In a post here last month on “Two Paradoxes of Privacy Regulation,” I discussed some of the interesting — and to me, troubling — similarities between rising calls for online privacy regulation and ongoing attempts to enact various types of controls on online speech or expression. In that essay, I argued that while most privacy advocates are First Amendment supporters as it pertains to content regulation, they abandon their free speech values and corresponding constitutional tests when it comes to privacy regulation. When the topic of debate shifts from concerns about potentially objectionable content to the free movement of personal information, personal responsibility and self-regulation become the last option, not the first. Privacy advocates typically ignore, downplay, or denigrate user-empowerment tools, even though many of those same advocates endorse “self-help” efforts as the superior method of dealing with objectionable speech or media content. In essence, therefore, they are claiming self-help is the right answer in one context, but not the other. Ironically, therefore, privacy advocates and moral conservatives actually share much in common in that they are using the same playbook to advance their goals: They are rejecting personal responsibility and user-empowerment tools and techniques in favor or government control for their respective issues.
Keeping that insight in mind, I want to take this comparison a step further and suggest that what really unites these two movements is a general conservatism about how our online lives and online business should be governed. For the moral conservatives, that instinct is well-understood. They want hold the line against what they believe is a decaying moral order by restricting access to potentially objectionable speech or content — dirty words, violent video games, online porn, or whatever else. The conservatism of the modern privacy movement is less obvious at first blush. I suspect that many privacy conservatives would not consider themselves “conservative” at all, and they might even be highly offended at being grouped in with moral conservatives who seek to wield government power to control online speech and expression. Nonetheless, the two groups share a common trait — an innate hostility to the impact of technological / social change within the realm of “rights” or values they care about. In their respective arenas, they both rejected the evolutionary dynamism of the free marketplace and they long for a return to a simpler and supposedly better time. Continue reading →
An interesting and thought-provoking piece by Malcolm Gladwell over at The New Yorker this month takes a look at the intersection between true civic activism (the kind that could get you killed) and “social networking” activism (the kind that only takes a retweet or hitting the “like” button on Facebook).
Gladwell’s piece starts off retelling the story of how the Civil Rights “sit-in” movement of the early 1960s spread like wildfire among the younger set without the aid of, god forbid, Facebook or Twitter. Contrast that historical example with the more recent happenings in Iran and the Twitter Revolution, where it seemed that tens of thousands of Twitter users stood in solidarity with the protesting Iranians, some of who were literally dying in the streets. The point Gladwell is making, and one with which I concur, is that for all the hype regarding social networking tools, relying on said tools to advocate significant change will end up in a losing battle or inefficient result.
A big reason, Gladwell postulates, is that social networks are at their core good at increasing participation but inefficient at execution. It’s easy to hit the “like” button on Facebook to agree that “I support Darfur victims,” or “down with big government,” but it’s another thing to put your literal neck on the line — as the protestors in South Carolina and Iran did.
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By Berin Szoka & Adam Thierer
Yesterday, the Progress & Freedom Foundation (PFF) and Electronic Frontier Foundation (EFF) filed a joint amicus brief with the U.S. Supreme Court urging the Court to protect the free speech rights of videogame creators and users and asking the justices to uphold a ruling throwing out unconstitutional restrictions on violent videogames. At issue is a California law that bans the sale or rental of “violent” videogames to anyone under the age of 18, among other regulations. While the law was passed in 2005, it has never taken effect, as courts have repeatedly ruled it unconstitutional. California appealed its loss at the Ninth Circuit Court of Appeals to the Supreme Court. The case is Schwarzenegger vs. EMA.
This case has profound ramifications for the future of not just videogames, but all media, and the Internet as well. Although we’ve had 15 years of fairly solid Supreme Court case law on new media issues, a loss in the Schwarzenegger case could reverse that tide. In the amicus brief, we explain how the current videogame content rating system empowers parents to make their own decisions without unconstitutionally restricting this new and evolving form of free speech. Our brief is focused on three major arguments:
- Parental Control Tools, Household Media Control Methods, Self-Regulation and Enforcement of Existing Laws Constitute Less Restrictive Means of Limiting Access to Objectionable Content than Government Regulation of Constitutionally Protected Speech
- Videogame Content is Constitutionally Protected Speech Deserving Strict Scrutiny
- The State Has Not Established a Compelling Government Interest in Restricting the Sale of Videogames to Minors
The filing can be found online here and it is embedded down below. As always, the Media Coalition has done an outstanding job summarizing the case and listing all the major briefs filed with the Court in this matter, so check out their Schwarzenegger v. EMA page for everything you need to know about this case. GamePolitics.com also offers excellent ongoing coverage of the case. Continue reading →
[Fellow members of the Society for the Prevention of Vice, I urge you to take immediate action to continue our crusade to clean up America’s media marketplace by ridding it of the scourge of media hyper-violence. A clip has come to our attention that merits particular concern and I hope you will agree something must be done by our government before such filth gets widespread dissemination. So, please join me in signing this petition to the FCC to take action now—for the children—before such unspeakable acts of violence are mimicked by millions of youth across America.]
