Advertising & Marketing

PFF Announces Summer Events Calendar: 8 Policy Events in DC to Replace Sundance Summit

by on April 23, 2010 · 4 comments

We at The Progress & Freedom Foundation announced a series of eight upcoming policy events today, taking the place of our previously scheduled Sundance Summit. Beginning this month, the events will run through the summer in the nation’s capital. By moving these events closer to home in this manner, PFF will be better positioned to speak to legislators, policymakers, and tech policy press before Washington turns its attention to the midterm elections.

The series of events (which you can add to your calendar here) will include several breakfast and luncheon panel presentations and two half-day conferences. Covering such areas as communications and competition policy, digital property, digital media freedom and Internet freedom, the events will include:

  • Tuesday, April 27: “Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?” — A panel of experts will debate the future of “must carry” rules in the wake of a new challenge to their constitutionality by Cablevision, and what this decision could mean for other media. (RSVP here)
  • Friday, May 7: “What Should the Next Communications Act Look Like?” — A discussion with key industry stakeholders about the future of the Telecom Act in the wake of the Comcast v. FCC decision and the looming battle over Title II reclassification of broadband. (RSVP here)
  • Thursday, May 20: “Can Government Help Save the Press?” — This conference will discuss the FCC’s new “Future of Media” proceeding and debate what role government should play in subsidizing the press or bailing out failing media enterprises. (RSVP here)
  • Monday, June 7: “The Future of Speech on the Borderless Internet” — A panel of leading cyberlawyers will discuss trans-national regulation and litigation of defamation, hate speech, indecency and political dissent. (RSVP here)
  • Monday, June 21: “Sports Programming & the Challenges of Digital Piracy“— A discussion of the challenges that digital piracy, including unauthorized streaming, poses to professional and collegiate sports that have traditionally earned revenues from telecasts of games, bouts, etc. Continue reading →

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Bruce Yandle on the rise of national TV and the spread of social regulation

by on April 22, 2010 · 0 comments

In this week’s episode of the Surprisingly Free Podcast, I talk to Bruce Yandle, Dean Emeritus at Clemson College of Business and Behavioral Sciences. We talk about a public choice puzzle: how do you explain the explosion of social regulation in the 1970s at the same time we saw an explosion in economic deregulation? Yandle thinks it might have to do with the advent of national television networks. National networks allowed national brands to develop. Firms behind national brands had an interest in deregulated transportation and telecommunications networks, but at the same time had an interest in seeing uniform federal safety and environmental regulations. We also talk about the decline of common law and the growth of code law, and the death (and return) of good beer in America.

Do check out the interview, and consider subscribing to the show on iTunes. Past guests have included James Grimmelman on online harassment and the Google Books case, Michael Geist on ACTA, and Tom Hazlett on spectrum reform.

MP3 File: Yandle on the rise of national TV and the spread of social regulation

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Terrific Study on Cost of Opt-In Privacy Regulatory Regime, but…

by on April 19, 2010 · 6 comments

By Adam Thierer & Berin Szoka

Opt-in mandates may soon be coming to an Internet near you! Rick Boucher, House Energy & Commerce Committee Chairman, is expected to soon introduce the privacy bill he’s been working on behind closed doors for many months. At the heart of the bill is supposed to be a mandate that websites and services obtain opt-in consent prior to collecting information with users—at least if they plan on sharing that information with any third party or doing with it beyond what a narrow safe harbor would allow.

Boucher is apparently trying to strike the right balance between “protecting privacy” and the benefits to users of advertising and data collection. But there may be significant costs to an opt-in regime that are little appreciated by privacy advocates, who tend to think of opt-out as meaningless and opt-in as the ideal of user empowerment.  In their new paper “Opt-in Dystopias,” Google’s Senior Policy Counsel Nicklas Lundblad and Policy Manager Betsy Masiello provide a sophisticated analysis of the dark side of opt-in.  They argue that “mandatory opt-in applied across contexts of information collection is poised to have several unintended consequences on social welfare and individual privacy,” specifically:

    •   Dual cost structure: Opt-in is necessarily a partially informed decision because users lack experience with the service and value it provides until after optingin. Potential costs of the opt-in decision loom larger than potential benefits,
    whereas potential benefits of the opt-out decision loom larger than potential costs.

