2012 — Page 16

WCIT is about People vs. Their Governments

by Eli Dourado on June 18, 2012 · 20 comments

As Jerry noted [ten days ago](http://jerrybrito.org/post/24687446662/an-update-on-wcitleaks-org), [our little side project](http://wcitleaks.org/) got some good press right after we launched it. I am delighted to report that the media love continues. On Saturday, WCITLeaks was covered by [Talking Points Memo](http://idealab.talkingpointsmemo.com/2012/06/un-proposals-to-regulate-internet-are-troubling-leaked-documents-reveal.php), and a [Wall Street Journal article](http://online.wsj.com/article/SB10001424052702303822204577470532859210296.html) appeared online last night and in print this morning.

I think it’s great that both left- and right-of-center publications are covering WCIT and the threat to our online freedoms posed by international bureaucracy. But I worry that people will infer that since this is not a left vs. right issue, it must be a USA vs. the world issue. This is an unhelpful way to look at it.

**This is an Internet users vs. their governments issue.** Who benefits from increased ITU oversight of the Internet? Certainly not ordinary users in foreign countries, who would then be censored and spied upon by their governments with full international approval. The winners would be autocratic regimes, not their subjects. And let’s not pretend the US government is innocent on this score; it intercepts and records international Internet traffic all the time, and the SOPA/PIPA kerfuffle shows how much some interests, especially Big Content, want to use the government to censor the web.

The bottom line is that yes, the US should walk away from WCIT, but not because the Internet is our toy and we want to make the rules for the rest of the world. The US should walk away from WCIT as part of a repentant rejection of Internet policy under Bush and Obama, which has consistently carved out a greater role for the government online. I hope that the awareness we raise through WCITLeaks will not only highlight how foolish the US government is for playing the lose-lose game with the ITU, but how hypocritical it is for preaching net freedom while spying on, censoring, and regulating its own citizens online.

20 comments

Troubling Internet Regulations Proposed for WCIT

by Eli Dourado on June 14, 2012 · 23 comments

Today, WCITLeaks.org posted a new document called TD-62. It is a compilation of all the proposals for modification of the International Telecommunication Regulations (ITRs), which will be renegotiated at WCIT in Dubai this December. Some of the most troubling proposals include:

The modification of section 1.4 and addition of section 3.5, which would make some or all ITU-T “Recommendations” mandatory. ITU-T “Recommendations” compete with standards bodies like the Internet Engineering Task Force (IETF), which proposes new standards for protocols and best practices on a completely voluntary and transparent basis.
The modification of section 2.2 to explicitly include Internet traffic termination as a regulated telecommunication service. Under the status quo, Internet traffic is completely exempt from regulation under the ITRs because it is a “private arrangement” under article 9. If this proposal—supported by Russia and Iran—were adopted, Internet traffic would be metered along national boundaries and billed to the originator of the traffic, as is currently done with international telephone calls. This would create a new revenue stream for corrupt, autocratic regimes and raise the cost of accessing international websites and information on the Internet.
The addition of a new section 2.13 to define spam in the ITRs. This would create an international legal excuse for governments to inspect our emails. This provision is supported by Russia, several Arab states, and Rwanda.
The addition of a new section 3.8, the text of which is still undefined, that would give the ITU a role in allocating Internet addresses. The Internet Society points out in a comment that this “would be disruptive to the existing, successful mechanism for allocating/distributing IPv6 addresses.”
The modification of section 4.3, subsection a) to introduce content regulation, starting with spam and malware, in the ITRs for the first time. The ITRs have always been about the pipes, not the content that flows through them. As the US delegation comments, “this text suggests that the ITU has a role in content related issues. We do not believe it does.” This is dangerous because many UN members do not have the same appreciation for freedom of speech that many of us do.
The addition of a new section 8.2 to regulate online crime. Again, this would introduce content regulation into the ITRs.
The addition of a new section 8.5, proposed by China, that would give member states what the Internet Society describes as a “a very active and inappropriate role in patrolling and enforcing newly defined standards of behaviour on telecommunication and Internet networks and in services.”

These proposals show that many ITU member states want to use international agreements to regulate the Internet by crowding out bottom-up institutions, imposing charges for international communication, and controlling the content that consumers can access online.

