E-Commerce Taxation & Regulation

A Texas tax official estimates in this story that Texas loses an estimated $600 million in Internet sales taxes every year. Its part of a long-running debate about whether state governments should be able to collect taxes from out-of-state retailers who send goods into their jurisdictions.

What happens with the $600 million depends on what you mean by “Texas.” If you mean the government of the state of Texas in Austin, why, yes, the government appears not to collect that amount, which it wants to. If by “Texas” you mean the people who live, work, and raise their families throughout the state—Texans—they actually save $600 million a year. They get to do what they want with it. After all, it’s their money.

The Texas tax collector is complaining because the last thing state taxing agents want to do is collect money on in the form of use taxes, which means something like going door to door to collect money from voters based on what they bought from out-of-state. Revenuers intensely prefer to hide the process, collecting their residents’ money from out-of-state companies.

Amazon.com is Texas’ target—it’s the great white whale for tax-hungry jurisdictions nationwide. With no retail outlets and few offices or fulfillment centers around the country, it’s not subject to tax jurisdiction in lots of places that would like to tap it for revenue. Having a fulfillment center in Texas may make Amazon liable for $600 million of its customers’ money, so it’s doing the sensible thing: getting out.

And thank heavens it can! Amazon is a cog in the extremely virtuous process of tax competition. Its ability to move operations means that it can escape states with burdensome taxes and tax collections oblibations, like Texas. Tax competition among states puts downward pressure on taxes, which in turn puts upward pressure on the wealth and well-being of state residents.

The pro-tax folks have been working for years to eliminate tax competition. The “Streamlined Sales Tax Project” continues work it began in 2000 to pave the way for nationwide sales taxation. “Streamlining” sounds so good, doesn’t it? But the result would be uniform—and uniformly high—sales taxes that every state might impose on every retailer that sends goods across state lines.

The Web site of the pro-tax coalition sounds good, too: the “Alliance for Main Street Fairness,” at the URL standwithmainstreet.com. Who wouldn’t want to “stand with Main Street”? Lovers of limited government, for one.

“Fairness” here means uniform high sales taxes and interstate tax collection obligations. The site doesn’t say who’s behind it, but the campaign to impose taxes on Amazon and other remote sellers is almost certainly a project of big national chain retailers. Rather than fight to lower taxes nationwide, they think they should just saddle their online competitors with tax collection obligations.

As long as the Streamlined Sales Tax Project continues to fail, tax competition in this area survives, and retailers like Amazon can provide lower costs to all of us—including that $600 million in savings enjoyed by Texans each year.

[This guest post is by Joshua Wright (George Mason University) and Geoffrey Manne (International Center for Law & Economics), who blog regularly at Truth on the Market]

We’ve been reading with interest a bit of a blog squabble between Tim Wu and Adam Thierer (see here and here) set off by Professor Wu’s WSJ column: “In the Grip of the New Monopolists.”  Wu’s column makes some remarkable claims, and, like Adam, we find it extremely troubling.

Wu starts off with some serious teeth-gnashing concern over “The Internet Economy”:

The Internet has long been held up as a model for what the free market is supposed to look like—competition in its purest form. So why does it look increasingly like a Monopoly board? Most of the major sectors today are controlled by one dominant company or an oligopoly. Google “owns” search; Facebook, social networking; eBay rules auctions; Apple dominates online content delivery; Amazon, retail; and so on.

There are digital Kashmirs, disputed territories that remain anyone’s game, like digital publishing. But the dominions of major firms have enjoyed surprisingly secure borders over the last five years, their core markets secure. Microsoft’s Bing, launched last year by a giant with $40 billion in cash on hand, has captured a mere 3.25% of query volume (Google retains 83%). Still, no one expects Google Buzz to seriously encroach on Facebook’s market, or, for that matter, Skype to take over from Twitter. Though the border incursions do keep dominant firms on their toes, they have largely foundered as business ventures.

