First Amendment & Free Speech

New Google Tool Discloses Censorship & User Data Requests from Governments

by on April 20, 2010 · 6 comments

Google has just launched a new tool that lets users view the total number of requests received “from government agencies around the world to remove content from our services, or provide information about users of our services and products.” As the FAQ explains, the tool overlays the requests received over the last six months, except for countries like China that prohibit the release of such numbers, on a map with totals for both data requests if over 30 (criminal-related but not civil) and removal requests if over 10 (not including requests from private parties, like DMCA copyright take-down notices). Google makes a few important observations about the data—especially that Brazil and India’s numbers are skewed way off because of the popularity of Orkut, Google’s answer to Facebook, there.

This tool represents the beginning of a new era in transparency into how governments censor the Internet and violate users’ privacy. I very much look forward to seeing Google improve this tool to provide greater granularity of disclosure, and to seeing other companies improve upon what Google has started. Over time, this transparency could do wonders to advance Internet freedom for users by promoting positive competition among countries.

To illustrate the kinds of things one could do with this data with a more robust interface, I put together the following spreadsheet (by scraping Google’s request numbers and mashing them up with total Internet users numbers I found here (which are mostly from late 2009):

Continue reading →

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April 21: State of the Mobile Net & Growing Up Mobile Seminar in DC

by on April 19, 2010 · 0 comments

The Congressional Internet Caucus Advisory Committee is hosting their second annual State of the Mobile Net conference this Wednesday, April 21 at the DC Hyatt Regency (400 New Jersey Ave NW). The conference runs 12-5 pm followed by a cocktail reception. This conference and the larger State of the Net conference are probably the two best annual Internet policy events in DC, so I hope you’ll attend! This year’s SOMN includes a bonus: a “Growing Up with the Mobile Net” seminar coordinated by Common Sense Media, 9-11:45 am. I’ll be on the first panel of the morning on Kids’ Privacy on the Mobile Net: Is it PII or TMI? with:

  • Amanda Lenhart of the Pew Internet & American Life Project, veritable goddess of cyber-sociological data (check out her terrific Social Media & Young Adults report);
  • Phyllis Marcus, who handles childrens’ privacy and COPPA issues at the FTC (and is one of my favorite people there); and
  • Alan Simpson, Common Sense Media, a tireless advocate for educating children & parents.

I can only assume Alan asked me to be on this distinguished panel panel to represent kids directly on account of my baby-faced-ness! Jerry Rubin famously said, “Don’t trust anyone over thirty”—so I’ve still got 3.5 months of trustworthiness to go! (Or perhaps he actually read the huge PFF paper Adam Thierer and I did last summer about COPPA and my recent post on the FTC’s recently announced COPPA implementation review or my testimony on Maine’s COPPA 2.0 law.) Anyway, the rest of the day looks great (so register here), including these sessions: Continue reading →

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Maryland’s Asinine Surreptitious Recording Law

by on April 14, 2010 · 8 comments

According to the Reporters Committee for Freedom of the Press' First Amendment Handbook, twelve states forbid the recording of private conversations without the consent of all parties. Maryland is one of them.

And now a guy who was recording his own antics on a motorcycle is facing a felony charge because he continued recording during a traffic stop. David Rittgers has more on the Cato@Liberty blog.

Laws that ban all surreptitious recording to get at wrongful recording are overbroad and damaging. Laws that prevent the recording of police officers are particularly wrongheaded. Maryland needs some technology liberation.

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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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GetUnvarnished.com: Should We Allow User Feedback about Personal Reputation?

by on April 6, 2010 · 15 comments

I got a call today from CNBC asking me to appear on a program to discuss the rising controversy surrounding GetUnvarnished.com, which CNBC called “the scariest website ever” and an “online reputation killer.”  For those of you not familiar with the site, it bills itself as “an online resource for building, managing, and researching professional reputation, using community-contributed, professional reviews.”  More specifically, the site says:

Unvarnished reviews help you get the inside scoop on other business professionals, providing candid assessments of coworkers, potential hires, business partners, and more. By contributing Unvarnished reviews, you can share your knowledge of other professionals, giving credit where credit is due, and valuable feedback where needed. Lastly, your own Unvarnished profile, which you may create yourself or claim one that has been created for you, helps you take control of and build your own professional reputation. Get recognition for your accomplishments and actively manage your career growth.

