Articles by Jerry Brito

Jerry is a senior research fellow at the Mercatus Center at George Mason University, and director of its Technology Policy Program. He also serves as adjunct professor of law at GMU. His web site is jerrybrito.com.


John Palfrey on interoperability

by on June 19, 2012

John Palfrey of the Berkmann Center at Harvard Law School, discusses his new book written with Urs Gasser, Interop: The Promise and Perils of Highly Interconnected Systems. Interoperability is a term used to describe the standardization and integration of technology. Palfrey discusses how the term can describe many relationships in the world and that it doesn’t have to be limited to technical systems. He also describes potential pitfalls of too much interoperability. Palfrey finds that greater levels of interoperability can lead to greater competition, collaboration, and the development of standards. It can also lead to giving less protection to privacy and security. The trick is to get to the right level of interoperability. If systems become too complex, then nobody can understand them and they can become unstable. Palfrey describes the current financial crises could be an example of this. Palfrey also describes the difficulty in finding the proper role of government in encouraging or discouraging interoperability.


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Your right to be forgotten and my right to speak

by on June 7, 2012 · 2 comments

Earlier this week I [interviewed Andrew Keen](http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten) about his new book, [*Digital Vertigo*](http://www.amazon.com/exec/obidos/ASIN/0312624980/jerrybritocom/ref=nosim/), and pressed him on his support for a ‘right to be forgotten.’ I noted that such a right would conflict with free speech rights, and he begged to differ.

“My own data, which I have published on the web, I should have a right, if I choose, for that data to go away,” he said. “That doesn’t impact in any way on your right to speak.”

This is a view of the EU’s proposal that I’ve heard from several folks, and I wanted to take a moment to explain why it’s mistaken. If the proposed EU right only covered information held by you that you wanted to unpublish–from Facebook, Tumblr, a self-hosted blog, etc.–then we wouldn’t need a right. Those services give you that ability right now, and if they didn’t, I don’t think folks would patronize them.

No, the right that Vivianne Redding [has outlined](http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf) is not a right to erase information held *by* oneself, but a right to erase data held *about* oneself. For example, in researching this post, I searched for an essay by Joris van Hoboken, an info law PhD candidate in Amsterdam, that made a great case against the right to be forgotten. As it turns out, the [blog post](http://www.jorisvanhoboken.nl/?m=201112) I was looking for had been removed. His whole site is down, perhaps for technical reasons, but perhaps because he has changed his mind and is now embarrassed by his previous views and wants them erased from the internet. Luckily, I had saved the essay in Evernote and you can [see it here](https://www.evernote.com/shard/s1/sh/6c0ac9a9-a4e5-43a0-a3a5-dd199288f0ed/480384e51c18b5bea3ffffb68c215686).

Now, van Hoboken might have the power under copyright law to make me take down the essay, but he has no right to keep me from writing about the fact that he wrote such a (potentially embarrassing) essay and even summarizing or excerpting it. *That* is the right that the EU would like to confer on citizens, and my right to speak is the one it wants to curtail.

The proposal does state that a “controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary for exercising the right of freedom of expression[.]” The problem with this exemption is that it creates an opportunity for the government to decide what kind of speech qualifies as legitimate expression, and which one does not. I would like to see those opportunities limited.

In his book, Keen [is critical](http://books.google.com/books?id=CUhIjwAYRGoC&lpg=PP1&dq=digital%20vertigo&pg=PA54#v=onepage&q=giggs&f=false) of the twittering masses who disobeyed the British High Court’s [superinjunction](http://techland.time.com/2011/05/21/twitters-super-duper-u-k-censorship-trouble/) on speaking about Ryan Gigg’s extramarital affair. Keen might think that such superinjunctions are legitimate and appropriate, and that the state should sometimes determine what content is and is not appropriate for free expression. But that’s different from pretending that a right to privacy does not conflict with a right to free speech.

Paul Bernal puts his finger on it when [he writes](http://zine.openrightsgroup.org/features/2012/the-right-to-be-forgotten),

>[T]he cultural differences in attitudes to privacy and free speech in the EU and the US. In the EU, and particularly in Germany, privacy is taken very seriously, and the rights that people have over data are considered crucial. In the US, privacy very much takes second place to free speech – anything that can even slightly infringe on free speech is likely to face short shrift. The right to be forgotten has been very actively opposed in the US on those grounds–[Jeffrey Rosen in the Stanford Law Review](http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten) calling it the ‘biggest threat to free speech on the internet in the coming decade’.

>Who is right? Neither, really. The right is not what its more active opponents in the US think it is–but neither has it been written tightly enough and carefully enough to provide the kind of practical, realisable right to delete personal data that the EU would like to see.

Yes, our cultural lenses do make us see free speech in different ways. And yes, maybe we in the U.S. are a bit sensitive about our speech rights. But the way the proposal is written now, we have good reason to be. It would not be too difficult to use such a ‘right’ for censorship.