23 comments

Banning Kids from Facebook is Like Banning Kids from Parks & Shopping Malls

by Adam Thierer on June 14, 2012 · 3 comments

In my most recent weekly Forbes column, “Common Sense About Kids, Facebook & The Net,” I consider the wisdom of an online petition that the child safety advocacy group Common Sense Media is pushing, which demands that Facebook give up any thought of letting kids under the age of 13 on the site. “There is absolutely no proof of any meaningful social or educational value of Facebook for children under 13,” their petition insists. “Indeed, there are very legitimate concerns about privacy, as well as its impact on children’s social, emotional, and cognitive development.” Common Sense Media doesn’t offer any evidence to substantiate those claims, but one can sympathize with some of the general worries. Nonetheless, as I argue in my essay:

Common Sense Media’s approach to the issue is short-sighted. Calling for a zero-tolerance, prohibitionist policy toward kids on Facebook (and interactive media more generally) is tantamount to a bury-your-head-in-sand approach to child safety. Again, younger kids are increasingly online, often because their parents allow or even encourage it. To make sure they get online safely and remain safe, we’ll need a different approach than Common Sense Media’s unworkable “just-say-no” model.

Think about it this way: Would it make sense to start a petition demanding that kids be kept out of town squares, public parks, or shopping malls? Most of us would find the suggestion ludicrous. Continue reading →

3 comments

Antitrust, not Net Neutrality, Should Govern Online Video Competition

by Berin Szoka on June 13, 2012 · 7 comments

The Wall Street Journal reports that “The Justice Department is conducting a wide-ranging antitrust investigation into whether cable companies are acting improperly to quash nascent competition from online video.” In particular, the DOJ is concerned that data caps may discourage consumers from switching to online video providers like Hulu and Netflix. The following statement can be attributed to Berin Szoka, President of TechFreedom:

It’s hard to see how tiered broadband pricing keeps users tethered to their cable service. Even watching ten hours of Hulu or Netflix a day wouldn’t exceed Comcast’s 300 GB basic data tier. And Comcast customers can buy additional blocks of 50 GB for just $10/month—enough for nearly two more hours a day of streamed video. Such tiers provide a much-needed incentive for online content providers to economize on bandwidth. They also allow ISPs to offer fairer broadband pricing, charging light users less than heavy users. Consumers might have been better off if cable companies could have simply charged online video providers for wholesale bandwidth use, but the FCC’s net neutrality rules bar that.

Counting cable content against caps might seem more fair, but it’s not necessarily something the law should mandate. Discriminating against a competitor isn’t a problem under antitrust law unless, on net, it harms consumers. Would consumers really be better off if their cable viewing reduced the amount of data available for streaming competing online video services? As long as the basic tier’s cap is high enough, few users will ever exceed it anyway—leaving consumers free to experiment with alternatives to cable subscriptions, just as cable providers are experimenting with new ways of offering cable content on multiple devices at no extra charge. Continue reading →

7 comments

Ryan Radia Debates CISPA

by Jim Harper on June 12, 2012 · 3 comments

I’m impressed with the job Ryan Radia did in this Federalist Society podcast/debate about CISPA, the Cyber Intelligence and Sharing Protection Act.

It’s also notable how his opponent Stewart Baker veers into a strange ad hominem against “privacy groups” in his rejoinder to Ryan. Baker speaks as though arguable overbreadth in privacy statutes written years ago makes it appropriate to scythe down all law that might affect information sharing for cybersecurity purposes. That’s what language like “[n]otwithstanding any other provision of law” would do, and it’s in the current version of the bill three times.

3 comments

What is “Optimal Interoperability”? A Review of Palfrey & Gasser’s “Interop”

by Adam Thierer on June 11, 2012 · 4 comments

I’m pretty rough on all the Internet and info-tech policy books that I review. There are two reasons for that. First, the vast majority of tech policy books being written today should never have been books in the first place. Most of them would have worked just fine as long-form (magazine-length) essays. Too many authors stretch a promising thesis into a long-winded, highly repetitive narrative just to say they’ve written an entire book about a subject. Second, many info-tech policy books are poorly written or poorly argued. I’m not going to name names, but I am frequently unimpressed by the quality of many books being published today about digital technology and online policy issues.

The books of Harvard University cyberlaw scholars John Palfrey and Urs Gasser offer a welcome break from this mold. Their recent books, Born Digital: Understanding the First Generation of Digital Natives, and Interop: The Promise and Perils of Highly Interconnected Systems, are engaging and extremely well-written books that deserve to be books. There’s no wasted space or mindless filler. It’s all substantive and it’s all interesting. I encourage aspiring tech policy authors to examine their works for a model of how a book should be done.

