Articles by Berin Szoka

Berin is the founder and president of TechFreedom, a tech policy think tank based on pragmatic optimism about technology and skepticism about government. Previously, he was a Senior Fellow at The Progress & Freedom Foundation and Director of PFF's Center for Internet Freedom.


Please, Let’s Have Fewer “Guardrails” Online!

by on August 28, 2009 · 6 comments

If only our would-be “Net Nannies” in Congress, the FCC, FTC, state capitols and, of course, Brussels were more like the Park Service! The WSJ reports on “Why there are so few guardrails at the Grand Canyon:”

Sunday a crowd gathered in Acadia National Park, on Mount Desert Island along the Maine coast, to watch the surf, roaring with energy from an offshore hurricane, smash against the shore. A towering wave crashed over some onlookers, dragging half a dozen into the ocean. A 7-year-old girl drowned. Soon it was asked why officials had let the crowd get so near waters so dangerous. “The Park Service’s goal is to get people out into the park,” Acadia Chief Ranger Stuart West told Maine Public Broadcasting. “And we don’t want to take that opportunity away from the public.”

It’s a measure of how coddled we’ve become that Mr. West’s simple and reasonable statement seems almost shocking. But the Park Service, with its emphasis on protecting the lands in its care, has developed a refreshingly laissez-faire attitude toward protecting visitors….

It seems that those who frequent the outdoors have an aversion to nanny-statism, which allows the Park Service to take a grown-up attitude toward its visitors: “Their safety is their responsibility,” says Ron Terry, Zion’s public information officer. “We couldn’t possibly put railings up everywhere. It wouldn’t be feasible, nor would we want to.”

Amen!  If only we took the same approach to the online environment:  educate users about the risks (real or subjective) to their privacy, safety or delicate sensibilities and empower them to the maximum extent possible to make decisions for themselves—or for parents to decide which “perilous canyon trails” to let their kids go down. The wonderful, unique thing about the online environment is that each user’s experience can be customized: Technological filters tools allow parents to create “guardrails” just for their kids (e.g., blacklists of sites inappropriate for kids), without needing to have a guardrail installed for all users (e.g., COPA).

The parallels continue when one considers the human tendency to mis-perceive risks, which creates “technopanics” in Internet policy just as it creates panics about the various health risks of the great outdoors: Continue reading →

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Texting While Driving: Regulate or Empower & Educate?

by on August 28, 2009 · 161 comments

Texting while driving is generally a bad idea, since it involves taking one’s hands off the wheel and eyes off the road. While not wearing your seatbelt in a car or a helmet on a motorcycle probably only risks your own life, there’s a good argument to be made that distracted drivers put the lives of others at risk. The WSJ reports that 17 states have banned texting while driving outright. But is such regulation really the best way to address the problem?

Technological Empowerment. The WSJ highlights innovative technological solutions that:

  1. Block calls and texts while the user is driving; OR
  2. Let drivers “speak” their texts using voice-to-text technology.

Those who consider even hands-free cell phone use unsafe will probably insist on the more draconian blocking solution—and want government to mandate it! Such mandates would indeed probably be more effective than relying on the police write tickets to drivers they see texting while driving (especially since such offenses, like calling while driving, usually require some other, more serious offense before an officer can pull over a driver). But do we really need the government telling us when we can use a technology that really might be essential in certain circumstances, or totally safe in others (say, when we’re behind the wheel but stopped at a long light or in a traffic jam)?

The fascinating thing is that these solutions need not be mandated by government: At least some users will actually pay for them! Why? Because, sometimes we’re better off by being able to “bind” our future selves—just as Ulysses asked his crew to tie him to his ship’s mast so he could enjoy the Siren’s enchanting song without giving in to their spell. Similarly, these texting-blocking technologies empower users in three senses:

  1. Some users know they shouldn’t text while driving but—like smokers and people who casually pick their noses—just can’t stop, so they want external discipline;
  2. Others just want the monthly discount on their car insurance; and
  3. Parents want to make sure they can discipline their children, who have a hard time resisting the impulse to pick up the phone.

Continue reading →

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Choosing the Right Path to a Permanent Accountability Framework for ICANN

by on August 26, 2009 · 10 comments

By Michael Palage & Berin Szoka, The Progress & Freedom Foundation

Over the next month, the ICANN Board will consider its options for ensuring that some framework is in place to ensure ICANN’s accountability to the global Internet community after the approaching expiration of its Memorandum of Understanding and Joint Project Agreement (MOU/JPA) with the U.S. Department of Commerce. We analyze these options in our new paper, “Choosing the Right Path to a Permanent Accountability Framework for ICANN.”