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TO: Julius Genachowski, Chairman, Federal Communications Commission
FROM: Adam Thierer, President, Society for the Prevention of Vice (formerly known as the Society for Soft Pillow Fights)
RE: Another example of unspeakable media violence that must be stopped
Dear Chairman Genachowski:
A video has come to our attention that displays, once again, the media industry’s utter disregard for human decency and the dignity of life, and we hope you will agree something must be done to stop its dissemination before it is too late. In this video:
- A man’s nose is seemingly twisted off his face (as he screams in agony) and then his face is forced onto a grinding machine while sparks fly off his burning flesh (he again screams in agony);
- A shoe with an extended spike is inserted into a man’s head and then his eyeball and then his ear lobe (he screams in agony each time);
- The man who was impaled with said shoe spike then bites the offender’s foot (he, too, screams in agony);
- A blow-torch is used to light a man’s buttocks afire (he screams in agony);
- A man climbs a pole, plays with live electrical wires, is then is electrocuted after chewing on said wires, and then falls to the ground still shaking from the voltage running through his body (he screams in agony);
- A wrench is dropped on a man’s head (he screams in agony) and he then uses said wrench to hit another man over the head and violently twist his nose with it (he screams in agony); and
- Finally, the electrocuted man has a light bulb inserted into one ear and a screwdriver into the other (he screams in agony and then, bizarrely, he laughs to end the clip — as if he is mocking the depravity of what we have just witnessed!)
I have attached a clip of this unspeakably evil carnival of pain, but I warn you that it could forever darken your soul. Can you imagine, sir, if earlier generations of American youth had seen this? Could America have produced “The Greatest Generation” if the youth of the World War II era had grown up watching such filth? We now know from several psychological studies that children will mimic whatever they see on the screen. If they see such depictions of violence in media, they will reenact it themselves in the real world. In other words, “monkey see-monkey do.” Please, on behalf of all those signing this petition, and for the sake of our children, I beg you to help us put a stop to this moral outrage before our great civilization decays and withers away in a sea of media hyper-violence such as this: Continue reading →
Back in March, the Motion Picture Association of America re-launched its film-rating website, filmratings.com. While this may be old news to some, I just learned about it from a post on BoingBoing which makes fun of the rationales given for the ratings, which are available on the new website. Example: The movie “3 Ninjas Knuckle Up” was “rated PG-13 for non-stop ninja action.”
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[I’m always amazed by the misuse of language in debates over media and communications policy. Some regulatory advocates, like Free Press and Public Knowledge, seem to contort the meaning of everyday words in such a grotesque way that they are barely recognizable. Luckily, via Wikileaks, Mike Wendy and I stumbled upon a secret copy of the “Free Press-Public Knowledge Stylebook for Public Debate” and now have a better idea of what they mean when they utter these terms. We thought we’d share…]
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“behemoth” – Use this word to refer to any corporation, regardless of actual size, and make them sound more nefarious than the much larger government that will regulate them.
“Big Brother” – See “behemoth,” and be careful not to reference Orwell too much lest people actually read “1984” and discover that Big Brother was actually the government, not industry.
“Censorship” – Refers to efforts by nefarious corporations to control our thoughts and actions since that’s obviously how they make most of their money. Some people say government might be the real threat to freedom of speech, but don’t you believe such silliness!
“Competition” – A centrally-planned system used to prop up free-riders who usually don’t have facilities of their own. (See “Open access.”) Of course, the best forms of competition arise from government ownership.
“the Constitution” – An odd document in that, for some reason, it contains a litany of limitations on the power of government to regulate evil corporations that the people wanted to see crushed. (See “the People.”) However, the addition of the First Amendment partially rectified that by giving us the foundation for industry regulation. (See “First Amendment.”) Continue reading →
The always-excellent Wall Street Journal “Information Age” columnist L. Gordon Crovitz has another editorial worth reading today, which builds on the Second Circuit’s recent decision to reverse FCC content regulation for broadcasting. In “The Technology of Decency,” Crovitz explains “parents don’t need the FCC to protect their children.” “Technology makes it easier to block seven or any number of dirty words,” he notes. “Taking the FCC out of regulating indecency might just lead to more decency by refocusing responsibility where it belongs: on broadcasters and parents.”
That’s a point I’ve hammered on her in the past and in all my work on parental empowerment solutions, including my book, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” Indeed, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what is acceptable in their homes and in the lives of their children. And, luckily, poll after poll shows that parents are stepping up to the plate and taking on that responsibility (contrary to what some policymakers in Washington imply).
