Over at SiliconAngle, my friend Andrew Feinberg has posted an interesting column defending federal oversight of “sponsored blogging,” or blogging that might be in some way be tied to a financial interest. The Federal Trade Commission (FTC) is now looking into that matter and threatening to bring the blogosphere under the thumb of federal regulators. In his essay, “Why the FTC is Absolutely, 100 Percent Right on Sponsored Blogging,” Andrew argues that:
The Federal Trade Commission wants to keep an eye out for unscrupulous behavior by corporations and media. This is their job. They could leave well enough alone for fear of being accused of meddling with the internet, but they recognize that as technology changes, the rules that govern the relationship between marketers and consumers must be made to fit those changes.
This is not always easy. The Federal Communications Commission has had a rulemaking open on embedded advertising (product placement) in children’s programming for some time now. It is well know that it’s unlawful to market directly to children during certain times, and on certain programs. But FCC efforts to adapt the rules have been stymied by a cumbersome process and a lack of authority (the FCC may only regulate content on broadcast television).
On the other hand, the Federal Trade Commission has much broader authority. And their job is to keep things fair.
I responded in the comments to his piece as follows:
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By Berin Szoka & Adam Thierer
We’ve just released a new PFF white paper (PDF) entitled, “Cyberbullying Legislation: Why Education is Preferable to Regulation.” In this 24-page study we note that, compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests the cyberbullying is on the rise and that it can have profoundly damaging consequences for children.
Unsurprisingly, in the wake of a handful of high-profile cyberbullying incidents that resulted in teen/tween suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal crime to punish cyberbullying, which would include fines and jail time for violators. In April 2008, Rep. Linda Sánchez (D-CA) introduced H.R. 1966 (originally H.R. 6123), the “Megan Meier Cyberbullying Prevention Act,” a bill that would create a new federal felony:
“Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.”
The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities. In mid-May, the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047) was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that will be administered by the Department of Justice, in concurrence with the Department of Education, and the Department of Health & Human Services. These agencies will also work in consultation with education, Internet safety, and other relevant experts to administer a five-year grant program, under which each grant will be awarded for a two-year period.
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It’s fascinating to continue watching developments in Iran via Twitter and other social media.
The fact that Twitter delayed a scheduled outage to late-night Tehran time was laudable, but contrary to a growing belief it wasn’t done at the behest of the State Department. It was done at the behest of Twitter users.
Twitter makes that fairly (though imperfectly) clear on its blog, saying, “the State Department does not have access to our decision making process.”
As my Cato Institute colleague Justin Logan notes, events in Iran are not about the United States or U.S. policy. They should not be, or appear to be, directed or aided from Washington, D.C. Any shifts in power in Iran should be produced in Iran for Iranians, with support from the people of the world – not from any outside government.
People are free to speculate that the State Department asked Twitter to deny its involvement precisely to create the necessary appearances, but without good evidence of it, assuming that just reflects a pre-commitment that governments – not people and the businesses that serve them – are the primary forces for good in the world.
Sometimes legislation is so bad, it’s awful! or iAWFUL (the Internet Advocates’ Watchlist for Ugly Laws).
I’m happy to announce that NetChoice just created a top ten list where we’ll keep track of the worst of the worst. iAWFUL identifies the 10 worst legislative and regulatory proposals targeted at the Internet. We’ll continually update to reflect the most immediate dangers, based on regulatory severity and likelihood of passage.
While misguided Internet legislation is nothing new, the threat that such legislation poses has increased dramatically. The latest breed of legislative proposals are among the most restrictive we’ve ever seen, and they can crop up anywhere, as state lawmakers increasingly take the lead.
Bad Internet bills unfortunately take many forms, but we see 4 broad categories:
1. Misguided efforts to ‘child-proof’ the Internet
New Jersey Social Networking Bill (A 3757) – What’s wrong? It turns social networking sites into social networking police. It requires social networking websites to promptly review user allegations of harassment and abusive language, and to provide a report of the result of any review “upon request” from the user (blog post here).
California Social Networking Bill (AB 632) – What’s wrong? It can be abused to stifle free speech. It should seem obvious that if you post a photo onto a social networking site, it’s a public image. California doesn’t think so, so it’s micromanaging website terms of service. It started as a tech mandate, and would have imposed civil liability on websites that failed to implement technologies that would prevent copying or saving of images. This bill was recently amended to require social networking websites to disclose to its users that uploaded photos can be copied without consent by persons who view the image. The definition of a “social networking Internet Web site” is broad, so this would apply to a large number of sites on the Internet (previous blog post here).
2. There’s a tax for that!
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I’ve posted another response in the Cato Unbound online debate over the impact of Lawrence Lessig’s Code and Other Laws of Cyberspace upon the book’s 10th anniversary. You will recall that I went fairly hard on Prof. Lessig in my essay, “Code, Pessimism, and the Illusion of ‘Perfect Control,’” and Lessig responded with a counter-punch that went after me for it. I respond in a new essay about “Our Conflict of Cyber-Visions.” In the piece, I address Lessig’s assertion that I just didn’t understand the central teachings of Code, as well as his reluctance to accept the “cyber-collectivism” label that I affixed to his book and life’s work. Again, please hop over to Cato Unbound for my complete response.
But one thing from the essay that I thought worth reproducing here is my effort to better define the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking. I argue that it comes down to this:
The cyber-libertarian believes that “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).
Of course, another key difference relates to how quickly one jumps to the conclusion that “code failures” are actually occurring at all. I argue:
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ACT will host an event on open government tomorrow morning that will feature TLF’s own Jerry Brito and Andrew Plemmons Pratt of the Center for American Progress. I’ll moderate and tee-up the discussion.
