Isn’t “Do Not Track” Just a “Broadcast Flag” Mandate for Privacy?

by on February 20, 2011 · 3 comments

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 →

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Welcoming Milton Mueller to the TLF

by on February 20, 2011 · 1 comment

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!

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The Internet Kill-Switch Debate

by on February 19, 2011 · 8 comments

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.

and

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.

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What is the meaning of leisure?

by on February 17, 2011 · 3 comments

My last post on the opportunities presented by “The Great Stagnation” got a bit of attention, and I’m heartened by that because I’d like to develop my conception of “opting out” a bit more in later posts. Today I’d just like to respond to my friend and Colleague Tate Watkins who [reacted to my post](http://shortsentences.org/2011/02/work-and-leisure-zero-marginal-product-employees-and-low-hanging-hipsters/) noting that “most people don’t want any more leisure. People don’t work 20 hours a week because they would have to make up the difference ‘playing with [their] families and reading books.'”

Tate says that spending that much time doing nothing, and doing it with their families, is likely a net minus for most people. I think he’s absolutely right, so I guess I need to define what I mean by “leisure” when I say that “the cost of leisure is going down” allowing us to consume more of it.
Continue reading →

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Filing in FTC “Do Not Track” / Privacy Proceeding

by on February 17, 2011 · 11 comments

Today I filed roughly 30 pages worth of comments with the Federal Trade Commission (FTC) in its proceeding on “Protecting Consumer Privacy in an Era of Rapid Change: a Proposed Framework for Businesses and Policy Makers.” [Other comments filed in the proceeding can be found here.] Down below, I’ve attached the Table of Contents from my filing so you can see the major themes I’ve addressed, and I’ve also attached the entire document in a Scribd reader. In coming days and weeks, I’ll be expanding upon some of these themes in follow-up essays.

In my filing, I argue that while it remains impossible to predict with precision the impact a new privacy regulatory regime will have the Internet economy and digital consumers, regulation will have consequences; of that much we can be certain.  As the FTC  and other policy makers move forward with proposals to expand regulation in this regard, it is vital that the surreal “something-for-nothing” quality of current privacy debate cease. Those who criticize data collection or online advertising and call for expanded regulation should be required to provide a strict cost-benefit analysis of the restrictions they would impose upon America’s vibrant digital marketplace.

In particular, it should be clear that the debate over Do Not Track and online advertising regulation is fundamentally tied up with the future of online content, culture, and services. Thus, regulatory advocates must explain how the content and services supported currently by advertising and marketing will be sustained if current online data collection and ad targeting techniques are restricted. Continue reading →

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Is the Great Stagnation a great opportunity?

by on February 16, 2011 · 7 comments

In his [column on Monday](http://www.nytimes.com/2011/02/15/opinion/15brooks.html?ref=davidbrooks), David Brooks put his finger on what I found most interesting about Tyler Cowen’s *[The Great Stagnation](http://www.amazon.com/gp/product/B004H0M8QS?ie=UTF8&tag=jerrybritocom)*. Namely:

>It could be that in an industrial economy people develop a materialist mind-set and believe that improving their income is the same thing as improving their quality of life. But in an affluent information-driven world, people embrace the postmaterialist mind-set. They realize they can improve their quality of life without actually producing more wealth.

As Tyler points out in this book, and catalogued at length in his other excellent book, *[Create Your Own Economy](http://www.amazon.com/gp/product/B002XULWOS?ie=UTF8&tag=jerrybritocom)*, recent increases in happiness come from growth in internal economies. That is, internal to humans. In the past, increased well-being came from not having a toilet and then having one, or the invention of cheap air travel. Today they come from blogging, watching *Lost* on Netflix, listening to a symphony from iTunes, tweeting with your friends, seeing their pictures on Facebook or Path, and learning and collaborating on Wikipedia. As a result, once one secures a certain income to cover basic needs, greater happiness and well-being can be had for virtually nothing.

The problem some see with this is that the Internet sector, while it may give us amazing innovations, produces little by way of revenue or jobs. Brooks also laments that because American’s have not come to grips with this growing distinction between wealth and standard of living, we tend to live beyond our means, which is certainly true in a personal and public fiscal sense.

But I’d like to see this seeming decoupling of wealth and well-being as an opportunity.
Continue reading →

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A Debate on NPR about the Future of NPR

by on February 15, 2011 · 8 comments

It was my pleasure today to debate the future of public media funding on Warren Olney’s NPR program, “To The Point“.  I was 1 of 5 guests and I wasn’t brought into the show until about 29 minutes into the program, but I tried to reiterate some of the key points I made in my essay last week on “‘Non-Commercial Media’ = Fine; ‘Public Media’ = Not So Much.”  I won’t reiterate everything I said before since you can just go back and read it, but to briefly summarize what I said there as well as on today’s show: (1) taxpayers shouldn’t be forced to subsidize speech or media content they find potentially objectionable; and (2) public broadcasters are currently perfectly positioned to turn this federal funding “crisis” into a golden opportunity by asking its well-heeled and highly-diversified base of supporters to step up to the plate and fill the gap left by the end of taxpayer subsidies.

