On December 13th, I will be participating in an Atlas Network panel on, “Big Tech, Free Speech, and Censorship: The Classical Liberal Approach.” In anticipation of that event, I have also just published a new op-ed for The Hill entitled, “Left and right take aim at Big Tech — and the First Amendment.” In this essay, I expand upon that op-ed and discuss the growing calls from both the Left and the Right for a variety of new content regulations. I then outline the classical liberal approach to concerns about free speech platforms more generally, which ultimately comes down to the proposition that innovation and competition are always superior to government regulation when it comes to content policy.

In the current debates, I am particularly concerned with calls by many conservatives for more comprehensive governmental controls on speech policies enforced by various private platforms, so I will zero in on those efforts in this essay. First, here’s what both the Left and the Right share in common in these debates: Many on both sides of the aisle desire more government control over the editorial decisions made by private platforms. They both advocate more political meddling with the way private firms make decisions about what types of content and communications are allowed on their platforms. In today’s hyper-partisan world,” I argue in my Hill column, “tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day — like property rights, free speech and editorial independence — become disposable. These are things we take for granted until they’ve been chipped away at and lost.”

Despite a shared objective for greater politicization of media markets, the Left and the Right part ways quickly when it comes to the underlying objectives of expanded government control. As I noted in my Hill op-ed:

there is considerable confusion in the complaints both parties make about “Big Tech.” Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.

This makes life very lonely for free speech defenders and classical liberals. Usually in the past, we could count on the Left to be with us in some free speech battles (such as putting an end to “indecency” regulations for broadcast radio and television), while the Right would be with us on others (such as opposition to the “Fairness Doctrine,” or similar mandates). Today, however, it is more common for classical liberals to be fighting with both sides about free speech issues.

My focus is primarily on the Right because, with the rise of Donald Trump and “national conservatism,” there seems to be a lot of soul-searching going on among conservatives about their stance toward private media platforms, and the editorial rights of digital platforms in particular.

In my new  Hill essay and others articles (all of which are listed down below), I argue there is a principled classical liberal approach to these issues that was nicely outlined by President Ronald Reagan in his 1987 veto of Fairness Doctrine legislation, when he said:

History has shown that the dan­gers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and compe­tition that the First Amendment sought to guarantee.

Let’s break that line down. Reagan admits that media bias can be a real thing. Of course it is! Journalists, editors, and even the companies they work for all have specific views. They all favor or disfavor certain types of content. But, at least in the United States, the editorial decisions made by these private actors are protected by the First Amendment. Section 230 is really quite secondary to this debate, even though some Trumpian conservatives wrongly suggest that it’s the real problem here. In reality, national conservatives would need to find a way to work around well-established First Amendment protections if they wanted to impose new restrictions on the editorial rights of private parties.

But why would they want to do that? Returning to the Reagan veto statement, we should remember how he noted that, even if the First Amendment did not protect the editorial discretion of private media platforms, bureaucratic regulation was not the right answer to the problem of “bias.”  Competition and choice were the superior answer. This is the heart and soul of the classical liberal perspective: more innovation is always superior to more regulation.

For the past 30 years, conservatives and classical liberals were generally aligned on that point. But the ascendancy of Donald Trump created a rift in that alliance that now threatens to grow into a chasm as more and more Right-of-center people begin advocating for comprehensive control of media platforms.

The problems with that are numerous beginning with the fact that none of the old rationales for media controls work (and most of them never did). Consider the old arguments justifying widespread regulation of private media:

• “Scarcity” was the oldest justification for media regulation, but we live in the exact opposite world today, in which the most common complaint about media is the abundance of it!
• Conversely, the supposed “pervasiveness” of some media (namely broadcasting) was used as a rationale for government censorship in the past. But that, too, no longer works because in today’s crowded media marketplace and Internet-enabled world, all forms of communications and entertainment are equally pervasive to some extent.
• State ownership and licensing of spectrum was another rationale for control that no longer works. No digital media platforms need federal licenses to operate today. So, that hook is also gone. Moreover, the answer to the problem of government ownership of media is to stop letting the government own and control media assets, including spectrum.
• “Fairness” is another old excuse for control, with some regulatory advocates suggesting that five unelected bureaucrats at the Federal Communications Commission (or some other agency) are well-suited to “balance” the airing of viewpoints on media platforms. Of course, America’s disastrous experience with the Fairness Doctrine proved just how wrong that thinking was. [I summarize all the evidence proving that here.]

That leaves a final, more amorphous rationale for media control: ” gatekeeper” concerns and assertions that private media platforms can essentially become “state actors.” In the wake of Donald Trump’s “de-platorming” from Facebook and Twitter, many of his supporters began adopting this language in defense of more aggressive government control of private media platforms, including the possibility of declaring those platforms common carriers and demanding that some sort of amorphous “neutrality” mandates be imposed on them. But as Berin Szóka and Corbin Barthold of Tech Freedom note:

Where courts have upheld imposing common carriage burdens on communications networks under the First Amendment, it has been because consumers reasonably expected them to operate conduits. Not so for social media platforms. [. . . ] When it comes to the regulation of speech on social media, however, the presumption of content neutrality does not apply. Conservatives present their criticism of content moderation as a desire for “neutrality,” but forcing platforms to carry certain content and viewpoints that they would prefer not to carry constitutes a “content preference” that would trigger strict scrutiny. Under strict scrutiny, any “gatekeeper” power exercised by social media would be just as irrelevant as the monopoly power of local newspapers was in [previous Supreme Court holdings].

Put simply, efforts to stretch extremely narrow and limited common carriage precedents to fit social media just don’t work. We’ve already seen lower courts declare that recently when blocking the enforcement of new conservative-led efforts in Florida and Texas to limit the editorial discretion of private social media platforms. If conservatives really hope to get around these legal barriers to regulation, what would be needed would be a more far-reaching strike at the First Amendment itself. That would entail a jurisprudential revolution at the Supreme Court — reversing about a century of free speech precedents — or an some sort of an effort to amend the First Amendment itself. These things are almost certainly not going to occur.

But, again, this hasn’t stopped some conservatives from pitching extreme solutions in their efforts to regulate digital media at both the state and federal level. I discuss these efforts in previous essays on, “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality,“ “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet,“ and “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’.“ Perhaps some Trump-aligned conservatives understand that these legislative efforts are unlikely to work, but they continue to push them in an attempt to make life hell for tech platforms, or perhaps just to troll the Left and “own the Libs.”

On the other hand, some conservatives seem to really believe in some of the extreme ideas they are tossing around. What is particular troubling about these efforts is the way — following Trump’s lead — some conservatives, including even more mainstream conservative groups like the Heritage Foundation, are increasingly referring to private media platforms as “the enemy of the people.” That’s the kind of extremist language typically used by totalitarian thugs and Marxist lunatics who so hate private enterprise and freedom of speech that they are willing to adopt a sort of burn-the-village-to-save-it rhetorical approach to media policy.

And speaking of Marxists, here’s what is even more incredible about these efforts by some conservatives to use such rationales in support of comprehensive media regulation: It is all based on the “media access” playbook concocted by radical Leftist scholars a generation ago. As I summarized in my essay on, “The Surprising Ideological Origins of Trump’s Communications Collectivism“:

Media access advocates look to transform the First Amendment into a tool for social change to advance specific political ends or ideological objectives. Media access theory dispenses with both the editorial discretion rights and private property rights of private speech platforms. Private platforms become subject to the political whims of policymakers who dictate “fair” terms of access. We can think of this as communications collectivism.

Media access doctrine is rooted in an arrogant, elitist, anti-property, anti-freedom ethic that suggest the State is a better position to dictate what can and cannot be said on private speech platforms. “It’s astonishing, yet nonetheless true,” I continued on in that essay, “that the ideological roots of Trump’s anti-social media campaign lie in the works of those extreme Leftists and even media Marxists. He has just given media access theory his own unique nationalistic spin and sold this snake oil to conservatives.” Yet, Trump and other national conservatives are embracing this contemptible doctrine because now more than ever the ends apparently justify the means in American politics. Nevermind that all this could come back to haunt them when the Left somehow leverages this regulatory apparatus to control Fox News or other sites and content that conservatives favor! Once media platforms are viewed as just another thing to be controlled by politics, the only question is which politics and how are those politics enforced? Certainly both the Left and the Right cannot both have their way given all that current divides them.

Finally, what is utterly perplexing about all this is how much thanks national conservatives really owe to the major digital platforms they now seek to destroy. As I noted in my new Hill op-ed:

There has never been more opportunity for conservative viewpoints than right now. Each day on Facebook, the top-10 most shared links are dominated by pundits such as Ben Shapiro, Dan Bongino, Dinesh D’Souza and Sean Hannity. Right-leaning content is shared widely on Twitter each day. Websites like Dailywire.com and Foxnews.com get far more traffic than the New York Times or CNN.

Thus, conservatives might be shooting themselves in the foot if they were able to convince more legislatures to adopt the media access regulatory playbook because it could have profound unintended consequences once the Left uses those tools to somehow restrict access to “hate speech” or “misinformation” — and then define it so broadly so as to include much of the top material posted by conservatives on Facebook and Twitter ever day.

Not all conservatives have drank the media access kool-aid. In the wake of Trump’s deplatforming from a few major sites, a wave of new Right-leaning digital services are being planned or have already launched. (Axios and Forbes recently summarized some of these efforts.) I don’t know which will of these efforts will succeed, but more competition and platform-building are certainly superior to current calls by some Trump supporters for government regulation of mainstream social media services.

