By Berin Szoka & Adam Thierer
We learned from The Wall Street Journal yesterday that “Federal Communications Commission Chairman Julius Genachowski gets a little peeved when people suggests that he wants to regulate the Internet.” He told a group of Journal reporters and editors today that: “I don’t see any circumstances where we’d take steps to regulate the Internet itself,” and “I’ve been clear repeatedly that we’re not going to regulate the Internet.”
We’re thankful to hear Chairman Julius Genachowski to make that promise. We’ll certainly hold him to it. But you will pardon us if we remain skeptical (and, in advance, if you hear a constant stream of “I told you so” from us in the months and years to come). If the Chairman is “peeved” at the suggestion that the FCC might be angling to extend its reach to include the Internet and new media platforms and content, perhaps he should start taking a closer look at what his own agency is doing—and think about the precedents he’s setting for future Chairmen who might not share his professed commitment not to regulate the ‘net. Allow us to cite just a few examples:
Net Neutrality Notice of Proposed Rulemaking
We’re certainly aware of the argument that the FCC’s proposed net neutrality regime is not tantamount to Internet regulation—but we just don’t buy it. Not for one minute.
First, Chairman Genachowski seems to believe that “the Internet” is entirely distinct from the physical infrastructure that brings “cyberspace” to our homes, offices and mobile devices. The WSJ notes, “when pressed, [Genachowski] admitted he was referring to regulating Internet content rather than regulating Internet lines.” OK, so let’s just make sure we have this straight: The FCC is going to enshrine in law the principle that “gatekeepers” that control the “bottleneck” of broadband service can only be checked by having the government enforce “neutrality” principles in the same basic model of “common carrier” regulation that once applied to canals, railroads, the telegraph and telephone. But when it comes to accusations of “gatekeeper” power at the content/services/applications “layers” of the Internet, the FCC is just going to step back and let markets sort things out? Sorry, we’re just not buying it. Continue reading →
In case you missed it, the world stopped moving today to witness the birth of another Google product: the much-ballyhooed “Twitter-Killer,” Buzz, which offers much of the functionality of Twitter in a more Facebook-like setting (plus location data) built directly into Gmail. CNET’s Larry Magid started the #GoogSoc (“Google Social”) hashtag for the event, kicking off a discussion about Twitter’s newest competitor on Twitter itself—and he was the first one up to the mic with a question for Google Founder Sergey Brin and his team after their presentation. Larry asked about privacy concerns raised by Buzz and Brin responded, as Larry puts it:
that there are privacy controls built-into both the web and mobile Buzz applications but, by default, much of your information is public. For example, if you don’t specify that a Buzz should only be seen by your friends, it’s made available to everyone and indexed by the Google search engine. Like Facebook, Buzz gives you the ability to create lists so you can have a separate Buzz group for your drinking buddies and another one for people at work. However,as with all privacy tools, the key is how you use them. My concern is that some people might forget to use the privacy tools and send the wrong information to the wrong people.
There are also controls on whether your geo-location is disclosed but, again, it’s up to the user to be careful on how they use them. Imagine sending a post out to your significant other that you’re stuck at work only to accidentally reveal that you’re actually located in a romantic restaurant down the street from the office?
I’m glad that Larry is raising these concern as someone who has done yeoman’s work in educating Internet users, especially kids, about how to “Connect Safely” online (the name of his advocacy group). The fact that companies like Google know they’ll get questions like Larry’s is hugely important in keeping them on their toes to continually plan for “privacy by design.”
But I do worry that those with a political axe to grind will take these same questions and twist them into arguments for regulation based on the idea that if some people forget to use a tool or just don’t get care as much about protecting their privacy as some self-appointed “privacy advocates” think they should, the government—led by Platonic philosopher kings who know what’s best for us all—should step in to protect us all from our own forgetfulness, carefulness or plain ol’ apathy. After all, consumers are basically mindless sheep and if the government doesn’t look after them, the digital wolves will devour them whole! Continue reading →
Just the other day, I complained about the fact that New York Federal district court overseeing the Google Books settlement apparently doesn’t plan to webcast the final public hearing that will take place on February 18 in this hugely important case about the future of digital books and copyright. Now I discover that the 11th Circuit Court of Appeals (which covers Florida, Georgia & Alabama) has issued a decision with even more far-reaching applications—allowing prosecutions for online obscenity distribution according to local “community standards” wherever a user might have downloaded the material—without even publishing the landmark decision!