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Andrew Keen on the negative effects of social media

by on June 6, 2012

On the podcast this week, Andrew Keen, a journalist and author, discusses his new book Digital Vertigo: How Today’s Online Social Revolution Is Dividing, Diminishing, and Disorienting Us. Keen believes that social media is causing us to lose our private lives and turning us into what he calls “the cult of the social.” Keen discusses the growing power of companies like Facebook and his concern about the future of privacy and data ownership; as well as possible market and government driven solutions to this problem.

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Today we’re launching WCITLeaks.org

by on June 6, 2012 · 3 comments

As you may have heard, the UN is trying to take over the internet. Well, that’s not really true, but member states of the UN’s International Telecommunications Union (ITU) are definitely going to negotiate an agreement related to the Internet at the World Conference on International Communications (WCIT – pronounced ‘wicket’) this December in Dubai. [U.S. officials have warned](http://online.wsj.com/article/SB10001424052970204792404577229074023195322.html) that some member states, including Russia and China, have put forth proposals to regulate the Internet. Vint Cerf [has warned](http://www.nytimes.com/2012/05/25/opinion/keep-the-internet-open.html) that “Such proposals raise the prospect of policies that enable government controls but greatly diminish the ‘permissionless innovation’ that underlies extraordinary Internet-based economic growth to say nothing of trampling human rights.”

So what are these proposals? Well, we don’t know exactly. To see them, you have to have access to the ITU’s password protected website. This lack of transparency brings to mind secret negotiations like the one that gave us ACTA, and several civil society groups [have written](http://wcitleaks.org/) to the ITU demanding access to the documents.

The proposals are not classified and it’s not illegal to share them. In fact, they often are shared. At a [recent panel discussion](http://www.c-span.org/Events/Dubai-Conference-Could-Change-How-Internet-Operates/10737431086/) that I attended, the State Department’s Richard Beaird said, “Access to the proposals, of course, as I have done and others have done, is if you ask me, I will give you those proposals. I don’t want to have a flood of requests coming in from the room or those int he television audience.”

At the time, I [tweeted](https://twitter.com/jerrybrito/status/207889003171684352): “If someone will pass them to me, I volunteer to host a site with gov WCIT proposals.” It seemed weird to me that someone wasn’t collecting and publishing the documents, like how opencrs.com does with Congressional Research Service reports. I promptly forgot about the idea, but was reminded yesterday when Milton Mueller wrote [this post](http://www.internetgovernance.org/2012/06/05/we-want-td64-itu-transparency-begins-at-home/) urging the U.S. to make documents available. He wrote:

>Today, IGP has learned that the U.S. government is in possession of a document that brings together descriptions of all the WCIT proposals emerging from the ITU’s Council Working Group. The document, known as TD 64, compiles all the proposals on the table into a single document without attributing them to any specific government. No law or treaty stops the US government from making this document available to the public. We urge the U.S. government to release TD 64 of the ITU Council Working Group immediately.

Of course, while it’s not illegal, publishing these documents is probably not considered polite in the rarefied diplomatic circles of the ITU. So, I thought we’d give folks with access to the documents a helping hand.

Yesterday Eli Dourado and I spent a couple of hours putting together a website at [WCITLeaks.org](http://wcitleaks.org). The idea is simple: If you have a WCIT or ITU related document you’d like to share, submit it anonymously and we will publish it. That’s it. We hope you find it useful and that you’ll spread the word.

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Does the EFF favor government regulation of computer manufacturers?

by on May 31, 2012 · 0 comments

You won’t find the words ‘government’ or ‘regulation’ in [this post at EFF’s blog](https://www.eff.org/deeplinks/2012/05/apples-crystal-prison-and-future-open-platforms) by Micah Lee and Peter Eckersley. They’re just appealing to Apple’s better angels to drop its closed ways. I’ve explained before why that’s [a rational thing to do](http://jerrybrito.org/post/23812306919/boycotting-apple-is-not-irrational). But will the EFF assure supporters like me that it will never endorse government enforcement of a “bill of rights” like the one Lee and Eckersley propose today?

What I like about EFF is that it is a pro-liberty group, but I hope I’m not wrong in assuming that they view liberty as I do: as [a negative concept](http://en.wikipedia.org/wiki/Negative_liberty). They never come out and say it, but it sure sounds like the authors believe that if Apple doesn’t come around to seeing the virtues of openness and provide an escape hatch, then maybe they should be forced to. I get that impression from passages like this:

>When technology and phone companies defend the restrictions that they are imposing on their customers, the most frequent defense they offer is that it’s actually in their customers’ interest to be deprived of liberty: “If we let people do what they want with their pocket computers, they will do stupid things with them. You will be safer and happier in our walled compound than you would be outside.”

Imposing on their customers? Seems to me like the vast majority of Apple’s customers are *choosing* these restrictions. It’s not Apple that thinks its customers are stupid, and is therefore “imposing” a locked phone on them, it’s Lee and Eckersley who seem to have a low regard for customers’ preferences and want to impose an open device on them.

