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.


Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause

by on November 3, 2011 · 8 comments

I just posted the following comment in response to Scott Cleland’s piece on Forbes: Why Anti-Piracy Legislation Will Become Law.

Scott, have you read my colleague Larry Downes dissection of SOPA over on CNET?  The problem isn’t that the bill is too hard on pirates, but that trying to punish piracy in such a crude and draconion manner has plenty of negative unintended consequences:

SOPA effectively introduces new monitoring requirements for all websites that allow user content, even comments posted to blogs. Rightsholders.. need only “a good faith belief that a Web site is ‘avoiding confirming’ infringement, and they can demand that payment systems and advertising networks cease doing business with the Web site.”

Larry suggests that lawmakers’ focus is simply misguided:

If parasitic foreign Web sites are truly costing the U.S. economy significant losses (a claim made regularly by content industries but without credible data to back it up), then the best use of government resources is not to surgically remove hyperlinks and DNS table entries. Rather, we should step up the pressure on foreign governments to enforce their own laws and international treaties extending U.S. protections abroad.

And indeed, one positive development in SOPA is a provision that does just that. It requires both the State and Commerce Departments to make protection of U.S. copyright and trademark a priority in both diplomatic and trade negotiations. To fulfill SOPA’s stated goal of reducing foreign infringement of U.S. interests, that section should have been the beginning and the end of the bill.

The proposed legislation, unfortunately, goes much farther, losing sight of any actual harms in need of legislative correction, and invoking repeatedly the likely application of the law of unintended consequences.

Larry’s focus on the unintended consequences of regulation, and his emphasis on finding narrow solutions to clearly defined problems is what prudent policymaking should be about.  In fact, that’s why Larry and I at TechFreedom have been so critical of net neutrality regulations as a sweeping, prophylactic remedy for an ill-defined problem when less restrictive alternatives like enforcing antitrust laws and consumer protection laws would work better.  In fact, I seem to recall that you on the same side as us in those arguments!

But I’m sorry to say that I realized long ago that, while we arrived at the same place on net neutrality, we came to it from profoundly different places.  I won’t presume to speculate as to exactly what motivates you, but it sure isn’t the prudent conservatism of Edmund Burke or F.A. Hayek’s focus on the limitations of human knowledge and the dangers of top-down planning. Continue reading →

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5 Questions New FCC Commissioners Should Ask About Need for New & Existing Regulations

by on November 1, 2011 · 0 comments

Yesterday, President Barack Obama announced two nominations to the Federal Communications Commission: Jessica Rosenworcel, replacing Democratic Commissioner Michael Copps, and Ajit Pai, replacing Republican Commissioner Meredith Attwell Baker.

The FCC faces a unique challenge: Because it regulates the communications industry, essentially every rule it issues implicates the free speech values at the heart of our Constitutional heritage. The First Amendment was intended to be a shield against government meddling, not a sword for regulatory activism, however well-intentioned. Moreover, the FCC regulates an industry being transformed by the Digital Revolution.

We at TechFreedom look forward to working with these new Commissioners to ensure that FCC regulations serve consumers by advancing competition and innovation while respecting free speech rights. The Commission should ask, and explicitly answer, the following questions whenever considering the need for new, or existing, regulations:

  1. What free speech rights are at stake?
  2. How substantial is the government’s interest? Has the market failed?
  3. Can regulation, always slow to start and slower to adapt, really address the problem better than technological change?
  4. Will the regulation’s benefits outweigh its costs, considering its likely unintended consequences?
  5. Are there less-restrictive and more speech-protective ways government can achieve its interest, such as enforcing existing antitrust and consumer protection laws, supporting consumer education, empowering users to make their own decisions, or compelling disclosure to consumers?

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TechFreedom Joins Call to Action to Reform ECPA on Its 25th Anniversary

by on October 21, 2011 · 0 comments

TechFreedom is calling on all Americans to stand up for their digital Fourth Amendment rights. The Constitution delicately balances privacy with the needs of law enforcement by making judges responsible for determining whether law enforcement has established ‘probable cause.’ This judicial warrant requirement has always been the crown jewel of our civil rights. Our Founding Fathers would be appalled to learn that this fundamental principle does not extend to our electronic communications and location. After all, they fought–and won–a revolution to prevent similar abuses by British authorities.