What struck us about Wu’s column was that there was not even a thin veil over the “big is bad” theme of the essay.  Holding aside complicated market definition questions about the markets in which Google, Twitter, Facebook, Apple, Amazon and others upon whom Wu focuses operate—that is, the question of whether these firms are actually “monopolists” or even “near monopolists”—a question that Adam deals with masterfully in his response (in essence: There is a serious defect in an analysis of online markets in which Amazon and eBay are asserted to be non-competitors, monopolizing distinct sectors of commerce)—the most striking feature of Wu’s essay was the presumption that market concentration of this type leads to harm.

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As he noted, Adam Thierer’s lead article in the most recent Cato Policy Report is called “The Sad State of Cyber-Politics.” It goes through so many ways tech and telecom companies are playing the Washington game to win or keep competitive advantage.

It’s a nice set-up to a Washington Post opinion piece from this weekend in which TownFlier CEO Morris Panner talks about the growing riches accruing to Washington influencers:

We are creating so much regulation – over tax policy, health care, financial activity – that smart people have figured out that they can get rich faster and more easily by manipulating rules on behalf of existing corporations than by creating net new activity and wealth. Gamesmanship pays better than entrepreneurship.

Thierer sees some hope for the tech sector, for a few reasons:

Smaller tech companies have thus far largely resisted the urge [to engage with Washington]. Hopefully that’s for principled reasons, not just due to a shortage of lobbying resources. Second, the esoteric nature of many Internet and digital technology policy discussions frustrates many lawmakers and often forces them to lose interest in these topics. Third, the breakneck pace of technological change makes it difficult for regulators to bottle up innovation and entrepreneurialism.

Panner’s broader piece calls for “a national campaign to create transparency in our legislation and a national moratorium on the creation of commissions, regulators and czars. It is time for Congress to do the hard job of saying what lawmakers mean in clear and easy-to-understand language.” He continues, “We should reject bills that are thousands of pages or that delegate vast authority to unelected regulators.”

That would be a start.

A federal judge sided with privacy over taxes yesterday, signaling a victory for consumers in North Carolina. Now we’re waiting to see if this also means victory for consumers and online companies that sell into Colorado.

A U.S. District Court in Seattle blocked North Carolina’s Department of Revenue from compelling Amazon to reveal the names and addresses of its customers so that North Carolina could go after them for not paying use taxes on purchases where they did not pay sales tax.

The North Carolina DOR had been auditing Amazon’s 2003-2010 sales into the state and had asked for “all information for all sales to customers with a North Carolina shipping address.” Amazon provided detailed information about the purchases, but the DOR demanded information about the customers making the purchases. Amazon balked and filed suit, and the ACLU even intervened to support Amazon. And they won.

The court was clear that states cannot compel companies to disclose the purchasing behavior of its citizens:

The First Amendment protects a buyer form having the expressive content of her purchase of books, music and audiovisual materials disclosed to the government. The fear of government tracking and censoring one’s reading, listening and viewing choices chills the exercise of First Amendment rights.

What does this have to do with Colorado? Everything and more.

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After a quiet August recess in Washington, DC, it’s time to refocus our efforts on public policies that impact online commerce. And today we consider not the good, and not merely the bad, but the awful – iAWFUL.

NetChoice unveiled an updated version of out Internet Advocates’ Watchlist for Ugly Laws (iAWFUL) where we track the ten instances of state and federal legislation that pose the greatest threat to the Internet and e-commerce. Our efforts so far this year have helped to remove two of the worst offenders from the February 2010 iAWFUL list, including a federal bill giving the Federal Trade Commission more powers to make new rules for online activity without Congressional guidance, and a Maine law restricting online marketing to teenagers.

In our second update for 2010, NetChoice identifies new legislation that has the potential to stall Internet commerce. Our top two are Congressional bills:

Number 1:  Federal online privacy efforts such as Rep. Rush’s “Best Practices Act” (HR 5777) and the staff discussion draft from Boucher / Stearns.

