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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ICANN’s gTLD Proposal Hits a Wall: Now What?

by Berin Szoka on December 22, 2008 · 6 comments

Mike Palage, the first Adjunct Fellow at PFF’s Center for Internet Freedom, just published the following piece on the PFF blog.

ICANN‘s plan to begin accepting applications for new generic top-level domains (gTLDs) in mid-2009 may have been derailed by last week’s outpouring of opposition from the global business community and the United States Government (USG). Having been involved with ICANN for over a decade and having served on its Board for three years, I’ve never seen such strong and broad opposition to one of ICANN’s proposals.

This past June, the ICANN Board directed its staff to draft implementation guidelines based upon the policy recommendations of the Generic Names Supporting Organization (GNSO) that ICANN should allow more gTLDs such as .cars to supplement existing gTLDs such as .com. In late October, the ICANN staff released a draft Applicant Guidebook detailing its proposal. The initial public forum on this proposal closed on December 15-with over 200 comments filed online.

In its December 18 comments, the USG questioned whether ICANN had adequately addressed the “threshold question of whether the consumer benefits outweigh the potential costs.” This stinging rebuke from the Commerce Department merely confirms the consensus among the 200+ commenters on ICANN’s proposal: ICANN needs to do more than merely rethinking its aggressive time-line for implementing its gTLD proposal or tweaking the mechanics of the proposal on the edges. Instead, ICANN needs to go back to the drawing board and propose a process that results in a responsible expansion of the name space, not merely a duplication of it.

Continue reading →

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Martin Abandons Unconstitutional Filitering Proposal; What About Obama’s Universal Broadband?

by Berin Szoka on December 14, 2008 · 22 comments

Chairman Mao–er… Martin–has canceled (WSJ) the FCC’s December 18 meeting, when the Commission was set to vote on Martin’s proposal to rig an auction to give away a valuable piece of spectrum (“AWS-3”) to M2Z networks. In exchange for a sweetheart deal on the spectrum, the company would have been required to use a quarter of it to provide a free (but very slow) wireless broadband service. Martin had initially proposed to require that the service be made porn-free, but eventually suggested that users over 18 would be able to opt-out of network-level filtering.

Two weeks ago, when it became clear that Martin would attempt to ram this proposal through while he still could, I asked how the ascendant Left would respond:

Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue? Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the “public airways” onto the Net (where the underlying rationale of traditional broadcast regulation–that parents are powerless–does not apply)?

I’m glad to see that the deathblow to this unconstitutional proposal did indeed come from the political Left–specifically, from Sen. John Rockefeller, (D-W.Va.) and Rep. Henry Waxman, (D-Calif.), who will be responsible for overseeing the FCC in the new Congress. (The Bush administration had already opposed the proposal, as with so many of Martin’s abuses, had failed to stop it.)

With President-elect Obama having declared that, “Here in the country that invented the Internet, every child should have the chance to get online,” it seems almost certain that the Administration will press ahead with some kind of universal broadband proposal of its own. But what would such a proposal look like? If it’s another public broadband utility, would it include network-level filtration like Martin’s proposal? If so, will the Democratic opponents of government censorship stick by their principles and fight that, too?

I suspect we may find that what’s constitutional is politically impossible (unfiltered free Internet) and what’s politically possible (filtered free Internet) is unconstitutional. Continue reading →

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Obama Transition Team Seeks Public Comment on Space Solar Power

by Berin Szoka on December 10, 2008 · 22 comments

The Space Frontier Foundation, the 20-year old free-market space advocacy organization I chair, released the following press release yesterday:

President-elect Obama’s transition team has published for public comment a white paper entitled Space Solar Power (SSP) – A Solution for Energy Independence & Climate Change. The paper was prepared and submitted by the Space Frontier Foundation and other citizen space advocates, and calls for the new Administration to make development of Space Solar Power a national priority.

The SSP white paper was among the first ten released by the Obama transition team. It is the first and only space-related white paper released by the transition team to date. With 145 comments thus far [now 209], it is already among the top five most-discussed of the 20-some white papers on Change.gov.