    •   Excessive scope: Under an opt-in regime, the provider has an incentive to exaggerate the scope of what he asks for, while under the opt-out regime the provider has an incentive to allow for feature-by-feature opt-out.

    •   Desensitisation: If everyone requires opt-in to use services, users will be desensitised to the choice, resulting in automatic opt-in.

    •   Balkanisation: The increase in switching costs presented by opt-in decisions is likely to lead to proliferation of walled gardens.

Lundblad and Masiello discuss each of those concerns in great detail, so read the paper for further elaboration. They do a particularly good good walking the reader through the complexity of even defining what we mean by “opt-in,” which is far trickier than most people imagine.

Continue reading →

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Privacy Worries for Ingrates

by on April 17, 2010 · 3 comments

It’s intended as a cute line, but the opener of Stephanie Clifford’s New York Times story about custom coupons is packed with ideological assumptions: “For decades, shoppers have taken advantage of coupons. Now, the coupons are taking advantage of the shoppers.”

Meta-data in printed coupons can reveal much about the people using them.

Here’s a shocker, people: Free money might come with strings attached.

It would be wrong to dismiss the privacy problems that custom coupons might contain. They’re similar to the privacy problems that lots of other new technologies and business processes have. But the starting point if you worry about them is that you don’t have to use them.

I don’t—and it’s not even because of privacy worries. I just don’t.

But Clifford quotes two advocates of government regulation in her article—zero advocates of freedom, market experimentation, or innovation. Ed Mierzwinski, consumer program director for the United States Public Interest Research Group, says, “There really have been no rules set up for this ecosystem.”

Rules, rules. Anything new has to be draped in rules.

I would have opened the article saying, “For decades, shoppers have taken advantage of coupons. Now, the deal is going to be a little more fair.” Where does the story go from there?

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Reminder: PFF Hill Briefing Today on Super-Sizing the FTC & What It Means for the Internet, Media & Advertising

by on April 16, 2010 · 0 comments

Please join us for this Progress & Freedom Foundation luncheon briefing today at 12-2 pm in the Capitol Visitor Center, Room SVC 208/209 at E Capitol St NE & 1st St NE. I’ll be moderating a discussion of the growing powers of the Federal Trade Commission (FTC) and what it might mean for consumers, advertisers, media creators, and the Internet.

If you can’t make it in-person, you can listen live here.

As I’ve discussed here, here and here, financial reform legislation passed by the House (HR 4173) and now under debate in the Senate would give the FTC sweeping new powers to regulate not just Wall Street, but also unfair or deceptive trade practices across the economy. This could reshape regulation in a wide range of areas, such as privacy, cybersecurity, child safety, COPPA, and child nutrition, affecting media online as well as offline. Unfortunately, as Adam and I have noted, there seems to be a disconnect at the FTC between concerns over the future of struggling media creators and efforts to step up regulation on a number of fronts, especially privacy. The FTC has also asserted expanded authority to regulate “unfair” competition in its lawsuit against Intel, based solely on the FTC’s Section 5 unfairness authority rather than traditional antitrust law. PFF has assembled a group of expert panelists—veteran FTC practitioners, scholars and insiders—to discuss these issues and more. Here’s our panel:

  • Jack Calfee, Resident Scholar, American Enterprise Institute for Public Policy Research (AEI) & author of Fear of Persuasion: A New Perspective on Advertising and Regulation (1998)
  • Maureen Ohlhausen, Partner, Wilkinson Barker Knauer, Consumer Protection Law and Competition Law practices, & 11-year FTC veteran
  • Jim Davidson, Chair of the Public Policy group, Polsinelli Shughart PC
  • Stu Ingis, Partner, Venable LLP

