Inside the Beltway (Politics)

Should an Independent Regulatory Agency Head Be Visiting the White House This Often?

by Adam Thierer on November 29, 2009 · 22 comments

by Adam Thierer & Berin Szoka

Move over, health care reform, climate change, and the economy. Judging by White House visits by various government agency heads, the Obama administration instead appears preoccupied with the re-regulation of communications, media, and the Internet. The Administration has just released logs of all visitors to the White House and Executive Office Buildings from Obama’s inauguration through August—including a staggering 47 visits by Federal Communications Commission (FCC) Chairman Julius Genachowski. By contrast, no other major agency head logged more than five visits. Chairman Genachowski obviously has an audience with those at the highest levels of power, including the President himself, but this raises questions about just how “independent” this particular regulator and his agency really are.

Unprecedented Transparency by White House

The Administration deserves credit for releasing these visitor logs, which offer unprecedented transparency into the White House’s workings. Unfortunately, the logs lack visitors’ affiliation and title, making it difficult to discern subtle patterns. Furthermore, each entry indicates only one “visitee” and the total number of people involved. Full disclosure requires identifying all meeting participants. Nonetheless, President Obama’s gesture is a great first step toward improved government accountability.

This openness allows us to ask questions we couldn’t pose for previous administrations—such as why the FCC head seems to have unparalleled access to the White House. Lacking data from previous administrations, it’s difficult to make direct comparisons with previous FCC Chairmen, but the sheer number of visits by Chairman Genachowski leaves no doubt about his uniquely close involvement with the White House. Continue reading →

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Privacy Hearing & Briefings This Week: More Non-sense about Non-harms of Online Advertising

by Berin Szoka on November 15, 2009 · 9 comments

This will be a busy week for those who follow privacy policy in Washington:

Monday (11/16) 11 am: the coalition of 10 so-called “privacy advocacy” groups that recently demanded sweeping regulation of online data collection and use will be holding a briefing for congressional staffers on their demands in 2322 Rayburn House Office Building.
Wednesday (11/17), 4 pm: A “bipartisan briefing for staff of Members on the Subcommittees” in 2322 Rayburn, followed by a Democratic staff briefing.
Thursday (11/18), 10 am: The House Energy & Commerce Committee’s Subcommittee on Communications, Technology & the Internet and Subcommittee on Commerce, Trade & Consumer Protection will hold a joint hearing on “Exploring the Offline and Online Collection and Use of Consumer Information” in 2123 Rayburn.

The witness list for Thursday’s hearing has not yet been released, but reportedly includes Pam Dixon of the World Privacy Forum and Prof. Chris Hoofnagle of Berkeley Law, as well as three industry representatives (but no skeptics of regulation from outside of industry, who might ask “whether privacy advocates” really have consumers interests at heart). Dixon and Hoofnagle may well be the only two people on the planet who could rival Jeff Chester in their paranoia about online advertising.

So I suspect the hearing will consist largely of the two of them trying to dodge the question Adam Thierer and I keep asking: What’s the harm that requires government regulation? For them—and for David Vladeck—the new head of the FTC’s Bureau of Consumer Protection—the answer seems to be that no real harm need be established to justify regulation, whatever the cost to consumers of regulation, because “harm” may be defined by anecdote and in terms of “dignity interests”—a legal standard that has all the intellectual and factual rigor of a plate full of Jell-O shots (intoxicating and fun for parties but squishy with little real substance).

Adam and I will be raising this and other questions at the FTC’s Exploring Privacy workshop on December 7. I will be participating in the online behavioral advertising panel, and PFF President Adam Thierer will be participating in the consumer expectations/surveys panel. Check out my comments to the FTC for more on our perspective. Continue reading →

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Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction

by Berin Szoka on October 23, 2009 · 43 comments

by Berin Szoka & Adam Thierer, Progress Snapshot 5.11 (PDF)

Ten years ago, Nobel Prize-winning economist Milton Friedman lamented the “Business Community’s Suicidal Impulse:” the persistent propensity to persecute one’s competitors through regulation or the threat thereof. Friedman asked: “Is it really in the self-interest of Silicon Valley to set the government on Microsoft?” After yesterday’s FCC vote’s to open a formal “Net Neutrality” rule-making, we must ask whether the high-tech industry—or consumers—will benefit from inviting government regulation of the Internet under the mantra of “neutrality.”

