I’m sure plenty of TLFers already read Techdirt, but in case you needed yet another reason to add it to your feed reader, two of the smartest bloggers I know—Julian and Tom—have begun contributing to the site.
Meanwhile, my contributions to TLF have been a little slower than usual as a lot of my blogging energies have been diverted over there. One of the interesting things about contributing to Techdirt has been the opportunity to branch out a little bit into the kind of pure tech/business analysis that wouldn’t really be on-topic for TLF. My latest post is a spin-off of our recent discussion of Bill Rosenblatt’s article about Radiohead and the “race to the bottom”:
The strangest thing about Rosenblatt’s article is the pejorative use of the term “race to the bottom” to describe competition in the music industry. When Apple cuts the price on the iPod, we would be really surprised to see a columnist complaining about how Apple had started a “race to the bottom” that will undermine profits among consumer electronics companies. We understand that, as painful as competition can be for producers, consumers and the economy as a whole benefit from such aggressive price-cutting. Talking about a “race to the bottom” is the language of cartels, which try to hold prices above the competitive level. Music is like any other product As the marginal costs of production and distribution fall, it’s natural that the price of music will fall as well. Smart musicians and companies will find ways to adapt and prosper in the new, more competitive marketplace. As we’ve said before, saying you can’t compete with free is saying you can’t compete at all. The sooner musicians and record labels realize that, the more prepared they’ll be when the price of music drops out from under them.
Here’s an email I got today on behalf of Steve Kelley, a former Minnesota state senator who is now Director of the Center for Science, Technology & Public Policy at the University of Minnesota.
A Message From Steve Kelley
Dear Friends,
Google has announced the Google Policy Fellowship – “to support students and organizations working on policy issues fundamental to the future of the Internet and its users.”
Fellows will have the opportunity to work at public interest organizations at the forefront of debates on broadband and access policy, content regulation, copyright and trademark reform, consumer privacy, open government, and more. Participating organizations are based in either Washington, DC or San Francisco, CA, and include: American Library Association, Cato Institute, Center for Democracy and Technology, Competitive Enterprise Institute, Electronic Frontier Foundation, Internet Education Foundation, Media Access Project, New America Foundation, and Public Knowledge.
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Good. Musician makes good. There’s an interesting article with some ideas in Spin magazine–though no clear direction emerges. Potentially useful for new artists, not so much for encouraging the re-release of Led Zeppelin (soon to be on iTunes) or old blues. If the thought of entanglement of music in a web of marketing schemes is not entirely appealing, but, well, that’s not a policy concern. What becomes of artists from unsophisticated backgrounds in this might well be… professional sports all over again?
On the prospects for live music, from Richard Morrison. (And I confess another non-policy consideration, I detest live music–one sacrifices consistent sound quality to leave the privacy of one’s home to sit or stand in crowds flaunting their absurd subcultures–but I will make grudging exceptions for metal concerts, classical guitar, and live jazz). But this, too, has its limits as a business model.
Also less encouraging is Radiohead’s experiment in whatever-it’s-worth pricing, with many electing a price of zero; the link is to Bill Rosenblatt’s report. Barry Shrum offers his perspective.
In the end, it will all get worked out. But there is no end in sight for the usefulness of copyright and technology as a tool for defining obligations in new relationships of goods, services, and persons, or as a substitutes for traditional enforcement. Continued competition of free goods with paid goods would reduce anxiety about whether producers are sensitive to consumer demand for flexible and friendly protection technology.
Two distressing trends in the overall debate, though, might well be with us forever. One is the tendency of some to see the glass of new technology as almost entirely empty, the other to see it as almost entirely full. But where old boundaries don’t hold up, new lines will be found and somehow enforced; markets go on. And where the status quo gives way, one ends up with not an end to the limitations on human endeavor peculiar to one set of economic circumstances, but a whole new set of limitation peculiar to the next. On the whole, people don’t do well without lines drawn in the sand, and will draw new ones when the last set is erased.
An Arsticle by Ken Fisher reviews a recent talk given by Donald Kerr, principal deputy director of National Intelligence, who is second in command to Director of National Intelligence Mike McConnell.
In a recent speech, Kerr fumbled around with privacy and related concepts, concluding in Ken’s (and an AP reporter’s) opinion that he’s trying to redefine privacy in somewhat Orwellian ways.
Here’s the meat of what Kerr said:
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The more I think about it, the less sense Wikipedia’s notability rule makes. That’s the rule that says that the subject of an article must “worthy of notice” to merit the creation of an article about them. For example, today I was goofing off on Wikipedia and looking at Wikipedia’s encyclopedic coverage of the Taft family. I was curious about Pres. Taft’s living relatives, so I drilled down to William Howard Taft IV, and I noticed that he has a son, William Howard Taft V, who appeared not to have a Wikipedia entry.
So I googled WHT V and quickly came to this 2005 wedding announcement in the New York Times. I thought I’d do my good deed for the day and create a new Wikipedia article based in the information in the Times story.
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One of my favorite things about TLF is our ability to have vigorous but respectful disagreements. I appreciated Hance’s post making the case for telecom immunity, but I have to say I didn’t find it very persuasive.