TechFreedom has joined with a philosophically diverse coalition of public interest groups in supporting the “Not Without a Warrant” grass-roots petition, which reads as follows:

The government should be required to go to a judge and get a warrant before it can read our email, access private photographs and documents we store online, or track our location using our mobile phones. Please support legislation that would update the Electronic Communications Privacy Act of 1986 (ECPA) to require warrants for this sensitive information and to require the government to report publicly on the use of its surveillance powers.

Today marks the 25th anniversary of ECPA’s passage. Anyone can sign the petition at NotWithoutAWarrant.com or show their support by liking the Facebook version.

TechFreedom Senior Adjunct Fellow Charlie Kennedy spoke at a Cato Institute event on Wednesday about modernizing ECPA. The video is archived here.

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FTC Punishes P2P Company for Unfairly Tricking Users to Share Private Data

by on October 11, 2011 · 0 comments

While policymakers rush write new Net regulations to protect privacy, we keep suggesting the FTC use its existing authority more effectively to punish unfair and deceptive trade practices. The FTC has just sued FrostWire for designing their peer-to-peer software to trick users into oversharing:

FrostWire for Android… was likely to cause a significant number of consumers installing and running it on their mobile computing devices to unwittingly share files stored on those devices.  The Defendants had configured the application’s default settings so that, immediately upon installation and set-up, many pre-existing files on the mobile device were designated for sharing.  These files could be shared through the Internet, and through any given… WiFi… network… with other FrostWire for Android users…  These shared files thus were available to other people in the consumer’s immediate vicinity and throughout the world to download and share further. Nothing in the installation and set-up process… adequately informed consumers of the immediate consequences of installing FrostWire for Android; nor could consumers be expected to know these consequences from any prior experience with other software.

The FTC has made a pretty good case that this qualifies as an unfair practice:

Under Section 5(n) of the FTC Act, an act or practice is “unfair” if it causes or is likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and is not outweighed by countervailing benefits to consumers or to competition

In particular, the FTC notes the potential harms caused by inadvertently sharing all the files on your phone: Continue reading →

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Public Interest Groups Across Spectrum Oppose Net Neutrality Regulation, Too

by on October 7, 2011 · 0 comments

Yesterday’s Wall Street Journal’s story on the legal challenge to Net Neutrality regulation opens as follows:

Efforts by public interest groups to get a legal challenge to the Federal Communications Commission’s new “net neutrality” rules heard somewhere other than the U.S. Court of Appeals for the D.C. Circuit belly-flopped Thursday when the D.C. Court won the case in a random lottery.

I’ve responded with the following comment:

The first sentence of this article reinforces the common misconception that “public interest” groups support net neutrality regulations while only corporations oppose them.

In fact, many large corporations have supported these regulations, while a wide array of public interest, non-profit groups oppose the FCC’s net neutrality regulations. Those include a variety of free market groups such as TechFreedom (my own think tank), the Competitive Enterprise Institute, FreedomWorks and Americans for Tax Reform, but also left-leaning civil liberties groups such as the Electronic Frontier Foundation, which called the FCC’s rules a “Trojan Horse” for other regulation because they set a dangerous precedent that would give the FCC broad powers in other areas, such as content regulation or copyright.

If a Democratic FCC can invent the authority to issue Net Neutrality rules, an FCC Chairman appointed by a socially conservative president could implement the agenda of censorship advocates such as the Parents Television Council’s founder Brent Bozell—which might explain why those groups have supported the Net Neutrality regulation.

FCC Commissioner Robert McDowell demolished the idea that these Internet regulations would serve the “public interest” in a scathing dissent when the FCC issues these illegal rules. He emphasized that real net neutrality problems could be handled first through mediation processes and, if necessary, through consumer protection and antitrust laws.

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What Censoring Violent Content Looks Like

by on October 6, 2011 · 0 comments

A year ago, I filed a joint amicus brief with the Electronic Frontier Foundation urging the Supreme Court to overturn California’s paternalistic law on the dangerous grounds that videogame depictions of violence constituted “obscenity” unprotected by the First Amendment. Fortunately, we won. Thus, the First Amendment protects all media, while parents have a variety of tools available to them to limit what content their kids can consume, or games they can play.