In a 2008 review, I heaped praise on Born Digital and declared that this “fine early history of this generation serves as a starting point for any conversation about how to mentor the children of the Web.” I still recommend highly to others today. I’m going to be a bit more critical of their new book, Interop, but I assure you that it is a text you absolutely must have on your shelf if you follow digital policy debates. It’s a supremely balanced treatment of a complicated and sometimes quite contentious set of information policy issues.

In the end, however, I am concerned about the open-ended nature of the standard that Palfrey and Gasser develop to determine when government should intervene to manage or mandate interoperability between or among information systems. I’ll push back against their amorphous theory of “optimal interoperability” and offer an alternative framework that suggests patience, humility, and openness to ongoing marketplace experimentation as the primary public policy virtues that lawmakers should instead embrace. Continue reading →

4 comments

Everyone Out of the Internet!

by Larry Downes on June 8, 2012 · 8 comments

During the 1970’s, I remember a bumper sticker that summed up the prevailing anti-colonial attitude that had developed during the late 1960’s: “U.S. Out of North America.”

That sentiment reflects nicely my activities this week, which include three articles decrying efforts by regulators to oversee key aspects of the Internet economy. Of course their intentions—at least publicly—are always good. But even with the right idea, the unintended negative consequences always overwhelm the benefits by a wide margin.

Governments are just too slow to respond to the pace of change of innovations in information technology. Nothing will fix that. So better just to leave well enough alone and intercede only when genuine consumer harm is occurring. And provable.

The articles cover the spectrum from state (California), federal (FCC) and international (ITU) regulators and a wide range of truly bad ideas, from the desire of California’s Public Utilities Commission to “protect” consumers of VoIP services, to the FCC’s latest effort to elbow its way into regulating broadband Internet access at the middle milel, to a proposal from European telcos to have the U.N. implement a tariff system on Internet traffic originating from the U.S.

Continue reading →

8 comments

More disclosure needed: Why did the US government insist on retaining the International Telecom Regs?

by Milton Mueller on June 8, 2012 · 2 comments

In another blog post, I put the International Telecommunication Union’s WCIT into perspective. I ended that discussion with a question that no one else seems to be asking: should there be International Telecommunication Regulations (ITRs) at all? Why do we need them?

I don’t think we do need sector-specific international regulations. I think they can cause more trouble than benefit. To briefly explain why, I noted that every country has its own national regulations regarding interconnection, privacy, antitrust, consumer protection, and so on. Compatibility across platforms and services is much easier technically than it was in the 1930s and before, and tends to get worked out in the market through a variety of bridging technologies and nongovernmental standards forums. International telecommunications is a form of trade in services, and the WTO agreements already provide a sufficient regulatory basis for foreign or multinational providers to enter national markets and offer transnational services. Though not all countries are members of WTO, membership can be expanded and bilateral or regional agreements can supplement it.

Imagine my surprise when someone informed me that the Europeans were calling for the abrogation of the ITRs for exactly those reasons. Apparently they defended that position for years. But the European drive to get rid of the ITRs was opposed and eventually blocked by — wait for it — the United States of America! The US, I am told, argued that the existing treaty was essential because most of the world’s international communications were regulated by it.

That puts a dramatically new spin on the US’s current campaign to fend off an ITU “takeover” of the Internet. If revision of the ITRs are such a threat to the Internet, why did the US insist on retaining them? If the ITRs are retained, it is inevitable that they would have to be updated and revised. and yet now, the US government is warning us that the revision process poses a major threat to the independence and freedom of the Internet. Something is wrong with this picture.

Most of my information about this is second-hand, from sources that want to remain off the record. But there is proof that the US has defended the importance of the ITRs in an ITU list of documents that can be viewed here. There, in a depository of an ITU expert group that was preparing the grounds for the WCIT, one finds a document submitted by the US entitled the “Continued Critical Role of the ITRs.” Now if you click on the link that I have mischievously placed to that document, you will be taken to a closed, login-required page; before you can read that document, you have to be a TIES member. In other words, this is yet another example of the closed nature of the ITU process. There is another set of papers here that would be of interest in understanding why we even have the ITRs. But they, too, are locked inside TIES.

And that means, this is a job for WCITleaks! The U.S. government should release this document, and if it doesn’t, inside whistleblowers and other people with access to a TIES account need to leak it to us.

