And so begins another fight over data retention. As Declan summarizes:
Republican politicians on Thursday called for a sweeping new federal law that would require all Internet providers and operators of millions of Wi-Fi access points, even hotels, local coffee shops, and home users, to keep records about users for two years to aid police investigations. The legislation, which echoes a measure proposed by one of their Democratic colleagues three years ago, would impose unprecedented data retention requirements on a broad swath of Internet access providers and is certain to draw fire from businesses and privacy advocates. […] Two bills have been introduced so far — S.436 in the Senate and H.R.1076 in the House. Each of the companion bills is titled “Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act,” or Internet Safety Act.
Julian also has coverage over at Ars and quotes CDT’s Greg Nojeim who says the data retention language is “invasive, risky, unnecessary, and likely to be ineffective.” I think that’s generally correct. Moreover, I find it ironic that at a time when so many in Congress seemingly want online providers to collect and retain LESS data about users, this bill proposes that ISPs be required to collect and retain MORE data. One wonders how those two legislative priorities will be reconciled!!
Don’t get me wrong. It’s good that Congress is taking steps to address the scourge of child pornography — especially with stiffer sentences for offenders and greater resources for law enforcement officials. Extensive data retention mandates, however, would be unlikely to help much given the ease with which bad guys will likely circumvent those requirements using alternative access points or proxies. Finally, retention mandates pose a threat to the privacy of average law-abiding citizens and impose expensive burdens of online intermediaries.
We’ve had more to say about data retention here at the TLF over the years. Here’s a few things to read: Continue reading →
My new article on “FCC v. Fox and the Future of the First Amendment” has just been published in the February 2009 edition of Engage, the journal of the Federalist Society. Here’s how it begins:
On November 4th, 2008, the Supreme Court heard oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. This case, which originated in the Second Circuit Court of Appeals, deals with the FCC’s new policy for “fleeting expletives” on broadcast television. The FCC lost and appealed to the Supreme Court. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — was heard in the Third Circuit Court of Appeals. The FCC also lost that case and has also petitioned the Supreme Court to review the lower court’s ruling.
These two cases reflect an old and odd tension in American media policy and First Amendment jurisprudence. Words and images presented over one medium-in this case broadcast television-are regulated differently than when transmitted through any other media platform (such as newspapers, cable TV, DVDs, or the Internet). Various rationales have been put forward in support of this asymmetrical regulatory standard. Those rationales have always been weak, however. Worse yet, they have opened the door to an array of other regulatory shenanigans, such as the so-called Fairness Doctrine, and many other media marketplace restrictions.
Whatever sense this arrangement made in the past, technological and marketplace developments are now calling into question the wisdom and efficacy of the traditional broadcast industry regulatory paradigm. This article will explore both the old and new rationales for differential First Amendment treatment of broadcast television and radio operators and conclude that those rationales: (1) have never been justified, and (2) cannot, and should not, survive in our new era of media abundance and technological convergence.
I go on in the piece to make the case against the those rationales and the call for the Supreme Court to use the Fox and CBS cases to end this historical First Amendment anomaly of differential treatment of broadcast platforms relative to all other media providers.
This article can be downloaded as a PDF here, or viewed down below the fold in the Scribd reader.
Continue reading →
From FoxNews.com:
“As the president stated during the campaign, he does not believe the Fairness Doctrine should be reinstated,” White House spokesman Ben LaBolt said.
If this is indeed the Obama administration’s official stance, the news couldn’t have come at a better time. Just last week FCC officials met with Rep. Henry Waxman’s staff to discuss resurrecting the Fairness Doctrine under a new name. Waxman, the head of the House Energy and Commerce Committee, has also been looking into “fairness” issues on the Internet—creating an expanded, Fairness Doctrine 2.0.