Moreover, legally speaking, Crovitz shows why the old rationales for regulating broadcasting differently no longer work. “No medium is likely ever to be as pervasive as broadcasting once was,” he notes. He goes on to note that: Continue reading →
Over at MediaFreedom.org, a new site devoted to fighting the fanaticism of radical anti-media freedom groups like Free Press and other “media reformistas,” I’ve started rolling out a 5-part series of essays about “The Battle for Media Freedom.” In Part 1 of the series, I defined what real media freedom is all about, and in Part 2 I discussed the rising “cyber-collectivist” threat to media freedom. In my latest installment, I offer an analytical framework that better explains the major differences between the antagonists in the battle over media freedom.
Understanding the Origins of Political Struggles
In his many enlightening books, Thomas Sowell, a great economist and an even better political scientist, often warns of the triumph of good intentions over good economics. It’s a theme that F.A. Hayek and Milton Friedman both developed extensively before him. But Sowell has taken this analysis to an entirely differently level in books like A Conflict of Visions: Ideological Origins of Political Struggles, and The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy. Sowell teaches us that no matter how noble one’s intentions might be, it does not mean that those ideas will translate into sound public policy. Nonetheless, since “the anointed” believe their own intentions are pure and their methods are sound, they see nothing wrong with substituting their will for the will of millions of individuals interacting spontaneously and voluntarily in the marketplace. The result is an expansion of the scope of public decision-making and a contraction of the scope of private, voluntary action. As a result, mandates replace markets, and freedom gives way central planning.
Sowell developed two useful paradigms to help us better understand “the origins of political struggles.” He refers to the “constrained” versus “unconstrained” vision and separates these two camps according to how they view the nature of man, society, economy, and politics:
| “Constrained Vision” |
“Unconstrained Vision” |
| Man is inherently constrained; highly fallible and imperfect |
Man is inherently unconstrained; just a matter of trying hard enough; man & society are perfectible |
| Social and economic order develops in bottom-up, spontaneous fashion. Top down planning is hard because planners aren’t omnipotent. |
Order derives from smart planning, often from top-down. Elites can be trusted to make smart social & economic interventions. |
| Trade-offs & incentives matter most; wary of unintended consequences |
Solutions & intentions matter most; less concern about costs or consequences of action |
| Opportunities count more than end results; procedural fairness is key; Liberty trumps |
Outcomes matter most; distributive or “patterned” justice is key; Equality trumps liberty |
| Prudence and patience are virtues. There are limits to human reason. |
Passion for, and pursuit of, high ideals trumps all. Human reason has boundless potential. |
| Law evolves and is based on the experience of ages. |
Law is made by trusted elites. |
| Markets offer benefit of experience & experimentation and help develop knowledge over time. |
Markets cannot ensure desired results; must be superseded by planning & patterned justice |
| Exponents: Aristotle, Adam Smith, Edmund Burke, James Madison, Lord Acton, F.A. Hayek, Ludwig von Mises, Milton Friedman, James Buchanan, Robert Nozick |
Exponents: Plato, Rousseau, William Godwin, Voltaire, Robert Owen, John Kenneth Galbraith, John Dewey, Earl Warren, Bertrand Russell, John Rawls |
If I ever had any hope of “keeping up” with developments in the regulation of information technology—or even the nine specific areas I explored in The Laws of Disruption—that hope was lost long ago. The last few months I haven’t even been able to keep up just sorting the piles of printouts of stories I’ve “clipped” from just a few key sources, including The New York Times, The Wall Street Journal, CNET News.com and The Washington Post.
I’ve just gone through a big pile of clippings that cover April-July. A few highlights: In May, YouTube surpassed 2 billion daily hits. Today, Facebook announced it has more than 500,000,000 members. Researchers last week demonstrated technology that draws device power from radio waves.
Continue reading →
As part of its excellent “Room for Debate” series, the New York Times has an interesting new online symposium up now asking, “Will Networks Go Wild, With No Decency Rules?” It was in response to last week’s Second Circuit decision, which again slapped down an effort by the Federal Communications Commission to defend the agency’s indecency enforcement regime. I was honored to be asked to contribute a short essay on the subject. Here are the other contributors and their essays. Take the time to check them out:
I was particularly interested in former FCC’s Chairman Michael Powell’s admission that “The [FCC’s] fleeting expletive policy was a mistake,” and that “the real problem is the now-flawed constitutional foundation on which the law is built.” Powell goes on to argue that, “We cannot have one First Amendment for broadcasting and another one for every other medium. This vestige of a bygone era provides fertile ground for mischief — culture wars, political agenda and moral mandates. It’s high time for the high court to bring our laws into the 21st century.”
I wholeheartedly agree, and I wrote a lengthy law review article on just that topic back in 2007 entitled,“Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” If you find it too boring, just watch this video I made summarizing the key points, which I called “America’s First Amendment Twilight Zone.”
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.