Again, this is the old Reagan vision at its finest! We can achieve a better media landscape, “only through the freedom and compe­tition that the First Amendment sought to guarantee,” not through bureaucratic regulation. It remains the principled path forward.

Additional Reading :

• “Left and right take aim at Big Tech — and the First Amendment“
• “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“
• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Conservatives & Common Carriage: Contradictions & Challenges“
• “The Great Deplatforming of 2021“
• “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

Older essays & testimony :

• Adam Thierer, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School, 15 CommLaw Conspectus (Summer 2007): 431-482.
• Adam Thierer, Testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, March 3, 2010.
• Adam Thierer, “FCC v. Fox and the Future of the First Amendment in the Information Age,” Federalist Society, Engage (Feb. 2009).

Interoperability is a topic that has long been of interest to me. How networks, platforms, and devices work with each other–or sometimes fail to–is an important engineering, business, and policy issue. Back in 2012, I spilled out over 5,000 words on the topic when reviewing John Palfrey and Urs Gasser’s excellent book, Interop: The Promise and Perils of Highly Interconnected Systems.

I’ve always struggled with the interoperability issues, however, and often avoided them became of the sheer complexity of it all. Some interesting recent essays by sci-fi author and digital activist Cory Doctorow remind me that I need to get back on top of the issue. His latest essay is a call-to-arms in favor of what he calls “adversarial interoperability.” “[T]hat’s when you create a new product or service that plugs into the existing ones without the permission of the companies that make them,” he says. “Think of third-party printer ink, alternative app stores, or independent repair shops that use compatible parts from rival manufacturers to fix your car or your phone or your tractor.”

Doctorow is a vociferous defender of expanded digital access rights of many flavors and his latest essays on interoperability expand upon his previous advocacy for open access and a general freedom to tinker. He does much of this work with the Electronic Frontier Foundation (EFF), which shares his commitment to expanded digital access and interoperability rights in various contexts.

I’m in league with Doctorow and EFF on some of these things, but also find myself thinking they go much too far in other ways. At root, their work and advocacy raise a profound question: should there be any general right to exclude on digital platforms? Although he doesn’t always come right out and say it, Doctorow’s work often seems like an outright rejection of any sort of property rights in networks or platforms. Generally speaking, he does not want the law to recognize any right for tech platforms to exclude using digital fences of any sort.

Where to Draw the Lines?

As someone who has authored a book about the importance of permissionless innovation, I need to be able to answer questions about where these lines between open versus closed systems are drawn. Definitions and framing matter, however. I use “permissionless innovation” as a descriptor for one possible policy disposition when considering where legal and regulatory defaults should be set. Another conception of permissionless innovation is more of an engineering ideal; a general freedom to connect, tinker, modify, etc. (I speak more about these conceptions in my latest book, Evasive Entrepreneurs.) Of course, someone advocating permissionless innovation as a policy default will sometimes be confronted with the question of what the law should say when someone behaves in an “evasive” fashion in the latter conception of permissionless innovation.

Doctorow would generally answer that question by saying that law should not be rigged to favor exclusion through laws like the DMCA (and specifically the law’s anti- circumvention provisions), Computer Fraud and Abuse Act, patent law, and various other rules and laws. “[T]he current crop of Big Tech companies has secured laws, regulations, and court decisions that have dramatically restricted adversarial interoperability.”

Generally speaking, I agree. I’m not a fan of technocratic laws or regulations that seek to micro-manage interoperability and which stack the deck in favor of exclusionary conduct with steep penalties for evasion. But does that mean adversarial interoperability should be permitted in all cases? Should there exist any sort of common law presumption one way or the other when a user or competitor seeks access to an existing private platform or device?

Specifics matter here and I don’t have time to get into all the case studies that Doctorow goes through. Some are no-brainers, like the infamous Lexmark case involving refillable printer ink cartridges. Other cases are far more complicated, at least for me. Does Epic, creator of Fortnite, have a right of adversarial interoperability that it can exercise against Apple and their AppStore? As Dirk Auer suggests in a new essay, this episode looks more like a straightforward pricing dispute. Epic is making it out to be much more than that, suggesting Apple is guilty of unfair and exclusionary practices that require a legal remedy.

Why not take that logic further and just say Apple’s App Store us tantamount to a natural monopoly or digital essential facility that Epic and everyone else is entitled to on whatever terms they want? For that matter, why not apply the same logic to Epic’s Fortnite platform or even its Unreal Engine? Does every other gaming developer have a right to piggyback on the juggernaut that Epic has built?

This gets to the core question about Doctorow’s concept of adversarial interoperability: Exactly what should common law and the courts say platform owners make access rights a simple pricing matter and say: “You pay or you are out.” Like Doctorow and EFF, I don’t want Apple to benefit from any special favors from laws like DMCA. Where we differ is that I would still leave the door open for Apple to exercise various other common law contractual rights or property rights in court.

I suspect Doctorow would deny any such claims by Apple or anyone else. If so, I would like to see him spell out in more precise terms exactly what Apple’s property rights and contractual rights are in this instance. Or, again, should we just treat the App Store as a digital commons with unfettered open access rights for developers? If so, would Apple be required to still manage the resource once it is a quasi-commons?

I think that would end miserably, but would like to hear Doctorow’s preferred approach before saying more. I suspect a lot rides on the distinction between “open” verses “proprietary” standards, but compared to Doctorow and EFF, I am willing to embrace a world of both open and proprietary systems, and many hybrids in between. I don’t want the law favoring one type over the other, but that means I need to endorse a generalized property right for digital operators such that they can still exclude others (even in the absence of artificial regulatory rights like DMCA creates). Again, I suspect Doctorow would reject that standard, preferring a generalized right of access, even if that means the platforms become de facto commons.

More Radical Steps

Elsewhere, Doctorow has said is that some of these questions would be better addressed through more aggressive antitrust regulation. Mere data portability or mandatory interoperability isn’t enough for him. “Data portability is important,” Doctorow says, “but it is no substitute for the ability to have ongoing access to a service that you’re in the process of migrating away from.”

In his latest online book on “How to Destroy Surveillance Capitalism,” Doctorow suggests that it is time to “make Big Tech small again” through an “anti-monopoly ecology movement.” That “means bans on mergers between large companies, on big companies acquiring nascent competitors, and on platform companies competing directly with the companies that rely on the platforms.” And he desires a host of other remedies.

So, here we have the convergence of interoperability policy and antitrust policy, with a layer of property confiscation layered on top apparently. “Now it’s up to us to seize the means of computation, putting that electronic nervous system under democratic, accountable control,” he insists in his latest manifesto.

What’s funny about this is that Doctorow begins most of his essays by pointing out all the ways that politics is the problem when it comes to access issues, only to end by suggesting that a lot more political meddling is the required solution. He repeatedly laments how large tech players have so often been able to convince lawmakers and regulators to pass special laws or regulations that work to their favor. Yet, in his We-Can-Build-A-Better-Bureaucrat model of things, all those old problems will apparently disappear when we get the right people in power and get rid of those nefarious capitalist schemers.

Thus, what really animates Doctorow’s advocacy for adversarial interoperability is a deep suspicion of free market capitalism and property rights in particular. In this worldview, interoperability really just becomes a Trojan Horse meant to help bring down the entire capitalist order. Am I exaggerating? “As to why things are so screwed up? Capitalism.” Those are his exact words from the conclusion of his latest book.

Adversarial Innovation & Evolutionary Interop

Still, Doctorow raises many legitimate issues about interconnection and digital access rights. But we need a better approach to work though these questions than the one he suggests.

In my lengthy review of the Palfrey and Gasser Interop book, I tried to sketch out an alternative framework for thinking seriously about these issues. I referred to my preferred approach as “experimental interoperability” or “evolutionary interoperability.” I described this as the theory that ongoing marketplace experimentation with technical standards, modes of information production and dissemination, and interoperable information systems, is almost always preferable to the artificial foreclosure of this dynamic process through state action. The former allows for better learning and coping mechanisms to develop while also incentivizing the spontaneous, natural evolution of the market and market responses.

Adversarial interoperability is important, but not nearly as important as adversarial innovation and facilities-based competition. Stated differently, access rights to existing systems is an important value, but the incentives we have in place to encourage entirely new systems is what really matters most. At some point, a generalized right of access to existing systems discourages the sort of platform-building that could help give rise to the sort of creative destruction we have seen at work repeatedly in the past and that we still need today. Taken too far, adversarial interoperability threatens to undermine this goal. Why seek to build a better alternative platform if you can just endlessly free ride off someone else’s by force of law?

Thus, I prefer to work at the margins and think through how to balance these competing claims of access / interoperability rights versus contractual / property rights. My take will be too utilitarian for not only Doctorow but also for some libertarians, who want clear answers to all these questions based upon their preferred natural law-oriented constructions of rights. The problem with that approach is that it leads to all-or-nothing extremes (complete digital property rights, or virtually none) and that approach is fundamentally unworkable and destructive. We need to work harder about how to balance these rights and values in pro-competitive, pro-innovation fashion.

