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April 21: State of the Mobile Net & Growing Up Mobile Seminar in DC

by Berin Szoka on April 19, 2010 · 0 comments

The Congressional Internet Caucus Advisory Committee is hosting their second annual State of the Mobile Net conference this Wednesday, April 21 at the DC Hyatt Regency (400 New Jersey Ave NW). The conference runs 12-5 pm followed by a cocktail reception. This conference and the larger State of the Net conference are probably the two best annual Internet policy events in DC, so I hope you’ll attend! This year’s SOMN includes a bonus: a “Growing Up with the Mobile Net” seminar coordinated by Common Sense Media, 9-11:45 am. I’ll be on the first panel of the morning on Kids’ Privacy on the Mobile Net: Is it PII or TMI? with:

Amanda Lenhart of the Pew Internet & American Life Project, veritable goddess of cyber-sociological data (check out her terrific Social Media & Young Adults report);
Phyllis Marcus, who handles childrens’ privacy and COPPA issues at the FTC (and is one of my favorite people there); and
Alan Simpson, Common Sense Media, a tireless advocate for educating children & parents.

I can only assume Alan asked me to be on this distinguished panel panel to represent kids directly on account of my baby-faced-ness! Jerry Rubin famously said, “Don’t trust anyone over thirty”—so I’ve still got 3.5 months of trustworthiness to go! (Or perhaps he actually read the huge PFF paper Adam Thierer and I did last summer about COPPA and my recent post on the FTC’s recently announced COPPA implementation review or my testimony on Maine’s COPPA 2.0 law.) Anyway, the rest of the day looks great (so register here), including these sessions: Continue reading →

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3 Upcoming Events: Super-Sizing the FTC (4/16), FTC v. Google on AdMob (4/15) & Must-Carry (4/27)

by Berin Szoka on April 13, 2010 · 2 comments

Friday, April 16: I’ll be moderating a PFF Capitol Hill briefing on Super-Sizing the FTC & What It Means for the Internet, Media & Advertising. My panel of FTC veterans and observers will discuss the growing powers of the Federal Trade Commission (FTC). As I’ve mentioned here and here, financial reform legislation passed by the House and now pending in the Senate would give the FTC sweeping new powers to regulate not just Wall Street, but also unfair or deceptive trade practices across the economy. This could reshape regulation in a wide range of areas, such as privacy, cybersecurity, child safety, child nutrition, etc. The FTC has also asserted expanded authority to regulate “unfair” competition in its lawsuit against Intel. Register here for this 12-2 pm briefing in the Capitol Visitor Center!

Thursday, April 15: I’ll be participating in Capitol Hill briefing on Google’s proposed acquisition of AdMob, a leading in-app mobile ad network, which the FTC appears poised to challenge. (RSVP here.) Geoff Manne has probably done the best job debunking arguments against the deal but, sadly, couldn’t make the panel. ITIF’s Dan Castro will moderate a panel including (besides myself):

Simon Buckingham, who’s expressed concerns about the deal on his Appitalism blog and accused Google of leveraging Google’s desktop search dominance into the high-end mobile market”;
Lillie Coney of the Electronic Privacy Information Center (EPIC), which never passes up an opportunity to denounce Google on privacy grounds;
Jonathan Kanter, Cadwalader, Wickersham & Taft LLP, who represented TradeComet.com in their antitrust suit against Google and has also represented Microsoft in the past; and
Glenn Manishin – Duane Morriss LLP, an antitrust lawyer who’s represented Google.

Tuesday, April 27: We just announced another PFF Briefing: Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?, 10:00-11:45 a.m at Hogan & Hartson LLP (555 13th Street NW, Washington, DC). Continue reading →

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The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Fees for Public Media

by Adam Thierer on March 29, 2010 · 1 comment

As mentioned last week, in a new series of essays, PFF scholars will be examining proposals that would have the government play a greater role in sustaining struggling media enterprises, “saving journalism,” or promoting more “public interest” content. With many traditional media operators struggling, and questions being raised about how journalism in particular will be supported in the future, Washington policymakers are currently considering what role government can and should play in helping media providers reinvent themselves in the face of tumultuous technological change wrought by the Digital Revolution. We will be releasing 6 or 7 essays on this topic leading up to our big filing in the FCC’s “Future of Media” proceeding (deadline is May 7^th). And here’s a podcast Berin Szoka and I did providing an overview of the series.

