by Berin Szoka & Adam Thierer
This morning, the House Energy & Commerce Committee will hold a hearing on “Behavioral Advertising: Industry Practices And Consumers’ Expectations.” If nothing else, it promises to be quite entertaining: With full-time Google bashers Jeff Chester and Scott Cleland on the agenda, the likelihood that top Google officials will be burned in effigy appears high!
Chester, self-appointed spokesman for what one might call the People for the Ethical Treatment of Data (PETD) movement, is sure to rant and rave about the impending techno-apocalypse that will, like all his other Chicken-Little scenarios, befall us all if online advertisers were permitted to better tailor ads to consumers’ liking. After all, can you imagine the nightmare of less annoying ads that might actually convey more useful information to consumers? Isn’t serving up “untargeted” dumb banner ads for Viagra to young women and Victoria’s Secret ads to Catholic school kids the pinnacle of modern online advertising? Gods forbid we actually make advertising more relevant and interest-based! (Those Catholic school boys may appreciate the lingerie ads, but few will likely buy bras.)
Anyway, according to National Journal’s Tech Daily Dose, the hearing lineup also includes:
- Charles Curran, Executive Director, Network Advertising Initiative
- Christopher Kelly, Chief Privacy Officer, Facebook
- Edward Felten, Director, Center for IT Policy, Princeton University
- Anne Toth, Chief Privacy Officer & Vice President, Policy, Yahoo!
- Nicole Wong, Deputy General Counsel, Google
That’s an interesting group and we’re sure that they will say interesting things about the issue. Nonetheless, because four of them have a corporate affiliation that fact will inevitably be used by some critics to dismiss what they have to say about the sensibility of more targeted or interest-based forms of online advertising. So, we’d like to offer a few thoughts and pose a few questions to make sure that Committee members understand why, regardless of what it means for any particular online operator,
targeting online advertising is very pro-consumer and essential to the future of online content, culture, and competition. As Wall Street Journal technology columnist Walt Mossberg has noted, “Advertising is the mother’s milk of all the mass media.” Much of the “free speech” we all cherish isn’t really free, but ad-supported!
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The Gawker offers a fascinating discussion of the legal right to anonymity:
“There is clearly a moral case that some people should be able to join the public debate and retain their anonymity,” Tench told Gawker. “And I think this will have a chilling effect. Blogs like this can only exist anonymously, and I imagine that anyone who wanted to set one up is thinking about this case.”
As well they should. But the notion that anonymous publishers have a right, in perpetuity, to keep their identities a secret—or that people who learn their identities are honor-bound not to reveal them—is nonsense.
Amen! One can resist, fiercely, government efforts to reduce online anonymity through age verification or identity authentication mandates, as Adam Thierer have argued most recently in our work about efforts to expand COPPA to cover adolescents (“COPPA 2.0,” which would indirectly mandate age verification for large numbers of adults for the first time). One might even argue that there are moral reasons to resist the urge to out pseudonymous/anonymous bloggers (just as one might avoid outing closeted gays out of respect for their privacy). But one need not accept the pernicious idea that the government should punish the outing of peusodonymous/anonymous writers, which is simply a restraint on legitimate free speech.
This exchange, cited by the Gawker article, is particularly interesting, and demonstrates how one can distinguish the question of whether outing is “right” or “appropriate” from the question of whether it should be punished by law:
When the National Review‘s Ed Whelan revealed Publius, who writes for Obsidian Wings, to be a professor of law at the South Texas College of Law named John F. Blevins earlier this month, the palpable online outrage forced Whelan to apologize.
Cory Doctorow has called for a Wikipedia-style effort to build an open source, non-profit search engine. From his column in The Guardian:
What’s more, the way that search engines determine the ranking and relevance of any given website has become more critical than the editorial berth at the New York Times combined with the chief spots at the major TV networks. Good search engine placement is make-or-break advertising. It’s ideological mindshare. It’s relevance…
It’s a terrible idea to vest this much power with one company, even one as fun, user-centered and technologically excellent as Google. It’s too much power for a handful of companies to wield.
The question of what we can and can’t see when we go hunting for answers demands a transparent, participatory solution. There’s no dictator benevolent enough to entrust with the power to determine our political, commercial, social and ideological agenda. This is one for The People.
Put that way, it’s obvious: if search engines set the public agenda, they should be public.
He goes on to claim that “Google’s algorithms are editorial decisions.” For Doctorow, this is an outrage: “so much editorial power is better vested in big, transparent, public entities than a few giant private concerns.”
I wish Doctorow well in his effort to crowdsource a Google-killer, but I’m more than a little skeptical that anyone would actually want to use his search engine of The People. My guess is that, like most things produced in the name of “The People” (Soviet toilet paper comes to mind), it will probably won’t be much fun to use, and will likely chafe noticeably. (For the record, I love and regularly use Wikipedia; I just don’t think that model is unlikely to produce a particularly useful search engine. As Doctorow himself has noted of Google, “they make incredibly awesome search tools.”)