There is No Such Thing as Optimal Interoperability

In sum, there is no such thing as “optimal interoperablity.” Sometimes proprietary or “closed” systems will offer the public features and options that they will find preferable to “open” ones.  “There are many reasons why consumers might prefer ‘closed’ systems – even when they have to pay a premium for them,” argues Dirk Auer in a separate essay. It could be greater convenience, security, or other things. Palfrey and Gasser correctly noted in their book that, “the state is rarely in a position to call a winner among competing technologies” (p. 174). Moreover, they concluded:

“Lawmakers need to keep in view the limits of their own effectiveness when it comes to accomplishing optimal levels of interoperability. Case studies of government intervention, especially where complex information technologies are involved, show that states tend to be ill suited to determine on their own what specific technology will be the best option for the future (p. 175)

A thousand amens to that! The law should not artificially foreclose experimentation with many different types of platforms, standards, devices and the interoperability that exists among them.

President Trump and his allies have gone to war with social media sites and digital communications platforms like Twitter, Facebook, and Google. Decrying supposed anti-conservative “bias,” Trump has even floated an Executive Order aimed at “Preventing Online Censorship,” that entails many new forms of government meddling with these private speech platforms. Section 230 is their crosshairs and First Amendment restraints are being thrown to the wind.

Various others have already documented the many legal things wrong with Trump’s call for greater government oversight of private speech platforms. I want to focus on something slightly different here: The surprising ideological origins of what Trump and his allies are proposing. Because for those of us who are old-timers and have followed communications and media policy for many decades, this moment feels like deja vu all over again, but with the strange twist that supposed “conservatives” are calling for a form of communications collectivism that used to be the exclusive province of hard-core Leftists.

To begin, the truly crazy thing about President Trump and some conservatives saying that social media should be regulated as public forums is not just that they’re abandoning free speech rights, it’s that they’re betraying property rights, too. Treating private media like a “public square” entails a taking of private property. Amazingly, Trump and his followers have taken over the old “media access movement” and given it their own spin.

Media access advocates look to transform the First Amendment into a tool for social change to advance specific political ends or ideological objectives. Media access theory dispenses with both the editorial discretion rights and private property rights of private speech platforms. Private platforms become subject to the political whims of policymakers who dictate “fair” terms of access. We can think of this as communications collectivism.

The media access movement’s regulatory toolkit includes things like the Fairness Doctrine and “neutrality” requirements, right-of-reply mandates, expansive conceptions of common carriage (using “public forum” or “town square” rhetoric), agency threats, and so on. Even without formal regulation, media access theorists hope that jawboning and political pressure can persuade private platforms to run more (or perhaps sometimes less) of the content that they want (or don’t) on media platforms.

The intellectual roots of the media access movement were planted by leftist media theorists like Jerome Barron, Owen Fiss in 1960s and 1970s, and later by Marxist communications scholar Robert McChesney. In 2005, I penned this short history of media access movement and explored its aims. I also wrote two old books with chapters on the dangers of media access theory and calls for collectivizing communications and media systems. Those books were: Media Myths (2005) and A Manifesto for Media Freedom (2008, w Brian C. Anderson). The key takeaway from those essays is that the media access movement comes down to control.

The best book ever written about dangers of media access movement was Jonathan Emord’s 1991, Freedom, Technology and the First Amendment. He perfectly summarizes their goals (and now Trump’s) as follows:

• “In short, the access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.”
• “Rather than understanding the First Amendment to be a guardian of the private sphere of communication, the access advocates interpret it to be a guarantee of a preferred mix of ideological viewpoints.
• “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”

“This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant,” I argued in that old TLF essay. That is still just as true today, even when it’s conservatives calling for collectivization of media.

It’s astonishing, yet nonetheless true, that the ideological roots of Trump’s anti-social media campaign lie in the works of those extreme Leftists and even media Marxists. He has just given media access theory his own unique nationalistic spin and sold this snake oil to conservatives.

There certainly could come a day where his opponents on the Left just take this media access playbook up again and suggest this is exactly what’s needed for Fox News and other right-leaning media outlets. If and when that does happen, Trump and other conservatives will have no one to blame but themselves for embracing this contemptible philosophical vision simply because it suited their short-term desires while they were in power.

I hope that conservatives rethink their embrace of communications collectivism, but I fear that Trump and his allies have already convinced themselves that the ends justify the means when it comes to advancing their causes or even just “owning the libs.” But there really is a strong moralistic slant to what Trump and many of his allies want. They think they are on the right side of history and that the opponents–including most media outlets and plaforms–are evil. Trump and his allies have repeatedly referred to the press as the “enemy of the American people” and endlessly lambasted social media platforms for not going along with his desires. This reflects a core tendency of all communications collectivists: a sort of ‘you’re-either-with-us-or-against-us’ attitude.

Steve Bannon scripted all this out back in 2018. Go back and read this astonishing CNN interview for a preview of what could happen next. Here’s the rundown:

>> Bannon said Big Tech’s data should be seized and put in a “public trust.” Specifically, Bannon said, “I think you take [the data] away from the companies. All that data they have is put in a public trust. They can use it. And people can opt in and opt out. That trust is run by an independent board of directors. It just can’t be that [Big Tech is] the sole proprietors of this data…I think this is a public good.” Bannon added that Big Tech companies “have to be broken up” just like Teddy Roosevelt broke up the trusts.” >> Bannon attacked the executives of Facebook, Twitter and Google. “These are run by sociopaths,” he said. “These people are complete narcissists. These people ought to be controlled, they ought to be regulated.” At one point during the phone call, Bannon said, “These people are evil. There is no doubt about that.” >> Bannon said he thinks “this is going to be a massive issue” in future elections. He said he thinks it will probably take until 2020 to fully blossom as a campaign issue, explaining, “I think by the time 2020 comes along, this will be a burning issue. I think this will be one of the biggest domestic issues.”

This is now Trump’s playbook. It’s incredibly frightening because, once married up with Trump’s accusations of election fraud and other imagined conspiracies, you can sense how he’s laying the groundwork to call into question future election results by suggesting that both traditional media and modern digital media platforms are just in bed with the Democratic party and trying to rig the presidential election. I don’t really want to think about what happens if this situation escalates to that point. These are very dark days for the American Republic.

I have been covering telecom and Internet policy for almost 30 years now. During much of that time – which included a nine year stint at the Heritage Foundation — I have interacted with conservatives on various policy issues and often worked very closely with them to advance certain reforms.

If I divided my time in Tech Policy Land into two big chunks of time, I’d say the biggest tech-related policy issue for conservatives during the first 15 years I was in the business (roughly 1990 – 2005) was preventing the resurrection of the so-called Fairness Doctrine. And the biggest issue during the second 15-year period (roughly 2005 – present) was stopping the imposition of “Net neutrality” mandates on the Internet. In both cases, conservatives vociferously blasted the notion that unelected government bureaucrats should sit in judgment of what constituted “fairness” in media or “neutrality” online.

Many conservatives are suddenly changing their tune, however. President Trump and Sen. Ted Cruz, for example, have been increasingly critical of both traditional media and new tech companies in various public statements and suggested an openness to increased regulation. The President has gone after old and new media outlets alike, while Sen. Cruz (along with others like Sen. Lindsay Graham) has suggested during congressional hearings that increased oversight of social media platforms is needed, including potential antitrust action.

Meanwhile, during his short time in office, Sen. Josh Hawley (R-Mo.) has become one of the most vocal Internet critics on the Right. In a shockingly-worded USA Today editorial in late May, Hawley said, “social media wastes our time and resources” and is “a field of little productive value” that have only “given us an addiction economy.” He even referred to these sites as “parasites” and blamed them for a long list of social problems, leading him to suggest that, “we’d be better off if Facebook disappeared” along with various other sites and services.

Hawley’s moral panic over social media has now bubbled over into a regulatory crusade that would unleash federal bureaucrats on the Internet in an attempt to dictate “fair” speech on the Internet. He has introduced an astonishing piece of legislation aimed at undoing the liability protections that Internet providers rely upon to provide open platforms for speech and commerce. If Hawley’s absurdly misnamed new “Ending Support for Internet Censorship Act” is implemented, it would essentially combine the core elements of the Fairness Doctrine and Net Neutrality to create a massive new regulatory regime for the Internet.

The bill would gut the immunities Internet companies enjoy under 47 USC 230 (“Section 230”) of the Communications Decency Act. Eric Goldman of the Santa Clara University School of Law has described Section 230 as the “best Internet law” and “a big part of the reason why the Internet has been such a massive success.” Indeed, as I pointed out in a Forbes column on the occasion of its 15^th anniversary, Section 230 is “the foundation of our Internet freedoms” because it gives online intermediaries generous leeway to determine what content and commerce travels over their systems without the fear that they will be overwhelmed by lawsuits if other parties object to some of that content.

The Hawley bill would overturn this important legal framework for Internet freedom and instead replace it with a new “permissioned” approach. In true “Mother-May-I” style, Internet companies would need to apply for an “immunity certification” from the FTC, which would undertake investigations to determine if the petitioning platform satisfied a “requirement of politically unbiased content moderation.”

The vague language of the measure is an open invitation to massive political abuse. The entirety of the bill hinges upon the ability of Federal Trade Commission officials to define and enforce “political neutrality” online. Let’s consider what this will mean in practice.

Under the bill, the FTC must evaluate whether platforms have engaged in “politically biased moderation,” which is defined as moderation practices that are supposedly, “designed to negatively affect” or “disproportionately restricts or promote access to … a political party, political candidate, or political viewpoint.” As Blake Reid of the University of Colorado Law School rightly asks, “How, exactly, is the FTC supposed to figure out what the baseline is for ‘disproportionately restricting or promoting’? How much access or availability to information about political parties, candidates, or viewpoints is enough, or not enough, or too much?”