Foundation Chairman Berin Szoka called upon all Americans to join the discussion about Space Solar Power at Change.gov: “For over twenty years, the Space Frontier Foundation has championed Space Solar Power as a world-changing technology that could do more to improve life here on Earth than any space program or commercial space venture ever. We applaud the Obama transition team’s interest in developing Space Solar Power as a clean energy source that could significantly reduce U.S. dependence on strategically vulnerable energy sources.”

The Foundation was created in 1988 to advocate for the space industrialization and space settlement ideas of Princeton Physicist Dr. Gerard O’Neill’s Space Studies Institute, including Space Solar Power. The Foundation has testified three times (in 1995, 1997 and 1998) to the U.S. Congress in support of Space Solar Power. In 2000, the Foundation completed a $100,000 project for NASA on Assessment, Outreach, and Future Research of Environmental and Safety Factors related to Space Solar Power. Most recently, the Foundation has sponsored a public discussion to generate input for the National Security Space Office’s SSP study, published in October 2007, which concluded that SSP had “enormous potential.” The Foundation also published comments on that study.

“Harnessing Space Solar Power is a huge challenge,” Szoka concluded. “While we support a national initiative for Space Solar Power, we do not support, nor can the taxpayers afford, another massively expensive ‘White Elephant’ government space program. Only real ‘Change’ in how we pursue national space objectives can make SSP competitive with other energy sources. We believe the private sector will eventually develop SSP-the only questions are how long it takes and which country will lead. The government cannot economically develop SSP on its own, but it can assist the U.S. private sector by funding basic R&D, creating the right investment incentives, and buying SSP for its own needs. Such an unprecedented collaboration between the private and public sectors could build not just another program, but a new, green industry that would create large numbers of high-paying jobs for American citizens. Someday, well into this century, the SSP industry could even turn America into a net energy exporter.” Continue reading →

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Who Owns the Moon?

by Berin Szoka on December 10, 2008 · 15 comments

My Romanian space lawyer (and improbably-named) friend Virgiliu Pop has made the front page of Space.com today in a great interview with leading space journalist Leonard David about his new book Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership. Virgil slams the “Common Heritage of Mankind” socialism behind the 1979 Moon Treaty, which was killed in the U.S. Senate by the free-market space movement, which later gave birth to the Space Frontier Foundation (which I chair).

Virgil once famously claimed ownership of the sun to demonstrate the absurdity of serious assertions made by a number of charlatans to ownership of lunar territory (Dennis Hope) or the entire Eros asteroid (Greg Nemitz). Virgil’s point was “to show how ridiculous a property rights system in outer space would be if it were to be based solely on claim unsubstantiated by any actual possession.”

I’m looking forward to reading Virgil’s book–and to writing a proper review. For now, I’ll just say that I think Virgil and I see eye-to-eye on three key premises (something of a rarity among space lawyers on the ultra-contentious issue of property rights):

The Outer Space Treaty of 1967 prohibits nations from appropriating territory in space and also prohibits individuals from asserting any territorial claims (generally accepted) except to a narrowly-limited area under actual use (not accepted by all space lawyers).
The Outer Space Treaty, properly understood, does not bar claims to ownership of movable objects such as extracted resources or even (if they can be moved in a meaningful way) entire asteroids or comets.
Securing such property rights is essential to the economic development of space.

Here are a few choice excerpts from Virgil’s new book on the big picture of property rights in space: Continue reading →

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PFF Amicus Brief in Key First Amendment Case: Limits on Audience Size are Unconstitutional

by Berin Szoka on December 7, 2008 · 26 comments

Ken Ferree and I just filed an amicus brief with the D.C. Circuit in what could be among the most important First Amendment cases involving economic regulation in years: Comcast’s challenge to the FCC’s cap on the maximum size of a cable operator’s nationwide subscriber-audience. While few may feel righteous indignation at limitations targeted at large corporations such as Comcast or Time Warner, the larger principle at stake here is deeply important: Will the First Amendment provide a meaningful check on what USC law professor Chris Yoo has called “architectural censorship” (i.e., so-called “structural” regulations that “have the unintended consequence of reducing the quantity, quality, and diversity of media content”).