In the first installment of the series, Berin and I critiqued an old idea that’s suddenly gained new currency: taxing media devices or distribution systems to fund media content. In the second installment, “The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Taxes to Subsidize Public Media,” I discuss proposals to impose a tax on broadcast spectrum licenses to funnel money to public media projects or other “public interest” content or objectives.Such a tax would be fundamentally unfair to broadcasters, who are struggling for their very survival in the midst of unprecedented marketplace turmoil. Moreover, such a tax is unnecessary in light of the many other sources of “public interest” programming available today. Finally, even if the government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it. Nor should government force such media choices upon the public. There’s no good reason for government to be socially-engineering media choices through taxes.

I’ve attached the entire essay down below.

Continue reading →

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PFF Briefing 4/16: Super-Sizing the FTC & What It Means for the Internet, Media & Advertising

by Berin Szoka on March 28, 2010 · 0 comments

Please join us for this Progress & Freedom Foundation luncheon briefing on Friday, April 16, 12-2 pm in the Capitol Visitor Center, Room SVC 208/209 at E Capitol St NE & 1st St NE. I’ll be moderating a discussion of the growing powers of the Federal Trade Commission (FTC) and what it might mean for consumers, advertisers, media creators, and the Internet.

As I’ve discussed here, here and here, financial reform legislation passed by the House (HR 4173) and now under debate in the Senate would give the FTC sweeping new powers to regulate not just Wall Street, but also unfair or deceptive trade practices across the economy. This could reshape regulation in a wide range of areas, such as privacy, cybersecurity, child safety, COPPA, and child nutrition, affecting media online as well as offline. Unfortunately, as Adam and I have noted, there seems to be a disconnect at the FTC between concerns over the future of struggling media creators and efforts to step up regulation on a number of fronts, especially privacy. The FTC has also asserted expanded authority to regulate “unfair” competition in its lawsuit against Intel, based solely on the FTC’s Section 5 unfairness authority rather than traditional antitrust law. PFF has assembled a group of expert panelists—veteran FTC practitioners, scholars and insiders—to discuss these issues and more. Here’s our panel:

Jack Calfee, Resident Scholar, American Enterprise Institute for Public Policy Research (AEI) & author of Fear of Persuasion: A New Perspective on Advertising and Regulation (1998)
Maureen Ohlhausen, Partner, Wilkinson Barker Knauer, Consumer Protection Law and Competition Law practices, & 11-year FTC veteran
Jim Davidson , Chair of the Public Policy group, Polsinelli Shughart PC
Stu Ingis, Partner, Venable LLP Continue reading →

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Steve Forbes on Free Press & Coming “Chavez-Style Media Crackdown”

by Adam Thierer on March 25, 2010 · 6 comments

Steve Forbes has an entertaining essay out today about the agenda of Free Press and its founder, the Marxist media scholar Robert McChesney. Forbes notes that McChesney has expressed a great deal of sympathy for the Venezuelan dictator Hugo Chavez and has even defended some of his tactics to control the press. This leads to his fear that McChesney and Free Press will convince the Obama Administration to use similar tactics here in the U.S.:

Once the federal government starts subsidizing our own free press, how long until the feds start revoking broadcast licenses of government opponents and bringing pesky reporters up on charges of say, “corruption” or “subversion”? According to McChesney and the Free Press folks, it apparently can’t happen soon enough.

To be fair, I haven’t heard anyone from Free Press defending Hugo Chavez or his tactics. But I do wonder why the organization continues to associate itself with such a radioactive figure like Mr. McChesney. After all, Forbes isn’t making up anything about McChesney, who is an outspoken, and self-described, Marxist media theorist. McChesney really has expressed sympathy for Chavez and said that, “If [Venezuelan broadcaster] RCTV were broadcasting in the United States, its license would have been revoked years ago. In fact its owners would likely have been tried for criminal offenses, including treason.” Far more troubling are Mr. McChesney’s views regarding how to reform media going forward, which I’ve documented in past essays in more detail. (See, “Free Press, Robert McChesney & the “Struggle” for Media,” “What the Media Reformistas Really Want,” and “Socializing Media in Order to Save It,.”) One need look no further than this lengthy interview with McChesney that appeared in an online newsletter called “The Bullet” produced by the Canada-based “Socialist Project.”

The whole thing is quite troubling to read, but here are a couple of jaw-droppers that make it clear just how radical Mr. McChesney’s worldview and agenda are:

Continue reading →

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FTC Announces Broad COPPA Review for Children’s Online Privacy

by Berin Szoka on March 24, 2010 · 8 comments

The Federal Trade Commission (FTC) today announced the release of an 18-page Request for Public Comment (embedded below) on its implementation of the Children’s Online Privacy Protection Act or 1998 (COPPA), which governs online sharing by, and collection of information from, children under age 13. The FTC had previously announced that it would accelerate the review, which had been planned for 2015, particularly because of concerns about the mobile marketplace, as noted in the FTC’s report on that topic released in February.