There is no Goldilocks formula for getting things just right when it comes to content moderation. It’s a trial-and-error process that is nightmarishly difficult because of the endless eye-of-the-beholder problems associated with constructing acceptable use policies for large speech platforms. We struggled with the same issues in the broadcast and cable era, but they have been magnified a million-fold in the era of the global Internet with the endless tsunami of new content that hits our screens and devices every day. “Do we want less moderation?” asks Sec, 230 guru Jeff Kosseff. “I think we need to look at that question hard.  Because we’re seeing two competing criticisms of Section 230,” he notes. “Some argue that there is too much moderation, others argue that there is not enough.”

The Hawley bill seems to imagine that a handful of FTC officials will magically be able to strike the right balance through regulatory investigations. That’s a pipe dream, of course, but let’s imagine for a moment that regulators could somehow sort through all the content on message boards, tweets, video clips, live streams, gaming sites, and whatever else, and then somehow figure out what constituted a violation of “political neutrality” in any given context. That would actually be a horrible result because let’s be perfectly clear about what that would really be: It would be a censorship board. By empowering unelected bureaucrats to make decisions about what constitutes “neutral” or “fair” speech, the Hawley measure would, as Elizabeth Nolan Brown of Reason summarizes, “put Washington in charge of Internet speech.” Or, as Sen. Ron Wyden argues more bluntly, the bill “will turn the federal government into Speech Police.” “Perhaps a more accurate title for this bill would be ‘Creating Internet Censorship Act,'” Eric Goldman is forced to conclude.

The measure is creating other strange bedfellows. You won’t see Berin Szoka of TechFreedom and Harold Feld of Public Knowledge ever agreeing on much, but they both quickly and correctly labelled Hawley’s bill a “Fairness Doctrine for the Internet.” That is quite right, and much like the old Fairness Doctrine, Hawley’s new Internet speech control regime would be open to endless political shenanigans as parties, policymakers, companies, and the various complainants line up to have their various political beefs heard and acted upon. “That’s the kind of thing Republicans said was unconstitutional (and subject to FCC agency capture and political manipulation) for decades,” says Daphne Keller of the Stanford Center for Internet & Society. Moreover, during the Net Neutrality holy wars, GOP conservatives endlessly blasted the notion that bureaucrats should be determining what constitute “neutrality” online because it, too, would result in abuses of the regulatory process. Yet, Sen. Hawley’s bill would now mandate that exact same thing.

What is even worse is that, as law professor Josh Blackman observes, “the bill also makes it exceedingly difficult to obtain a certification” because applicants need a supermajority of 4 of the 5 FTC Commissioners. This is public choice fiasco waiting to happen. Anyone who has studied the long, sordid history of broadcast radio and television licensing understands the danger associated with politicizing certification processes. The lawyers and lobbyists in the DC “swamp” will benefit from all the petitioning and paperwork, but it is not clear how creating a regulatory certification regime for Internet speech really benefits the general public (or even conservatives, for that matter).

Former FTC Commissioner Josh Wright identifies another obvious problem with the Hawley Bill: it “offers the choice of death by bureaucratic board or the plaintiffs’ bar.” That’s because by weakening Sec. 230’s protections, Hawley’s bill could open the floodgates to waves of frivolous legal claims in the courts if companies can’t get (or lose) certification. The irony of that result, of course, is that this bill could become a massive gift to the tort bar that Republicans love to hate!

Of course, if the law ever gets to court, it might be ruled unconstitutional. “The terms ‘politically biased’ and ‘moderation’ would have vagueness and overbreadth problems, as they can chill protected speech,” Josh Blackman argues. So it could, perhaps, be thrown out like earlier online censorship efforts. But a lot of harm could be done—both to online speech and competition—in the years leading up to a final determination about the law’s constitutionality by higher courts.

What is most outrageous about all this is that the core rationale behind Hawley’s effort—the idea that conservatives are somehow uniquely disadvantaged by large social media platforms—is utterly preposterous. In May, the Trump Administration launched a “tech bias” portal which “asked Americans to share their stories of suspected political bias.” The portal is already closed and it is unclear what, if anything, will come out of this effort. But this move and Hawley’s proposal point to the broader trend of conservatives getting more comfortable asking Big Government to redress imaginary grievances about supposed “bias” or “exclusion.”

In reality, today’s social media tools and platforms have been the greatest thing that ever happened to conservatives. Mr. Trump owes his presidency to his unparalleled ability to directly reach his audience through Twitter and other platforms. As recently as June 12, President Trump tweeted, “The Fake News has never been more dishonest than it is today. Thank goodness we can fight back on Social Media.” Well, there you have it!

Beyond the President, one need only peruse any social media site for a few minutes to find an endless stream of conservative perspectives on display. This isn’t exclusion; it’s amplification on steroids. Conservatives have more soapboxes to stand on and preach than ever before in the history of this nation.

Finally, if they were true to their philosophical priors, then conservatives also would not be insisting that they have any sort of “right” to be on any platform. These are private platforms, after all, and it is outrageous to suggest that conservatives (or any other person or group) are entitled to have a spot on any other them.

Some conservatives are fond of ridiculing liberals for being “snowflakes” when it comes to other free speech matters, such as free speech on college campuses. Many times they are right. But one has to ask who the real snowflakes are when conservative lawmakers are calling on regulatory bureaucracies to reorder speech on private platform based on the mythical fear of not getting “fair” treatment. One also cannot help but wonder if those conservatives have thought through how this new Internet regulatory regime will play out once a more liberal administration takes back the reins of power. Conservatives will only have themselves to blame when the Speech Police come for them.

Addendum: Several folks have pointed out another irony associated with Hawley’s bill is that it would greatly expand the powers of the administrative state, which conservatives already (correctly) feel has too much broad, unaccountable power. I should have said more on that point, but here’s a nice comment from David French of National Review, which alludes to that problem and then ties it back to my closing argument above: i.e., that this proposal will come back to haunt conservatives in the long-run:

when coercion locks in — especially when that coercion is tied to constitutionally suspect broad and vague policies that delegate immense powers to the federal government — conservatives should sound the alarm. One of the best ways to evaluate the merits of legislation is to ask yourself whether the bill would still seem wise if the power you give the government were to end up in the hands of your political opponents. Is Hawley striking a blow for freedom if he ends up handing oversight of Facebook’s political content to Bernie Sanders? I think not.

Additional thoughts on the Hawley bill:

Josh Wright

Daphne Keller

Blake Reid

TechFreedom

Josh Blackman

Sen. Ron Wyden

Jeff Kosseff

Eric Goldman

CCIA

NetChoice

Internet Association

David French at National Review

John Samples

Thirteen years ago I penned an essay entitled, “Your Soapbox is My Soapbox!” It was condensed from a 2005 book I had released at the same time called Media Myths. My research and writing during that period and for fifteen years prior to that was focused on the dangers associated with calls by radical Left-leaning media scholars and policy activists for a veritable regulatory revolution in the way information and communication technology (ICT) platforms were operated. They pushed this revolution using noble-sounding rhetoric like “fairness in coverage,” “right of reply,” “integrity of public debate,” “preserving the public square,” and so on. Their advocacy efforts were also accompanied by calls for a host of new regulatory controls including a “Bill of Media Rights” to grant the public a litany of new affirmative rights over media and communications providers and platforms.

But no matter how much the so-called “media access” movement sought to sugarcoat their prescriptions, in the end, what those Left-leaning scholars and advocates were calling for was sweeping state control of media and communications technologies and platforms. In essence, they wanted to socialize private soapboxes and turn them into handmaidens of the state.

Here’s the way I began my old “soapbox” essay:

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox. That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

That was 2005. What’s amazing today is that this same twisted attitude is still on display, but it is conservatives who are now the ring-leaders of the push to socialize soapboxes!

Conservatives were squarely against such soapbox socialism when I penned my earlier essay and book. During that time, they feared that the media access movement would devolve into a political witch hunt aimed at singling them out and eliminating the many new popular personalities and platforms that offered the public Right-of-center voices and viewpoints.

But it’s a new day in America and conservatives have now flipped this script and are using the media access movement playbook to call for massive state control over private media and technology platforms in the name of eradicating supposed “bias” against them and their views.

Apparently everyone’s a Media Marxist these days, beginning with President Trump! Claiming that there is some sort of grand anti-conservative conspiracy afoot, President Trump and many of his defenders are pushing for greater government control of the media and tech companies. The White House is apparently “taking a look” at the idea of regulating Google because it is part of the “fake news media.” (Over at TechDirt, Zach Graves has a thorough debunking of such nonsense.) Of course, this follows Trump’s seemingly endless jihad against older media outlets, especially large newspapers and cable news enterprises that he disfavors.

Meanwhile, a new White House “We the People” petition to “Protect Free Speech in the Digital Public Square” already has almost 40,000 signatures. “The internet is the modern public square,” the manifesto begins. It continues on to claims that “the free and open internet has become a controlled, censored space, monopolized by a few unaccountable corporations” and that “[b]y banning users from their platforms, those corporations can effectively remove politically unwelcome Americans from the public square.” It concludes with the following call to action: “The President should request that Congress pass legislation prohibiting social media platforms from banning users for First Amendment-protected speech. The power to block lawful content should be in the hands of individual users – not [Facebook’s] Mark Zuckerberg or [Twitter’s] Jack Dorsey.”

Such rhetoric and proposals are indistinguishable from what the Left-leaning media access advocates were calling for in the past.