In a nutshell, we argue that that:

The provisions of the 1992 Cable Act authorizing the FCC to impose a “cable cap” are outdated in world of media abundance and vibrant platform competition.
Because cable is no longer the unique “bottleneck” or “gatekeeper” that it was in 1992, these statutory provisions (not just the FCC’s 30% rule) must be subject to strict scrutiny under the First Amendment as a limitation on free speech.
Because there are “less restrictive means” of ensuring cable operators do not impede the flow of video programming to consumers, the court should strike down these provisions.
Even if the court upholds the statute, it should nonetheless strike down the cap issued by the FCC in December 2007 (30% of all Multichannel Video Programming (MVPD) subscribers as based on an outdated model of the video marketplace.

I encourage you to read our brief (below). I’ve provided a summary below, along with some additional commentary we just couldn’t cover under our 3500 word limit.

Strict Scrutiny. Yoo’s article Architectural Censorship and the FCC is essential reading for anyone who believes that government regulations on the size and shape of the “soapbox” can have huge effects on speech itself. Yoo argues that the First Amendment should check this kind of regulation–however “content-neutral” it might seem–under “strict scrutiny”, which requires that the government show that a regulation is the “least restrictive means” available for advancing a “compelling government interest.” But Yoo ultimately concludes (pp. 713-718, PDF pp. 45-50) that, under existing precedent, most “architectural censorship will be effectively insulated from meaningful judicial review.” Continue reading →

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Google Policy Fellowship Applications Due December 12

by Berin Szoka on December 4, 2008 · 4 comments

Full-time students looking for a summer job in technology policy should apply today! From my October post about this:

Google has just announced that it is now accepting applications from undergraduate, graduate and professional students for its summer 2009 Google Policy Fellowship. Three think tanks employing TLFers are among the host organizations participating in the program: The Progress & Freedom Foundation, the Cato Institute and the Competitive Enterprise Institute.

Applications are due by December 12, 2008. The program will run for ten weeks during the summer of 2009 (June-August). Apply today!

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M2Z Reborn: Censored, but Free, Broadband is Now Kevin Martin’s Top Priority

by Berin Szoka on December 1, 2008 · 11 comments

Back in June, Adam Thierer and I denounced (PDF) Kevin Martin’s plans to create broadband utility to provide censored (and very slow) broadband for free to all Americans. The WSJ reports that this scheme is now at the top of Martin’s December agenda:

The proposal to allow a no-smut, free wireless Internet service is part of a proposal to auction off a chunk of airwaves. The winning bidder would be required to set aside a quarter of the airwaves for a free Internet service. The winner could establish a paid service that would have a fast wireless Internet connection. The free service could be slower and would be required to filter out pornography and other material not suitable for children. The FCC’s proposal mirrors a plan offered by M2Z Networks Inc., a start-up backed by Kleiner Perkins Caufield & Byers partner John Doerr.

Adam’s August follow-up piece is also well worth reading.

One could speculate as to how big an impact this service would really have. Having just spent two weeks “wardriving” around Paris, Abu Dhabi and Dubai (looking for open wi-fi hotspots to try to get Internet access on my otherwise non-functional smart phone), I could certainly imagine scenarios in which some people might well use even a slow wireless service at least as a supplement to another provider–if their devices supported it. But however useful the service might be to some people, and whether any company would actually want to build such a system in the first place if they have to give away such service, I think it’s a safe bet that if this is actually implemented, it will represent a victory for government censorship over content some people don’t like.

If this idea is still alive and kicking when the Obama administration has security escort Martin out of FCC headquarters in January–to hearty applause from nearly all quarters in Washington, no doubt–it will be interesting to see which impulse prevails on the Left, both within the new Administration and in the policy community. Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue? Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the “public airways” onto the Net (where the underlying rationale of traditional broadcast regulation–that parents are powerless–does not apply)?

Hope springs eternal.

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“Virtual Worlds, Video Games and the Law” – 12/2 Event in DC

by Berin Szoka on November 29, 2008 · 11 comments

My good friend Jim Dunstan will be speaking to the “Games Gateway” meet-up group for the U.S. Mid-Atlantic Region on Dec. 2 at 6:30 pm about the legal issues affecting video game developers.