COPPA has undoubtedly succeeded in its primary goal of enhancing parental involvement in their child’s online activities in order to protect the privacy and safety of children online. Yet these benefits have come at a price, as COPPA’s considerable compliance costs (estimated at $45/child, which can be crushing in the era of “free”) have likely reduced the digital media choices available for children. So I’m glad to see the Commission recognize these trade-offs by asking about the costs and benefits of COPPA and any proposed changes right off the bat (Questions 1-5). Such trade-offs are an inevitable part of life and policymakers can’t simply ignore them, even when it’s “for the children.”

The Potential for COPPA Expansion

I look forward to seeing comments on the important questions raised by the Commission about precisely how best to implement the framework enacted by Congress. But I do worry that the Commission has explicitly invited proposals for legislative changes to the statute itself. In particular:

6. Do the definitions set forth in Part 312.2 of the Rule accomplish COPPA’s goal of protecting children’s online privacy and safety? … 28. Does the commenter propose any modifications to the Rule that may conflict with the statutory provisions of the COPPA Act? For any such proposed modification, does the commenter propose seeking legislative changes to the Act?

Note that question #6 does not include the critical limitation “consistent with the Act’s requirements,” which appears no less than 17 times in subsequent questions about specific aspects of the current rules. Whatever the FTC intended, this will omission, combined with question #28, will be taken as an open invitation by many to propose not just changes in how the COPPA rules are implemented, but wholesale revisions to the COPPA statute itself. Continue reading →

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FTC Chairman Leibowitz: Just Trust Us, We Won’t Abuse Vast New Powers!

by Berin Szoka on March 21, 2010 · 8 comments

That’s basically what FTC Chairman Jon Leibowitz told the Association of National Advertisers when he spoke to their “Advertising Law & Public Policy” conference last Thursday. As I noted last week, there’s intense pressure in Congress to pass a financial regulatory overhaul and, unfortunately, the version passed by the House in December—Rep. Barney Frank’s “Wall Street Reform and Consumer Protection Act of 2009” (H.R. 4173)—would also grant the Federal Trade Commission vast new powers for all its regulations, not just those relating to the non-bank financial institutions it currently regulates. In particular, HR 4173 would:

Make it far easier (and not just faster) for the FTC to issue all kinds of new regulations on its own, without a specific Congressional mandate to do so and instead of relying on case-by-case enforcement to punish “unfair” or “deceptive” acts and practices;
Reduce public input into those regulations;
Impose heavy civil penalties on companies before notifying them that a practice might be “unfair” or “deceptive”;
Prosecute those who merely provided “substantial assistance” to someone engaged in “unfair” or “deceptive” acts or practices; and
Sue on its own authority, instead of through DOJ (as now).

I summarized my concerns about this bill in this short interview with PFF’s new communications director, Mike Wendy, last week: [display_podcast]

Leibowitz has lobbied hard to have his agency put on steroids (as former FTC Chairman Jim Miller put it), asking for all these things, as well as more funding, at the first Senate hearing on Hr 4173 back in February. (Conveniently, he was the only witness!) He repeated his calls for these powers on Thursday but tried to allay fears about how they’d be used. Continue reading →

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How Financial Overhaul Could Put the FTC on Steroids & Transform Internet Regulation Overnight

by Berin Szoka on March 17, 2010 · 23 comments

Progress Snapshot 6.7 , The Progress & Freedom Foundation (PDF)

This week marks a pivotal point in the history of the Internet. Monday was the 25^th anniversary of the first .COM registration—and in some ways, the beginning of the commercial Internet. Yesterday, the Federal Communications Commission unveiled its long-awaited National Broadband Plan, which proposes ambitious subsidies to encourage broadband deployment. On the theory that unease about online privacy may discourage broadband adoption, the Plan also calls for increased regulation of how websites collect, and use, data from consumers.

The debate over how to regulate online data use has gone on for over a decade, leading to today’s final “Roundtable” in the “Exploring Privacy” series held by the Federal Trade Commission over the last three months. The stakes in this debate are high: Data is the lifeblood of online content and services, and consumers will ultimately bear the cost of restrictions on data use in the form of reduced advertising funding for, and innovation in, online content and services.

That’s why this week’s most important technology policy event may ultimately prove to be today’s Senate Commerce Committee hearing on Rep. Barney Frank’s “Wall Street Reform and Consumer Protection Act of 2009” (H.R. 4173), which narrowly passed the House in December without a single hearing and no real debate. Although the sprawling (273,579 word) bill is mostly famous for creating a Consumer Financial Protection Agency, it would also, in just 613 words, “put the FTC on steroids,” in the words of Jim Miller, FTC Chairman from 1981 to 1985. With vastly expanded powers, the FTC could impose sweeping new regulation touching virtually every sector of our economy.

