The Progress & Freedom Foundation today filed comments in the Federal Communication Commission’s (FCC) “Future of Media” proceeding. Berin Szoka, Ken Ferree, and I urged the FCC to “reject Chicken Little-esque calls for extreme media ‘reform’ solutions,” and counseled policymakers to move cautiously so that media reform can be “organic and bottom-up, not driven by heavy-handed, top-down industrial policies for the press.”
Our 79-page filing covers a wide range of ideas being examined by Washington policymakers to help struggling media outlets and unemployed journalists, or to expand public media / “public interest” content and regulation. Among the major issues explored in our filing:
- First Amendment concerns implicated by government subsidies;
- The pitfalls of imposing new “public interest” obligations on media operators;
- How advertising restrictions could harm the provision of media and news;
- Taxes, fees and other regulations to be avoided;
- The limited role in reform that public media subsidies can play; and
- Positive steps government could take.
We note that as “With many operators struggling to cope with intensifying competition, digitization, declining advertising budgets, and fragmenting audiences, some pundits and policymakers are wondering what the ‘future of media’ entails. The answer: Nobody knows.” While this uncertainty has put concerned policymakers at the ready to “help” the press, we warn that: “There is great danger in rash government intervention.” Instead, policymakers should be “careful to not inhibit potentially advantageous marketplace developments, even if some are highly disruptive.” Marketplace meddling, or government attempts to tinker with private media business models in the hopes that something new and better can be created, are misguided. Moreover, “Our constitutional traditions warn against it, history suggests it would be unwise, and practical impediments render such meddling largely unworkable, anyway.”
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Seems like everywhere I turn someone is gushing about their new Droid phone, including my TLF colleagues Berin Szoka, Braden Cox, and Ryan Radia, who all had great fun rubbing their new toys in my nose over the past couple of days. And why not, it’s a very cool little device. It makes my HTC Touch seems positively archaic in some ways, and it’s only a year old. Apparently, 100,000 people already picked up a Droid in just its first weekend on the market.
But here’s the first thing that pops in my mind every time I see someone showing off their new Droid: How can a device like this even exist when America’s leading cyberlaw experts have been telling us that the whole digital world is increasingly going to hell because of “closed” devices, proprietary code, and managed networks? I’m speaking, of course, about the lamentations of Harvard professors Lawrence Lessig, Jonathan Zittrain, and their many disciples. As faithful readers will recall, I have relentlessly hammered this crew for their unwarranted cyber-Chicken Little-ism and hyper techno-pessimism. (See my many battles with Zittrain [1, 2, 3, 4, 5, 6 + video] and my 2-part debate with Lessig earlier this year).
“Left to itself,” Lessig warned in Code, “cyberspace will become a perfect tool of control.” He went on to forecast a dystopian future in which nefarious corporate schemers would quash our digital liberties unless benevolent public philosopher kings stepped in to save our poor souls. Code was the Old Testament of cyber-collectivism. The New Testament arrived last year with Zittrain’s
The Future of the Internet and How to Stop It. In it, we hear the grim prediction that “sterile and tethered” digital technologies and networks will triumph over the more “open and generative” devices and systems of the past. The iPhone and TiVo are cast as villains in Zittrain’s drama since they apparently represent the latest manifestations of Lessig’s “perfect control” paranoia.
Apple’s “Angel of Death”
How completely out-of-control has this thinking gotten? Well, here’s David Weinberger — another Harvard Berkman Center worrywart — talking about that supposed satanic font of all evil, the Apple AppStore: Continue reading →
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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David Margolick has penned a lengthy piece for Portfolio.com about the AutoAdmit case, which has important ramifications for the future of Section 230 and online speech in general. Very brief background: AutoAdmit is a discussion board for students looking to enter, or just discuss, law schools. Some threads on the site have included ugly — insanely ugly — insults about some women. A couple of those women sued to reveal the identities of their attackers and hold them liable for supposedly wronging them. The case has been slowly moving through the courts ever since. Again, read Margolick’s article for all the details. The important point here is that the women could not sue AutoAdmit directly for defamation or harassment because Section 230 of the Communications Decency Act of 1996 immunizes websites from liability for the actions of their users. Consequently, those looking to sue must go after the actual individuals behind the comments which (supposedly) caused the harm in question.
