Since Jonathan Zittrain’s ideas about the “generativity” have permeated the intellectual climate of technology policy almost as thoroughly as those of Larry Lessig, scarcely a month passes without a new Chicken Little shouting about how the digital sky is falling in a major publication. The NYT has had not one, but two such articles in the course of a week: first, Brad Stone’s piece about Google, Sure, It’s Big. But Is That Bad? (his answer? an unequivocal yes! as I noted), followed by Virginia Heffernan’s piece “The Death of the Open Web,” which bemoans the growing popularity of smart phone apps—which she analogizes to “white flight” (a stretched analogy that, I suppose, would make Steve Jobs the digital Bull Connor).
What really ticks me off about these arguments (besides the fact that Apple critics like Zittrain use iPhones themselves without a hint of bourgeois irony) is Heffernan’s suggestion that, “By choosing machines that come to life only when tricked out with apps from the App Store, users of Apple’s radical mobile devices increasingly commit themselves to a more remote and inevitably antagonistic relationship with the Web.” To hear people like Heffernan (and others who have complained about Apple’s policies for its app store) talk, you might think that modern smart phones don’t come with a web browser at all, or that browser software is next to useless, so the fact that browsers can access any content on the web (subject to certain specific technical limitations, such as sites that use Flash) is irrelevant, and users are simply at the mercy of the “gatekeepers” that control access to app stores.
In fact, the iPhone and Android mobile browsers are amazingly agile, generally rendering pages originally designed for desktop reading in a way that makes them very easy to read on the phone—such as by wrapping text into a single column maximized to fit either the landscape or portrait view of the phone, depending on which way it’s pointed. In fact, I do most of my news reading on my Droid, and using its browser rather than through any app—although there are a few good news apps to choose from. In fact, I probably spend about 10 times as much time using my phone’s browser as I spend using all other 3rd party apps (i.e., not counting the phone, e-mail, calendar, camera and map “native” apps). So I can get any content I want using the phone’s browser, I certainly don’t lose any sleep at night over what I can or can’t do in apps I get through the app store. I’d love to see actual statistics on the percent of time that smartphone users spend using their mobile browser, as compared to third-party apps. Do they exist?
But however high that percentage might be, the important thing is that the smartphone browser offers an uncontrolled tool for accessing content, even if apps on that mobile OS do not. Continue reading →
Today’s NYT piece by Brad Stone about Google (Sure, It’s Big. But Is That Bad?) offers a superb example of how to use the rhetorical question in an article headlined to suggest that you might actually be about to write a thoughtful, balanced piece—while actually writing a piece that, while thoughtful and interesting, offers little more than token resistance to your own preconceived judgments. But perhaps I’m being unfair: Perhaps Stone’s editors removed “YES! YES! A THOUSAND TIMES, YES!” from the headline for brevity’s sake?
Anyway, despite its one-sidedness, the piece is fascinating, offering a well-researched summary of the growing cacophony of cries for regulatory intervention against Google, and also a suggestion of where they might lead in crafting a broader regulatory regime for online services beyond just Google. In short, the crusade against Google and the crusade for net neutrality (in which Google has, IMHO unwisely been a major player) are together leading us down in intellectual slippery slope that, as Adam and I have suggested, will result in “High-Tech Mutually Assured Destruction” and the death of Real Internet Freedom.
Ironically, this push for increased government meddling—a veritable “New Deal 2.0″—is all justified by the need to “protect freedom.” But it would hardly be the first time that this had happened. As the great defender of liberty Garet Garrett said of the New Deal 1.0 in his 1938 essay The Revolution Was:
There are those who still think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of Depression, singing songs to freedom.
That theme lives on in the works of those like antitrust warrior Gary Reback, an anti-Google stalwart whose book Free the Market: Why Only Government Can Keep the Marketplace Competitive Adam savaged in his review last year. Reback argues:
Google is the “arbiter of every single thing on the Web, and it favors its properties over everyone else’s,” said Mr. Reback, sitting in a Washington cafe with the couple. “What it wants to do is control Internet traffic. Anything that undermines its ability to do that is threatening.”
