Internet Governance & ICANN

Google, California’s Privacy Policy Law & Our Sci-Fi Future

by on June 4, 2008 · 12 comments

As Jim has mentioned, Google stands accused of violating a California law that requires a website operator to “conspicuously post” a link to its privacy policy on its “home page or first significant page after entering the Web site” with the word “Privacy” in a larger font than the rest of the page’s text.

Are we not fortunate to have state laws that make it possible for customers to actually find website privacy policies? With all the billions of documents floating out there in the dark and mysterious pipes and tubes of the so-called “Internet,” how on earth would any simple user ever find the Google privacy policy if Google were not required by law to include an obvious link to that policy on its homepage? Some modern-day da Vinci would have to invent a technology that could magically index every single webpage in existence and let users find—or “search,” to use a classic science-fiction term—for that particular webpage by typing the words “Google privacy policy” and clicking a button.

Until such fantastic Jules Verne-style technologies are developed in some distant century, it is obviouslyvital that each and every state government develop its own requirement as to how website operators—especially those that purport to offer fantastic-but-as-yet-clearly-impossible “search” services—must clutter their websites’ homepages with links to information that no user could ever possibly find on his or her own with today’s crude technology.

Of course, even if such “search engines” (to coin an unlikely phrase) actually existed, the burden on consumers of typing seventeen (17!) letters—plus two (2) spaces and perhaps even two (2) more quotation marks for a total of up to twenty-one (21!) agonizing-to-type characters—would have to be reduced dramatically through some additional innovation or Esperanto-like simplification of the English language before we could reasonably expect that average consumers might be able to find privacy policies on their own without the benefit of California’s enlightened net-paternalism. Continue reading →

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my debate with Zittrain on NPR-Boston

by on May 13, 2008 · 3 comments

JZ

Well, I actually didn’t exactly get a chance to say quite enough for this to qualify as much of a “debate,” but I was brought in roughly a half hour into this WBUR (Boston NPR affiliate) radio show featuring Jonathan Zittrain, author of the recently released: The Future of the Internet–And How to Stop It. Jonathan was kind enough to suggest to the producers that I might make a good respondent to push back a bit in opposition to the thesis set forth in his new book.

Jonathan starts about 6 minutes into the show and they bring me in around 29 minutes in. Although I only got about 10 minutes to push back, I thought the show’s host Tom Ashbrook did an excellent job raising many of the same questions I do in my 3-part review (Part 1, 2, 3) of Jonathan’s provocative book.

In the show, I stress the same basic points I made in those reviews: (1) he seems to be over-stating things quite a bit in saying that the old “generative” Internet is “dying”; and in doing so, (2) he creates a false choice of possible futures from which we must choose. What I mean by false choice is that Jonathan doesn’t seem to believe a hybrid future is possible or desirable. I see no reason why we can’t have the best of both worlds–-a world full of plenty of tethered appliances, but also plenty of generativity and openness.

If you’re interested, listen in.

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Yale / CFP’s “9.5 Theses for Technology Policy in the Next Administration”

by on April 30, 2008 · 15 comments

Susan Crawford points out that the Yale Information Society Project recently posted its “9.5 Theses for Technology Policy in the Next Administration.” It’s apparently also the theme for the 18th Annual Computers, Freedom, and Privacy Conference (CFP).

What I found intriguing about the list is that (a) protecting free speech doesn’t make their radar screen, which seems both sad and puzzling since it will continue to be under attack regardless of who is in charge next year; and, (b) perhaps less surprisingly, much of what they are calling for the next administration to do would involve more regulation of the Internet, broadband networks and media markets. Here’s their list and how I would score each item [Note: I am using CAPS below not to scream, but just to differentiate my scoring versus their proposal]:
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Do Not Track Registry Likely to Include Exemptions

by on April 25, 2008 · 12 comments

Last week a scad of stories from Reuters to News.com covered the growing push for a “Do Not Track” registry similar to the “Do Not Call” list that serves to protect US households from mid-dinner sales calls. While I understand the concerns expressed by folks like Marc Rotenberg of EPIC and Jeff Chester of the Center for Digital Democracy, who were both cited by Anne Broache in the News.com piece from last week, I think that asking the government to hold a master list of IPs and consumer names is a bad idea, or at least one that won’t do much to really protect consumers.

First, tracking people online is a bit different from calling folks in their homes. Telemarketing, while highly effective in terms of sales produced per dollar of marketing money spent, is still orders of magnitude more expensive than spamming or collecting data online without consent. Both of these activities are illegal today, but they still occur. They occur so much that spam-filtering technology contains some of the most advanced natural language recognition and parsing software created. Cory Doctorow has mused that the first artificial intelligences will emerge from Spam and anti-Spam computer arrays.

So this list wouldn’t be the magic wish that privacy advocates and legislators might dream it to be. It would cause law-abiding companies like Google, AOL, and Microsoft to stop collecting data, but so could privately developed and enforced systems.