The current FTC chairman, Jon Leibowitz, has made clear his determination to step up regulation of online data use, advertising, “blogola,” and child protection, just to name a few of the hot topics in Internet policy. While the FTC will no doubt continue to push for increased statutory authority, such as the online privacy bill reportedly being drafted by House Commerce Internet Subcommittee Chairman Rick Boucher (mandating opt-in for data collection), Chairman Leibowitz may be able to implement most of his radical Internet regulatory agenda using the new powers conferred on his agency in a bill (H.R, 4173) few realize has anything to do with Internet policy. Continue reading →

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Livetweeting Final FTC Privacy Roundtable Today

by Berin Szoka on March 17, 2010 · 2 comments

I’m livetweeting today’s final FTC Privacy Roundtable (check out the #FTCPriv hashtag on Twitter). Check out the day’s agenda or watch the webcast here. Adam Thierer and I expressed our concerns about the rush to regulation at the First Roundtable back in December—see my written comments and Adam’s summary of his remarks. David Vladeck, Director of the Bureau of Consumer Protection offered the following summary of the Roundtable process at the kick-off this morning:

Benefits & risks of technology. “March of technology has blurred and threatens to obliterate the distinction between PII [personally identifiable information) and non-PII…. It’s getting harder and harder for users to choose anonymity.”
Privacy challenges raised by emerging business models. What do consumers know? Consumers are often presented with confusing and unfamiliar situations. Consumers understand little about how their information is handled.
Innovation in disclosure. Industry is testing privacy icons.
Privacy policies are too vague, too long, too complicated and too hard to find. We need effective ways to disclose what information is being collected and to give consumers a meaningful way to control its use. There’s no way to put the genie back in the bottle once information has been shared.

On the critical question of next steps, Vladeck claims the agency isn’t certain where it will go and plans to “sit back” and think about the detailed record before making public a set of detailed recommendations on which the public will be invited to provide input. I’d like to believe him and I hope the agency really does think long and hard about the evidence provided in this process as to the trade-offs inherent in increased regulation, the complexity of this space, and the need for a cautious approach when it comes to tinkering with the data flows that are the lifeblood, both technological and financial, of the Internet. But based on their recent public statements, I fear that Vladeck and FTC Chairman Jon Liebowitz have already made up their minds about the need for regulation, and that this process is really just paving the way for a report this summer that will call for sweeping new legislation—just as the FTC did back in its 2000 Report to Congress. Continue reading →

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Would a “Citizenship News Voucher” Get Us More “Broccoli Journalism”?

by Adam Thierer on March 10, 2010 · 5 comments

Can we steer people toward hard news — and get them to financially support it — through the use of “news vouchers” or “public interest vouchers”? That’s the subject of this latest installment in my ongoing series on proposals to have the government play a greater role in the media sector in the name of sustaining struggling enterprises or “saving journalism.”

As I mentioned here previously, last week I testified at the FCC’s first “Future of Media” workshop on “Serving the Public Interest in the Digital Era.” (@3:29 mark of video). It was a great pleasure to testify alongside the all-star cast there that day, which included the always-provocative Jeff Jarvis of the CUNY Graduate School of Journalism. He delivered some very entertaining remarks and vociferously pushed back against many of the ideas that others were suggesting about “saving journalism.” Jeff is a very optimistic guy–far more optimistic than me, in fact–about the prospect that new media and citizen journalism will help fill whatever void is left by the death of many traditional media operators and institutions. He had a lively exchange with Srinandan Kasi, Vice President, General Counsel and Secretary of the Associated Press, that is worth watching (somewhere after the 5-hour mark on the video).

Nonetheless, Jarvis is a enough of a realist to know that it has always been difficult to find resources to fund hard news, which he creatively refers to as “broccoli journalism.” This is what is keeping the FCC, the FTC (workshop today), and many media worrywarts up at night; the fear that as traditional financing mechanisms falter (advertising, classifieds, subscription revenues, etc) many traditional news-gathering efforts and institutions will disappear. Of course, while it is certainly true we are in the midst of a gut-wrenching media revolution with a great deal of creative destruction taking place, it is equally true that exciting new media business models and opportunities are developing. We shouldn’t over look that, as I argued here and here.

Anyway, a lot of different proposals are being put forth by scholars and policymakers to find new ways to finance news-gathering or “save journalism.” One of the ideas that has been gaining some steam as of late is the idea of crafting a “public interest voucher” or what Robert W. McChesney & John Nichols, authors of the new book The Death and Life of American Journalism, call a “Citizenship News Voucher.” And McChesney discussed this idea in more detail when he spoke at today’s FTC event on saving journalism. Continue reading →

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