We can of course debate [whether customers are being short-sighted](http://jerrybrito.org/post/23994473829/the-internets-philosopher-king) in the choice they’re making, whether the benefits of closed platforms [outweigh the costs](http://techliberation.com/2008/03/23/review-of-zittrains-future-of-the-internet/), and whether we have the best of [both](http://jerrybrito.org/post/23812308446/how-closed-is-apple-anyway) [worlds](http://jerrybrito.org/post/23812366268/turns-out-apples-walled-garden-susceptible-to-market) right now, but you can’t say that customers are being “deprived of their liberty.” What liberty are they being deprived of? Does the EFF believe there is a positive right to mobile computers that run arbitrary code?

I repeat my plea: Can EFF assure us that it will not support government regulation of computer manufacturers?

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Michael Burstein on information exchange and IP law

by on May 22, 2012

On the podcast this week, Michael Burstein, assistant professor of law at the Benjamin N. Cardozo School of Law, discusses his paper entitled, Exchanging Information Without Intellectual Property. Burstein begins by discussing theories behind IP law and why it exists. According to Burstein, IP law incentivizes creation of intellectual works because it protects the creator’s investment by preventing others from copying the work and obtaining a benefit without any effort. He then goes on to discuss the critiques of these theories, the costs that are involved in protecting intellectual works, and the effect IP law has on innovation. Burstein then discusses practical examples in the pharmaceutical and biotech industry where actors structure the flow of information in a way that is reciprocal but only requires a small role from IP law. According to Burstein, norms protect intellectual works. He believes these norms allow disclosure of intellectual works in stages and facilitate a trusting relationship between two firms. Burstein ends the discussion by addressing policy conclusions surrounding IP law and what role it should play in information exchange.

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Jim Harper & Ryan Radia on cybersecurity legislation

by on May 8, 2012

On the podcast this week, Jim Harper, director of information policy studies at the Cato Institute, and Ryan Radia, associate director of technology studies at the Competitive Enterprise Institute, discuss Congress’s recent interest in cybersecurity. Harper and Radia begin by discussing why Congress wants to legislate cybersecurity and the potential threats that have Congress frightened. Harper and Radia then discuss the types of bills before Congress, which include aspects of information sharing that would promote cybersecurity intelligence but may have privacy implications, and mandates for a security infrastructure. The discussion then turns to the role of government in cybersecurity and whether the protection of online information and assets should be left to markets. The discussion ends with Harper and Radia predicting the future of the proposed bills.

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Jennifer Shkabatur on transparency reform

by on May 1, 2012

On the podcast this week, Jennifer Shkabatur, Fellow at the Berkman Center for Internet Society at Harvard University, discusses her new paper, “Transparency With(out) Accountability: The Effects of the Internet on the Administrative State. Shkabatur begins by discussing the focus of her paper, a critical look at open government initiatives. Shkabatur believes promises of transparency in government fall short and do not promote accountability. She then discusses innovations in accountability facilitated by the Internet, which she divides into three categories: mandatory transparency, discretionary transparency, and involuntary transparency. Shkabatur then sets forth types of reforms that she believes would improve government transparency. According to Shkabatur, context and details on agency processes are necessary along with details about how an agency performs various tasks.

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Naomi Cahn on the digital afterlife

by on April 24, 2012

On the podcast this week, Naomi Cahn, John Theodore Fey Research Professor of Law at George Washington University, discusses her new paper entitled, “Postmortem Life Online.” Cahn first discusses what could happen to online accounts like Facebook once a person dies. According to Cahn, technology is outpacing the law in this area and it isn’t very clear what can happen to an online presence once the account holder passes away. She discusses the various problems family members face when trying to access a deceased loved one’s account, and also the problems online companies face in trying to balance the deceased’s privacy rights with the need to settle an estate. Cahn claims that terms of service often dictate what will happen to an online account after death, but these terms may not be in line with account holder wishes. She then suggests some steps to take in making sure online accounts are taken care of after death, including taking inventory of all online accounts and determining who should have access to those accounts after death.

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Spencer Weber Waller on Facebook and antitrust

by on April 17, 2012 · 18 comments

On the podcast this week, Spencer Weber Waller, Professor and Director at the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law, discusses his new paper entitled, Antitrust and Social Networking. The discussion centers on the likelihood of Facebook being charged by the government as having a monopoly over the social networking market. Waller first explains antitrust law, which, among other things, prohibits monopolization to protect competition. Waller then discusses the difficulty of defining the market for social networks. He claims that Facebook is dominant in the market, but he also says there are multiple markets for Facebook’s participation, like consumer use and advertising. Waller goes on to explain how a court would analyze an antitrust violation. According to Waller, there is a two-step process involved where courts ask whether there is market power, and whether a company is doing anything with that power to interfere with competition. Waller ends the discussion by analyzing the likelihood of Facebook ever being charged with antitrust violations. Waller also briefly gives his thoughts on the recent antitrust suit filed by the DOJ against Apple.

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