But I’m glad to see that Doctorow has conceded an important point of constitutional law:
The First Amendment protects the editorial discretion of search engines, like all private companies, to decide what to content to communicate. For a newspaper, that means deciding which articles or editorials to run. For a library or bookstore, it means which books to carry. For search engines, it means how to write their search algorithims. Continue reading →
As Berin mentioned last week, we have a new paper out on proposals to expand the Children’s Online Privacy Protection Act (COPPA) of 1998. We generically refer to those COPPA-expansion efforts as “COPPA 2.0.” Hence, the title of our paper: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.” To recap what Berin already noted, in the name of improving online child safety, some legislators and state attorneys general (AGs) are advocating the expansion of COPPA’s “verifiable parental consent” model of age verification before certain sites or services may collect, or enable the sharing of, personal information for children.
Unlike “COPPA 1.0,” however, which only applied to children under the age of 13, “COPPA 2.0” would apply to all minors up to age 17. Moreover, the range of sites covered by the new law would generally be expanded to include just about any site or service with social networking functionality.
Since Berin has already summarized our general concerns with efforts to expand COPPA’s “verifiable parental consent” online age verification system to cover more online users and sites, I thought I would focus here on what I believe will be the most controversial (and important) part of our paper — our discussion about how COPPA 2.0 affects the speech rights of both adults
and adolescents.
Continue reading →
Adam Thierer & I have just released a detailed examination (PDF) of brewing efforts to expand the Children’s Online Privacy Protection Act of 1998 to cover adolescents and potentially all social networking sites—an approach we call “COPPA 2.0.”
As Adam explained on Larry Magid’s CNET podcast, COPPA mandates certain online privacy protections for children under 13, most importantly that websites obtain the “verifiable consent” of a child’s parent before collecting personal information about that child or giving that child access to interactive functionality that might allow the child to share their personal information with others. The law was intended primarily to “enhance parental involvement in a child’s online activities” as a means of protecting the online privacy and safety of children.
Yet advocates of expanding COPPA—or “COPPA 2.0″—see COPPA’s verifiable parental consent framework as a means for imposing broad regulatory mandates in the name of online child safety and concerns about social networking, cyber-harassment,
etc. Two COPPA 2.0 bills are currently pending in New Jersey and Illinois. The accelerated review of COPPA to be conducted by the FTC next year (five years ahead of schedule) is likely to bring to Washington serious talk of expanding COPPA—even though Congress clearly rejected covering adolescents age 13-16 when COPPA was first proposed back in 1998.
We’ll discuss some of the key points of our paper in a series of blog posts, but here are the top nine reasons for rejecting COPPA 2.0, in that such an approach would:
- Burden the free speech rights of adults by imposing age verification mandates on many sites used by adults, thus restricting anonymous speech and essentially converging—in terms of practical consequences—with the unconstitutional Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA;
- Burden the free speech rights of adolescents to speak freely on—or gather information from—legal and socially beneficial websites;
- Hamper routine and socially beneficial communication between adolescents and adults;
- Reduce, rather than enhance, the privacy of adolescents, parents and other adults because of the massive volume of personal information that would have to be collected about users for authentication purposes (likely including credit card data);
Continue reading →
As I mentioned in a post last month, dozens of comments were filed with the Federal Communications Commission (FCC) as part of the agency’s “Child Safe Viewing Act” Notice of Inquiry. Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” I filed 150+ pages worth of comments in this matter, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.
Anyway, this week saw many of the same groups that filed before (and some new ones) file reply comments about those earlier submissions. To make things simple, I have collected most of the notable reply comments down below in case anyone is interested.
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… could be illegal under a proposed Massachusetts (per Boing Boing) law that would make it a crime to “photograph with ‘lascivious intent’ a person over the age of 60 or a person with a disability who has been declared mentally incompetent.” Like the recent prosections of teens for sending nude pictures of themselves on Myspace under child pornography laws, the Massachusetts proposal would criminalize the sharing of “lascivious” photos regardless of the consent of the person being photographed.
Arthur would be turning in her (recently-dug) grave. Dorothy Zbornak (her most famous character) might not have been much of a libertarian—it seems safe to assume she, like most progressive Catholics (however fictional) voted for Mondale—but one can easily imagine how her withering sarcasm would lay bare (no pun intended) the noxious paternalism underlying this proposal: It’s bad enough that the government treats adults like children, assuming we’re all not smart enough to make good decisions for ourselves, but must the State really draw a line in the sand beyond which age (60, in this case) Americans officially lose their status as adults and revert to a second childhood in the eyes of the law?
Dorothy and the other Golden Girls would never stand for it. One can only imagine the rage of aging beauty Blanche Devereaux at the crimp this law would have put in her (previously thriving) sex life.
