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.

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COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech

by Berin Szoka on May 24, 2009 · 33 comments

Adam Thierer & I have just released a detailed examination (PDF) of brewing efforts to expand the Children’s Online Privacy Protection Act of 1998 to cover adolescents and potentially all social networking sites—an approach we call “COPPA 2.0.”

As Adam explained on Larry Magid’s CNET podcast, COPPA mandates certain online privacy protections for children under 13, most importantly that websites obtain the “verifiable consent” of a child’s parent before collecting personal information about that child or giving that child access to interactive functionality that might allow the child to share their personal information with others. The law was intended primarily to “enhance parental involvement in a child’s online activities” as a means of protecting the online privacy and safety of children.

Yet advocates of expanding COPPA—or “COPPA 2.0″—see COPPA’s verifiable parental consent framework as a means for imposing broad regulatory mandates in the name of online child safety and concerns about social networking, cyber-harassment, etc. Two COPPA 2.0 bills are currently pending in New Jersey and Illinois. The accelerated review of COPPA to be conducted by the FTC next year (five years ahead of schedule) is likely to bring to Washington serious talk of expanding COPPA—even though Congress clearly rejected covering adolescents age 13-16 when COPPA was first proposed back in 1998.

We’ll discuss some of the key points of our paper in a series of blog posts, but here are the top nine reasons for rejecting COPPA 2.0, in that such an approach would:

Burden the free speech rights of adults by imposing age verification mandates on many sites used by adults, thus restricting anonymous speech and essentially converging—in terms of practical consequences—with the unconstitutional Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA;
Burden the free speech rights of adolescents to speak freely on—or gather information from—legal and socially beneficial websites;
Hamper routine and socially beneficial communication between adolescents and adults;
Reduce, rather than enhance, the privacy of adolescents, parents and other adults because of the massive volume of personal information that would have to be collected about users for authentication purposes (likely including credit card data);

Continue reading →

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Google’s New Advertising Trademark Policy & Consumer Welfare

by Berin Szoka on May 15, 2009 · 13 comments

Google has announced that it will soon begin allowing U.S. advertisers to use trademarked keywords in limited circumstances in text ads, much as Yahoo! already does. Google currently allow advertisers to bid on trademarked terms as keywords that could cause an ad to appear, either next to Google search results or on a third-party publisher’s website. That policy will not change, and is discussed here by my PFF colleague Sid Rosenzweig. The new policy is focused on the text seen by users in ads themselves and applies only if the “landing page” (to which the ad links) is used by a reseller, aggregator or parts supplier to sell only products that are relevant to the mark in question, or if the page is used to provide impartial reviews or other information about the trademarked product. The new policy does not apply to sites/pages that (a) facilitate the sale of counterfeit goods, (b) allow the sale of a competitor’s goods, (c) criticize the trademarked good, or (d) do not provide substantial information or a purchase option. Despite these limitations and other safeguards, Google has been sharply criticized by some trademark holders and might even be sued (e.g., for contributory infringement).

I’ll defer to the real trademark lawyers to figure out whether Google is correct that its new policy falls within the bounds of trademark law (particularly the “nominative fair use” doctrine). But since Adam Thierer and I have been involved in an ongoing defense of online advertising against those who would squelch it through regulation in the name of privacy concerns (not at play here), I think it’s important to highlight the potential benefits to users from this seemingly arcane policy change-and to consider what this episode says about online advertising generally. I see three main benefits to consumers from the policy change that should be considered alongside the vitally important role that trademarks play in our economy in communicating reputational information.

