video: Panel on Governance of Social Media & Competition Law

by on November 13, 2011 · 1 comment

On Friday, both Josh Wright and I spoke on a panel at the Michigan State University’s conference on “Governance of Social Media.” Our particular panel focused on emerging competition policy issues affecting social media and social networking sites. Also joining us on the panel were Nicolas Economides of NYU and Michael Altschul of the CTIA. The video of the panel can be found here and I have also embedded it down below. [My remarks begin around the 23-min mark of the video.]

At the event, I presented my forthcoming paper on “The Perils of Classifying Social Media Platforms as Public Utilities,” which is currently out for peer review. I outlined the rising calls for treating social media or social networking sites as public utilities, essential facilities, or natural monopolies. Next, I briefly discussed some basic law and economics of public utility / essential facilities regulation. Third, I detailed six specific problems with efforts to classify these services as such. Finally, I briefly discussed regulatory proposals set forth by Professors Jonathan Zittrain and Tim Wu to apply traditional antitrust or public utility remedies to social media or information platforms. Specifically, I address Zittrain’s call for “API neutrality” (which would apply net neutrality-like principles at the applications and device layer) and Wu’s call for a “Separations Principle” (which would forcibly segregate information providers into three buckets: creators, distributors, and hardware makers). Watch the video for more details and see this for more critiques of the Zittrain and Wu proposals.

SHARE: 1 comment

Thinking about the Future of Broadband & FCC Reform

by on November 12, 2011 · 2 comments

It was my pleasure this week to host a terrific panel discussion about the future of broadband policy and FCC reform featuring Raymond Gifford, a Partner at the law firm of Wilkinson Barker Knauer, LLP,  Jeffrey Eisenach, a Managing Director and Principal at Navigant Economics and an Adjunct Professor at George Mason University Law School, and Howard Shelanski, Professor of Law at Georgetown Law School who previously served as Chief Economist for the Federal Communications Commission and as a Senior Economist for the President’s Council of Economic Advisers at the White House. We discussed two new papers by Gifford and Eisenach on these issues.

Continue reading →

SHARE: 2 comments

Johnny Ryan on the history of the Internet and its future

by on November 8, 2011 · 3 comments

On the podcast this week, Johnny Ryan, Senior Researcher at the Institute of International and European Affairs, discusses his recent book, “A History of the Internet and the Digital Future.” The book is a comprehensive overview of the Internet and where it came from. Ryan discusses some of the core concepts, including what made the Internet revolutionary, and how many of these ideas came from RAND Corporation researcher Paul Baran. He explains that the initial concept for packet switching did come from the need to build a communications system to withstand nuclear attack. The discussion then turns to the advent of communication between computers, which sprang from a group of graduate students who used a collaborative process to create the network. Finally, Ryan discusses Web 2.0, and how technologies like cloud computing and 3-D printing will disrupt industries in the future.

Related Links

To keep the conversation around this episode in one place, we’d like to ask you to comment at the webpage for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?

SHARE: 3 comments

What Explains the Decline in Internet Safety Legislation / Online Content Regulation?

by on November 8, 2011 · 2 comments

This week I will again be attending the Family Online Safety Institute’s excellent annual summit. The 2-day affair brings together some of the world’s leading experts on online safety and privacy issues. It’s a great chance to learn about major developments in the field. As I was preparing for the session I am moderating on Thursday, I thought back to the first FOSI annual conference, which took place back in 2007. What is remarkable about that period compared to now is that there was a flurry of legislative and regulatory activity related to online child safety then that we simply do not see today.

In fact, just 3 1/2 years ago, John Morris of the Center for Democracy and Technology and I compile a legislative index [summary here] that cataloged the more than 30 legislative proposals that had been introduced in the the 110th session of Congress. There was also a great deal of interest in these issues within the regulatory community. Finally, countless state and local measures related to online safety and speech issues had been floated. Today, by contrast, it is hard for me to find any legislative measures focused on online safety regulation at the federal level, and I don’t see much activity at the agency level either. I haven’t surveyed state and local activity, but it seems like it has also died down.