2 comments

Your right to be forgotten and my right to speak

by Jerry Brito on June 7, 2012 · 2 comments

Earlier this week I [interviewed Andrew Keen](http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten) about his new book, [*Digital Vertigo*](http://www.amazon.com/exec/obidos/ASIN/0312624980/jerrybritocom/ref=nosim/), and pressed him on his support for a ‘right to be forgotten.’ I noted that such a right would conflict with free speech rights, and he begged to differ.

“My own data, which I have published on the web, I should have a right, if I choose, for that data to go away,” he said. “That doesn’t impact in any way on your right to speak.”

This is a view of the EU’s proposal that I’ve heard from several folks, and I wanted to take a moment to explain why it’s mistaken. If the proposed EU right only covered information held by you that you wanted to unpublish–from Facebook, Tumblr, a self-hosted blog, etc.–then we wouldn’t need a right. Those services give you that ability right now, and if they didn’t, I don’t think folks would patronize them.

No, the right that Vivianne Redding [has outlined](http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf) is not a right to erase information held *by* oneself, but a right to erase data held *about* oneself. For example, in researching this post, I searched for an essay by Joris van Hoboken, an info law PhD candidate in Amsterdam, that made a great case against the right to be forgotten. As it turns out, the [blog post](http://www.jorisvanhoboken.nl/?m=201112) I was looking for had been removed. His whole site is down, perhaps for technical reasons, but perhaps because he has changed his mind and is now embarrassed by his previous views and wants them erased from the internet. Luckily, I had saved the essay in Evernote and you can [see it here](https://www.evernote.com/shard/s1/sh/6c0ac9a9-a4e5-43a0-a3a5-dd199288f0ed/480384e51c18b5bea3ffffb68c215686).

Now, van Hoboken might have the power under copyright law to make me take down the essay, but he has no right to keep me from writing about the fact that he wrote such a (potentially embarrassing) essay and even summarizing or excerpting it. *That* is the right that the EU would like to confer on citizens, and my right to speak is the one it wants to curtail.

The proposal does state that a “controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary for exercising the right of freedom of expression[.]” The problem with this exemption is that it creates an opportunity for the government to decide what kind of speech qualifies as legitimate expression, and which one does not. I would like to see those opportunities limited.

In his book, Keen [is critical](http://books.google.com/books?id=CUhIjwAYRGoC&lpg=PP1&dq=digital%20vertigo&pg=PA54#v=onepage&q=giggs&f=false) of the twittering masses who disobeyed the British High Court’s [superinjunction](http://techland.time.com/2011/05/21/twitters-super-duper-u-k-censorship-trouble/) on speaking about Ryan Gigg’s extramarital affair. Keen might think that such superinjunctions are legitimate and appropriate, and that the state should sometimes determine what content is and is not appropriate for free expression. But that’s different from pretending that a right to privacy does not conflict with a right to free speech.

Paul Bernal puts his finger on it when [he writes](http://zine.openrightsgroup.org/features/2012/the-right-to-be-forgotten),

>[T]he cultural differences in attitudes to privacy and free speech in the EU and the US. In the EU, and particularly in Germany, privacy is taken very seriously, and the rights that people have over data are considered crucial. In the US, privacy very much takes second place to free speech – anything that can even slightly infringe on free speech is likely to face short shrift. The right to be forgotten has been very actively opposed in the US on those grounds–[Jeffrey Rosen in the Stanford Law Review](http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten) calling it the ‘biggest threat to free speech on the internet in the coming decade’.

>Who is right? Neither, really. The right is not what its more active opponents in the US think it is–but neither has it been written tightly enough and carefully enough to provide the kind of practical, realisable right to delete personal data that the EU would like to see.

Yes, our cultural lenses do make us see free speech in different ways. And yes, maybe we in the U.S. are a bit sensitive about our speech rights. But the way the proposal is written now, we have good reason to be. It would not be too difficult to use such a ‘right’ for censorship.

2 comments

Andrew Keen on the negative effects of social media

by Jerry Brito on June 6, 2012

On the podcast this week, Andrew Keen, a journalist and author, discusses his new book Digital Vertigo: How Today’s Online Social Revolution Is Dividing, Diminishing, and Disorienting Us. Keen believes that social media is causing us to lose our private lives and turning us into what he calls “the cult of the social.” Keen discusses the growing power of companies like Facebook and his concern about the future of privacy and data ownership; as well as possible market and government driven solutions to this problem.