Move over, ISPs! Search engines are the real threat! Somehow, I feel fairly confident in predicting that this will be among the chief implications of Tim Wu’s new book, The Master Switch: The Rise and Fall of Information Empires, to be released in November, which his publisher summarizes as follows: Continue reading →
If you happen to belong to the DC Bar’s Computer and Telecommunications Law Section, I hope you will consider casting one of your three votes for me when you complete your ballot for the Section’s Steering Committee—which you probably received in the mail today (as I did). Ballots must be received by June 4. I used my 75 words for the following mini-bio on the ballot:
I direct the Internet policy program at The Progress & Freedom Foundation. I practiced communications and cyber law at Latham & Watkins and Lawler Metzger Milkman & Keeney after a district clerkship and graduating Virginia Law in 2004. I have particular expertise with the FCC, FTC and ICANN, and in online privacy, advertising, e-commerce, free speech, Internet governance and satellite law. I am eager use my panel-planning experience to help the Section do more events.
Find more on my work here. This is a volunteer position that allows lawyers interested in tech policy to give back to the legal/policy community here in DC, primarily by offering the high quality CLE programming for which the DC Bar is so well-respected (which are open to all).
I hope to have the opportunity to serve. While there are a number of fine candidates, I plan on casting my other two votes for NetChoice’s Braden Cox, my fellow TLF co-blogger, and Grace Koh, whom I have gotten to know through her work on privacy and other policy issues at Cox Enterprises. I’m Berin Szoka, and I endorse this ad.
I’ve complained mightily (here and here) about the agonizing technological awfulness that was, at least until recently the website of the FCC (you know, one of the two federal agencies—besides the FTC—that thinks it has the expertise necessary to regulate the Internet). My point wasn’t just that the FCC’s website made it very difficult to find and access data, but that this was a serious problem for transparency in government. I have to give the agency credit for improving many aspects of its site, though much work still remains to be done.
But then there are all the other agencies of our sprawling regulatory Leviathan! And in particular, the Securities and Exchange Commission (SEC), which processes—crudely—huge amounts of financial data. A new report from House Oversight and Government Reform Committee Ranking Member Darrell Issa released today describes just how severe the SEC’s problems are:
The Commission’s securities disclosure processes are technologically backward. It reviews corporate filings manually, using printouts, pencils, and calculators. It has never developed the ability to perform large-scale quantitative analysis to find fraud. Commission staff use Google Finance, Yahoo! Finance, and other commercially-available resources to analyze corporate filings. If the Commission had a robust database of the financial information filed by its registrants, it could automatically prioritize the thousands of tips and complaints it receives. But no such database has ever been constructed.
Hence the biting title of the report: The SEC: Designed for Failure. Ouch! It’s really amazing how, when regulators fail to protect consumers, the default response by most in Congress is to assume that only sweeping new powers will fix the problem (which is what “financial reform” legislation would do) instead of, say, bringing the agency into the 21st century.
Similarly, there’s a move afoot to give the FTC vast new powers across the board or to protect our privacy online (from evil companies that don’t respect the privacy promises they made to consumers) with little thought given to data-driven technological through user empowerment. Continue reading →
In light of the discussion draft of privacy legislation recently released by Chairman Rick Boucher (our comments here and here), PFF is holding a special “Nuts & Bolts” luncheon briefing on the technical underpinnings of the ongoing privacy policy debate on Monday, May 24, 2010, 12-2 p.m. in 2123 Rayburn House Office Building.