Is “media Marxism” too strong a term to use in this regard? Well, the textbook definition of Marxism involves state control of the means of production. In the case of information platforms, control of the means of production would involve the forcible surrender of some combination of the underlying editorial control that the owners have over their speech platforms as well as potential state control of the algorithms and other technical foundations of digital platforms.

And so let’s hear from former White House strategist Steve Bannon commenting to CNN on what he thinks needs to be done next:

>> Bannon said Big Tech’s data should be seized and put in a “public trust.” Specifically, Bannon said, “I think you take [the data] away from the companies. All that data they have is put in a public trust. They can use it. And people can opt in and opt out. That trust is run by an independent board of directors. It just can’t be that [Big Tech is] the sole proprietors of this data…I think this is a public good.” Bannon added that Big Tech companies “have to be broken up” just like Teddy Roosevelt broke up the trusts.” >> Bannon attacked the executives of Facebook, Twitter and Google. “These are run by sociopaths,” he said. “These people are complete narcissists. These people ought to be controlled, they ought to be regulated.” At one point during the phone call, Bannon said, “These people are evil. There is no doubt about that.” >> Bannon said he thinks “this is going to be a massive issue” in future elections. He said he thinks it will probably take until 2020 to fully blossom as a campaign issue, explaining, “I think by the time 2020 comes along, this will be a burning issue. I think this will be one of the biggest domestic issues.” Bannon said the “#MeToo movement has brought the issue of consent front and center” and argued that “this is going to bring the issue of digital consent front and center.”

On one hand, Bannon no longer works in Trump’s White House, so perhaps it isn’t fair to say that his views and prescriptions are tantamount to the President’s views. But Bannon was saying similar things while he was in the White House with Trump and the President’s surrogates have been continuously upping their rhetoric to suggest that they are serious about moving against the ICT sector in some fashion.

So, apparently we now inhabit a Bizarro World where the Hard Right has replaced the Hard Left in the U.S. in the never-ending drama of speech control. In past decades, some conservatives favored media regulation, of course. In fact, in the heyday of the Fairness Doctrine, many leading conservative voices insisted that regulation was needed to counter supposed “liberal bias” in broadcasting. It was only when Rush Limbaugh and many other conservatives came along in the late 1980s / early 1990s and gained a significant audience on talk radio that conservative sympathy for the Fairness Doctrine completely disappeared. In fact, conservatives then became vociferous critics of the Doctrine and demanded a stake be driven through its heart. Eventually, they did just that.  But even during the time when some conservative pundits supported the Fairness Doctrine, that support was fairly limited and tepid. And you almost never heard conservatives supporting radical state control of the press as a solution to perceived bias.

Yet, here we are now with Trump and many of his allies floating proposals to treat information platforms as the equivalent of essential facilities or “public squares” which would have some sort of amorphous fiduciary obligations or “public interest” responsibilities to serve the public however politicians and bureaucrats in Washington see fit. That could entail anything from “search neutrality” to a new Fairness doctrine / right of reply mandate to a full-blown antirust breakup.

Like the Hard Left before them, the Hard Right has apparently come to view ICT platforms as just another part of the socio-political superstructure to be controlled from above to achieve their own ends. Trump and his allies have repeatedly referred to the press as the “enemy of the American people.” (His latest tweet using that phrase has already racked up almost 84,000 likes.) That’s totalitarian talk, and it softens the ground for the sort of takeover that Bannon and others desire. The “Fake News” that President Trump and his surrogates decry includes not just traditional journalism outlets but all forms of information production and dissemination. Trump wants them all to bend the knee before him. Because they won’t, apparently they are to be punished.

If Trump and his allies get their way, America would join the ranks of repressive states around the globe who seek to control speech platforms for their own ends. That sort of totalitarian impulse is repugnant to the values of a democratic republic that values open inquiry, freedom of speech and expression, press freedom, and the freedom to know about and report on the world around us.

As I concluded my earlier “soapbox” essay back in 2005:

This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant. Freedom doesn’t begin by fettering the press with more chains, it begins by removing those that already exist and then erecting a firm wall between State and Press. The media access crowd has succeeded in breaching that wall with seven decades of misguided and unjust regulation of the press. The movement back toward a truly free press begins by understanding the error in their thinking, rejecting that reasoning, and then embracing, once again, the original vision of the First Amendment as a bulwark against government control of speech and the press.

In closing, this is a good moment for those on the moderate Left to reflect upon what they have enabled by sketching out and defending this intellectual blueprint for media control. The Left helped make the bed that Donald Trump is now getting cozy in. Many Hard Left scholars repeatedly told us that it was with the very best of intentions that they advocated more state control of the ICT sectors. There’s no bringing those radicals around to seeing the mistake they made. They will just double down on their proposals and claim that once “their team” gets back in power, all will be fine. It is utter poppycock, but they won’t care one bit.

The moderate Left, however, should be more sensible than that because they have been the great defenders of the First Amendment and freedom of speech in modern American history. And they understand that the danger of the slippery slope is very real when it comes to speech controls and how they might undermine our First Amendment heritage. When the moderate Left allows radical media theorists and regulatory advocacy groups to push extreme media control measures, however, they are creating speech control mechanisms that are very susceptible to being overtaken by their enemies and then used against them later on. And now we have a President who is doing exactly that.

It is a truly horrifying moment in the history of the American Republic. Hopefully we get through it and learn something from it.

On Thursday, it was my great pleasure to participate in a Washington Legal Foundation (WLF) event on “Online Privacy Regulation: The Challenge of Defining Harm.” The entire event video can be found on YouTube here, but down below I pasted the clip of just my remarks. Other speakers at the event included:  FTC Commissioner Maureen K. Ohlhausen, Commissioner; John B. Morris, Jr., the Associate Administrator and Director of Internet Policy athe U.S. Department of Commerce’s National Telecommunications and Information Administration; and Katherine Armstrong, Counsel at the law firm of Hogan Lovells. Glenn Lammi of the WLF moderated the session.

My remarks drew upon a few recent law review articles I have published relating digital privacy debates to previous debates over free speech and online child safety issues. (Here are those articles: 1, 2, 3).

The Mercatus Center at George Mason University has just released my latest working paper, “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation.” The “Internet of Things” (IoT) generally refers to “smart” devices that are connected to both the Internet and other devices. Wearable technologies are IoT devices that are worn somewhere on the body and which gather data about us for various purposes. These technologies promise to usher in the next wave of Internet-enabled services and data-driven innovation. Basically, the Internet will be “baked in” to almost everything that consumers own and come into contact with.

Some critics are worried about the privacy and security implications of the Internet of Things and wearable technology, however, and are proposing regulation to address these concerns. In my new 93-page article, I explain why preemptive, top-down regulation would derail the many life-enriching innovations that could come from these new IoT technologies. Building on a recent book of mine, I argue that “permissionless innovation,” which allows new technology to flourish and develop in a relatively unabated fashion, is the superior approach to the Internet of Things.

As I note in the paper and my earlier book, if we spend all our time living in fear of the worst-case scenarios — and basing public policies on them — then best-case scenarios can never come about. As the old saying goes: nothing ventured, nothing gained. Precautionary principle-based regulation paralyzes progress and must be avoided.  We instead need to find constructive, “bottom-up” solutions to the privacy and security risks accompanying these new IoT technologies instead of top-down controls that would limit the development of life-enriching IoT innovations.

The better alternative is to deal with concerns creatively as they develop, using a balanced, layered approach  involving many different solutions, including: educational efforts, technological empowerment tools, social norms, public and watchdog pressure, industry best practices and self-regulation, transparency, torts and products liability law, and targeted enforcement of existing legal standards as needed.

Generally speaking, patience, humility, and forbearance by policymakers is crucial to allowing greater innovation and consumer choice in this arena. Importantly, policymakers should not forget that societal and individual adaptation will play a role here, just as it has during so many other turbulent technological transformations.

This article can be downloaded on my Mercatus Center page, on SSRN, or at Research Gate. I am hoping to find a law or policy journal interested in publishing this paper soon. If you with a journal and are interested, please contact me. [UPDATE 12/3/14: This paper has been accepted for publication in the Richmond Journal of Law & Technology, Vol. 21, Issue 6 (2015).]

Finally, if you are interested in this topic, you might want to flip through these slides I prepared for a presentation on this topic that I made at the Federal Communications Commission in September:

On Thursday, it was my great pleasure to present a draft of my forthcoming paper, “The Internet of Things & Wearable Technology: Addressing Privacy & Security Concerns without Derailing Innovation,” at a conference that took place at the Federal Communications Commission on “Regulating the Evolving Broadband Ecosystem.” The 3-day event was co-sponsored by the American Enterprise Institute and the University of Nebraska College of Law.

The 65-page working paper I presented is still going through final peer review and copyediting, but I posted a very rough first draft on SSRN for conference participants. I expect the paper to be released as a Mercatus Center working paper in October and then I hope to find a home for it in a law review. I will post the final version once it is released. [UPDATE:The final version of this working paper was released on November 19, 2014.]

In the meantime, however, I thought I would post the 46 slides I presented at the conference, which offer an overview of the nature of the Internet of Things and wearable technology, the potential economic opportunities that exist in this space, and the various privacy and security challenges that could hold this technological revolution back. I also outlined some constructive solutions to those concerns. I plan to be very active on these issues in coming months.