The hatred directed at Microsoft in the 1990s has more recently been focused on the industry that has brought broadband to Americans’ homes (Internet Service Providers) and the company that has done more than any other to make the web useful (Google). Both have been attacked for exercising supposed “gatekeeper” control over the Internet in one fashion or another. They are now turning their guns on each other—the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates. Unless we find a way to achieve “Digital Détente,” the consequences of this increasing regulatory brinkmanship will be “mutually assured destruction” (MAD) for industry and consumers.

New Fronts in the Neutrality Wars

The FCC’s proposed rules would apply to all broadband providers, including wireless, but not to Google or many other players operating in other layers of the Net who favor such broadband-specific rules. With this rulemaking looming, AT&T came after Google with letters to the FCC in late September and then another last week accusing the company of violating neutrality principles in their business practices and arguing that any neutrality rules that apply to ISPs should apply equally to Google’s panoply of popular services. In particular, AT&T accused Google of “search engine bias,” suggesting that only government-enforced neutrality mandates could protect consumers from Google’s supposed “monopolist” control.

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. Continue reading →

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Cyberbullying Hearing Yesterday: Education, not Criminalization or Intermediary Deputization

by Berin Szoka on October 1, 2009 · 16 comments

The House Judiciary Committee’s Crime subcommittee yesterday held a hearing yesterday on the painful issues of cyberbullying (webcast). Rep. Linda Sánchez (D-CA) talked about her bill, the “Megan Meier Cyber Bullying Prevention Act” (H.R. 1966), which would create of a new federal felony to punish cyberharassment, including fines and jail time for violators. Rep. Debbie Wasserman Schultz (D-FL) talked about her bill, the “Adolescent Web Awareness Requires Education Act (AWARE Act)” (H.R. 3630), which would instead allocate $125 million over five years in grants for education and awareness-building about these problems. Without endorsing any particular approach, Adam and I discussed the general advantages of education over criminalization in our “Cyberbullying Legislation: Why Education is Preferable to Regulation” paper published by PFF in June, which we updated and submitted as written testimony. But we really couldn’t have done a better job at making this point than Ranking Member Louie Gohmert (R-TX), who powerfully articulated his opposition to the run-away growth of federal criminal law. Chairman Scott (D-VA) also expressed a commendable reluctance to just pass another law and assume that fixes the problem.

Problems with Criminalization

Three lawyers on the panel generally agreed on the thorny speech and due process concerns raised by criminalization and agreed that the Sánchez bill would require serious revision to pass constitutional muster. UVA Law Prof. Robert O’Neil (testimony) suggested that of the exceptions to free speech protection recognized by the Supreme Court, the only one that could likely be used to do what advocates of cyberbullying criminalization want to accomplish is the intentional infliction of emotional distress. But O’Neill emphasized that this is generally a tort, not a criminal action—which seems like a pretty big distinction to me, especially when the criminal sanction might involve a felony conviction, as Sánchez has proposed. Felony convictions are the “Mark of Cain” in modern life, exceeded only in their lasting effect by being required to register on a sex offender registry. Cato Adjunct Fellow and civil rights lawyer Harvey Silverglate (testimony) highlighted the serious problems raised by vagueness and over-breadth in attempting to define harassment—as evidenced by speech codes at many universities. Harvard Law Prof. John Palfrey (testimony) generally echoed these concerns.

Criminalizing what is mostly child-on-child behavior simply will not solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. For all the talk of how to craft a criminal law (especially its definitions) to minimize constitutional problems, I was very surprised that no one at the hearing raised the critical issue of just who it is we’re trying to protect and from whom. Continue reading →

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The Day Real Internet Freedom Died: Our Forbes Op-Ed on Net Neutrality Regulation

by Adam Thierer on September 22, 2009 · 158 comments

Forbes.com has just published an editorial that Berin Szoka and I penned about yesterday’s net neutrality announcement from the FCC.

The Day Internet Freedom Died

by Adam Thierer & Berin Szoka

There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.

