Another great column by the Wall Street Journal’s Gordon Crovitz, who is quickly becoming my favorite tech policy columnist. In today’s column, “Bloggers Mugged by Regulators,” he comments on the FTC’s new disclosure rules for bloggers, which I discussed here over the weekend. Crovitz focuses on the enforcement challenges associated with the new rules and also argues that self-regulation should be given a chance to work:
There should be more disclosure, but the Web is different from earlier media in ways that make government regulation less relevant and practical. The Web has its own self-regulatory mechanisms. Failing to disclose interests sullies one’s reputation online, and reputation harm travels faster and lasts longer than it did before the Web.
There’s also greater need for caveat emptor online, because there is no practical way that any government agency can monitor the world’s bloggers and posters. There will always be people who post comments about products and services that are self-serving in one way or another, at least by someone’s definition. […]
Instead of trying to extend analog-era regulations onto the Web, the FTC should encourage readers to be vigilant about assessing for themselves the independence of sources online. At least we now know the biggest fraudulent claim so far on the Web: It’s been committed by regulators claiming there can be a government stamp of approval on everything anyone posts anywhere on the Web.
Amen brother.
Three cheers for Randall Rothenberg, President and Chief Executive Officer of the Interactive Advertising Bureau (IAB) for having the guts to send this splendid open letter to Federal Trade Commission (FTC) Chairman Jon Leibowitz about the agency’s new disclosure rules for bloggers. Rothenberg’s entertaining and brutally honest letter is a rarity for a trade association chief. Most of the time trade associations fall all over themselves to whisper sweet-nothings in the ears of regulators, even when those regulators are out to crush the industries in question. But Rothernberg doesn’t pull any punches in his letter to Chairman Leibowitz. After walking through some of the stunning ambiguities of the rules, such as how much “weight consumers give to [a] review” by a blogger who might have a commercial sponsor, Rothenberg asks:
With all due respect, Mr. Chairman: Huh? Does the FTC really intend to probe America’s opinion-mongering apparatus this closely? Do you have a team of Freuds and Jungs able to examine “the weight” consumers give such opinion – and the way they weigh that weight?
Naturally, this expedition from Oceania – that’s the place Big Brother ruled – should be worrisome to all Americans, and to all viewers, readers, listeners, users, and providers of any communications medium. But for the 400 members of the Interactive Advertising Bureau, most of which are small and medium-sized enterprises struggling to build their businesses in the face of the worst decline in marketing spending since the 1930’s, the implication that online social media represent a separate class of communications channels with less Constitutional protection than corporate-owned newspapers, radio stations, or cable television networks is of particularly grave concern.
They – and we — are not arguing that bloggers and social media be treated differently than incumbent media. After all, most newspapers, magazines, radio stations and television networks, in recognition that Americans are embracing new forms of social communications, have established their own blogs, boards, Facebook pages, Twitter feeds, and the like. Rather, we’re saying the new conversational media should be accorded the same rights and freedoms as other communications channels.
Yep, exactly right and it echoes the questions I’ve raised here before. And his letter just gets better from there regarding the enforcement nightmare presented by these ambiguous rules:
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When the government tells someone to shut up, we call it censorship and the First Amendment requires the government to defend its regulation. But what if the government just says, “Shhhh… could you please turn that down?” Rep. Anna Eshoo’s Commercial Advertisement Loudness Mitigation Act (“CALM Act” – HR 1084) would do just that: require the FCC to issue rules that broadcast and cable TV ads:
(1) … shall not be excessively noisy or strident;
(2) … shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and
(3) [their] average maximum loudness… shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany.
Now, I understand where Ms. Eshoo is coming from: I have a very low tolerance for noise in general and for television in particular—and it’s not just about commercials. (I find TV news at least as “noisy” and “strident” as commercials. That’s why I opted-out from the whole TV thing in about 2000. Yup, that’s right: I found better things to do with my time and the supposedly all-powerful “gatekeepers” of Hollywood couldn’t do a damn thing about it. You should try it if you don’t like what’s on TV! To paraphrase Voltaire, “I disapprove of what you say watch, but I will defend to the death your right to say watch it! You can get most of what’s worth watching on DVD or online anyway.) But do we really need bureaucrats in Washington micromanaging volume levels? Maybe Congressmen would have a little more time to read the bills they vote for if they they weren’t so busy fiddling with everyone else’s remote!
Eshoo’s bill has passed the House Energy & Commerce Committee’s Communications Subcommittee just as the TV industry is completing work on voluntary standards of their own. That’s one “less restrictive” alternative to regulation. What about technological empowerment? If Americans really hate loud commercials so much, why don’t they demand TVs with built-in volume normalization features? But this bill isn’t merely unnecessary, it would also set a disturbing precedent in at least six ways.