Additional Reading

• “The Growing Conflict of Visions over the Internet of Things & Privacy,” January 14, 2012
• “Can We Adapt to the Internet of Things?” IAPP Privacy Perspectives, June 19, 2013
• My Filing to the FTC in its ‘Internet of Things’ Proceeding, May 31, 2013
• Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom (2014)
• [Video] Cap Hill Briefing on Emerging Tech Policy Issues (June 2014)

Last week, it was my great pleasure to be invited on NPR’s “On Point with Tom Ashbrook,” to debate Jeffrey Rosen, a leading privacy scholar and the president and chief executive of the National Constitution Center. In an editorial in the previous Sunday’s New York Times (“Madison’s Privacy Blind Spot”), Rosen proposed “constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.” He said his proposed amendment would limit “outrageous and unreasonable” collection practices and would even disallow consumers from sharing their personal information with private actors even if they saw an advantage in doing so.

I responded to Rosen’s proposal in an essay posted on the IAPP  Privacy Perspectives blog, “Do We Need A Constitutional Amendment Restricting Private-Sector Data Collection?” In my essay, I argued that there are several legal, economic, and practical problems with Rosen’s proposal. You can head over to the IAPP blog to read my entire response but the gist of it is that “a constitutional amendment [governing private data collection] would be too sweeping in effect and that better alternatives exist to deal with the privacy concerns he identifies.” There are very good reasons we treat public and private actors differently under the law and there “are all far more practical and less-restrictive steps that can be taken without resorting to the sort of constitutional sledgehammer that Jeff Rosen favors. We can protect privacy without rewriting the Constitution or upending the information economy,” I concluded.

But I wanted to elaborate on one particular thing I found particularly interesting about Rosen’s comments when we were on NPR together. During the show, Rosen kept stressing how we needed to adopt a more European construction of privacy as “dignity rights” and he even said his proposed privacy amendment would even disallow individuals from surrendering their private data or their privacy because he viewed these rights as “unalienable.” In other words, from Rosen’s perspective, privacy pretty much trumps  everything, even if you want to trade it off against other values. 

Privacy Paternalism?

I’ve been seeing more and more privacy advocates and scholars adopt this attitude, including Anita Allen, Julie Cohen, Siva Vaidhyanathan, and others. Allen, for example, says that privacy is such a “foundational” human right that it some cases the law should override individual choice when consumers act against their own privacy interests. Cohen and Vaidhyanathan make similar arguments in their recent books. Vaidhyanathan claims that consumers are being tricked by the “smokescreen” of “free” online services and “freedom of choice.” Although he admits that no one is forced to use online services and that consumers are also able to opt-out of most of services or data collection practices, he argues that “such choices mean very little” because “the design of the system rigs it in favor of the interests of the company and against the interests of users.” “Celebrating freedom and user autonomy is one of the great rhetorical ploys of the global information economy,” he says.“We are conditioned to believe that having more choices–empty though they may be–is the very essence of human freedom. But meaningful freedom implies real control over the conditions of one’s life.” These are the sort of arguments I increasingly hear made by privacy scholars when claiming that consumers simply can’t be left free to make choices for themselves in this regard.  In an interesting recent article in the Harvard Law Review , privacy scholar  Daniel Solove notes that what binds these thinkers and their work together is, in essence, a sort of privacy paternalism. The point of most modern privacy advocacy has been to better empower consumers to make privacy decisions for themselves. But, Solove notes, “t he implication [of these privacy scholar’s work] is that the law must override individual consent in certain instances.” Yet, if that choice is taken away from us by law, Solove notes, then privacy regulation, “risks becoming too paternalistic. Regulation that sidesteps consent denies people the freedom to make choices,” Solove argues.

Jeff Rosen now appears to be adopting the sort of approach Solove identifies by claiming that privacy is an “unalienable right” such that it cannot be traded away for other things. By making that choice for us, Rosen’s proposed amendment would, therefore, suffer from that same sort of privacy paternalism Solove identifies. In a forthcoming law review aritcle that will appear in the  Maine Law Review, I identify some of the problems associated with privacy paternalism. Most obviously, these scholars should keep in mind that not everyone shares the same privacy values as they do and that many of us will voluntarily trade some of our data for the innovative information services and devices that we desire. If imposed in the form of legal sanctions, privacy paternalism would open the door to almost boundless controls on the activities of both producers and consumers of digital services, potentially limiting future innovations in this space.

For example, when we were on  NPR together, Rosen mentioned wireless geolocation technology as a potential source of serious privacy harm, although he did not make it clear whether he wanted it stopped entirely or what. If used improperly, wireless geolocation technology certainly can raise serious privacy concerns. But wireless geolocation technology is also what powers the mapping and traffic services that most of us now take for granted. Many of us expect — no, we demand — that our digital devices be able to give us real-time mapping and traffic notification capabilities. And most of us are willing to make the minor privacy trade-off associated with sharing our location constantly in exchange for the right to receive these services, which are also provided to us free of charge.

So, what would Rosen’s proposed amendment have to say about this trade-off? Would these wireless geolocation technologies be banned altogether, even if consumers desire them? It isn’t really clear at this point because he hasn’t offered us many details about his proposal. But, to the extent it would preempt these technological capabilities on the grounds that our locational privacy is somehow in unalienable right, then that seems like a fairly paternalistic approach to policy and it it would seem to confirm Thomas Lenard and Paul Rubin’s claim that “many of the privacy advocates and writers on the subject do not trust the consumers for whom they purport to advocate.”

Such paternalism is particularly problematic in this case since privacy is such a highly subjective value and one that evolves over time. As Solove notes, “the correct choices regarding privacy and data use are not always clear. For example, although extensive self-exposure can have disastrous consequences, many people use social media successfully and productively.” Privacy norms and ethics are changing faster than ever today. One day’s “creepy” tool or service is often the next day’s “killer app.”

Balancing Values; Considering Costs

As I will discuss in my forthcoming  Maine Law Review article and I also discussed in my recent George Mason University Law Review  article, at least here in the United States, consumer protection standards have traditionally depended on a clear showing of actual, not prospective or hypothetical, harm. In some cases, when the potential harm associated with a particular practice or technology is extreme in character and poses a direct threat to physical well-being, law has preempted the general presumption that ongoing experimentation and innovation should be allowed by default. But these are extremely rare scenarios, at least as it pertains to privacy concerns under American law, and they mostly involved health and safety measures aimed at preemptively avoiding catastrophic harm to individual or environmental well-being. In the vast majority of other cases, our culture has not accepted that paternalistic idea that law must “save us from ourselves” (i.e., our own irrationality or mistakes). As Solove notes in his recent essay, “People make decisions all the time that are not in their best interests. People relinquish rights and take bad risks, and the law often does not stop them.” Sometimes privacy advocates also ignore the costs of preemptive policy action and don’t bother conducting a serious review of the potential costs of their regulatory proposals. As a result, preemptive policy action is almost always the preferred remedy to any alleged harm. “By limiting or conditioning the collection of information, regulators can limit market manipulation at the activity level,” Ryan Calo argues in a recent paper. “We could imagine the government fashioning a rule — perhaps inadvisable for other reasons―that limits the collection of information about consumers in order to reduce asymmetries of information.” [*Clarification: In a comment down below and a subsequent Twitter exchange, Ryan clarifies that he ultimately does not come down in favor of such a rule, preferring instead to find various other incentives to solve these problems. I thank him for this clarification — and definitely welcome it! — although I found his position somewhat murky after debating him personally on these issues recently. Nonetheless, I apologize if I mischaracterized his position in any way here.]

Unfortunately, Professor Calo does not fully consider the corresponding cost of such regulatory proposals in calling for the enactment of such a rule. If preemptive regulation slowed or ended certain information practices, it could stifle the provision of new and better services that consumers demand, as I have noted elsewhere. It might also trump other choices or values that consumers care about. While privacy is obviously an incredibly important value, we cannot assume that it is the only value, or the most important value, at stake here. Consumers also care about having access to a constantly growing array of innovative goods and services, and they also care about getting those goods and services at a reasonable price.

Moving from “Rights Talk” to Practical Privacy Solutions

This is the point in the essay where some readers are getting pretty frustrated with me and thinking I am some sort of nihilist who doesn’t give a damn about privacy. I assure you that nothing is further from the truth and that I care very deeply about privacy.

But if you really care about expanding the horizons of privacy protection in our modern world, at some point you have to accept that all the “rights talk” and top-down enforcement efforts in the world are not necessarily going to help as much as you wish they would. The same thing is true for online safety, digital security, and IP protection efforts: No matter how much you might wish the opposite was true, information control is just really, really hard. Legal and regulatory approaches to bottling up information flows will inevitably be several steps behind cutting-edge technological developments. (I’ve discussed these issues in several essays here, including: “Privacy as an Information Control Regime: The Challenges Ahead,” “Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges,” and “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed.”)

That doesn’t mean we should surrender in our efforts to identify more concrete privacy harms, but we should recognize that it will always be a hugely contentious matter and that a great many people will gladly trade away their privacy in a way that others will consider outrageous. In a free society, we must allow them to do so if they derive greater utility from other things. A paternalistic approach based on a sort of privacy fundamentalism will deny them the right to make that choice for themselves. And, practically speaking, no matter how much some might think that privacy values are “unalienable,” the reality is that there will be no way to stop many others from making different choices and relinquishing their privacy all the time.

Educating and empowering citizens is the better way to address this issue. We can try to teach them to make better privacy choices and treat their information, and information about others, with far greater care. We should also work to provide citizens more tools to help accomplish those goals. And if the problem is “information asymmetry” or some general lack of awareness about certain data collection and use practices, then let’s work even harder to make sure consumers are aware of those practices and what they can do about them.