But in case you’re wondering what the world might look like had the decision gone the other way, check out the contrast between the US version of Maroon 5’s hit song “Misery” and the UK version. First, here’s the (raucous and sexy) US version:

Now, here’s the UK version, where the sexually suggestive parts remain (kids love that stuff) but all the “violent” parts have been replaced with, or covered by, ridiculous cartoon images. Really, it’s just too funny. The best part is where the knife she uses to stab the gaps between his fingers on the table has been replaced with a cartoon ice cream cone. Don’t try that at home, kids—you’ll make a chocolatey mess! Continue reading →

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Copyright, Done Right: Warrantless Factory Searches Aren’t the Right Way to Stop DVD Piracy

by on October 4, 2011 · 2 comments

California police will now be able to conduct warrantless searches of optical disc (DVD, CD, BluRay) factories to look for piracy and seize pirated discs, under a bill just signed by California Governor Jerry Brown (full text). Even those who think copyright law has gone much too far, or cherish fair use, shouldn’t defend such blatant, commercial piracy, which does nothing but deny creators the market for their artistic products. One need only look at China to see how such infringement can destroy creative industries.

The bill’s sponsors justify this law as necessary to enforce existing laws that require manufacturers to label discs so their origin and validity can be established. That seems like a reasonable requirement and one worth enforcing.  But like the Electronic Frontier Foundation, I’m highly skeptical the courts will uphold the constitutionality of this law. And I worry about the consequences of upholding warrantless searches. The debate centers on whether optical disc manufacturing qualifies as a “closely regulated industry” under New York v. Burger, 482 U.S. 691, 701. (1987). The sponsors argued:

In determining whether a particular industry is closely regulated, the Court looks to a history of regulation in the industry as well as the hazardous nature of the industry. Examples of closely regulated industries that fall under this exception include auto dismantling yards and the mining industry. Here, the optical disc manufactures are subject to the provisions of chapter 11.5 of the Business and Professions Code, as well as 653h and 653w of the Penal Code [California’s anti-copyrighting laws]. These manufacturers are also subject to federal copyright restrictions. These provisions may be enough for a court to determine that this industry is closely regulated, and therefore, potentially subject to administrative searches.

That’s a pretty weak argument—and one that could sweep in a wide variety of other industries, including media. That analysis goes on to allege that the searches and seizures authorized by the bill would be reasonable, which EFF also disputes on all points. As a subsequent California Senate committee counsel’s official legal analysis noted, “It is unclear whether this bill, which allows law enforcement to search private property without a warrant, would stand up to a constitutional challenge.” That official analysis, which covers both sides of the argument goes on to note (p. 7) the First Amendment problems raised by deeming any media business, including those that only manufacture physical media, as “closely regulated.”

The bill’s sponsors make a second argument that would set an even more dangerous precedent: Continue reading →

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Top 10 Antitrust Fallacies to Watch for at Today’s Google Antitrust Hearing

by on September 21, 2011 · 8 comments

by Berin Szoka & Geoffrey Manne

In advance of today’s Senate Judiciary hearing, “The Power of Google: Serving Consumers or Threatening Competition?,” we’ve assembled a list of fallacies you’re likely to hear, either explicitly or implicitly:

  1. Competitors, not Competition.  Antitrust protects consumer welfare: competition, not competitors.  Competitors complain because a practice hurts them, but antitrust asks only whether a practice actually hurts consumers. The two are rarely the same.
  2. Big Is Bad. Being big (“success”) isn’t illegal.  Market share doesn’t necessarily create market power.  And even where market power does exist, antitrust punishes only its abuse.
  3. Burden-Shifting. Google, like any defendant, is presumed innocent until proven guilty.  So Google’s critics bear the burden of proving both that Google has market power and that it has abused that power to the detriment of consumers.  Yet, ironically, it’s Google at the table defending itself rather than the antitrust agencies explaining their concerns.
  4. Ignoring Error Costs. The faster technology moves, the greater the risk of a “false positive” and the more likely “false negatives” are to be mooted by disruptive innovation that unseats incumbents.  Thus, error costs counsel caution.
  5. Waving the Magic Wand.  Google’s critics often blithely assume that Google is “smart enough to figure it out” when it comes to implementing, or coping with, a wide range of proposed remedies.  But antitrust remedies, like all regulation, must be grounded in technological reality, and we must be realistic about real-world trade-offs.