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Progress Snapshot 5.10 from The Progress & Freedom Foundation
A recent telephone poll conducted by professors at Berkeley and the University of Pennsylvania concluded, “Contrary to what many marketers claim, most adult Americans (66%) do not want marketers to tailor advertisements to their interest.” The study’s authors claim that their poll is the “the first nationally representative telephone (wireline and cell phone) survey to explore Americans’ opinions about behavioral targeting by marketers.” They also assert that the poll indicates that “if Americans could vote on behavioral targeting today, they would shut it down.” Advocates of regulating online data collection have trumpeted this poll as evidence consumers demand legislation to protect their privacy. “This research gives the F.T.C. and Congress a political green light to go ahead and enact effective, but reasonable, rules and policies,” declared Jeff Chester, a leading critic of online advertising.
But what is most surprising about this poll is not that 66% of users said they do not want tailored online ads, but that 34% of users said they did! The key, initial question of “whether or not you want the websites you visit to show you ads that are tailored to your interests,” presents no trade-off. The fact that anyusers said “yes” indicates that many users paused to do the rough mental math about the unarticulated trade-off between the benefits of receiving tailored ads and the costs of that tailoring.
The methodology of opinion polls necessarily affects respondents’ mental calculations, rendering polls not just easily manipulated, but inherently unreliable as indicators of real preferences. Every poll reflects the bias of its authors to some degree by the way questions are worded, the order in which they are asked, the sample surveyed, etc. The easiest way to bias the results of a poll is to omit any mention of the trade-offs at issue. This poll simply buried the issue of trade-offs in a heavily loaded follow-up question: After telling respondents that marketers “often use technologies to follow the websites you visit and the content you look at in order to better customize ads,” the interviewer asked whether the respondent would allow advertisers to “follow [them] online in an anonymous way in exchange for free content.” Only 10% of users said they would allow this voluntary exchange.
What does this tell us about whether, and how, government should further regulate online advertising? Precious little: Not only does this poll overstate the costs of targeted advertising, understate its benefits, and ignore the tools available to users to address their privacy concerns but, like any opinion poll, this one tells us more about the psychology of decision-making under the artificial uncertainty of polls than about the choices users would actually make in the real world. Continue reading →
Like James Gattuso, I have a lot of questions about the Federal Trade Commission’s new “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” especially as they apply to bloggers. (And over at Silicon Angle, Mark ‘Rizzn’ Hopkins has been doing a great job keeping tabs on the many questions and hypothetical situations that others have been posing about the new rules). But the one thing I just can’t wrap my head around is how the FTC plans to enforce these rules against those speakers or media outlets who have print publications which are fully protected by the First Amendment. So, I was pleased to see my favorite press critic Jack Shafer of Salon, ask the same question in his latest column on “The FTC’s Mad Power Grab”:
Because of a pesky thing called the First Amendment, the guidelines don’t apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don’t apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow’s blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.
Exactly. Is the FTC just going to ignore such speakers or media organizations but enforce against everyone else? Isn’t that just a bit silly and radically unfair? Moreover, might such a policy end up incentivizing some folks to create token print publications to get around such the regulations? I doubt it, but you never know.
Regardless, as Shafer notes, the rules are so hopelessly open-ended and arbitrary that they are bound to pose problems for whomever they are enforced against: Continue reading →
Should the federal government regulate what blogger’s blog? Yes, said the Federal Trade Commission yesterday — at least when it comes to product endorsements.
At issue were the FTC’s guidelines concerning the use of endorsements in advertising. These guidelines, among other things, require paid endorsers of products to disclose their relationships with advertisers. The goal is a good one, to prevent deception and fraud. In practice, the lines are hard to draw — what exactly is an endorsement? What constitutes payment? It gets even harder in today’s world of user-generated media, in which much advertising is by consumers themselves on blogs and elsewhere, sharing recommendations and opinions on just about everything. Continue reading →
Middlemen have been criticized as unnecessary for centuries, but as Mike Munger (Chairman of the Duke Political Science department and my undergrad mentor) explains, they are actually “market makers,” rather than parasites (or listen to his appearance on Russ Robert’s excellent EconTalk podcast). Warren Lee explains why ad networks—the middlemen who sell publishers’ (website operators) empty ad inventory to advertisers—serve such a critical role in making “Free!” possible for consumers by sustaining especially the Long Tail of online publishers: Continue reading →
It seems the whole web is incorporating social networking functionality. Microsoft recently led the way in incorporating functionality to search, allowing users to share search results they like with their social networking contacts directly from the search results page through Twitter and Facebook. I’ve also noted that it’s just a matter of time before the same thing happens with advertising—and that Facebook will likely lead the way.