We urge the ICANN Board to allow the time necessary for the development of a permanent accountability framework in consultation with the global Internet community, as required by ICANN’s Bylaws.  The authors caution the ICANN Board against rubber-stamping a recent proposal to essentially make the MoU/JPA a permanent instrument as inadequate to ensure ICANN’s long-term accountability.  The alternative, simply ending ICANN’s relationship with the U.S. Government, would raise serious legal questions concerning ICANN’s ability to collect fees from registrars and registries and the transfer of property rights underlying the domain name system.

We conclude by calling on ICANN’s new CEO Rod Beckstrom to exercise the kind of leadership he advocated in his 2005 book, The Starfish and the Spider: The Unstoppable Power of Leaderless Organizations, which explains the advantages of decentralized managerial “nervous systems” (“starfish”) over top-down hierarchies (“spiders”):

Instead of focusing on ‘spider’-esque permanent instruments with a single government, Beckstrom and the ICANN Board should focus on more ‘starfish’-like solutions that both continue the USG’s stewardship role and involve more governments that want to participate in the unique private-public partnership known as ICANN—without compromising ICANN’s guiding principles and commitment to private sector leadership. Only this outcome will ensure the long-term viability of ICANN as a global trustee of the Internet’s unique identifiers.

Continue reading →

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Online Advertising: Privacy Zealot-Elitists v. Real Consumer Advocates

by on August 25, 2009 · 34 comments

Mediapost has published an interview I gave to Omar Tawakol, founder of the BlueKai registry entitled “User Empowerment, Not Regulation, Is The Answer to Privacy Concerns About Targeted Ads” in which I summarize the arguments Adam Thierer and I have been making since our “Principles to Guide the Debate” piece last September.

We argue for user empowerment over restrictive defaults (like “opt-in”) for data use and collection because, as the Supreme Court held in 2000: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.”

We promote tools that let users make their own decisions about privacy, not only because those decisions are fundamentally subjective, but because regulatory mandates could stifle the development of online content and commerce.

I also note the parallels between speech controls and privacy regulation, and call for a consistent, principled approach to both:

Since 1997, the Supreme Court has struck down multiple legislative attempts to censor online and offline content [especially the CDA] because there were “less restrictive alternatives” that would not so heavily burden free speech rights. In a 2000 cable-related decision, the Court held that “targeted blocking [by users] is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.”

Courts have struck down other federal and state speech controls because parents had the tools to filter their kids’ access to information online, in video games, etc., as described in my PFF colleague Adam Thierer’s ongoing catalog of these tools…

Many who oppose industry self-regulation are not really “consumer advocates” because they don’t recognize that consumers have many, competing values. Those regulatory advocates are more interested in their preferred one-size-fits-all mandates than in empowering users to determine their own privacy preferences.

Like advocates of censorship, privacy zealots assert great dangers to which citizens are supposedly oblivious but which urgently require government intervention-dismissing arguments to the contrary as either uninformed or irresponsible.

The comments on the interview are equally worth reading.  Jeff Chester, who has made a career out of attacking advertising, quickly posted a comment dismissing, but ignoring, my arguments about consumer welfare as corporate propaganda—just as he did with his comment on the post Adam and I wrote in June about congressional hearings on the issue featuring Chester (and Scott Cleland, the right-wing “Bizarro Chester“).  I’ve had it with Chester’s ad hominem attacks on the motives of those who disagree with him, as I explained in my reply to Chester: Continue reading →

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New gTLDs: Let the Gaming Begin – Part I: TLD Front Running

by on August 19, 2009 · 4 comments

My PFF colleague Mike Palage just released a paper about a series of recent applications for national trademark rights in terms that correspond to likely strings for new top-level domain names, or TLDs, (e.g., “.BLOG”). These attempts highlight just one way in which ICANN’s new generic TLD (gTLD) application process is likely to be “gamed.” But it is also a strategy to which some trademark holders may feel compelled to resort to defend their rights to that string. Unfortunately, it does not appear that ICANN is addressing these important public policy considerations. In fact, based upon some of the provisions in the proposed draft registry agreements, it appears that ICANN staff’s actions may increase, rather than decrease, the ambiguity that opens the door to such gaming of the system.