I don’t understand the argument that telecom providers were facing “extraordinary circumstances” that led them to break the law. I might have some sympathy for that argument if we were talking about a program that occurred on 9/11 or in the chaotic days that followed. If the telecom providers has simply made rash decisions in their haste to prevent another attack and inadvertently broke the law, I might be sympathetic. There might be a plausible argument for providing immunity for information shared between, say, September 11 an December 31, 2001. But that’s not what we’re talking about here. If the Klein declaration is accurate—and AT&T hasn’t disputed it—the program at issue in that lawsuit started in 2003, and as far as we know it continues to this day. The Bush administration could have gone to Congress any time in 2002 and requested changes to the relevant statutes. And AT&T and Verizon could have—and indeed under the law were obligated to—do what Qwest did and tell the administration to come back when they had a warrant. They didn’t do that, and in my view they ought to be held responsible for breaking the law.
I don’t find the Posner and Kristol/Schmidtt hypotheticals very persuasive, but even if you do, they’re really beside the point. If current standards for obtaining warrants in terrorism cases are too stringent, the Bush administration should have gotten Congress to change the rules. We could have had this debate six years ago, Congress could have made a decision, and then AT&T and Verizon could have participated in whichever activities Congress approved with a clean conscience. Instead, the telcos helped the Bush administration ignore Congress, evade court scrutiny, and violate the clear requirements of the law.
So even if prospective rule changes are necessary, that doesn’t in any way justify retrospective white-washing of past lawbreaking. Granting telecom immunity will set the precedent that companies can break the law on the say-so of the executive branch, without needing to worry about what Congress or the courts might have to say about it. Which would mean the end of meaningful Congressional or judicial oversight over surveillance activities. Because telecom companies will know perfectly well that if they break the law at the request of the executive branch, the executive branch will go to the mat to make sure the law isn’t actually enforced and companies aren’t actually found liable. Once that precedent is set, it won’t matter what other rules Congress might enact, because telecom companies will have absolutely no incentive to follow them, and plenty of incentive (read: government contracts) to do the president’s bidding.
One final point: we don’t have to speculate what the world would look like if the executive branch had the power to eavesdrop on whomever it liked without meaningful judicial oversight. Martin Luther King was the most famous of the dozens of anti-war activists, civil rights leaders, journalists, and other undesirables whose communications were bugged by the Johnson and Nixon administration. There’s no evidence that the Bush administration has done anything like that. But if we eliminate meaningful judicial oversight of the executive branch’s surveillance activities, there’s every reason to think that a future administration will.
One of the frustrating things about working in tech policy is that our issues get precious little airtime in political campaigns. Politicians rarely get asked tough questions about the issues that matter most to the technology industry. So I was excited to come across this video of Ron Paul discussing his views on Internet and video game censorship, Internet taxation, and network neutrality regulation:
http://www.youtube.com/v/ovUJgm6FicI&rel=1
Maybe I’m old-fashioned, but I found it jarring when they guy kept referring to Rep. Paul as “Ron.” If he had the president on would he have called him “George?”
Is the FCC moving too fast on media ownership? Senators Byron Dorgan and Trent Lott think so, announcing new legislation this week to slow things down a bit. His bill, S. 2332, would require the FCC to wait 90 days before promulgating any changes to current ownership rules, and to conduct a separate proceeding on localism. The bill is spurred by reports that Chairman Kevin Martin is pushing for a final vote on changes to the FCC’s ban on cross-ownership of newspapers and broadcast outlets by the end of the year.
House Commerce Committee chair John Dingell has echoed the senators’ call, warning the FCC “against a rush to judgment in its media ownership proceeding,” as has activist groups such as Free Press – the energizer bunny of government regulation – which is warning that:
“Kevin Martin, Chairman of the Federal Communications Commission, has been keeping a secret from the American people. He wants to push through plans to remove decades-old media ownership protections. And he’s trying to do it without public scrutiny”.
Now, I’m the first to recognize that the FCC has a lot of faults, but moving to fast is a new one to me. The Commission deliberations have long been known for their Bleak House qualities, extending – like the case of Jarndyce v. Jarndyce – seemingly for generations. Decisionmaking at the agency is – as long-time FCC policy chief Robert Pepper put it – “infinitely elastic.”
But it this case different? Is the FCC – like a runaway glacier – suddenly moving dangerously fast on media ownership? Hardly.
Take a look at the record.
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With all due respect for the views of my colleagues (here and here) and commenters, former Sen. Bob Kerrey had this, and other, mature insights in an op-ed which appeared yesterday in The Hill regarding whether to include immunity for telecom carriers in the Foreign Intelligence Surveillance Act (FISA) reauthorization:
Consider the atmosphere: the president had gone before Congress and said “one vial, one canister, one crate, slipped into this country, could bring a day of horror like none we have ever known.” So if these companies refused to cooperate, by implication, that dark day could be on their conscience. And now they cannot even defend themselves in court, because the details of the investigations remain classified.
Opposition to immunity isn’t aimed so much at punishing the telecom providers, but at obtaining information about what really happened and about reaffirming the significant legal duties that telecom providers have for safeguarding the privacy of their law-abiding customers.
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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.