To Register: Please RSVP online here (for free). Continue reading →

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3 Upcoming Events: Super-Sizing the FTC (4/16), FTC v. Google on AdMob (4/15) & Must-Carry (4/27)

by on April 13, 2010 · 2 comments

Friday, April 16: I’ll be moderating a PFF Capitol Hill briefing on Super-Sizing the FTC & What It Means for the Internet, Media & Advertising. My panel of FTC veterans and observers will discuss the growing powers of the Federal Trade Commission (FTC). As I’ve mentioned here and here, financial reform legislation passed by the House and now pending in the Senate would give the FTC sweeping new powers to regulate not just Wall Street, but also unfair or deceptive trade practices across the economy. This could reshape regulation in a wide range of areas, such as privacy, cybersecurity, child safety, child nutrition, etc. The FTC has also asserted expanded authority to regulate “unfair” competition in its lawsuit against Intel. Register here for this 12-2 pm briefing in the Capitol Visitor Center!

Thursday, April 15: I’ll be participating in Capitol Hill briefing on Google’s proposed acquisition of AdMob, a leading in-app mobile ad network, which the FTC appears poised to challenge. (RSVP here.) Geoff Manne has probably done the best job debunking arguments against the deal but, sadly, couldn’t make the panel. ITIF’s Dan Castro will moderate a panel including (besides myself):

  • Simon Buckingham, who’s expressed concerns about the deal on his Appitalism blog and accused Google of leveraging Google’s desktop search dominance into the high-end mobile market”;
  • Lillie Coney of the Electronic Privacy Information Center (EPIC), which never passes up an opportunity to denounce Google on privacy grounds;
  • Jonathan Kanter, Cadwalader, Wickersham & Taft LLP, who represented TradeComet.com in their antitrust suit against Google and has also represented Microsoft in the past; and
  • Glenn Manishin – Duane Morriss LLP, an antitrust lawyer who’s represented Google.

Tuesday, April 27: We just announced another PFF Briefing: Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?, 10:00-11:45 a.m at Hogan & Hartson LLP (555 13th Street NW, Washington, DC). Continue reading →

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Why eBay’s win over Tiffany’s makes economic sense

by on April 1, 2010 · 5 comments

As the Wall Street Journal is already reporting, today eBay sustained an important win in its long-running dispute with Tiffany over counterfeit goods sold through its marketplace.  (The full opinion is available here.)

I wrote about this case as my leading example of the legal problems that appear at the border between physical life and digital life, both in “The Laws of Disruption” and a 2008 article for CIO Insight.

To avoid burying the lede, here’s the key point:  for an online marketplace to operate, the burden has to be on manufacturers to police their brands, not the market operator.  Any other decision, regardless of what the law says or does not say, would effectively mean the end of eBay and sites like it.

Continue reading →

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The Politics of ECPA Reform: Protecting Us from the Real Big Brother

by on March 30, 2010 · 0 comments

CNet‘s Declan McCullagh has a great piece about the politics of actually implementing the ECPA reform principles announced today by the Digital Due Process Coalition, which PFF, CEI and Net Coalition all proudly signed on to along with a number of other think tanks, advocacy groups, and leading tech companies.  Ryan and I explained earlier today how these proposals would Protect Americans’ Privacy by Restoring Constitutional Limits to Government.

As I note at the end of the article:

“This is an opportunity for President Obama to show that he understands President Reagan’s central lesson: ‘Government is not the solution to our problem—government is the problem,'” says Berin Szoka, an attorney at the Progress and Freedom Foundation. “These proposals offer a sensible, long-overdue way of protecting us from the real Big Brother, our government, without crippling law enforcement or the private companies that keep giving us all wonderful new content and services, mostly for free.”