Continue reading →

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Blackburn DC Privacy Roundtable 9/14: The Free-Market, Pro-Data Approach

by on September 13, 2011 · 1 comment

Come hear the other side of the privacy debate! Rep. Marsha Blackburn (R-TN) will lead a discussion among policy experts united by a desire to address demonstrated dangers of data abuse without giving up the value created by data as the vital currency of the digital economy. The Roundtable  is Wednesday, September 14, 8-9:30 am in Congressional Visitors Center Meeting Room North, CVC 268:

The roundtable discussion will cover online privacy issues in anticipation of the final reports to be released this fall by the Department of Commerce and the Federal Trade Commission. Invited participants will consider questions and policy issues related to the value of data, where government should or shouldn’t be involved in regulating online privacy, and alternatives to government regulation.

Congressman Blackburn, a member of the House Energy and Commerce Subcommittee on Telecommunications and vice chair of the Subcommittee on Commerce, Manufacturing, and Trade, pledged to conduct a national series of tech industry roundtables in a speech to the Telecommunications Industry Association earlier this year. Her first roundtable was held in late June at the Interactive Advertising Bureau’s new online advertising community center in New York City. Congressman Blackburn also recently wrote an op-ed titled “The FTC’s Internet Kill Switch” that addresses why any proposed privacy regulation must consider the costs of diminished competition and innovation.

I shared my thoughts on Rep. Blackburn’s healthy skepticism of regulation in a CNET editorial in June: On Online Privacy and Avoiding overregulation. The TLF’s Ryan Radia (Competitive Enterprise Institute), Jim Harper (Cato), Larry Downes and I (both TechFreedom) will be there.  Joining us will be Howard Beales (George Washington University School of Business), Daniel Castro (Information Technology and Innovation Foundation), Harold Furchgott-Roth (Hudson’s Center for Economics of the Internet), Tom Lenard (Technology Policy Institute) and Randy May (Free State Foundation)/

Adam Thierer & I laid out our “Principles to Guide the Debate” on online privacy nearly three years ago, asking that those proposing regulation:
  1. Identify the harm or market failure that requires government intervention.
  2. Prove that there is no less restrictive alternative to regulation.
  3. Explain how the benefits of regulation outweigh its costs Continue reading →

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What’s in a Pseudo-name? Privacy, Free Expression & Real Names on Google+ & Facebook

by on August 29, 2011 · 6 comments

Republished from The Mark News

Privacy advocates are attacking Google again, this time for requiring that field-testers of its new, invite-only Google+ social network use “the names they commonly go by in the real world.” After initially suspending Google+ accounts flagged as pseudonymous, Google has clarified that such users will be given four days to add their real names to their profiles. Users who don’t like the policy can export all data they’ve put into Google+ and leave.

Cyber-sociologist Danah Boyd calls “real name” policies “an authoritarian assertion of power … [by] privileged white Americans … over vulnerable people [like] abuse survivors, activists, LGBT people, women, and young people.” In 2003, she denounced the “Fakester genocide” perpetrated by Friendster, the first major “real name” social network. Facebook later faced similar criticism from her and others for its purge of “Fakebookers” – those using fake names on the popular social network.

Boyd and others are right that anonymity can be “a shield from the tyranny of the majority,” as the U.S. Supreme Court has said while striking down laws requiring speakers to identify themselves. But, like the rest of the First Amendment, the right to anonymous speech limits government, not private actors. In other words, while the First Amendment bars government from forcing us to identify ourselves, those who sign up for Google+ must play by Google’s rules.

Boyd wants to regulate social-media giants as public utilities, but – unlike government bans – we can opt out of these services. Google and Facebook merely offer trusted communities that compete with sites like Twitter, where pseudonyms thrive alongside real names. With over 200 million users, Twitter has met the very demand Boyd cites –but she’s not satisfied.

As a gay activist myself, I’m sympathetic to her privacy concerns. But, as much as I respect Boyd, I find her obsession with “privilege” unhelpful. The engineers who design new social-networking tools may indeed tend to under-value the concerns of particularly privacy-sensitive users or groups. But their critics under-value authenticity’s benefits even more – or simply refuse to acknowledge that privacy is in tension with civility and usability, among other values. Continue reading →

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