Continue reading →

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Section 230: The Cornerstone of Internet Freedom

by on August 18, 2009 · 34 comments

Jonathan Frieden (who runs the e-commerce law blog) has a nice, pithy summary of Section 230:

If the “essential published content” is willingly provided by a third-party, the interactive computer service provider publishing that content enjoys the full immunity afforded by Section 230.

Amen, brother! I noted Eric Goldman’s excellent outline about Section 230 back in June. As Adam has noted, Section 230 is about more than just protecting online intermediaries bottom line or even about freeing them to provide the content and services we all take for granted.

Section 230 is the very cornerstone of Internet Freedom, the law that makes possible Robert Nozick’s “framework for utopias”: Online communities (“utopias”) can flourish in their infinite variety only because those who build, host or enable access to such communities (social network operators, search engines, aggregators, etc.) do not have to worry about legal liability for user-generated content. The fundamental difference between Web 1.0 and Web 2.0 lies in the movement of online speech away from individual websites where the speaker was operator to online speech platforms where the potential number of speakers is essentially unlimited. This ongoing shift makes Section 230 more important than ever.

Never before has it been so easy for users to “vote with their feet,” sorting themselves into communities of their own choosing, and not since the the 1890 Census declared the American frontier “closed” has it been been so easy for the individual to start entirely new communities if they don’t like their current options.

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Twitter Power Laws

by on August 17, 2009 · 12 comments

Thanks to Mashable, we clearly see power laws at work on Twitter. While many protest this as evidence of “media inequality,” the “non-tweeting will always be with us” (to paraphrase Jesus’s comment about the persistence of “the poor”)—and this is nothing to get bent out of shape about, as Adam has explained.

Courtesy of Mashable

Courtesy of Mashable, David McCandless

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Peter Griffin v. FCC

by on August 14, 2009 · 9 comments

Cartoons speak truth to power on censorship:

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Reminder: TLF 5th Anniversary Happy Hour Tonight (8/14)

by on August 14, 2009 · 5 comments

Please join us tonight for a very special Alcohol Liberation Front happy hour at Rocket Bar, 714 7th ST (7th & G) right across from the Chinatown/Verizon Center metro (Red/Green/Yellow) in D.C., 6:30-8:30ish.

Please join us as we celebrate, commiserate and plan for the next five years of fighting the good cyber-libertarian fight. We’ll even through in a free TLF laptop sticker! Just RSVP on Facebook!

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If NCMEC’s Going to Regulate the Internet for Child Porn, It Should At Least Be Subject to FOIA

by on August 9, 2009 · 11 comments

Last year, my PFF colleague Adam Thierer asked whether State AGs + NCMEC = The Net’s New Regulators? Adam noted that NCMEC, the National Center for Missing and Exploited Children, a private non-profit organization, was playing a law enforcement role in regulating child pornography—but without any clear mechanisms for ensuring its accountability and effectiveness. Adam’s point wasn’t just that transparency is a good thing, but that when it comes to a cause as important as protecting children from exploitation, it’s vital to ensuring that we’re that we’re actually doing a good job at it!

Yesterday, Emmanuel Lazaridis commented on that post:

Given the increasing regulatory and investigative powers of the NCMEC, it is no longer clear whether or not the [Freedom of Information Act] applies to NCMEC records. We are about to find out. I am right now bringing a case against the NCMEC in federal court for access to records under the FOIA and, failing that, for discovery under 28 U.S.C. § 1782(a).

Mr. Lazaridis’s complaint in the D.C. District Court claims that Lazaridis (a Greek national) has been unfairly deemed a fugitive from U.S. justice for having taken his daughter to Greece over the objections of the girl’s American mother, Lazaridis’s ex-wife. NCMEC got involved by placing the girl on their MissingKids.com registry of abducted children. Lazaridis wants the court to recognize his custody, deem him not to be a fugitive, and to order NCMEC to turn over all their records on the girl.

This is, of course, just one side of the story (and such cases are usually so complicated as to be indecipherable to outsiders). But even if Lazaridis’s case were wholly without merit, his basic argument would be a sound one: Why shouldn’t NCMEC, in exercising any of its essentially governmental functions, be subject to the same accountability requirements through FOIA as the FBI would be?

When the issue is the Lazaridis family’s trans-Atlantic custody battle, it may seem easy to ignore this question. But when NCMEC is essentially making policy regarding filtering Internet content, blacklisting websites, turning over user logs to law enforcement, or “cleaning up” Craigslist, the question of NCMEC’s accountability under FOIA cannot be avoided as a critical decision about the future of Internet governance. Continue reading →

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