Did you know that enabling gamers to talk via voice while in a virtual world may subject you to FCC regulations? Or that the Child Online Privacy Protection Act under the FTC must be followed for game sites that knowingly include children under the age of 13? Whether you are a developer of console, PC or online games and worlds, there are legal issues which you need to keep in mind. Many of them are surprising, so join us to hear James Dunstan, partner at Garvey Schubert and Barer, an expert in video game and telecommunications law, discuss the ins and outs of interesting legal issues, what you as a game developer need to keep in mind, and steps to take as you develop your next game.

Besides being a space/Internet/communications lawyer (my alter ego!), Jim’s a video game programmer himself and has spent years advising video game clients. RSVP here.

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$2 Billion Can Buy Real Change in Space—or More of the Same

by Berin Szoka on November 6, 2008 · 5 comments

The Space Frontier Foundation issued this press release today, following our earlier call for NASA to fund its COTS-D program for demonstrating commercial human spaceflight capabilty.

The Space Frontier Foundation today called on President-elect Barack Obama to use the innovation and drive of American entrepreneurs to “close the Gap” in U.S. human spaceflight after the Space Shuttle is retired in 2010.

President-elect Obama has promised $2 billion in additional funding for NASA to address the Gap, when the U.S. will be dependent upon Russia’s Soyuz for crew access to the International Space Station. But two of the options proposed – extending Space Shuttle operations or accelerating the Constellation program – wouldn’t reduce the current estimate of a five year gap by much.

“Space leaders are considering three or four options for reducing the Space Gap, but only one reflects the spirit of positive change that Senator Obama campaigned on,” said Foundation Chairman Berin Szoka. “According to NASA’s own estimates, flying the Shuttle beyond 2010 will cost at least $2 billion per year, so that only cuts the Gap by one year. And $2 billion is a drop in the bucket for Constellation, at best helping to address shortfalls that the Congressional Budget Office just predicted will add another 18 months to the Gap.”

A third option is being considered by some at NASA, according to published reports: Strip the Orion Crew Exploration Vehicle of the capability to support Lunar exploration, making it simpler and lighter, and supposedly easier to complete sooner.

“This idea is crazy, because it will strand NASA in low Earth orbit, instead of exploring the solar system,” said Foundation co-founder Rick Tumlinson. “The whole point of the Vision for Space Exploration was to send NASA’s Lewis & Clarks further out into the frontier, to the Moon, Mars, and near-Earth asteroids, while the private sector takes over Earth orbit. Cutting Orion back gives us ‘Gemini on steroids’, which would be a change for the worse.”

“The only option that makes sense is to use President-elect Obama’s promised $2 billion to catalyze as many as five new commercial human spaceflight companies that will compete to close the Gap using the safest, most capable and affordable system they can develop,” said Will Watson, Foundation Executive Director.

“Let’s not put all our eggs in one basket by pouring even more money into the Shuttle, an old system that’s on its last legs, or a controversial new program that’s already behind schedule,” Watson said. “If we’re serious about closing the Gap and about making humanity’s presence in space economically sustainable, we need real change in how we put humans in space. Let’s use this $2 billion to stimulate multiple entrepreneurial systems that will not only slash costs, improve safety, and close the Gap, but also help create a whole new space industry with new jobs here in America.”

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Alcohol Liberation Front Thursday, Nov. 6 with Jonathan Zittrain

by Berin Szoka on November 4, 2008 · 8 comments

As Adam noted last week, he’ll be debating Jonathan Zittrain, author of The Future of the Internet–And How to Stop It, at the New America Foundation this Thursday afternoon at 3:30. Since it seems like a number of TLF readers and contributors will be attending, we’ve decided to piggyback off the event and continue the discussion afterwards with Alcohol Liberation Front 6. After the NAF panel is over, we’ll be headed to Gazuza (1629 Connecticut Ave, NW), probably arriving shortly after 5:30 or so. JZ, Adam, and some of the TLF gang will be joining us, and we hope you will too.

WHAT: Alcohol Liberation Front 7
WHEN: Thursday, November 6 from 5:30pm on
WHERE: Gazuza (1629 Connecticut Ave NW)
WHO: Adam Thierer, Jonathan Zittrain, TLFers, and you! See who else is coming at our Facebook event page.

(Special thanks to one-time TLF contributor and libertarian folk hero Brooke Oberwetter for organizing this event.)

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