First, Google’s new policy will allow consumers to find products more easily because advertisers will be able to offer more descriptive and therefore informative ads, mentioning what they sell by name. Continue reading →

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The Lord’s Prayer of Internet Pessimist Orthodoxy

by Berin Szoka on May 11, 2009 · 8 comments

A few months ago, Adam Thierer penned The Pragmatic (Internet) Optimist’s Creed in response to calls from “Internet pessimists” for increased regulation of the Internet on many fronts. Adam‘s recent 4-way debate with pessimists Larry Lessig and Jonathan Zittrain (as well as optimist Declan McCullagh) inspired me to pen the following cheeky homage to Lessig, the Father of Internet Pessimism, whose work has launched a thousand efforts to increase government control of the Internet in the name, ironically, of “freedom:”

Our Lessig, who art in Harvard,
Hallowed be thy blog.
Thy Free Culture come.
Thy Code be done,
In Washington as it is in thy Ivory Tower.

Give us this day our Net Neutrality.
And forgive us our trespasses against Internet Openness,
As we forgive those who question thy genius,
And lead us not into trusted systems of perfect control,
But deliver us from digital rights management and architectures of identity.

For thine is the wisdom,
and the clairvoyance, and the coolness,
for ever and ever.
Amen.

Lest I become the Salman Rushdie of pragmatic Internet optimists/regulatory-skeptics, let me emphasize that my techno-blasphemy is meant in good humor. But then, that’s probably what poor Rushdie said…

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Naked Pictures of Bea Arthur

by Berin Szoka on May 5, 2009 · 14 comments

… could be illegal under a proposed Massachusetts (per Boing Boing) law that would make it a crime to “photograph with ‘lascivious intent’ a person over the age of 60 or a person with a disability who has been declared mentally incompetent.” Like the recent prosections of teens for sending nude pictures of themselves on Myspace under child pornography laws, the Massachusetts proposal would criminalize the sharing of “lascivious” photos regardless of the consent of the person being photographed.

Arthur would be turning in her (recently-dug) grave. Dorothy Zbornak (her most famous character) might not have been much of a libertarian—it seems safe to assume she, like most progressive Catholics (however fictional) voted for Mondale—but one can easily imagine how her withering sarcasm would lay bare (no pun intended) the noxious paternalism underlying this proposal: It’s bad enough that the government treats adults like children, assuming we’re all not smart enough to make good decisions for ourselves, but must the State really draw a line in the sand beyond which age (60, in this case) Americans officially lose their status as adults and revert to a second childhood in the eyes of the law?

Dorothy and the other Golden Girls would never stand for it. One can only imagine the rage of aging beauty Blanche Devereaux at the crimp this law would have put in her (previously thriving) sex life.

Those who don’t get the title’s reference to the 1994 classic Airheads, or who just plain don’t care for the Golden Girls’ geriatric charms, might nonetheless be crestfallen to realize that the bill could also deny the world naughty pics of developmentally disabled sex kittens like Susan Boyle, the surprise star of Britain’s “Got Talent” (essentially American Idol with worse teeth). (Of course, the bill would apply only if Susan were declared mentally incompetent).

Ah, Susan, be still my beating heart!

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“Internet Openness: Net Neutrality and Beyond” Event in NYC, April 21

by Berin Szoka on April 19, 2009 · 2 comments

If you happen to be in the New York city area next Tuesday, April 21, stop by Cardozo Law school for what promises to be a great event starting at 11:15:

The Cardozo Public Law, Policy & Ethics Journal is pleased to present a symposium on Internet openness, net neutrality, content diversity and competition. What is the new definition of net neutrality and what are the developing mandates? How do policymakers promote or harm the richness and diversity online content/media? Join the lively debate with speakers including Sascha Meinrath (New America Foundation); Berin Szoka (Progress & Freedom Foundation); John Morris (Center for Democracy & Technology); Matthew Lasar (Ars Technica); Fred Benenson (Creative Commons); Jonathan Askin (Brooklyn Law School).

During the 11:30-1 pm panel, I’ll be talking about “Unrecognized to Internet Openness: Regulatory Mandates & Increased Liability”—explaining how the work Adam Thierer & I have been doing about privacy regulation, online advertising, Section 230, age verification mandates, etc. are all fundamentally issues of “openness.” As we noted in our recent response (PDF) to the FTC’s self-regulatory guidelines:

We stand at an important crossroads in the debate over the online marketplace and the future of a “free and open” Internet. Many of those who celebrate that goal focus on concepts like “net neutrality” at the distribution layer, but what really keeps the Internet so “free and open” is the economic engine of online advertising at the applications and content layers. If misguided government regulation chokes off the Internet’s growth or evolution, we would be killing the goose that laid the golden eggs.