It’s all part of the media literacy and digital citizenship agenda that we need to be investing much more of time and resources into. I outlined that approach in much more detail in this law review article. We need diverse tools and strategies for a diverse citizenry. We need to be talking to both consumers and developers about smarter data hygiene and sensible digital ethics. We need more transparency. We need more privacy privacy professionals working inside organizations to craft sensible data collection and use policies. And so on. Only by working to change attitudes about privacy, online “Netiquette,” and more ethical data use, can we really start to make a dent in this problem.

If nothing else, we must understand the limitations of information control in such highly context-specific harm scenarios. Prof. Rosen might want to ask himself how long it would take to even get his proposed constitutional amendment in place and what the chances are such a movement would even been successful. But, again, and far more importantly, Prof. Rosen and advocates of similar regulatory approaches should remember that their values are not shared by everyone and that, in a free society, a value as inherently subjective as privacy is likely to remain a hugely contentious, every-changing matter, especially when elevated to the level of constitutional rights talk. We need practical solutions to our privacy problems, not pie-in-the-sky Hail Mary schemes that are unlikely to go anywhere and, even if they did, would end up being too heavy-handed and potentially override individual autonomy in the process.

I’m pleased to announce the release of my latest law review article, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” It appears in the new edition of the George Mason University Law Review. (Vol. 20, No. 4, Summer 2013)

This is the second of two complimentary law review articles I am releasing this year dealing with privacy policy. The first, “The Pursuit of Privacy in a World Where Information Control is Failing,” was published in Vol. 36 of the Harvard Journal of Law & Public Policy this Spring. (FYI: Both articles focus on privacy claims made against private actors — namely, efforts to limit private data collection — and not on privacy rights against governments.)

My new article on benefit-cost analysis in privacy debates makes a seemingly contradictory argument: benefit-cost analysis (“BCA”) is extremely challenging in online child safety and digital privacy debates, yet it remains essential that analysts and policymakers attempt to conduct such reviews. While we will never be able to perfectly determine either the benefits or costs of online safety or privacy controls, the very act of conducting a regulatory impact analysis (“RIA”) will help us to better understand the trade-offs associated with various regulatory proposals.

However, precisely because those benefits and costs remain so remarkably subjective and contentious, I argue that we should look to employ less-restrictive solutions — education and awareness efforts, empowerment tools, alternative enforcement mechanisms, etc. — before resorting to potentially costly and cumbersome legal and regulatory regimes that could disrupt the digital economy and the efficient provision of services that consumers desire. This model has worked fairly effectively in the online safety context and can be applied to digital privacy concerns as well.

The article is organized as follows. Part I examines the use of BCA by federal agencies to assess the utility of government regulations. Part II considers how BCA can be applied to online privacy regulation and the challenges federal officials face when determining the potential benefits of regulation. Part III then elaborates on the cost considerations and other trade-offs that regulators face when evaluating the impact of privacy-related regulations. Part IV discusses alternative measures that can be taken by government regulators when attempting to address online safety and privacy concerns. This article concludes that policymakers must consider BCA when proposing new rules but also recognize the utility of alternative remedies such as education and awareness campaigns, to address consumer concerns about online safety and privacy.

I’ve embedded the full article down below in a Scribd reader, but you can also download it from my SSRN page and my Mercatus author page.

A Framework for Benefit-Cost Analysis in Digital Privacy Debates by Adam Thierer

Defining “privacy” is a legal and philosophical nightmare. Few concepts engender more definitional controversies and catfights. As someone who is passionate about his own personal privacy — but also highly skeptical of top-down governmental attempts to regulate and/or protect it — I continue to be captivated by the intellectual wrangling that has taken place over the definition of privacy. Here are some thoughts from a wide variety of scholars that make it clear just how frustrating this endeavor can be:

• “Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is.” – Judith Jarvis Thomson, “The Right to Privacy,” in Philosophical Dimensions of Privacy: An Anthology, 272, 272 (Ferdinand David Schoeman ed., 1984).
• privacy is “exasperatingly vague and evanescent.” – Arthur Miller, The Assault on Privacy: Computers, Data Banks, and Dossiers, 25 (1971).
• “[T]he concept of privacy is infected with pernicious ambiguities.” – Hyman Gross,  The Concept of Privacy, 42 N.Y.U. L. REV. 34, 35 (1967).
• “Attempts to define the concept of ‘privacy’ have generally not met with any success.” – Colin Bennett, Regulating Privacy: Data Protection and Public Policy In Europe and the United States,  25 (1992).
• “When it comes to privacy, there are many inductive rules, but very few universally accepted axioms.” – David Brin, The Transparent Society: Will Technology Force Us To Choose Between Privacy and Freedom? 77 (1998).
• “Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.” – Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2087 (2001).
• “[privacy] can mean almost anything to anybody.” – Fred H. Cate & Robert Litan, Constitutional Issues in Information Privacy, 9 Mich. Telecomm. & Tech. L. Rev. 35, 37 (2002).
• privacy has long been a “conceptual jungle” and a “concept in disarray.” “[T]he attempt to locate the ‘essential’ or ‘core’ characteristics of privacy has led to failure.” – Daniel J. Solove, Understanding Privacy 196, 8 (2008).
• “Privacy has really ceased to be helpful as a term to guide policy in the United States.” – Woodrow Hartzog, quoted in Cord Jefferson, Spies Like Us: We’re All Big Brother Now, Gizmodo, Sept. 27, 2012.
• “for most consumers and policymakers, privacy is not a rational topic. It’s a visceral subject, one on which logical arguments are largely wasted.” – Larry Downes,  A Rational Response to the Privacy “Crisis,” Cato Institute, Policy Analysis No. 716 (Jan. 7, 2013), at 6.

In my new Harvard Journal of Law & Public Policy article, “The Pursuit of Privacy in a World Where Information Control is Failing” I build on these insights to argue that:

1. precisely because privacy has always been a highly subjective philosophical concept;
2. and is also a constantly morphing notion that evolves as societal attitudes adjust to new cultural and technological realities;
3. America may never be able to achieve a coherent fixed definition of the term or determine when it constitutes a formal right outside of some narrow contexts.

That doesn’t mean the privacy isn’t profoundly important to many of us, but privacy is, first and foremost, an exercise of personal determination and personal responsibility. To some extent, we have to make our own privacy in this world. In this sense, we can liken it to our right to pursue happiness. Here’s how I put it in Part I of my Harvard JLPP article:

Even if agreement over the scope of privacy rights proves elusive, however, everyone would likely agree that citizens have the right to pursue privacy. In this sense, we might think about the pursuit of privacy the same way we think about the pursuit of happiness. Recall the memorable line from America’s Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Consider the importance of that qualifying phrase—“and the pursuit of”—before the mention of the normative value of happiness. America’s Founders obviously felt happiness was an important value, but they did not elevate it to a formal positive right alongside life, liberty, physical property, or even freedom of speech.

This framework provides a useful way of thinking about privacy. Even if we cannot agree whether we have a right to privacy, or what the scope of any particular privacy right should be, the right to pursue it should be as uncontroversial as the right to pursue happiness. In fact, pursing privacy is probably an important element of achieving happiness for most citizens. Almost everyone needs some time and space to be free with their own thoughts or to control personal information or secrets that they value. But that does not make it any easier to define the nature of privacy as a formal legal right, or any easier to enforce it, even if a satisfactory conception of privacy could be crafted to suit every context.

The most stable and widely accepted privacy rights in the United States have long been those that are tethered to unambiguous tangible or physical rights, such as rights in body and property, especially the sanctity of the home. Moreover, these rights have been focused on limiting the power of state actors, not private parties. By contrast, privacy claims premised on intangible or psychological harms have found far less support, and those claims have been particularly limited for private actors relative to the government. All this will likely remain the case for online privacy. Importantly, if privacy is enshrined as a positive right even in narrowly drawn contexts, it imposes obligations on the government to secure that right. These obligations create corresponding commitments and costs that must be taken into account since government regulation always entails tradeoffs.

Therefore, even as America struggles to reach political consensus over the scope of privacy rights in the information age, it makes sense to find methods and mechanisms—most of which will lie outside of the law—that can help citizens cope with social and technological changes that affect their privacy. Part III will outline some of the ways citizens can pursue and achieve greater personal privacy.

I fully realize that this way of thinking about privacy leaves many challenging questions at the margin and I also understand how it will be unsatisfactory to those who view privacy as a “dignity right” that trumps all other values and considerations. But, to reiterate, what I am suggesting here is that we will likely never be able to achieve a coherent fixed definition of the term or determine when it constitutes a formal right outside of some narrow contexts (such as for sensitive health or financial information, where the potential harms of collection, sharing, and use are more tangible).  The primary reason for this is that privacy primary comes down to assertions about “harms” that are primarily psychological in character. But precisely because such asserted harms (1) lack a tangible/physical/monetary nature and (2) also can come into conflict with other liberty rights (especially the right to freely gather information and speak about it; i.e., First Amendment rights), it makes it more difficult to classify psychological “harms” as harms at all.

I feel the same way about concepts like “safety” and “security.” Who among us doubts these values and goals are important? As the father of two young digital natives, I am living a constant struggle to mentor my kids and ensure they have safe and healthy online interactions. But that doesn’t mean I think anyone in this world — including my own children — has an amorphous “right to safety.” What they do have a right to is not to be harmed by others in their online interactions. Where things become sticky, however, is when some child safety advocates adopt an extremely expansive view of what constitutes “harm” in this context and suggest that hearing a single dirty word or seeing a fleeting dirty image somehow irrevocably “harms” their mental well-being and development, or perhaps just their personal morality. (I have written about this here in dozens of essays through the years such as this one on “The Problem of Proportionality in Debates about Online Privacy and Child Safety” as well in longer papers, such as my recent law review article about, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.”)