Those days are now gone; the presumption of online liberty is giving way to a presumption of regulation. A massive assault on real Internet freedom has been gathering steam for years and has finally come to a head. Ironically, victory for those who carry the banner of “Internet Freedom” would mean nothing less than the death of that freedom.

We refer to the gradual but certain movement to have the federal government impose “neutrality” regulation for all Internet actors and activities—and in particular, to yesterday’s announcement by Federal Communications Commission (FCC) Chairman Julius Genachowski that new rules will be floated shortly. “But wait,” you say, “You’re mixing things up! All that’s being talked about right now is the application of ‘simple net neutrality,’ regulations for the infrastructure layer of the net.” You might even claim regulations are not really regulation but pro-freedom principles to keep the net “free and open.”

Such thinking is terribly short-sighted. Here is the reality: Because of the steps being taken in Washington right now, real Internet Freedom—for all Internet operators and consumers, and for economic and speech rights alike—is about to start dying a death by a thousand regulatory cuts. Policymakers and activists groups are ramping up the FCC’s regulatory machine for a massive assault on cyber-liberty. This assault rests on the supposed superiority of common carriage regulation and “public interest” mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular. Stated differently, cyber-collectivism is back in vogue—and it’s coming very soon to a computer near you! Continue reading →

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PFF Event: ICANN & Internet Governance: How Did We Get Here & Where Are We Heading?

by Berin Szoka on September 15, 2009 · 6 comments

PFF Adjunct Fellow Mike Palage led this extraordinary discussion of ICANN’s origins, evolution and future with four of ICANN’s “Founding Fathers”: Milton Mueller (author of Ruling the Root), law professor David Johnson, ICANN’s first CEO Mike Roberts and then ICANN CEO Paul Twomey. In particular, the group discussed ICANN’s mission, governance structure, and accountability; the difficult issue of new generic Top Level Domain names (gTLDs) and trademark concerns; and ICANN’s future relationship with the U.S. government. Be sure to check out the handy ICANN Glossary on page 33. The audio can be downloaded here.

Here’s the transcript (PDF):

Continue reading →

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Canadiana… and Health Care Musings

by Solveig Singleton on September 2, 2009 · 12 comments

I ponder Canadian health care and directions for U.S. reform on the Convergence Law Institute Blog here.

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Choosing the Right Path to a Permanent Accountability Framework for ICANN

by Berin Szoka on August 26, 2009 · 10 comments

By Michael Palage & Berin Szoka, The Progress & Freedom Foundation

Over the next month, the ICANN Board will consider its options for ensuring that some framework is in place to ensure ICANN’s accountability to the global Internet community after the approaching expiration of its Memorandum of Understanding and Joint Project Agreement (MOU/JPA) with the U.S. Department of Commerce. We analyze these options in our new paper, “Choosing the Right Path to a Permanent Accountability Framework for ICANN.”

We urge the ICANN Board to allow the time necessary for the development of a permanent accountability framework in consultation with the global Internet community, as required by ICANN’s Bylaws. The authors caution the ICANN Board against rubber-stamping a recent proposal to essentially make the MoU/JPA a permanent instrument as inadequate to ensure ICANN’s long-term accountability. The alternative, simply ending ICANN’s relationship with the U.S. Government, would raise serious legal questions concerning ICANN’s ability to collect fees from registrars and registries and the transfer of property rights underlying the domain name system.

We conclude by calling on ICANN’s new CEO Rod Beckstrom to exercise the kind of leadership he advocated in his 2005 book, The Starfish and the Spider: The Unstoppable Power of Leaderless Organizations, which explains the advantages of decentralized managerial “nervous systems” (“starfish”) over top-down hierarchies (“spiders”):

Instead of focusing on ‘spider’-esque permanent instruments with a single government, Beckstrom and the ICANN Board should focus on more ‘starfish’-like solutions that both continue the USG’s stewardship role and involve more governments that want to participate in the unique private-public partnership known as ICANN—without compromising ICANN’s guiding principles and commitment to private sector leadership. Only this outcome will ensure the long-term viability of ICANN as a global trustee of the Internet’s unique identifiers.

Continue reading →

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What is “Regulatory Capture”?

by Alex Harris on August 20, 2009 · 12 comments

One of my favorite recurring themes here on TLF is the definitional dispute/clarification. We point out where a term has been used in many different ways and explain the positives and negatives of the various behaviors described by that term. I just did this with privacy.