The American Spectator reported on this reanimation of the long-dead doctrine and brought us this great quote from a Waxman staffer:
“It’s all about diversity in media,” says a House Energy staffer, familiar with the meetings. “Does one radio station or one station group control four of the five most powerful outlets in one community? Do four stations in one region carry Rush Limbaugh, and nothing else during the same time slot? Does one heavily trafficked Internet site present one side of an issue and not link to sites that present alternative views? These are some of the questions the chairman is thinking about right now, and we are going to have an FCC that will finally have the people in place to answer them.”
It doesn’t seem that Waxman’s real concern is having an FCC that can answer questions, but an FCC that will ignore its obligation to uphold the Constitution and sacrifice our freedom of speech on the alter of “fairness.”
Of course, none of this has anything to do with fairness, but has everything to do with politicians controlling what we can say, write, or otherwise express.
If Congress is somehow able to dupe the American people into accepting such speech restrictions—and President Obama doesn’t block a Fairness Doctrine 2.0—we can look forward to websites being patrolled by federal fairness cops, radio stations being staffed by stop-watch-toting FCC agents, and a presidential appointee sitting on the editorial board of every newspaper and magazine that still chooses to publish.
Let’s hope the President takes his oath seriously and defends the Constitution. Our basic freedom to speak our mind—the most fundamental of all freedoms—may rely on Mr. Obama’s resolve.
Matt Lasar of Ars tells us not to worry about the Fairness Doctrine being revived, only to go on and cite several lawmakers who have said they’d like to revive it. Meanwhile, over at the American Spectator, somebody called “The Prowler” seems to have all sorts of unnamed sources on the Hill telling him the Fairness Doctrine will be revived any day now.
Who knows what to believe. But let’s keep our eye on the real issue here. The danger is not that the Fairness Doctrine gets back on the books in the same form; it’s that versions of it sneak in through the back door via other regulatory initiatives. As Cord Blomquist pointed out here last April, “localism is the new Fairness Doctrine.” There are a lot of people are running around Washington today insisting that government must intervene in the marketplace to “save media localism” and “strengthen the public interest obligations” of local TV and radio broadcasters. There’s been an FCC proceeding open on this issue for some time, and everything about it reeks of the Fairness Doctrine in drag.
This effort is being spearheaded by the media reformistas whose short-term goal is to reinvigorate the amorphous “public interest standard” such that the FCC has open-ended powers to regulate everything under the sun going forward. That’s why a key part of the “localism” battle is their effort to breathe new life into “ascertainment rules,” which used to be more formal and required broadcasters to strictly report everything they aired and did in their communities. There’s lots of talk of ensuring more “accountability” from broadcasters regarding how they serve their local communities, and there’s even rumblings of “local community boards” who will sit as mini-free speech Star Chambers and pass judgment on whether local media outlets are doing their job. Again, it’s all just the Fairness Doctrine by another name. Continue reading →
David Margolick has penned a lengthy piece for Portfolio.com about the AutoAdmit case, which has important ramifications for the future of Section 230 and online speech in general. Very brief background: AutoAdmit is a discussion board for students looking to enter, or just discuss, law schools. Some threads on the site have included ugly — insanely ugly — insults about some women. A couple of those women sued to reveal the identities of their attackers and hold them liable for supposedly wronging them. The case has been slowly moving through the courts ever since. Again, read Margolick’s article for all the details. The important point here is that the women could not sue AutoAdmit directly for defamation or harassment because Section 230 of the Communications Decency Act of 1996 immunizes websites from liability for the actions of their users. Consequently, those looking to sue must go after the actual individuals behind the comments which (supposedly) caused the harm in question.
I am big defender of Section 230 and have argued that it has been the cornerstone of Internet freedom. Keeping online intermediaries free from burdensome policing requirements and liability threats has created the vibrant marketplace of expression and commerce that we enjoy today. If not for Sec. 230, we would likely live in a very different world today.