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The Pepsi Challenge 2.0, Reputational Incentives & Genericide as a Check on Google’s Brand Power

by Berin Szoka on April 8, 2009 · 12 comments

It seems Microsoft is facing much the same problem Pepsi faced in the 70s, when it created the Pepsi challenge (a blind taste test between Coke and Pepsi):

A stark sign of the challenge Yusuf Mehdi faces as a point man for Microsoft in the company’s battle with Google comes from the company’s own research into the habits of consumers online.

During regular “blind taste tests,” in which Microsoft asks randomly-selected consumers to score the quality of results from various Internet search engines, the quality of Microsoft’s search results have so improved that people can’t tell the difference between Microsoft and Google search results, says Mr. Mehdi, senior vice president of Microsoft’s online audience business group. But when Microsoft slaps the Google brand name on the results from Microsoft’s own search engine during another portion of its tests, users invariably score them highest.

“Just by putting the name up, people think it’s more relevant,” he says.

… Microsoft still faces the problem of the strong association in consumers’ minds between Google and Internet search. In theory, it’s far easier for a consumer to switch Internet search engines than it is for them to switch other forms of software. But Mr. Mehdi–a veteran of the Web browser wars of the late 90s in which Microsoft managed to overtake the pioneer in the category, Netscape Communications–says in reality it’s very hard to convince consumers to change their search behavior.

So, Microsoft faces an uphill battle. Happily for the Internet marketplace, it seems they’re embracing the challenge cheerily by attempting to kill two birds with one stone: launching an innovative new semantic search engine capable of answering users’ questions more directly while also creating a fresh new brand for what Microsoft acknowledges is a “confusing jumble of brand names for its search efforts.” I, for one am looking forward to Microsoft’s forthcoming search engine, dubbed “Kumo.”

But I think there’s a bigger lesson here: Google’s most valuable asset is its brand. Continue reading →

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What “Internet” Means to the Feds

by Berin Szoka on April 6, 2009 · 13 comments

Ever wonder about this? In researching COPPA, I noticed the following definition of “Internet”

collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire, radio, or other methods of transmission.

16 CFR § 312.2 (added in 1999). This definition comes from the COPPA law itself.

My quick and by no means exhaustive research (looked for the term “Internet means” in the CFR and U.S. Code) suggests that this is one of two definitions used, with slight variations, in Federal law (in less than a dozen places total).

The earliest reference I can find to this definition is from the Internet Tax Freedom Act of 1998 (the sales tax moratorium), which differed only slightly: “comprise” instead of “constitute” and omitting the “or other methods of transmission” part. This definition appears again in the child pornography rules issued in 2005 (28 CFR § 75.1).

The other definition I see is appears in the bankruptcy code (15 USCS § 163) and in the 2005 Internet gambling ban (31 CFR § 132.2 and 12 CFR § 233.2): “the international computer network of both Federal and non-Federal interoperable packet switched data networks.”

So which definition is better? Do both suck? Should we care? “Discuss amongst yourselves!”

But no kvetching about the use of the word “myriad.” Someone already beat you to the punch—and got smacked down: Continue reading →

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New Heights in Googlephobia: “A Delinquent, Sociopathic Parasite”?

by Berin Szoka on April 5, 2009 · 15 comments

Leave it to the English—famous for their superior fluency in the language that bears their name—to reach unparalleled heights of hysteria in the war of words being waged against Google. The Guardian’s Henry Porter claims that “Google is just an amoral menace: The ever-growing empire produces nothing but seems determined to control everything.”