Of course, it is somewhat pointless to argue about the “true” meaning of a term, but that’s not exactly what’s involved here. Yes, we libertarians can lament when terms that used to describe things we believe in, like “liberal,” “freedom,” “rights,” “choice,” etc., get appropriated by others and terms that used to describe things we don’t believe in, like “coercion,” get ascribed to us. There may be some battles we can win, some terms we can hold onto, but these disputes often end up with two ships passing in the night.

But I’m talking about something a little different. Lots of terms that have, or get, normative connotations – that sound like they describe something good (think “democracy”) or bad (think “terrorism”) – get way overbroadened. Speakers use such terms to describe nearly anything (as long as it’s vaguely related to the original meaning) to which the speaker wants to ascribe the good/bad connotation. We here on TLF catalog those various ways such terms have been used – break the term down – and describe which ways are really good and really bad. As I said, I just did this with privacy. If this were a more lawy, as opposed to techy, blog I’d do it with “activism,” one of my pet peeve words. (Maybe I’ll do it anyway; after all, I posted on the best and worst Supreme Court decisions even though they weren’t especially tech-focused.)

But today, it’s “regulatory capture.” We have discussed it a bit recently, including just tonight. Tim Lee did some great posts on it back in the day. It’s definitely a recurring theme here. We seem to have something fairly specific in mind when we use the term. As Tim put it, it is when “established businesses argue in favor of regulations that they perceive as hurting their competitors (often smaller competitors) more than themselves.” Indeed, I argued with a commenter on one of Wayne’s posts that this definition that makes the most sense given the meanings of the words:

Regulatory capture is when businesses capture regulatory actions and use them as tools, backed by the force of government, for imposing burdens on their competitors. Businesses banding together to oppose government intrusion is not “capture.” Fighting an enemy is not the same as capturing him and using him to do your bidding…

Call Tim’s and my definition the “appropriation” definition. Continue reading →

12 comments

If NCMEC’s Going to Regulate the Internet for Child Porn, It Should At Least Be Subject to FOIA

by Berin Szoka on August 9, 2009 · 11 comments

Last year, my PFF colleague Adam Thierer asked whether State AGs + NCMEC = The Net’s New Regulators? Adam noted that NCMEC, the National Center for Missing and Exploited Children, a private non-profit organization, was playing a law enforcement role in regulating child pornography—but without any clear mechanisms for ensuring its accountability and effectiveness. Adam’s point wasn’t just that transparency is a good thing, but that when it comes to a cause as important as protecting children from exploitation, it’s vital to ensuring that we’re that we’re actually doing a good job at it!

Yesterday, Emmanuel Lazaridis commented on that post:

Given the increasing regulatory and investigative powers of the NCMEC, it is no longer clear whether or not the [Freedom of Information Act] applies to NCMEC records. We are about to find out. I am right now bringing a case against the NCMEC in federal court for access to records under the FOIA and, failing that, for discovery under 28 U.S.C. § 1782(a).

Mr. Lazaridis’s complaint in the D.C. District Court claims that Lazaridis (a Greek national) has been unfairly deemed a fugitive from U.S. justice for having taken his daughter to Greece over the objections of the girl’s American mother, Lazaridis’s ex-wife. NCMEC got involved by placing the girl on their MissingKids.com registry of abducted children. Lazaridis wants the court to recognize his custody, deem him not to be a fugitive, and to order NCMEC to turn over all their records on the girl.

This is, of course, just one side of the story (and such cases are usually so complicated as to be indecipherable to outsiders). But even if Lazaridis’s case were wholly without merit, his basic argument would be a sound one: Why shouldn’t NCMEC, in exercising any of its essentially governmental functions, be subject to the same accountability requirements through FOIA as the FBI would be?

When the issue is the Lazaridis family’s trans-Atlantic custody battle, it may seem easy to ignore this question. But when NCMEC is essentially making policy regarding filtering Internet content, blacklisting websites, turning over user logs to law enforcement, or “cleaning up” Craigslist, the question of NCMEC’s accountability under FOIA cannot be avoided as a critical decision about the future of Internet governance. Continue reading →

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