Number 2:  The expansion of Internet taxation HR 5660, the “Streamlined Sales Tax Bill”

This iAWFUL list targets federal privacy proposals that would curtail the continued development of ad-supported content and services that consumers have come to expect from the Internet. No one’s saying that privacy isn’t important or that we shouldn’t be concerned with our personal information. However, one federal privacy proposal would regulate small websites that don’t collect personally identifiable information but add just 100 users a week, even when users provide only a nickname and password. Continue reading →

In light of the Delahunt “Main Street Fairness Act” (HR 5660) introduced earlier this month, over at the NetChoice blog Steve DelBianco describes why it is important to consider that “where you sit determines where you stand”  when it comes to Internet taxes:

Big-box stores like Walmart and Target support a federal mandate that forces everyone to collect sales tax, even for states where they have zero presence.  So why would these giant chains  — who already have to collect taxes on their web sales — stand for this?

Because from where Walmart sits, any simplification – even a little – helps reduce their costs.  And because these big boys want to impose new tax collection costs on their small online competitors.

He’s also reacting to a post at BNET last week, where Chris Dannen described how big retailers are supporting the so-called “streamlined sales tax”:

“Brick-and-mortar retailers — many of whom have operations online — are some of the most vocal proponents of the new online tax laws. The members of the pro-tax lobby, which includes Best Buy, WalMart ,Target and others, already collect sales tax online, regardless of the buyer’s state, and see Web-only retailers as having an unfair advantage, from How to Tax E-Commerce without Killing Entrepreneurship (and eBay)”

Better late than never, I’ve finally given a close read to the Notice of Inquiry issued by the FCC on June 17th.  (See my earlier comments, “FCC Votes for Reclassification, Dog Bites Man”.)  In some sense there was no surprise to the contents; the Commission’s legal counsel and Chairman Julius Genachowski had both published comments over a month before the NOI that laid out the regulatory scheme the Commission now has in mind for broadband Internet access.

Chairman Genachowski’s “Third Way” comments proposed an option that he hoped would satisfy both extremes.  The FCC would abandon efforts to find new ways to meet its regulatory goals using “ancillary jurisdiction” under Title I (an avenue the D.C. Circuit had wounded, but hadn’t actually exterminated, in the Comcast decision), but at the same time would not go as far as some advocates urged and put broadband Internet completely under the telephone rules of Title II.

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A “funny until you realize it’s real” story out of San Francisco today (courtesy of the NY Times) where the city will soon require cell phone retailers to display the amount of radiation in each phone that is for sale on their shelves.

Even though this concern has been debunked time and again — the article mentions the latest major study that found no supporting evidence linking cancer to cell phone usage — the city believes that, though there are plenty of resources for those wishing to research radiation for particular cell phones, the city “thinks that for the consumer…it ought to be easier to find.”

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I participated last week in a Techdirt webinar titled, “What IT needs to know about Law.”  (You can read Dennis Yang’s summary here, or follow his link to watch the full one-hour discussion.  Free registration required.)

The key message of  The Laws of Disruption is that IT and other executives need to know a great deal about law—and more all the time.  And Techdirt does an admirable job of reporting the latest breakdowns between innovation and regulation on a daily basis.  So I was happy to participate.

Legally-Defensible Security

Not surprisingly, there were far too many topics to cover in a single seminar, so we decided to focus narrowly on just one:  potential legal liability when data security is breached, whether through negligence (lost laptop) or the criminal act of a third party (hacking attacks).  We were fortunate to have as the main presenter David Navetta, founding partner with The Information Law Group, who had recently written an excellent article on what he calls “legally-defensible security” practices.

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State governments are getting bolder about diverting funds intended to maintain and modernize 911 emergency calling systems for other uses.

As states face greater budget gaps spurred by reckless spending and unsustainable obligations to the public sector employees, legislatures have been turning everywhere for extra cash. The 911 surcharge that appears on most consumer phone bills is no exception.

Originally, 911 fees were supposed to be used exclusively to fund 911 calling centers and the training of operators, the primary rationale behind the decision to assess the fees on phone bills. Instead, 911 money is being funneled elsewhere, sometimes for other law enforcement needs like weapons, vehicles and uniforms; sometimes for cost and services that arguably should be funded from general revenues. In New York State, for instance, of the $600 million collected from 911 fees in the past 15 years, just $84 million—14 percent—was used for municipal 911 center operation, according to a Buffalo News report cited by Emergency Management magazine.

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