Websites have long used social networking buttons to encourage visitors to join their Facebook group, follow them on Twitter, etc. Facebook recently made this even easier by creating a widget for pages that can easily be embedded on any site. So why is Facebook blocking advertisers from including social networking functionality in ads like this one? Facebook’s terms of service using the new Fan Box widget in ads. Facebook’s spokesperson told InsideFacebook.com:
We want Page owners to have an easy way to connect with fans both on and off of Facebook. In order to protect the the Fan Box widget from being used for the wrong reasons, we do not allow it to be used in third party advertising.
InsideFacebook.com speculates:
it’s safe to assume that Facebook wants to protect the “Become a Fan” experience from becoming too intertwined with aggressive online ads that it hasn’t approved. One can imagine the variety of ways advertisers could (potentially misleadingly) push users to become a fan in an ad unit on a web site, then pollute their Facebook stream later. Facebook wants more control over that experience, even if it means partially restricting growth for Facebook Pages.
So why might policymakers be interested in this? Because, as Fred Vogelstein predicted in Wired this June, Facebook will likely someday soon expand beyond selling ads on its own site to selling ads on the wider Internet that incorporate social networking functionality like the “Become a fan” button above. There is a vast untapped market for online advertising, and if Facebook’s going to get a piece of it, they’ll have to offer something no other ad network can. If and when this happens, Facebook will likely get a lot of grief from the anti-advertising zealots, but this would actually be a good thing for consumers for five reasons: Continue reading →
My colleague Jim Harper and I have been having a friendly internal argument about Internet privacy regulation that strikes me as having potential implications for other contexts, so I thought I might as well pick it up here in case it’s of interest to anyone else. Unsurprisingly, neither of us are particularly sanguine about elaborate regulatory schemes—and I’m sympathetic to the general tenor of his recent post on the topic. But unlike Jim, as I recently wrote here, I can think of two rules that might be appropriate: A notice requirement that says third-party trackers must provide a link to an ordinary-language explanation of what information is being collected, and for what purpose, combined with a clear rule making those stated privacy policies enforceable in court. Jim regards this as paternalistic meddling with online markets; I regard it as establishing the conditions for the smooth functioning of a market. What do those differences come down to?
First, a question of expectations. Jim thinks it’s unreasonable for people to expect any privacy in information they “release” publicly—and when he’s talking about messages posted to public fora or Facebook pages, that’s certainly right. But it’s not always right, and as we navigate the Internet our computers can be coaxed into “releasing” information in ways that are far from transparent to the ordinary user. Consider this analogy. You go to the mall to buy some jeans; you’re out in public and clearly in plain view of many other people—most of whom, in this day and age, are probably carrying cameras built into their cell phones. You can hardly complain about being observed, and possibly caught on camera, as you make your way to the store. But what about when you make your way to the changing room at The Gap to try on those jeans? If the management has placed an unobtrusive camera behind a mirror to catch shoplifters, can the law require that the store post a sign informing you that you’re being taped in a location and context where—even though it’s someone else’s property—most people would expect privacy? Current U.S. law does, and really it’s just one special case of the law laying down default rules to stabilize expectations. I think Jim sees the reasonable expectation in the online context as “everything is potentially monitored and archived all the time, unless you’ve explicitly been warned otherwise.” Empirically, this is not what most people expect—though they might begin to as a result of a notice requirement. Continue reading →
The Federal Trade Commission (FTC) has just announced it will be hosting:
a series of day-long public roundtable discussions to explore the privacy challenges posed by the vast array of 21st century technology and business practices that collect and use consumer data.” Such practices include social networking, cloud computing, online behavioral advertising, mobile marketing, and the collection and use of information by retailers, data brokers, third-party applications, and other diverse businesses. The goal of the roundtables is to determine how best to protect consumer privacy while supporting beneficial uses of the information and technological innovation. The roundtable discussions will consider the risks and benefits of information collection and use in online and offline contexts, consumer expectations surrounding various information management practices, and the adequacy of existing legal and self-regulatory regimes to address privacy interests.
The first of these roundtables will be held on December 7, 2009 at the FTC Conference Center in Washington, D.C. Additional information can be found here.
I’m sure my colleague Berin Szoka will have much more to say about this in coming days and weeks — and I very much hope the FTC will invite him in to testify — but, for now, I just want to reiterate the three key challenges we have been posing again and again and again and again in all our work on this subject:
- Identify the harm or market failure that requires government intervention.
- Prove that there is no less restrictive alternative to regulation.
- Explain how the benefits of regulation outweigh its costs.
I hope those issues are front and center at these workshops and we get some firm answers because the dangers of breaking the very few Internet business models that actually work is a very steep price to pay for the conjectural harms bandied about by some privacy zealots.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.