We’ll focus on how governments can move from merely posting information online (e-government) to a more participatory process (we-government). We’ll discuss core concepts of “we” government—including the social media technologies that enable access, accountability and participation—and how Congress can create processes for a more transparent government:
- Define what being “open” means for the executive, legislative and judicial branches
- Review and update procedures and rules within government to better deliver information to citizens
- Create mechanisms for accepting and integrating increased constituent correspondence and comments on rulemakings
The Details: Tuesday, Apr 14 from 9:30 to 10:45am. It’s at the newly opened Capitol Visitors Center, Congressional Meeting Room South (the new main entrance to the U.S. Capitol, is located on the East front at First Street and East Capitol Street, NE). Coffee and morning snacks will be served. Please let me know if you’d like to attend!
Conversations about how the Internet can be used to increase the openness and accountability of government usually focuses on the Executive and Legislative branches of the Federal government. But on this week’s episode of Technology Policy Weekly, I hosted a discussion of the equally vital issue of public access to court records, joined by:
We discussed a wide range of issues, including:
- Why lay people should care—this is ultimately about reducing the legal profession’s monopoly over access to the courts!
- The philosophical reasons why better access to court records is important – little things like democracy, fairness, consistency, equality, the rule of law, etc.
- The copyrightability of legal records
- The history of the problem & what can be done about it
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
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Our readers may be interested in this excellent WSJ article, Too Risky for Venture Capitalists: Why proposals for a government bailout were roundly rejected. We should all take heart in the the fact that the venture capital community itself resoundingly opposed the notion of accepting a massive infusion of taxpayer money, especially Tom Friedman’s suggestion:
“You want to spend $20 billion of taxpayer money creating jobs?” Mr. Friedman wrote. “Fine. Call up the top 20 venture capital firms in America” and invest the money with them.
But I see three more reasons why those interested in technology policy should pay attention to this encouraging episode.
First, the groundswell of opposition seems to have been driven largely by the Internet, both as a vehicle for disseminating the bailout proposals and for voicing opposition to them:
Venture capitalists certainly agree that innovators and start-up companies, not bailed-out GMs or Chryslers, will create the new jobs. They rightly brag that almost 20% of U.S. gross domestic product is generated by companies built by venture capital, such as Intel, Apple and Google. Still, they almost universally panned the notion of taxpayer support. Their real-time rejection is an excellent example of how social media — here, the venture community dissecting a proposal online — can now quickly take down bad ideas.
Second, it should almost go without saying that venture capital is the fountainhead of innovation, especially the disruptive innovation that is constantly pushing the envelope of technology policy. A healthy VC sector is the bedrock of a dynamic, free and innovative economy. The VCs realize that this requires, more than anything else, avoiding the market distortions caused by government funding: Continue reading →
Even an economy in shambles shall not sway the elevation to Federal Trade Commission chairmanship of Jon Leibowitz, an interventionist-minded commissioner who, like all planners, knows better than others how markets should be structured.
In several important areas, his inclinations (judging from the cheers emanating from interest groups like PIRG and Center for Digital Democracy) lean toward substituting political “discipline” for what competitive markets offer.
He supports “opt-in” with respect to behavioral advertising, which we’ve often described as not-necessarily good for a lot of reasons. We’ll come back to this later.
He supports antitrust intervention with respect to firms like Intel (and watch out, Google), and favors destructive “conditions” on mergers. Nineteenth-century, smokestack-era antitrust, rather than withering, now seems dedicated to exploiting and hobbling large-scale transactions in ways that end up creating entities that would not emerge in free markets. Several mergers lately have resulted in such artificially constrained frankensteins, or suffered catastrophic delays. Thus “competition policy” (ha!) neuters the healthy competitive response to them that could have come about. (See my FCC comment on XM/Sirius in that regard.)
On “net neutrality,” we leap beyond whether markets are adequate to discipline errant behavior; here the starting point is the nominee’s doubt that even antitrust intervention is necessarily “adequate to the task”; thus the implication that new laws may be in order.
Let’s just take net neutrality for now. There are plenty reasons I think it’s an outrage to regulate price and access on networks and infrastructure; but just for the moment, the entire concept rests upon numerous (I often feel deliberate, in my less-charitable moods) misperceptions or misrepresentations about competitive markets and capitalism. These include but are not limited to the following: (Adapted from an FCC filing I made).
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Over at TVNewsday, Harry A. Jessell writes:
I don’t like the way the new FCC is shaping up. There’s something missing.
My concern has nothing to do with Julius Genachowski, whom the president has reportedly tapped for chairman….
What I’m having trouble with are the names popping up for the Republican seat….
All [the rumored candidates] work or used to work on Capitol Hill. They are basically experts on policymaking, crafting legislation and Washington politics, but not much else.
The seat is turning into a reward for loyalty and a test of whose boss has the most clout.
Bad idea.
As the professed champion of business, the Republicans should award the seat to a businessman or a businesswoman.
I’m talking about somebody who has actually done some hiring and firing, made a payroll in tough times, sweated a big sale, produced goods or services, acquired another company, got a loan to expand operations or survive a downturn and struggled to untangle and comply with federal regulations.
There’s a double standard here.
Ajit Pai, for example, who is one of the Republican candidates, is Deputy General Counsel of the FCC. He served as Chief Counsel of the U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Senior Counsel at the Office of Legal Policy at the U.S. Department of Justice, Deputy Chief Counsel of the U.S. Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, an Honors Program trial attorney in the Telecommunications Task Force at the U.S. Department of Justice’s Antitrust Division and a law clerk to Judge Martin L.C. Feldman of the U.S. District Court for the Eastern District of Louisiana. He graduated with honors from Harvard College and from the University of Chicago Law School, where he was an editor of the University of Chicago Law Review.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.