Just a word more on that last point. As I pointed out on the show today, it’s an uncomfortable fact of life for NPR that their average listener is old, rich, highly-educated, and mostly white.  Specifically, here are some numbers that NPR itself has compiled about its audience demographics:

  • The median age of the NPR listener is 50.
  • The median household income of an NPR News listener is about $86,000, compared to the national average of about $55,000.
  • NPR’s audience is extraordinarily well-educated.  Nearly 65% of all listeners have a bachelor’s
    degree, compared to only a quarter of the U.S. population.  Also, they are three times more likely than the
    average American to have completed graduate school.
  • The majority of the NPR audience (86%) identifies itself as white.

Why do these numbers matter? Simply stated: These people can certainly step up to the plate and pay more to cover the estimated $1.39 that taxpayers currently contribute to the public media in the U.S.  But wait, there’s more! Continue reading →

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Is Twitter a utility like water?

by on February 15, 2011 · 2 comments

Speaking at the Mobile World Congress in Barcelona today, Twitter CEO Dick Costolo [said](http://www.readwriteweb.com/mobile/2011/02/twitter-goal-to-be-like-water.php) he wants the service to become as ubiquitous and simple as tap water. But he should be careful what he wishes for.

Search Engine Land is already asking, “[Twitter As Utility, Like Running Water?](http://searchengineland.com/twitter-as-utility-like-running-water-thats-goal-says-ceo-64803)” The thing about water is that it tends to be an indispensable natural monopoly, and therefore regulated. Twitter today controls [access to its “firehose”](http://networkeffect.allthingsd.com/20110202/twitter-offers-metered-pricing-for-firehose-of-tweets/) of tweet data, but access to utilities like water is mandated open and prices are set by regulators.

As I discussed [recently on the podcast](http://surprisinglyfree.com/2010/08/30/danny-sullivan-on-search-neutrality/) with Danny Sullivan, some have already suggested Google should be treated like a utility and brought under a regime of “search neutrality.” Harvard’s danah boyd has been banging the “[regulate Facebook as a utility](http://www.zephoria.org/thoughts/archives/2010/05/15/facebook-is-a-utility-utilities-get-regulated.html)” drum for quite some time. And Just today Wharton’s Kevin Werbach put out a draft of his new law review article: “[The Network Utility](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758878).”

Of course, as I already mentioned, it’s unsurmountable monopolies that should be regulated, and it would be a stretch to say that either Facebook or Twitter qualify. But I fear we’ll be hearing more and more of this “utility” language in the near future.

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Why are some states disproportionately taxing a service we want more people using?

by on February 15, 2011 · 3 comments

A new report out this week in State Tax Notes shows the discriminatory way in which Federal, state and local governments treat their citizens who subscribe to wireless services — and according to CTIA that’s about 93% of Americans.

Federal, state and local taxes and fees for wireless services topped an average of 16.3% in 2010. The highest combined rate was 16.85% in 2005. This far surpasses the average retail sales tax rate, which obviously varies by state.

Some blame can rest squarely on the shoulders of state or local officials who have targeted wireless services for a specific tax. The report points out a few examples:

  • Baltimore: increased its per-line tax from $3.50 per month to $4
  • Montgomery County, MD: increased its per-line tax from $2 to $3.50 per month
  • Olympia, WA: imposed a 9 percent telecommunications tax on top of the state-local combined sales tax of 8.5 percent
  • Chicago: imposed a 7 percent excise tax on wireless services on top of the state’s 7 percent excise tax
  • Nebraska: imposes a local “utility” tax of up to 6.5 percent in addition to the 6.5 percent combined state-local sales tax
  • Tucson, AZ: increased its telecommunications license tax from 2 percent to 4 percent Continue reading →

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Jaron Lanier on technology and humanity

by on February 15, 2011 · 9 comments

On this week’s podcast, Jaron Lanier, pioneering computer scientist, musician, visual artist, and author, discusses his book, You Are Not a Gadget: A Manifesto. Lanier discusses effects of the web becoming “regularized” and dangers he sees with “hive mind” production, which he claims leads to “crummy design.” He also explains why he thinks advertising is a misnomer, contending that modern advertising is more about access to potential consumers than expressive or creative form. Lanier also advocates for more peer-to-peer rather than hub-and-spoke transactions, discusses why he’s worried about the disappearance of the middle class, claims that “free” isn’t really free, talks about libertarian ideals, and explains why he’s ultimately hopeful about the future.

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