pay fair market value for each small use, either directly to each person listed or through royalty pools that assess users each time they access data on a given person. Or we might apply the concept of “trading-out”: getting free time at some favorite per-use site in exchange for letting the owners act as agents for our database records. It could be beneficial to have database companies competing with each other, bidding for the right to handle our credit dossiers, perhaps by offering us a little cash, or else by letting us trade our data for a little fun. Proponents of such a “micropayment economy” contend that the process will eventually become so automatic and computerized that it effectively fades into the background. People would hardly notice the dribble of royalties slipping into their accounts when others use “their” facts—any more than they would note the outflowing stream of cents they pay while skimming on the Web.

That is essentially what happened, except without all the transactions costs. It seems to me that all Do Not Track will do is introduce the transactions costs that we have so far avoided to the benefit of innovation. Who will this change benefit? The few people who are not willing to make the trade and who today have [options to opt out](http://adblockplus.org/). This leaves the majority of us who are willing to make the bargain in a very un-Coasean world.

On the podcast this week, Julian Sanchez, a research fellow at the Cato Institue who focuses on issues related to technology, privacy, and civil liberties, discusses electronic communications. Sanchez talks about changes in surveillance of electronic communications since 9/11, highlighting the large number of cases in which the FBI has gathered phone, internet, and banking information without judicial oversight. He then discusses the legal framework around electronic communications, which he says was built for a very different set of assumptions than we have today. Sanchez also gives a few recommendations for how to disentangle the convoluted legal standards related to electronic communications.

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A UK government report issued this week warns that climate change, in addition to threatening many different parts of everyday life, also threatens the Information and Communications Technology (ICT) industry. The report, available online, warns that regulatory measures have to be taken to lessen the threat of rising temperatures and stormy weather, which would have adverse effects on the radio waves that constitute communications technology.

Specifically, the report’s authors assume that rising temperatures and rainy storms will interfere with radio waves. This assumes that that the aforementioned rising temperatures and rainy storms are indeed a foregone conclusion. For the sake of argument, let’s assume they are correct.

The study mentions that rising temperatures will cause cell towers to lose efficiency, but nothing in the document backs this up. Making such a claim requires scientific data but nothing was offered. A skeptical person reading this report may think, anecdotally, that cell towers are sited in all sorts of conditions all over the globe, taking into account varying temperatures in which they operate. Cell towers sited in Alaska are probably able to handle the extreme cold, otherwise the cell provider would not waste money placing it there. Likewise, a cell tower sited in Arizona would need to take into account the 100 degree+ temperature. And at last count, wireless service is available in both Alaska and Arizona. Continue reading →