Generally speaking, I think this is a good development since I am opposed to most proposals to regulate online speech, expression, or conduct. But let’s ignore the particular wisdom of such measures and ask a simple question: What explains the decline in Internet safety legislation and online content regulation? I believe there are three possible explanations: Continue reading →

SHARE: 2 comments

Net Neutrality and Regulatory Reform

by on November 7, 2011 · 6 comments

The Senate might vote this week on Sen. Hutchison’s resolution of disapproval for the FCC’s net neutrality rules.  If ever there was a regulation that showed why independent regulatory agencies ought to be required to conduct solid regulatory analysis before writing a regulation, net neutrality is it.

For more than three decades, executive orders have required executive branch agencies to prepare a Regulatory Impact Analysis accompanying major regulations.  One of the first things the agency is supposed to do is identify the market failure, government failure, or other systemic problem the regulation is supposed to solve. The agency ought to demonstrate a problem actually exists to show that a regulation is actually necessary.

But the net neutrality rules have virtually no analysis of a systemic problem that actually exists, and no data demonstrating that the problem is real.  Instead, the FCC’s order outlines the incentives Internet providers might face to treat some traffic differently from other traffic, in a discussion heavily freighted with “could’s” and “may’s”.  Then it offers up just four familiar anecdotes that have been used repeatedly to support the claim that non-neutrality is a significant threat  (all four fit in paragraph 35 of the order).  The FCC asserts without support that Internet providers have incentives to do these things even if they lack market power, and indeed in a footnote it dispenses with the need to consider market power: “Because broadband providers have the ability to act as gatekeepers even in the absence of market power with respect to end users, we need not conduct a market power analysis.” (footnote 87)

Thus far, no administration of either party has sought to apply Regulatory Impact Analysis requirements to independent agencies. If administrations won’t, Congress should.

 

SHARE: 6 comments

Congress’s Piracy Blacklist Plan: A Cure Worse than the Disease?

by on November 7, 2011 · 6 comments

Over at TIME.com Techland, [I write about](http://techland.time.com/2011/11/07/congresss-piracy-blacklist-plan-a-cure-worse-than-the-disease/#ixzz1d2N0w6fg) the newly introduced Stop Online Piracy Act and the renewed push for a “rogue website” law.

>At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities’ privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don’t have a First Amendment.

>The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

Read the [whole thing here](http://techland.time.com/2011/11/07/congresss-piracy-blacklist-plan-a-cure-worse-than-the-disease/#ixzz1d2N0w6fg).

SHARE: 6 comments

Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause

by on November 3, 2011 · 8 comments

I just posted the following comment in response to Scott Cleland’s piece on Forbes: Why Anti-Piracy Legislation Will Become Law.

Scott, have you read my colleague Larry Downes dissection of SOPA over on CNET?  The problem isn’t that the bill is too hard on pirates, but that trying to punish piracy in such a crude and draconion manner has plenty of negative unintended consequences:

SOPA effectively introduces new monitoring requirements for all websites that allow user content, even comments posted to blogs. Rightsholders.. need only “a good faith belief that a Web site is ‘avoiding confirming’ infringement, and they can demand that payment systems and advertising networks cease doing business with the Web site.”

Larry suggests that lawmakers’ focus is simply misguided:

If parasitic foreign Web sites are truly costing the U.S. economy significant losses (a claim made regularly by content industries but without credible data to back it up), then the best use of government resources is not to surgically remove hyperlinks and DNS table entries. Rather, we should step up the pressure on foreign governments to enforce their own laws and international treaties extending U.S. protections abroad.

And indeed, one positive development in SOPA is a provision that does just that. It requires both the State and Commerce Departments to make protection of U.S. copyright and trademark a priority in both diplomatic and trade negotiations. To fulfill SOPA’s stated goal of reducing foreign infringement of U.S. interests, that section should have been the beginning and the end of the bill.

The proposed legislation, unfortunately, goes much farther, losing sight of any actual harms in need of legislative correction, and invoking repeatedly the likely application of the law of unintended consequences.