In essence, the site is like other online product or service review sites except in this case the product or service being reviewed is you!  By letting people comment on other people’s reputation anonymously, the theory is that Unvarnished can become “a central hub for community-contributed reviews regarding an individual business professional,” according to the site.

However, as you can well imagine, the site raises all sorts of thorny questions about anonymity, free speech, privacy, personal reputation, libel, child safety, cyberbullying, intermediary liability, and so on. If you read these two TechCrunch articles [1, 2], you’ll get a good feel for the heated debate that will follow, which I’m sure we’ll be talking about more here on this blog in the months to come. I can see this becoming the next AutoAdmit or JuicyCampus case, and raising some of the same questions that came to the fore during the “skank” blogger case last year. For now, here’s the video from the CNBC show, and down below I have included some talking points I put together before I went on the air.

Continue reading →

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Elmo Rallies Toddler Support for FCC’s National Broadband Plan—But Should He?

by on March 30, 2010 · 3 comments

Just in case you missed Adam Thierer’s unhinged rant, My Swan Song Moment: I Will Take Elmo Hostage in the Name of First Amendment Freedoms!, you’ll want to go back and read it after watching this:

Not exactly a highpoint in the history of deliberative democracy or rhetoric (in the best sense), but I suppose it beats wading through the 376 page National Broadband Plan… Anyway, given all this talk about increasing funding for the Corporation for Public Broadcasting as a way of “saving media,” I do have to wonder: Just how far will we go in allowing taxpayer-funded muppets to rally public support for this (or future) administration’s policy agenda? I mean, if the White Houe had put Oscar the Grouch on national TV to lobby for health care socialization “reform” by explaining whatever trash-related chronic medial conditions are responsible for making him so darn cranky, I think some folks would rightly have been upset.

Yes, I’m trying to be funny here but, seriously, where’s the line between harmless fun and… inappropriate use of taxpayer-funded resources for political purposes? I’m not sure. The administration probably crossed that line last September when President Obama gave a speech to kids and the Department of Education sent a proposed lesson plan to schools nationwide (later withdrawn) suggesting that pre-K-6 teachers have their students “write letters to themselves about what they can do to help the president.” But is Elmo’s meeting with Chairman Genachowski ok as a way of rallying kids—and, more importantly, their parents and everyone else who finds it cute—around a policy agenda? Any thoughts on where this line should be drawn?

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Eric Goldman on New Threats to Sec. 230

by on March 27, 2010 · 8 comments

By Adam Thierer & Berin Szoka

Short but very important essay here from Santa Clara University Law School Prof. Eric Goldman about calls to alter Sec. 230 of the Communications Decency Act (CDA) to address concerns about online harassment. Generally speaking, Sec. 230 immunizes online intermediaries from punishing liability for the content that travels over their networks / services. Specifically, Sec. 230 stipulates that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words: Don’t shoot the messenger!

As we’ve noted here before, it is probably not an overstatement to think of Sec. 230 as the very cornerstone of Internet Freedom, since it makes possible an online “utopia for utopias,” to borrow a phrase from our favorite modern political philosopher, the late Robert Nozick. Without Sec. 230, intermediaries would likely be forced to shut down many avenues of communication and would have to become deputized conduct and morality police for every cyber-street corner.

Goldman, America’s leading expert on Sec. 230-related jurisprudence, correctly notes that, “Frequently, § 230’s critics do not attack the immunization generally, but instead advocate a new limited exception for their pet concern.” He’s got that right. Indeed, we are increasingly hearing calls from numerous quarters these days to “tweak 230” for one pet concern after another. We’ve illustrated some of those concerns in this exhibit.