Our panel of distinguished experts will provide an overview of the technical mechanics of online advertising and associated concerns about data collection, and discuss challenges and opportunities for empowering privacy-sensitive consumers to manage their online privacy without breaking the advertising business model that sustains most Internet content and services. I’ll moderate a terrific panel:
To Register: Space is limited, so an RSVP is required to attend. Please register online here. Event questions should be addressed to Adam Marcus at amarcus@pff.org. Media inquiries should be directed to Mike Wendy at mwendy@pff.org.
Adam Thierer & I offered our initial thoughts upon first reading the discussion draft of the privacy bill introduced by Rep. Rick Boucher (D-VA) & Cliff Stearns (R-FL). In PFF’s latest TechCast, I sat down to discuss the bill and my concerns about it with PFF’s VP for Communications, Mike Wendy:
Stay tuned for more from us on this. PFF plans to file written comments, as solicited by the bill’s authors, by June 4. For more on this, check out our comments to the FTC last December on these issues.
Subscribe now to PFF’s TechCast podcast (generally 5-8 minutes) by RSS or through iTunes!
My dear friend, fellow space/IT/priavcy/communications lawyer and now PFF Adjunct Fellow Jim Dunstan just published this PFF paper, which I thought I’d share with you (PDF)
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The FCC’s Title II “Lite” (as a Lead Balloon!) & the Looming Broadband Tax
by James E. Dunstan, PFF Adjunct Fellow, Progress Snapshot 6.9
FCC Chairman Genachowski has set forth his vision—a “Third Way”[1]—for overcoming the D.C. Circuit’s recent decision in the Comcast case concluding that the FCC lacked jurisdiction for sanctioning Comcast for allegedly blocking subscribers using peer-to-peer software or otherwise throttling bandwidth to heavy users.[2] The Court concluded that the FCC’s “ancillary jurisdiction” under Title I of the Communications Act was insufficient authority to step in and regulate Comcast’s broadband services. Since then, all of the Washington telecommunications intelligentsia has speculated at the FCC’s next move. Now we have it.
Chairman Genachowski’s “Third Way” is a form of Title II “lite,” where the FCC will reverse its prior decisions dating back decades that declare the Internet and broadband connections “information services,” and instead bifurcate the Internet into two segments: the “Internet” itself, and the “connections to” the Internet. Under the “Third Way,” the FCC would continue to treat the “Internet” itself (whatever that actually means) as an “information service” (Title I) but declare all connections to the Internet to be “telecommunications services” (Title II).[3] Armed with a ten-page memo from his General Counsel,[4] the Chairman argues that this policy reversal is on sound legal ground and will instantly reverse the “problem” caused by the Comcast decision.
Setting aside the fundamental question of who caused this “problem” (a Federal Court of Appeals concluded that it was the FCC who violated the Communications Act, not Comcast), the Chairman’s “Third Way” may turn out to be a third rail, with the real potential for destroying the Internet as we know it. Continue reading →
I’m recuperating today after wrist surgery #2 but I just had to say something about a hugely important proposal introduced today that would bring us one step closer to information socialism. No, I’m not talking about the discussion draft privacy bill released today by Reps. Boucher & Stearns (which Adam and I already commented on here) but about the amendment introduced today by Sen. Udall that would “require credit-rating agencies to divulge credit scores, free of charge, to consumers when they access their free annual credit report.”
Actually, there is an important analogy between the two bills: both will have populist appeal because they can claim to giving consumers a “right” to “their” information—but both would impose real costs that will ultimately be borne by consumers. On the privacy side, Adam Thierer and I have warned repeatedly that data collection is critical to the online advertising that supports the publishers of the Internet’s cornucopia of content and services. Everyone takes this for granted but few of us really think about the quid pro quo at work: users receive “free” content and services in exchange for seeing advertising and sharing data about their browsing habits, which makes advertising more relevant to them, more effective for advertisers, and therefore more profitable for publishers.