I am big defender of Section 230 and have argued that it has been the cornerstone of Internet freedom. Keeping online intermediaries free from burdensome policing requirements and liability threats has created the vibrant marketplace of expression and commerce that we enjoy today. If not for Sec. 230, we would likely live in a very different world today.
Sec. 230 has come under attack, however, from those who believe online intermediaries should “do more” to address various concerns, including cyber-bullying, defamation, or other problems. For those of us who believe passionately in the importance of Sec. 230, the better approach is to preserve immunity for intermediaries and instead encourage more
voluntary policing and self-regulation by intermediaries, increased public pressure on those sites that turn a blind eye to such behavior to encourage them to change their ways, more efforts to establish “community policing” by users such that they can report or counter abusive language, and so on.
Of course, those efforts will never be fool proof and a handful of bad apples will still be able to cause a lot of grief for some users on certain discussion boards, blogs, and so on. In those extreme cases where legal action is necessary, it would be optimal if every effort was exhausted to go after the actual end-user who is causing the problem before tossing Sec. 230 and current online immunity norms to the wind in an effort to force the intermediaries to police speech. After all, how do the intermediaries know what is defamatory? Why should they be forced to sit in judgment of such things? If, under threat of lawsuit, they are petitioned by countless users to remove content or comments that those individuals find objectionable, the result will be a massive chilling effect on online free speech since those intermediaries would likely play is safe most of the time and just take everything down. Continue reading →
Continuing the “Cutting the (Video) Cord” series started by my PFF colleague Adam Thierer: The WSJ had two great pieces yesterday about the increasing competitive relevance of television distributed by Internet—a trend that was at the heart of an amicus
brief PFF recently filed in support of C omcast’s challenge of the FCC’s 30% cap on cable ownership. The first WSJ piece declares that:
After more than a decade of disappointment, the goal of marrying television and the Internet seems finally to be picking up steam. A key factor in the push are new TV sets that have networking connections built directly into them, requiring no additional set-top boxes for getting online. Meanwhile, many consumers are finding more attractive entertainment and information choices on the Internet — and have already set up data networks for their PCs and laptops that can also help move that content to their TV sets.
The easier it is for consumers to receive traditional television programming (in addition to other kinds of video content) distributed over the Internet on their television, the less “gatekeeper” or “bottleneck” power cable distributors have over programming. So the Netflix-capable
and Yahoo-widget-capable televisions described by the WSJ piece go a long way to increasing the substitutability of what we call Internet Video Programming Distributors (IVPDs) for Multichannel Video Programming Distributors (MVPDs), such as cable, satellite television and fiber services offered by telcos such as Verizon’s FiOS.
While such televisions are only expected to reach 14% of all TV sales by 2012, one must remember that a growing number of set-top boxes (
e.g., the Roku Digitial Video Player, game consoles like the Microsoft XBox 360 and Sony PlayStation 3, and TiVo DVRs) allow users to users to receive IVPD programming on their existing televisions.
As we argued in our amicus brief, the immense competitive importance of IVPDs lies not in the potential for some users to “cut the cord” to cable and other MVPDs (though that will surely happen), but in the immediate impact IVPDs have as an alternative distribution channel for programmers. In the pending D.C. Circuit case, we argue that both the FCC’s 30% cap, issued in December 2007, and the underlying portions of the 1992 Cable Act authorizing such a cap should be struck down as unconstitutional because the ready availability of IVPDs as an alternative distribution channel means that cable no longer has the “special characteristic” of gatekeeper/bottleneck power that would justify imposing such a unique burden on the audience size of cable operators. (Of course, Direct Broadcast Satellite and Telco Fiber are also eating away at cable’s share of the MVPD marketplace.)
The second WSJ piece, an op/ed, illustrates beautifully how cable operators are already losing “market power” (or at least negotiating leverage) in a very tangible way: they’re having to pay more for programming. Specifically, the Journal describes how Viacom plaid chicken with Time Warner—and won. 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.