Porter declares that Google is the world’s “most prominent WWM,” his acronym for the “worldwide monopolies that sweep all before them with exuberant contempt for people’s rights, their property and the past.”

Google is in the final analysis a parasite that creates nothing, merely offering little aggregation, lists and the ordering of information generated by people who have invested their capital, skill and time. On the back of the labour of others it makes vast advertising revenues – in the final quarter of last year its revenues were $5.7bn, and it currently sits on a cash pile of $8.6bn.

Let’s review Google’s 2008 Annual Report. Of Google’s 2008 Revenue ($21.78 billion), two-thirds ($14.41 billion) came from advertising on Google sites and just under one-third ($6.71 billion) came from advertising on Google Content Network (GCN) web sites (made up of publishers that sell their ad space to advertisers through Google AdSense). On this revenue, Google made a net profit of $4.2 billion after taxes. To put these numbers in context, Microsoft (Google’s closest peer) earned three times ($60.42 billion) Google’s revenue and produced 4.21 times ($17.68 billion) Google’s profit. Google’s revenue was just 0.1528% of 2008 U.S. GDP and its net income, 0.0294%.

So what does Google actually create with all that revenue? The answer is free content and services.

First, Google cross-subsidizes dozens of its own free services—starting with its search engine but also including email, a free browser, YouTube, a word processing suite, IM, maps, news, and much more.

Second, as the world’s leading ad network, Google supports a significant percentage of the free content and services offered by others. In 2008, Google paid out $5.28 billion (24.22% of revenue) to GCN publishers—significantly more than the $4.2 billion Google earned in net income (19.3% of revenue). Continue reading →

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Sinners in the Hands of an Angry Computer

by Berin Szoka on March 28, 2009 · 7 comments

“I have bought this wonderful machine — a computer … it seems to me to be an Old Testament god, with a lot of rules and no mercy.”

– Joseph Campbell, trailblazing comparative mythologist, b. 1904 (Thanks to The Writer’s Almanac)

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GATTACA, Here We Come!

by Berin Szoka on March 27, 2009 · 11 comments

Fascinating article in the WSJ today: “To Sketch a Thief: Genes Draw Likeness of Suspects In the Field of DNA Forensics, Scientists Identify Genetic Markers for Traits Revealing Appearance and Ethnicity.”

Forensic experts are increasingly relying on DNA as “a genetic eyewitness,” says Jack Ballantyne, associate director for research at the National Center for Forensic Science at the University of Central Florida in Orlando, who is studying whether a DNA sample can reveal a person’s age. “We’d like to say if the DNA found on a bomb fragment comes from the young man who carried the bomb or from the wizened old mastermind who built it.”

The push to predict physical features from genetic material is known as DNA forensic phenotyping, and it’s already helped crack some difficult investigations. In 2004, police caught a Louisiana serial killer who eyewitnesses had suggested was white, but whose crime-scene DNA suggested — correctly — that he was black. Britain’s forensic service uses a similar “ethnic inference” test to trace murderers and rapists.

It goes almost without saying that the first impulse of many is to ban this evolving area of technology:

Worried about the ethical and social challenges, Germany doesn’t permit the forensic use of DNA to infer ethnicity or physical traits. Nor do a handful of U.S. states, including Indiana, Wyoming and Rhode Island. The U.K. and the Netherlands allow it.

The main downside I can see to the use of this technology in crime-fighting is that it would be disastrous for the genre of crime fiction. While it certainly sounds like something out of GATTACA (my favorite movie of all time), it would have killed the plot: The genetic-GESTAPO probably would have known that our genetically-defective hero Vincent Freeman (Ethan Hawke) was not in fact, the genetically-engineered-but-crippled superman Jerome Morrow (Jude Law) he claimed to be—and the whole plot would have gone up in smoke. How much fun would that have been?

Interestingly, it seems Hulu once made the entire film available online but no longer does so. Fie on them and their conspiracy to suppress the future! Damn it, Hulu, don’t you know that “There Is No Gene For The Human Spirit?”

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