Larry’s focus on the unintended consequences of regulation, and his emphasis on finding narrow solutions to clearly defined problems is what prudent policymaking should be about.  In fact, that’s why Larry and I at TechFreedom have been so critical of net neutrality regulations as a sweeping, prophylactic remedy for an ill-defined problem when less restrictive alternatives like enforcing antitrust laws and consumer protection laws would work better.  In fact, I seem to recall that you on the same side as us in those arguments!

But I’m sorry to say that I realized long ago that, while we arrived at the same place on net neutrality, we came to it from profoundly different places.  I won’t presume to speculate as to exactly what motivates you, but it sure isn’t the prudent conservatism of Edmund Burke or F.A. Hayek’s focus on the limitations of human knowledge and the dangers of top-down planning. Continue reading →

SHARE: 8 comments

My New Empirical Study on Defining and Measuring Search Bias

by on November 3, 2011 · 2 comments

[Cross posted at Truthonthemarket.com]

Tomorrow is the deadline for Eric Schmidt to send his replies to the Senate Judiciary Committee’s follow up questions from his appearance at a hearing on Google antitrust issues last month.  At the hearing, not surprisingly, search neutrality was a hot topic, with representatives from the likes of Yelp and Nextag, as well as Expedia’s lawyer, Tom Barnett (that’s Tom Barnett (2011), not Tom Barnett (2006-08)), weighing in on Google’s purported bias.  One serious problem with the search neutrality/search bias discussions to date has been the dearth of empirical evidence concerning so-called search bias and its likely impact upon consumers.  Hoping to remedy this, I posted a study this morning at the ICLE website both critiquing one of the few, existing pieces of empirical work on the topic (by Ben Edelman, Harvard economist) as well as offering up my own, more expansive empirical analysis.  Chris Sherman at Search Engine Land has a great post covering the study.  The title of his article pretty much says it all:  “Bing More Biased Than Google; Google Not Behaving Anti-competitively.”

Continue reading →

SHARE: 2 comments

Stop the Stop Online Piracy Act!

by on November 1, 2011 · 4 comments

For CNET today, I have a long analysis and commentary on the “Stop Online Piracy Act,” introduced last week in the House. The bill is advertised as the House’s version of the Senate’s Protect-IP Act, which was voted out of Committee in May.

It’s very hard to find much positive to say about the House version. While there’s considerable evidence its drafters heard the criticisms of engineers, legal academics, entrepreneurs and venture capitalists, their response was unfortunate.

Engineers pointed out, for example, that court orders requiring individual ISPs to remove or redirect domain name requests was a futile and dangerous way to block access to “rogue” websites. Truly rogue sites can easily relocate to another domain, or simply have users access them with their IP address and bypass DNS altogether. Continue reading →

SHARE: 4 comments

5 Questions New FCC Commissioners Should Ask About Need for New & Existing Regulations

by on November 1, 2011 · 0 comments

Yesterday, President Barack Obama announced two nominations to the Federal Communications Commission: Jessica Rosenworcel, replacing Democratic Commissioner Michael Copps, and Ajit Pai, replacing Republican Commissioner Meredith Attwell Baker.

The FCC faces a unique challenge: Because it regulates the communications industry, essentially every rule it issues implicates the free speech values at the heart of our Constitutional heritage. The First Amendment was intended to be a shield against government meddling, not a sword for regulatory activism, however well-intentioned. Moreover, the FCC regulates an industry being transformed by the Digital Revolution.

We at TechFreedom look forward to working with these new Commissioners to ensure that FCC regulations serve consumers by advancing competition and innovation while respecting free speech rights. The Commission should ask, and explicitly answer, the following questions whenever considering the need for new, or existing, regulations:

  1. What free speech rights are at stake?
  2. How substantial is the government’s interest? Has the market failed?
  3. Can regulation, always slow to start and slower to adapt, really address the problem better than technological change?
  4. Will the regulation’s benefits outweigh its costs, considering its likely unintended consequences?
  5. Are there less-restrictive and more speech-protective ways government can achieve its interest, such as enforcing existing antitrust and consumer protection laws, supporting consumer education, empowering users to make their own decisions, or compelling disclosure to consumers?

SHARE: 0 comments

← Previous Entries

Next Entries →