Sec. 230 has come under attack, however, from those who believe online intermediaries should “do more” to address various concerns, including cyber-bullying, defamation, or other problems. For those of us who believe passionately in the importance of Sec. 230, the better approach is to preserve immunity for intermediaries and instead encourage more voluntary policing and self-regulation by intermediaries, increased public pressure on those sites that turn a blind eye to such behavior to encourage them to change their ways, more efforts to establish “community policing” by users such that they can report or counter abusive language, and so on.
Of course, those efforts will never be fool proof and a handful of bad apples will still be able to cause a lot of grief for some users on certain discussion boards, blogs, and so on. In those extreme cases where legal action is necessary, it would be optimal if every effort was exhausted to go after the actual end-user who is causing the problem before tossing Sec. 230 and current online immunity norms to the wind in an effort to force the intermediaries to police speech. After all, how do the intermediaries know what is defamatory? Why should they be forced to sit in judgment of such things? If, under threat of lawsuit, they are petitioned by countless users to remove content or comments that those individuals find objectionable, the result will be a massive chilling effect on online free speech since those intermediaries would likely play is safe most of the time and just take everything down. Continue reading →
During my summer internship at CEI, a couple of us interns discussed the book Cato’s Robert Levy published last May, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. We looked at Levy’s list of the worst decisions and sent each other lists of our own. Now that I’m taking ConLaw, I feel as though the time has come to post my lists of the twelve worst and the twelve best Supreme Court decisions of all time. It is by no means an exhaustive list. My inclusion of different cases than Levy does not indicate that I disagree with his assessment that those decisions are terrible – just maybe not as bad as the ones I select.
The Worst:
- The Slaughter-House Cases (1873). The very worst decision ever made by the US Supreme Court. Eviscerated the 14th Amendment only five years after its adoption. It is best known for reading the Privileges or Immunities Clause, which was supposed to be (and could have been) a vehicle for both incorporation and unenumerated rights, out of the Constitution. But it also wrote out the Due Process Clause and the Equal Protection Clause, though those two clauses eventually crawled back into existence, to a degree.
- Katzenbach v. McClung (1964). It was tough to decide which of the various cases reading the Commerce Clause expansively enough to permit Congress to pass any law it desires, thus destroying the basis of the federal government as one of defined and limited powers to include. But McClung seems to be the most expansive in both its result and its holding.
Continue reading →
Here’s some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:
It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny.
[…]
Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.
But it most certainly would not pass muster is applied to cable or satellite:
Continue reading →
Over the summer, I blogged about an FCC decision to ban Verizon’s practice of offering incentives to departing customers to get them to stay. Yesterday, the DC Circuit upheld that bad decision. When a customer of Verizon’s phone service decides to leave for a VOIP company, Verizon gets a notice that the number is being ported. When Verizon got notified that the customer was trying to leave, the company would offer her incentives such as “discounts and American Express reward cards” to stay.
This worked well for the customers, who got discounts if they stayed. It also worked well for Verizon, for whom it costs much more to find a replacement customer than to keep the current one. And it was really the best way to do so. If Verizon had given the incentives any time a customer threatened to leave, but didn’t start the process of doing so, then customers would just bluff to get the incentives. Verizon instead looked for a costly signal from the customer. And if Verizon had waited until after the port was already completed, it would cost the customer, Verizon, and the new carrier a lot of effort to switch back.
But the FCC banned Verizon’s efforts and yesterday the DC Circuit affirmed the Commission. I will follow with more details, once my summary of the case comes out in the March issue of Packets, the Center for Internet and Society’s publication summarizing important new internet cases. But for now, I should just note that the court hinted that the FCC’s reading of the statute it relied upon was a bit counterintuitive, but was compelled by Chevron v. NRDC to give the administrative agency great deference in its bad reading of the law. The court even noted that Verizon offered uncontroverted evidence “that continuation of its marketing program would generate $75–79 million in benefits for telephone customers over a five-year period.” Further, the court rejected Verizon’s First Amendment challenge, because the lower standard for commercial speech compelled the conclusion that Verizon’s sound marketing efforts didn’t deserve protection.