Deputization of the Middleman

Regulatory advocates can be found for each of these issues who like to see the protections afforded by Sec. 230 scaled back by Congress or he courts. But Goldman rightly warns:

Continue reading →

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event: Corn-Revere Speech at GMU (4/5) on “First Amendment & the End of History”

by on March 26, 2010 · 0 comments

My good friend and mentor Robert Corn-Revere, a Partner at Davis Wright Tremaine LLP, will be delivering what sounds like a terrific speech on April 5th at 4:00 at the George Mason University School of Law on “The First Amendment and the End of History: Does Media Convergence Mean the End of Regulation or is it Just the Beginning?” It’s a topic I care about deeply and you’ll see how influential Bob’s thinking has been on my own by watching that video down below.  Bob is one of America’s leading free speech scholars and a tireless defender of First Amendment rights. And he’s always entertaining when he steps to a podium to deliver remarks.  Admission to the event is free but RSVPs are requested: iep.gmu@gmail.com.  Here are logistical details:

Monday, April 5, 2010, 4 p.m.
George Mason University School of Law (Room 120)
3301 Fairfax Drive, Arlington, Va. (Orange Line: Virginia Square-GMU Metro)

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FTC Announces Broad COPPA Review for Children’s Online Privacy

by on March 24, 2010 · 8 comments

The Federal Trade Commission (FTC) today announced the release of an 18-page Request for Public Comment (embedded below) on its implementation of the Children’s Online Privacy Protection Act or 1998 (COPPA), which governs online sharing by, and collection of information from, children under age 13. The FTC had previously announced that it would accelerate the review, which had been planned for 2015, particularly because of concerns about the mobile marketplace, as noted in the FTC’s report on that topic released in February.

COPPA has undoubtedly succeeded in its primary goal of enhancing parental involvement in their child’s online activities in order to protect the privacy and safety of children online.  Yet these benefits have come at a price, as COPPA’s considerable compliance costs (estimated at $45/child, which can be crushing in the era of “free”) have likely reduced the digital media choices available for children.  So I’m glad to see the Commission recognize these trade-offs by asking about the costs and benefits of COPPA and any proposed changes right off the bat (Questions 1-5). Such trade-offs are an inevitable part of life and policymakers can’t simply ignore them, even when it’s “for the children.”

The Potential for COPPA Expansion

I look forward to seeing comments on the important questions raised by the Commission about precisely how best to implement the framework enacted by Congress.  But I do worry that the Commission has explicitly invited proposals for legislative changes to the statute itself. In particular:

6. Do the definitions set forth in Part 312.2 of the Rule accomplish COPPA’s goal of protecting children’s online privacy and safety? …

28. Does the commenter propose any modifications to the Rule that may conflict with the statutory provisions of the COPPA Act? For any such proposed modification, does the commenter propose seeking legislative changes to the Act?

Note that question #6 does not include the critical limitation “consistent with the Act’s requirements,” which appears no less than 17 times in subsequent questions about specific aspects of the current rules. Whatever the FTC intended, this will omission, combined with question #28, will be taken as an open invitation by many to propose not just changes in how the COPPA rules are implemented, but wholesale revisions to the COPPA statute itself. Continue reading →

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Google v. Everyone

by on March 23, 2010 · 9 comments

I had a long interview this morning with the Christian Science Monitor. Like many of the interviews I’ve had this year, the subject was Google. At the increasingly congested intersection of technology and the law, Google seems to be involved in most of the accidents.

Just to name a few of the more recent pileups, consider the Google books deal, net neutrality and the National Broadband Plan, Viacom’s lawsuit against YouTube for copyright infringement, Google’s very public battle with the nation of China, today’s ruling from the European Court of Justice regarding trademarks, adwords, and counterfeit goods, the convictions of Google executives in Italy over a user-posted video, and the reaction of privacy advocates to the less-than-immaculate conception of Buzz.

In some ways, it should come as no surprise to Google’s legal counsel that the company is involved in increasingly serious matters of regulation and litigation. After all, Google’s corporate goal is the collection, analysis, and distribution of as much of the world’s information as possible, or, as the company puts it,” to organize the world’s information and make it universally accessible and useful.” That’s a goal it has been wildly successful at in its brief history, whether you measure success by use (91 million searches a day) or market capitalization ($174 billion).

As the world’s economy moves from one based on physical goods to one driven by information flow, the mismatch between industrial law and information behavior has become acute, and Google finds itself a frequent proxy in the conflicts.

Continue reading →

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