Adam discussed this obscenity/localism issue in detail back in 2004. Eugene Volokh explains the substance of this decision:
United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed — which means the government can try to download the material in the most restrictive community, and prosecute the distributor there.
If left to stand, this decision could essentially amount to a ban on hardcore pornography in the U.S.—with the definition of “obscenity” being left to local puritanical politicians in the country’s most socially traditionalist backwaters, subject only to some general restraint by the courts as to just how far the definition of “obscenity” can be pushed. Volokh continues: Continue reading →
The Federal district court handling the Authors Guild’s suit against Google over Google Books has scheduled a hearing on for February 18, 2010 in New York City (after several postponements). The parties, their supporters and the Department of Justice will all get to speak. Twenty-six outside groups will each get five minutes to speak about the deal—21 against and 5 in favor. (If the numbers seem off-balance, note that France is on the “con” side, and if the statist-stasist-centralist-protectionist French are against something tech-related, how bad an idea could it really be?)
Although the settlement is highly arcane, how this issue is resolved will probably do as much, for better or worse, to shape our digital future in the years to come as any tech policy issue currently under discussion. (I’d say only net neutrality, privacy regulation and media socialization would fall into the same tier of such fork-in-the-road decision-points.)
So of course this profoundly important public hearing is going to be livecasted, right? Unfortunately, I don’t think so. Continue reading →
Ken Ferree, former chief of the FCC’s media bureau and PFF’s recently retired president (now Board member), has penned another devastatingly witty piece slamming the FCC’s recently announced inquiry into “the future of media and information needs of communities in a digital age” as something that,
should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC’s claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.
The problem is that the very act of initiating such an inquiry will chill protected speech; government inquiry into what is and is not working in the area of news, information, and media is itself an affront to the First Amendment. And it is no answer that the Commission has embarked on this journey with beneficent motives, it has no power to derogate from the protections of the First Amendment in the name of what one group of bureaucrats may think are important government interests.
Can there be any doubt but that any category of speakers that are even indirectly regulated by the FCC will be mindful of this new inquiry and will curb the nature of their conduct and communications in light of it? What great potential for mischief the FCC has spawned merely by initiating this little inquiry! Regulation by “raised eyebrow” has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the Commission has taken the concept to a level heretofore unknown – this inquiry is regulation by penetrating leer.
The rest of the piece is well worth reading. But of course, the FCC will continue on their merry way anyway presuming neither their their complete lack of jurisdiction nor the First Amendment prevents them from “merely asking questions”—as with asked open-ended questions about things like cloud computing, online privacy (a slightly different matter) and online content controls that don’t come anywhere near the agency’s jurisdiction. Adam and I will be filing comments on the “Empowering Parents” inquiry questioning this “questioning.”
http://blog.pff.org/archives/2010/02/a_chill_wind_blows.html
Northwestern Law Prof. James Speta has a new paper out that touches on many of the themes that Barbara Esbin, my colleague at The Progress & Freedom Foundation, has been covering in her excellent work explaining why the FCC doesn’t actually have have the vast, essentially unlimited authority over the Internet that it has asserted in its recent effort to enforce its non-binding 2005 net neutrality policy statement and its ongoing net neutrality rulemaking. (See her FCC comments on that issue here and Adam’s thoughts on this here.) Speta’s thesis also seems to parallel the approach taken under PFF’s 2005 Digital Age Communications Act (DACA), which emphasized focusing on on unfair practices and relying on a standard of consumer harm as in antitrust rather than trying to enshrine abstract principles like “neutrality” into law.
Anyway, here’s the abstract for Speta’s paper: Continue reading →
Third on the headlines today on TechMeme (perhaps the leading tech news aggregator) is this headline: “An Apology To Our Readers,” a heart-felt piece from TechCrunch editor Michael Arrington disclosing that a TechCrunch intern had, on at least two occasions, demanded computers from start-ups as compensation for writing favorable blog posts about them on the highly influential site. The intern was immediately suspended and, when the allegation was confirmed, terminated. Arrington made no excuses for Daniel Brusilovsky on account of his age (he’s under 18). You can read Daniel’s response here.