Unfortunately, a similar free lunch mentality is at work with credit scores. If we think about them at all, most of us probably resent and/or fear them. Yet credit scores, and the entire credit reporting system, are truly one of the wonders of information capitalism and a boon for consumers. Before they developed, lending decisions were far riskier because lenders didn’t really know whom to trust with their money. Thus they had to build in a risk premium into their interest rates to account for the fact that some users might default or fall behind on payments. This punished good borrowers and rewarded bad ones. Getting a loan was difficult, often required special connections, and was often arbitrary and thus sometimes downright discriminatory.
This situation was bad for everyone. While nobody likes being in debt, we often forget how radically empowering credit can be in allowing us to expand our opportunities in life. Continue reading →
I’m testifying this morning before the Senate Commerce Committee’s Consumer Protection Subcommittee on Examining Children’s Privacy: New Technologies and the Children’s Online Privacy Protection Act at 10 am in 253 Russell. I offered an overview of my testimony in a PFF TechCast interview yesterday.
MP3 file: PFF TechCast #4 – Senate COPPA testimony of Berin Szoka
My pre-scripted oral testimony (PDF) follows below, but you can download my somewhat longer written testimony here, which offers an overview of our past work on this subject at PFF, particularly the paper Adam Thierer and I published last summer COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.
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Mr. Chairman and Committee members, thank you for inviting me here today. My name is Berin Szoka.[1] I’m a Senior Fellow at The Progress & Freedom Foundation. I commend this Committee for studying COPPA, and the FTC for its upcoming COPPA Review and Roundtable.[2]
Background on COPPA
For an “Internet Jr.” of sites “directed at” children under 13, COPPA requires sites either to age-verify all users or limit functionality to prevent children from making personal information “publicly available”—including the sharing of user-generated content. COPPA imposes the same requirement on general audience sites when they have actual knowledge a user is under 13. Because of this forced separation and the costs of age verification, COPPA may well have unintentionally limited choice and competition by driving increased consolidation in the marketplace for child-oriented sites and services online. On the other hand, COPPA has been reasonably successful in fulfilling Congress’s original goal of “enhancing parental involvement” to protect children’s online privacy and safety.
Whatever this trade-off, I’m here today to caution against expanding COPPA beyond its original, limited purpose. COPPA’s unique value lies in its flexibility, subtlety, and intentional narrowness. Continue reading →
We at The Progress & Freedom Foundation announced a series of eight upcoming policy events today, taking the place of our previously scheduled Sundance Summit. Beginning this month, the events will run through the summer in the nation’s capital. By moving these events closer to home in this manner, PFF will be better positioned to speak to legislators, policymakers, and tech policy press before Washington turns its attention to the midterm elections.
The series of events (which you can add to your calendar here) will include several breakfast and luncheon panel presentations and two half-day conferences. Covering such areas as communications and competition policy, digital property, digital media freedom and Internet freedom, the events will include:
- Tuesday, April 27: “Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?” — A panel of experts will debate the future of “must carry” rules in the wake of a new challenge to their constitutionality by Cablevision, and what this decision could mean for other media. (RSVP here)
- Friday, May 7: “What Should the Next Communications Act Look Like?” — A discussion with key industry stakeholders about the future of the Telecom Act in the wake of the Comcast v. FCC decision and the looming battle over Title II reclassification of broadband. (RSVP here)
- Thursday, May 20: “Can Government Help Save the Press?” — This conference will discuss the FCC’s new “Future of Media” proceeding and debate what role government should play in subsidizing the press or bailing out failing media enterprises. (RSVP here)
- Monday, June 7: “The Future of Speech on the Borderless Internet” — A panel of leading cyberlawyers will discuss trans-national regulation and litigation of defamation, hate speech, indecency and political dissent. (RSVP here)
- Monday, June 21: “Sports Programming & the Challenges of Digital Piracy“— A discussion of the challenges that digital piracy, including unauthorized streaming, poses to professional and collegiate sports that have traditionally earned revenues from telecasts of games, bouts, etc. Continue reading →
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