Anne Broache notes that cookies are a bad solution for stopping data tracking as many anti-spy-ware programs delete cookies, since cookies are often used for the purpose of data tracking. But why not just create a new variety of cookie? Call it a cake, a brownie, a cupcake–maybe even a muffin. Whatever you call it, just specify that a standards-compliant browser must contain a place for something similar to a cookie to be placed that will opt consumers out of tracking schemes. This isn’t a technological problem at all, it’s just a matter of industry deciding to follow this course.

My other concern is something that fellow TLFer and former CEI staffer James Gattuso pointed out in a 2003 piece in regard to the “Do Not Call” list, namely that the government will likely exempt itself from the rules. In our post-9/11 world (whatever that means) we should expect government–the supposed protector of our rights–to make these sorts of moves. But you don’t have to trust my assertion, look no farther than Declan McCullagh’s Wednesday post at New.com. The FBI is pushing hard for Internet companies to retain data so that they can later sift through it. It’s doubtful that the government will place itself on “Do Not Track” list if they believe they can gain useful intelligence by tracking people online.

So, by and large, this proposed registry seems unnecessary and ineffective. Industry can easily work out a way to allow consumers to opt-out and the two groups I’m most afraid of–the Russian Mob and the U.S. Government–won’t pay heed to any registry anyway.

Instead or wringing our hands over advertisers tracking what duvet covers we buy, can we turn our attention to what our freewheelin’ executive branch is trying to pull-over on us? Seems to me they’re cooking up exemptions to more than just this registry–a few of my favorite Constitutional Amendments spring to mind.

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Can the French really ban pro-thin websites?

by on April 16, 2008 · 16 comments

There are a lot of disturbing things out there on the Internet. I don’t think I need to provide an inventory. Occasionally, some of the more despicable sites (think pro-suicide sites or bomb-making sites) capture the attention of public policymakers and bans are proposed. It was only a matter of time, therefore, before “pro-ana” sites made the regulatory radar screen as they did this week when lawmakers in France proposed a measure, “aimed at fighting incitement to extreme thinness or anorexia.”

The pro-ana movement, which refers to people and websites that justify or glorify anorexia or an excessively “thin look” or lifestyle, came to my attention last year when an academic was interviewing me for a new book he was writing about online responsibility. He was asking me what I thought about the idea of liability being imposed on website developers who glorify potentially harmful lifestyles or activities. In other words, an “aiding and abetting” standard for hateful or “harmful” online speech. I expected our discussion to focus on the truly sick or stupid stuff out there—like the bomb-recipe nutjobs or the suicide fans—but, instead, the academic mentioned pro-ana sites, like House of Thin (which no longer seems to be around) and others. The danger of these sites is that they offer young girls, which seems to be the primary audience, very unhealthy advice about how they can use various techniques (fasting, vomiting, laxatives, etc) to become super-thin. Needless to say, that can lead to extreme weight loss and serious health disorders for these girls.

Should sites be banned, or held liable in some fashion, for the harm they cause? We could nitpick about whether of not pro-ana sites cause serious harm to girls, but let’s assume that they do cause some harm. Does that mean the site administrators should be held responsible for the actions of others who read those sites? The French law says “yes.” It would, according to Reuters:

impose penalties of two years plus a fine of 30,000 euros ($47,450) for “incitement to excessive thinness by publicizing of any kind.” The penalties would rise to three years in jail plus 45,000 euros fine in cases where a death was caused by anorexia. The bill was adopted by the lower house of parliament on Tuesday and must go before the Senate before it becomes law.

Continue reading →

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Dumb Pipes, a Dumb Idea: Net Neutrality as 21st Century Socialism

by on April 2, 2008 · 8 comments

This week’s C:\Spin (#197), CEI’s tech policy newsletter, casts net neutrality in the appropriate light. Calling out proponents of neutrality for what they are–political predators–my colleague Wayne Crews lays bare the misconceptions and wrong-headed thinking that make up the neutrality debate:

“You know who owns your pipes? Your customers. You have no right to set up a tollbooth.”

– Sen. Byron Dorgan (D-ND), September 17, 2007

Sen. Dorgan’s statement refers to the broadband infrastructure built up by the telcos and their rivals. It lays the “net neutrality” issue bare: if you’re an infrastructure owner or Internet service provider, government people like him shall dictate your relationships with the world at large.

Welcome to infrastructure socialism, 21st century style.

Online activists teamed with superstars like Google seek a perpetual “open access” business model imposed on Internet service. Last summer’s master stroke: to link future wireless spectrum auctions to accommodating the policy.

Comcast recently received letters of inquiry from the Federal Communications Commission (FCC) in response to a petition filed by a coalition averse to what it regards as unjustified data discrimination against file-sharers. They seek fines in the millions.

Barack Obama, unveiling his “innovation agenda” late last year, pledged, “I will take a backseat to no one in my commitment to network neutrality. Because once providers start to privilege some applications or web sites over others, then the smaller voices get squeezed out, and we all lose.”

Check out the rest at CEI’s website where you can also read back issues of C:\Spin or sign up to receive them in your email inbox.