If this incident demonstrates anything, it’s just how essential it is for a site like TechCrunch to, as Arrington promised his readers in closing, “maintain complete transparency with you on how we operate, even when it isn’t such an easy thing to do.” Arrington went so far as to have “deleted all content created by this person on our blogs”—indeed, “every word written by this person on the TechCrunch network,” which presumably includes comments.
One might take from this the lesson that the press, as it evolves from the newspaper model towards something blog-ier but still hard to pin down precisely, can police itself pretty darn well. Alas, the FTC has taken a much dimmer view of the ability of reputational incentives to discipline the influence that might be exerted by “blogola” payments (cash or in-kind) on editorial discretion and journalistic creation. Continue reading →
Today’s Online Safety Technical Working Group (OSTWG) meeting included some heated debate about whether online intermediaries should be doing more to assist law enforcement to help track down child predators and those producing and distributing child pornography. (It’s not clear whether or when NTIA will actually put the archived video or a transcript online at this point).
Most interesting was the third panel of the day (agenda), which devolved into a shouting match as Dr. Frank Kardasz (resume) of the Arizona Internet Crimes Against Children (ICAC) Task Force basically accused Internet intermediaries of being willing accomplices in crimes of sexual abuse against children—and suggested that they could be charged as co-defendants in child porn prosecutions. A few industry folks in the room expressed their outrage at such slander. A retired law enforcement officer perhaps put it best when he said that he had never dealt with an ISP that didn’t sincerely want to help law enforcement stop this monstrous crime.
Apart from those pyrotechnics, and a superb morning presentation by the Pew Internet Project’s Amanda Lenhart about “Social Media & Young Adults,” the most interesting part of the day concerned data retention mandates. Even as a debate rages in Washington about how much collection and use of online data should be permitted, Dr. Kardasz suggested online service providers should be required to hold user data for 5 years. A number of attendees noted the staggering costs of such a mandate given the sheer volume of information shared every day by use, especially for startups for whom building monitoring and compliance infrastructure can be a significant barrier to entry. Of course, practical objections are always answered with practical counter-solutions—in this case, several attendees asked why we couldn’t just provide tax incentives or stimulus money to defray such costs. One attendee joked that we’d have to devote the entire state of Montana just to house all the necessary server farms.
But the strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.
Then the riposte from advocates of data retention mandates: Aren’t online intermediaries already retaining huge amounts of consumer information? If they can do that, why can’t they retain the data we need to track down child predators and child porn distributors? Continue reading →
I’m at the OSTWG meeting today in DC, filling in for Adam, who’s busy testifying on the Hill about the Comcast/NBCU deal. I’m retweeting along with @LarryMagid and @DeclanM (Mccullagh) using the #OSTWG hashtag. Great discussion of online child safety, privacy, sexting and more! Webcast available here.
Like Braden, I also filed comments on the FCC’s inquiry—written by CDT—about what, if anything, the FCC should say about online privacy in the National Broadband Plan Congress assigned the agency to write in the (so-called) “Recovery Act” last year. My comments are available here and are embedded below. Over 20 parties filed comments, available here. My argument in brief is as follows:
- To the extent consumer anxiety about online privacy is, as many claim, actually discouraging some Americans from fully utilizing broadband, the FCC could indeed recommend that Congress take action on online privacy—even though the FCC has no jurisdiction to regulate online privacy itself (beyond the limited CPNI rules it has already imposed on the communications services it licenses).
- But when Congress charged the FCC with drafting a plan for promoting broadband adoption, it set specific goals: The FCC may only recommend that Congress enact policies the agency concludes on the basis of real data will, on net, help achieve “affordability” and “maximum utilization” of broadband.
- The quality and quantity of online services depends on the ability of service providers to collect and use data about web browsing habits to analyze site use, personalize content, tailor advertising, and measure its effectiveness.
- So imposing additional regulations on the private sector comes with real costs to users and it’s far from clear that such regulations would, on the whole, promote broadband adoption.
- The Commission simply doesn’t have the data to evaluate this trade-off,, nor the time to collect it (as the FTC is trying to do) since the National Broadband Plan is due to Congress in a matter of weeks.
- But no such trade-offs exist with regards to government access to consumer data, which creates far more demonstrable and serious consumer harms. So the Commission should limit its legislative recommendations on privacy to endorsing enhanced limitations on government access, such as CDT has proposed.
- The Commission should be particularly wary of opinion polls as evidence of consumer expectations because they cannot tell us about the trade-offs inherent in the real world.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.