These precedents need to be revoked, or the growing administrative state will keep swallowing up more and more of our most important freedoms while preventing sensible and beneficial policies.
On this episode of “Tech Policy Weekly,” we’re launching a new format called “Tech Book Corner” that will feature occasional conversations with the authors of important new books about technology policy and the other issues that we debate frequently at the Tech Liberation Front blog.
On this debut episode of Book Corner, we are joined by John Palfrey, a professor of law at Harvard University and the co-director of the Berkman Center for Internet & Society at Harvard. Along with his Berkman Center colleague Urs Gasser, Prof. Palfrey has recently co-authored Born Digital: Understanding the First Generation of Digital Natives, which was published last summer by Basic Books and which you can find out more information about at www.borndigitalbook.com. [Incidentally, I reviewed Born Digital here last October and I also named it one of the most important technology policy books of 2008.]
In our discussion, Prof. Palfrey explains who exactly counts as a “digital native” and tells us why he decided to write a book about them. He discusses why he believes that there has been some overreaction by older generations to fears about this Digital Generation and he argues that we need “to separate what we need to worry about from what’s not so scary” and “what we ought to resist from what we ought to embrace.” He then outlines how we should think about these issues and concerns going forward, and he stresses the importance of “balancing caution with encouragement” as we do so. Finally, he then applies that framework to three specific issues: privacy, child safety, and copyright.
It’s an interesting conversation and you can begin listening to it immediately by downloading the MP3 file here or by just clicking the play button below!
[display_podcast]
Online child safety — especially the fear of predators lurking on social networking sites (SNS) — continues to spur calls by state and federal lawmakers for regulation. At first, some federal lawmakers advocated outright bans on SNS in schools and libraries via the Deleting Online Predators Act (DOPA). Meanwhile, state and local lawmakers — specifically state Attorneys General (AGs) — have been even more vociferous in their calls for regulation in the form of mandatory age verification for social networking sites, which would cover a broad swath of online sites and activities according to their definitions of SNS. But the question that ultimately gets lost in this debate is: Just how much risk do social networking sites really pose for teens? Which risks are real and which are overblown? And what’s the best way to deal with the risks that we find to be legitimate?
Nancy Willard devotes her life to answering those questions. Willard is one of America’s leading experts on online safety and risk prevention. She runs the Center for Safe and Responsible Internet Use and she is the author of two outstanding books, Cyberbullying and Cyberthreats and Cyber-Safe Kids, Cyber-Savvy Teens. In my opinion, Willard’s general approach to online child safety is the most enlightened, level-headed, and likely to be effective. That’s because Willard focuses on putting fears in perspective, identifying the actual risks that kids face online, and devising sensible strategies to deal with risks and problems as they are discovered. Her approach is holistic and built upon sound data, targeted risk-identification strategies, and time-tested education and mentoring methods. For my money, it’s the most sensible approach to online safety issues. In fact, when other parents ask me for “just one thing” to read on the topic, I usually recommend Willard’s work — especially her amazing book Cyber-Safe Kids, Cyber-Savvy Teens. And her background in early childhood education, special education for “at risk” children with emotional and behavior difficulties, as well as experience in computer law, means she is uniquely suited to be analyzing these issues. In sum, this is woman we should all be closely listening to on these issues.
Recently, Willard has been responding to criticisms that state AGs have leveled against the Internet Safety Technical Task Force (ISTTF) and its final report. [Disclaimer: I was a member of the ISTTF.] I’ve already outlined the ISTTF’s work at length here, but the three key takeaways from the report were that:
- the risk of predation on social network sites has been over-stated; the data suggest that cyber-bullying is the bigger problem on SNS;
- there is no silver-bullet technical solution to online child safety concerns, and mandatory age verification, in particular, would not make kids safer online but could even create bigger problems in the long-run;
- education and empowerment are the real keys to keeping kids safer online.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.