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review of Zittrain’s “Future of the Internet”

by on March 23, 2008 · 30 comments

Jonathan Zittrain, who is affiliated with Oxford University and Harvard’s Berkman Center, recently released a provocatively titled book: The Future of the Internet–And How to Stop It. It’s an interesting read and I recommend you pick it up despite what I’ll say about it in a moment. (Incidentally, if you ever have a chance to hear Jonathan speak, I highly recommend you do so. He is, bar none, the most entertaining tech policy geek in the world. Imagine Dennis Miller with a cyberlaw degree.)
Zittrain Future of the Net cover

Jonathan’s book contrasts two different paradigms that he argues could define the Net’s future: The “generative” Net versus what he refers to as a world of “tethered, sterile appliances.” By “generative” he means technologies or networks that invite or allow tinkering and all sorts of creative uses. Think general-purpose personal computers and the traditional “best efforts” Internet. “Tethered, sterile appliances” by contrast, are technologies or networks that discourage or disallow tinkering. Basically, “take it or leave it” proprietary devices like Apple’s iPhone or the TiVo, or online walled gardens like the old AOL and current cell phone networks.

Jonathan’s thesis is that, for a variety of reasons [viruses, Spam, identify theft, etc], we run the risk of seeing the glorious days of the generative, open Net give way to more tethered devices and closed networks. He states:

Continue reading →

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Net gambling & online speech / commerce enforcement challenges in general

by on March 4, 2008 · 8 comments

I have long been intrigued with the effort to regulate online gaming activities because it represents the most sophisticated effort by our government yet to eradicate a specific class of online speech or commerce. (My TLF colleague Tom Bell has done seminal work in this field). In her weekly “The Regulators” column, The Washington Post’s outstanding regulatory columnist Cindy Skrzycki writes about the enforcement challenges at work here:

It’s not easy making rules for a U.S. law intended to deter illegal Internet gambling by choking off the flow of funds to offshore sites. That’s because no one seems to agree on what the law covers. Officials at the Treasury Department and the Federal Reserve found that out after sifting through more than 200 comments from banks, gamblers, church groups and members of Congress on recommendations for the Unlawful Internet Gambling Enforcement Act of 2006. The basic sentiment was that their Oct. 4 proposal, which depends on financial institution enforcement, won’t work.

The outcome will affect 23 million online gamblers, some 2,500 Internet sites and the growth of an industry with an estimated $15 billion in annual global revenue. The law bars financial institutions from processing payments involving Internet gambling — with the notable exceptions of Indian gaming, state gaming and horse racing. “If the federal agencies themselves cannot agree on the law, what hope is there that banks can resolve these confounding legal issues?” the American Bankers Association said in commenting on a conflict between the Treasury and Justice departments on the legality of betting on horses. The Washington trade group said the suggested rules are more likely to catch its members in a compliance trap than stop profits from illegal gambling from escaping offshore.

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Getting from Collective Intelligence to Collective Action

by on February 28, 2008 · 0 comments

I really enjoyed attending the Collective Intelligence FOO Camp, sponsored by Google and O’Reilly Media, last weekend. I’d been expecting a sort of geek slumber party, and had looked forward to rolling out my awesome Darth Vader impersonation. I was all set to cut loose with a growling, “I’m your father, Luke.” It didn’t quite come to that, but I still had a blast, meeting lots of smart, informed, articulate, creative, and successful people. Friendly people, too.

I described how to establish the legality of real money, open-access prediction markets under U.S. law. I called my presentation, Getting from Collective Intelligence to Collective Action [PPT file]. In very brief, I proposed this algorithm:

  1. Set up an enterprise prediction market, make playing it a condition of continued employment, and offer valuable prizes to the best predictors.
  2. Set up a limited access prediction market, hire a number of independent contractors researchers to play it, pay them a relatively low salary for doing so, and offer valuable prizes to the best predictors.
  3. Set up an open-access prediction market but require anyone playing it to go through a click-wrap license that creates the sort of independent researcher relationship described at step 2, above.

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“Community Conscious” Internet Service Providers

by on January 31, 2008 · 1 comment

Badge1.JPG

Tennessee has a proposal to create a “Tennessee community conscious Internet provider” seal to be awarded by the consumer affairs division. A bill introduced in the Tennessee General Assembly – HB 2530 – would award a seal to ISPs that:

1) retain IP addresses for 2 years;

2) take down communications that are obscene or harmful to minors;

3) prohibit customers from publishing communications obscene or harmful to minors; and

4) comply and cooperate with law enforcement requests and court orders.

Granted, Tennessee is the “volunteer state”, but if this bill were to pass would ISPs really participate?

Note how the bill links “obscenity” – which is not protected speech under the 1st Amendment – with material harmful to minors –  which could be almost anything, most of which would be protected speech.

This is a trend we’re seeing–using child porn and child online safety as a “trojan horse” into regulating the online behavior of everybody through rules on ISPs. Adam Thierer calls it “deputizing the middleman” — an apt phrase for the kinds of policing that ISPs may be doing in the future based on the regulatory and market pressures they’re seeing today.

Hawaii has a bill pending that would make it a felony for ISPs to knowingly fail to report subscribers who acquire, possess, solicit or transmit images of child pornography.

Forget a “seal of approval” – may as well just throw ISPs a badge.

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