Those who don’t get the title’s reference to the 1994 classic
Airheads, or who just plain don’t care for the Golden Girls’ geriatric charms, might nonetheless be crestfallen to realize that the bill could also deny the world naughty pics of developmentally disabled sex kittens like Susan Boyle, the surprise star of Britain’s “Got Talent” (essentially American Idol with worse teeth). (Of course, the bill would apply only if Susan were declared mentally incompetent).
Ah, Susan, be still my beating heart!
http://www.youtube.com/v/9lp0IWv8QZY
I’ve been commenting on yesterday’s Supreme Court decision in FCC v. Fox, and criticizing the logic of the majority’s decision the case, which was driven solely by procedural / admin law considerations. [See Part 3.] I also discussed Justice Thomas’s very interesting concurring opinion, which took a serious look at the constitutional issues in play here and signaled his willingness to potentially overturn Red Lion and Pacifica. [See Part 4.] In this fifth installment, I will briefly outline some of the dissenting arguments.
Justice Stephen Breyer penned a lengthy dissent and was joined by Justices Stevens, Souter and Ginsburg. Like the Scalia majority decision, the Breyer dissent also focused on the procedural / APA-related issues at stake in the case. Breyer, however, was not buying the FCC’s assertion that it had adequately justified its significant expansion of indecency enforcement in recent years. Whereas the majority deferred to the agency and found “no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review,” the four dissenting justices saw things quite differently. Breyer noted that while the “law grants those in charge of independent administrative agencies broad authority to determine relevant policy,” it “does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.” He goes on to appropriately note that:
Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “‘the exercise of political oversight.’” [citations omitted] That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from ballot-box control makes it all the more important that courts review its decision making to assure compliance with applicable provisions of the law — including law requiring that major policy decisions be based upon articulable reasons.
Breyer goes on to restate much of what is already clear from the APA and all that surrounds it. “[A]n agency must act consistently. The agency must follow its own rules,” he notes. Moreover: Continue reading →
With today’s historic Supreme Court decision in FCC v. Fox, I have been commenting on the logic and implications of the decision. Part 3 dealt with the majority’s decision in the case, which was driven solely by procedural / admin law considerations. This installment will discuss the very interesting concurring opinion penned by Justice Thomas, which is the only one that takes a serious look at the constitutional foundations of the FCC’s current regulatory regime. While I was sad to see Justice Thomas join the majority’s decision upholding the FCC’s radical expansion of speech regulation in recent years, he joined that majority only on straightforward procedural grounds. On the underlying constitutional issues at stake here, it is clear from his concurring statement that he is ready for the Court to hear a challenge to the previous court precedents and traditional regulatory doctrines that have long supported FCC speech and media controls.
“I write separately,” Justice Thomas says “to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.” Specifically, he addresses the two key cases upon which almost all FCC speech regulation rests: Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) and FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Thomas continues: “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”
BOOM! With those words, Justice Thomas has dropped the hammer and taken what will hopefully be the first swing at toppling the house of cards that is modern FCC speech regulation. Justice Thomas goes on to itemize the many problems with what I have referred to as “America’s Jurisprudential Twilight Zone” when it comes to how we apply the First Amendment to media platforms in this country. He states:
Continue reading →
As I noted earlier, the U.S. Supreme Court today handed down a historical First Amendment decision in the case of Federal Communications Commission v. Fox Television Stations. The Court ruled in the FCC’s favor by a 5-4 margin. My initial general thoughts are here. In this piece, I’ll talk a bit more about the majority’s decision in the case.
The most important thing to realize about the Court’s 5-4 decision in
FCC v. Fox is that the Court has intentionally dodged all the serious constitutional issues in play here and instead decided the case solely on procedural grounds. “We decline to address the constitutional questions at this time,” the majority says. (p. 26) Writing for the majority, Justice Scalia says:
There is… no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position… and may sometimes need to account for prior fact finding or certain reliance interests created by a prior policy, it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.
Of course, it’s not entirely unusual for the Court to decide important regulatory cases by sticking to administrative law / APA issues, but what’s different in this case is that we’re not talking about the regulation of widgets here. We are talking about the regulation of freedom of speech and expression. Shouldn’t the administrative law analysis change a bit when the issues at stake implicate profound constitutional imperatives? I think so, but the majority doesn’t address that.
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.
Reply Comments in FCC’s “Child Safe Viewing Act” Notice of Inquiry
by Adam Thierer on May 20, 2009 · 17 comments
As I mentioned in a post last month, dozens of comments were filed with the Federal Communications Commission (FCC) as part of the agency’s “Child Safe Viewing Act” Notice of Inquiry. Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” I filed 150+ pages worth of comments in this matter, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.
Anyway, this week saw many of the same groups that filed before (and some new ones) file reply comments about those earlier submissions. To make things simple, I have collected most of the notable reply comments down below in case anyone is interested. Continue reading →