This is a point Adam Thierer and I have made repeatedly in the debate over how to deal with concerns about online privacy. Check out our/my key pieces on this point:

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Digital Due Process: Protecting Americans’ Privacy by Restoring Constitutional Limits to Government in ECPA

by on March 30, 2010 · 20 comments

By Ryan Radia & Berin Szoka

Today a broad array of civil liberties groups, think tanks, and technology companies launched the Digital Due Process coalition. The coalition’s mission is to educate lawmakers and the public about the need to update U.S. privacy laws to better safeguard individual information online and ensure that federal privacy statutes accurately reflect the realities of the digital age.

Over 20 organizations belong to the Digital Due Process coalition, including such odd bedfellows as AT&T, Google, Microsoft, the Center for Democracy & Technology, the American Civil Liberties Union, the Electronic Frontier Foundation, The Progress & Freedom Foundation (where Berin works), the Competitive Enterprise Institute (where Ryan works), the Internet Technology & Innovation Foundation, Citizens Against Government Waste, and Americans for Tax Reform. The full member list is available at the coalition’s website.

Amidst the heated tech policy wars, it’s not every day that such a diverse group of organizations comes together to endorse a unified set of core principles for legislative reform. Over two years in the making, the Digital Due Process coalition, spearheaded by the Center for Democracy & Technology, is a testament to the broad consensus that’s emerged among business leaders, activists, and scholars regarding the inadequacies of the current legal regime intended to protect Americans’ privacy from government snooping and the need for Congress to revisit decades-old privacy statutes. It also represents a revival of a bipartisan consensus on the need for reform reached back in 2000, when the Republican-led House Judiciary Committee voted 20-1 to approve very similar reforms (HR 5018).

Today, in the digital age, robust privacy laws are more important than ever. That’s because U.S. courts have been unwilling to extend the Fourth Amendment’s protection against unreasonable search and seizure to individual information stored with third parties such as cloud computing providers. Thus, while government authorities must get a search warrant based on probable cause before they can lawfully rifle through documents stored in your desk, basement, or safe deposit box, information you store on the cloud enjoys no Constitutional protection. (Some legal scholars argue this interpretation of the Fourth Amendment, referred to as the Third Party Doctrine, is outdated and deficient. See, for example, Jim Harper’s excellent 2008 article in the American University Law Review.)

Continue reading →

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PFF Briefing 4/16: Super-Sizing the FTC & What It Means for the Internet, Media & Advertising

by on March 28, 2010 · 0 comments

Please join us for this Progress & Freedom Foundation luncheon briefing on Friday, April 16, 12-2 pm in the Capitol Visitor Center, Room SVC 208/209 at E Capitol St NE & 1st St NE. I’ll be moderating a discussion of the growing powers of the Federal Trade Commission (FTC) and what it might mean for consumers, advertisers, media creators, and the Internet.

As I’ve discussed here, here and here, financial reform legislation passed by the House (HR 4173) and now under debate in the Senate would give the FTC sweeping new powers to regulate not just Wall Street, but also unfair or deceptive trade practices across the economy. This could reshape regulation in a wide range of areas, such as privacy, cybersecurity, child safety, COPPA, and child nutrition, affecting media online as well as offline. Unfortunately, as Adam and I have noted, there seems to be a disconnect at the FTC between concerns over the future of struggling media creators and efforts to step up regulation on a number of fronts, especially privacy. The FTC has also asserted expanded authority to regulate “unfair” competition in its lawsuit against Intel, based solely on the FTC’s Section 5 unfairness authority rather than traditional antitrust law. PFF has assembled a group of expert panelists—veteran FTC practitioners, scholars and insiders—to discuss these issues and more. Here’s our panel:

  • Jack Calfee, Resident Scholar, American Enterprise Institute for Public Policy Research (AEI) & author of Fear of Persuasion: A New Perspective on Advertising and Regulation (1998)
  • Maureen Ohlhausen, Partner, Wilkinson Barker Knauer, Consumer Protection Law and Competition Law practices, & 11-year FTC veteran
  • Jim Davidson, Chair of the Public Policy group, Polsinelli Shughart PC
  • Stu Ingis, Partner, Venable LLP Continue reading →

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