While I appreciate the diverse beliefs and values that drives sensitivities about potentially objectionable online content, it is an entirely different matter when one claims “rights” and actionable “harms” in this context. It means that politics will essentially answer what are fundamentally deeply personal “eye of the beholder” questions. It is better, I believe to educate and empower citizens about safe and sensible online interactions and then let them determine what works best for them. Again, whether we are talking about safety or privacy, this model relies upon a certain amount of personal (and parental) responsibility.

To be sure, real harms exist and, at times, law will need to be brought in to right certain wrongs. For example, in the online safety context I favor strong penalties for anyone attempting predatory behavior or extreme forms of incessant harassment. In the privacy context, we’ll still need laws to deal with identity/data theft and certain uses of highly sensitive health and financial information. Outside of those narrow contexts, however, it is better to let people define their own online experiences free of top-down, one-size-fits-all regulatory enactments that attempt to make those determinations for all of us. To reiterate, we all have the right to pursue the objectives we care about–safety, privacy, or just happiness more generally–according to our own value systems. But we should be careful about elevating such amorphous concepts to the level of “rights” and then expecting the State to enforce one set of values and choices on a diverse citizenry.

The Pursuit of Privacy in a World Where Information Control is Failing

I’m excited to announce the release of my latest law review article, “The Pursuit of Privacy in a World Where Information Control is Failing,” which appears in the next edition (vol. 36) of the Harvard Journal of Law & Public Policy. This is the first of two complimentary law review articles that I will be releasing this year dealing with privacy policy. The second, which will be published later this summer by the George Mason University Law Review, is entitled, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” (FYI: Both articles focus on privacy claims made against private actors — namely, efforts to limit private data collection — and not on privacy rights against governments.)

The new Harvard Journal article is divided into three major sections. Part I focuses on some of normative challenges we face when discussing privacy and argues that there may never be a widely accepted, coherent legal standard for privacy rights or harms here in the United States. It also explores the tensions between expanded privacy regulation and online free speech. Part II turns to the many enforcement challenges that are often ignored when privacy policies are being proposed or formulated and argues that legislative and regulatory efforts aimed at protecting privacy must now be seen as an increasingly intractable information control problem. Most of the problems policymakers and average individuals face when it comes to controlling the flow of private information online are similar to the challenges they face when trying to control the free flow of digitalized bits in other information policy contexts, such as online safety, cybersecurity, and digital copyright.

If the effectiveness of law and regulation is limited by the normative considerations discussed in Part I and the practical enforcement complications discussed in Part II, what alternatives remain to assist privacy-sensitive individuals? I address that question in Part III of the paper and argue that the approach America has adopted to deal with concerns about objectionable online speech and child safety offers a path forward on the privacy front as well. A so-called “3-E” solution that combines consumer education, user empowerment, and selective enforcement of existing targeted laws and other legal standards (torts, anti-fraud laws, contract law, and so on), has helped society achieve a reasonable balance in terms of addressing online safety while also safeguarding other important values, especially freedom of expression.  That does not mean perfect online safety exists, not only because the term means very different things to different people, but because it would be impossible to achieve in the first instance as a result of information control complications. But the “3-E” approach has the advantage of enhancing online safety without sweeping regulations being imposed that could undermine the many benefits information networks and online services offer individuals and society.  This same framework can guide online privacy decisions—both at the individual household level and the public policy level.

I’ve embedded the full article down below in a Scribd reader, but you can also download it from my SSRN page and it should be available on the HJLPP website shortly. [Update 4/16: It is now live on the site.] In coming weeks, I hope to do some blogging that builds on the themes and arguments I develop in this article.

The Pursuit of Privacy in a World Where Information Control is Failing

We live in an entitlement era, when rights are seemingly invented out of whole-cloth. It should come as no surprise, therefore, that a bit of “rights inflation” is creeping into debates about Internet policy. Today, for example, a coalition of groups and individuals (many of which typically advocate greater government activism), have floated a “Declaration of Internet Freedom.”  My concern with their brief manifesto is that is seems to based on a confused interpretation of the word “freedom,” which many of the groups behind the effort take to mean freedom for the government to reorder the affairs of cyberspace to achieve values they hold dear.

The manifesto begins with the assertion that “We stand for a free and open Internet,” and then says “We support transparent and participatory processes for making Internet policy and the establishment of five basic principles:”

1. Expression: Don’t censor the Internet.
2. Access: Promote universal access to fast and affordable networks.
3. Openness: Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.
4. Innovation: Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users actions.
5. Privacy: Protect privacy and defend everyone’s ability to control how their data and devices are used.

This effort follows close on the heels of a proposal from Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR) to craft a “Digital Bill of Rights” that, not to be outdone, includes ten principles. They are:

1. Freedom – digital citizens have a right to a free, uncensored internet.
2. Openness – digital citizens have a right to an open, unobstructed internet.
3. Equality – all digital citizens are created equal on the internet.
4. Participation – digital citizens have a right to peaceably participate where and how they choose on the internet.
5. Creativity – digital citizens have a right to create, grow and collaborate on the internet, and be held accountable for what they create.
6. Sharing – digital citizens have a right to freely share their ideas, lawful discoveries and opinions on the internet.
7. Accessibility – digital citizens have a right to access the internet equally, regardless of who they are or where they are.
8. Association – digital citizens have a right to freely associate on the internet.
9. Privacy – digital citizens have a right to privacy on the internet.
10. Property – digital citizens have a right to benefit from what they create, and be secure in their intellectual property on the internet.

In a recent Forbes column (“We Don’t Need a Digital Bill of Rights“), I expressed some concerns about the Issa-Wyden effort and I have similar feelings about that new “Declaration of Internet Freedom” as well. As I noted in the Forbes column on those “rights”:

It would be hard to be against any of these things. Luckily, at least here in the United States, we already enjoy all these freedoms thanks to the protections provided by our actual Bill of Rights. We are at liberty to participate where and how we choose, to share and be as creative as we desire, and to associate with whomever we wish. The First Amendment alone secures those rights. Likewise, properly construed, the First Amendment ensures the “right to a free, uncensored Internet,” it’s just that lawmakers often  try to evade the Amendment’s unambiguous and comprehensive “Congress shall make no law” prohibition.

But it’s not just that these new efforts aren’t needed, it’s that conflating them with the actual Declaration of Independence or Bill of Rights really bastardizes the true intent of those founding documents. As Cato’s Jim Harper rightly notes:

I’m really hoping that nobody living today gets to define the basic principles by which the Internet is ruled. We’ve got that. It’s a neato collection of negative rights, preventing the government from interfering with society’s development, whether that development occurs online or off.

Of course, Jim and I believe that the original Declaration, the U.S. Constitution, and the original Bill of Rights helped establish a government of limited, enumerated powers that properly safeguarded the most important general right of all: The right of individuals to be at liberty to live a life of their own choosing. It was all beautifully summarized in that simple phrase: you have a right to “life, liberty, and the pursuit of happiness.”

By contrast, if you subscribe to an alternative theory of rights that imagines there exists a litany of goodies to which we all possess an inalienable right, then you will likely be more sympathetic to efforts like the this new “Declaration of Internet Freedom” and “Digital Bill of Rights.” But that’s the problem I have with both documents.  The wonderful thing about the original Declaration, Constitution, and Bill of Rights was that they didn’t create any expensive entitlements that required affirmative state action. Instead, they tightly bound government and curtailed its powers and left the people at liberty. By contrast, these new “Declaration of Internet Freedom” and “Digital Bill of Rights” contain all sorts of aspirational principles that could be construed as “positive rights” that require government to provide some sort of basic underlying service, or to affirmatively and aggressively regulate the information economy to protect some of these amorphous values.

I think that’s pretty clear with some of the principles listed in the documents. Consider “Access” (“Promote universal access to fast and affordable networks”); and “Openness” (“Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate”). I suppose you could claim that those values do not represent calls for government action, but I hope you can imagine how easy it would be to convert both into an affirmative mandate to subsidize or regulate.

Similarly, I like the sound of the “Innovation” bullet (“Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users actions”), but is that protecting the freedom to innovation and creation without permission from the government or does this entail something more? After all, as I document in this book chapter (“The Case for Internet Optimism, Part 2: Saving the Net from Its Supporters“), there exists a large number of academics and advocacy groups today who believe that “openness” and “innovation” are values (even rights) that are most at risk from private, not public action. I invite you to read the works of Tim Wu, Dawn Nunziato, or Frank Pasquale (among others) to see what I am talking about. These new “Declaration” and “Bill of Rights” proposals don’t offer a detailed answer to that question, but I can’t help but raise this concern when at least the former effort was led by the far-left radicals at the Free Press, which was founded by America’s leading media Marxist (yes, Marxist — read about it all here).

Until the advocates who came up with these statements are willing to unpack these principles a bit more and explain their theories of rights and government, we really don’t know what these manifestos would mean if they came to influence public policy. But I suspect that they would both just result in more legislative meddling and regulatory adventurism.

Finally, I know that a few of my friends here at the TLF have come up with their own “Declaration” to push back against this other one, and I agree with many of the principles that they have articulated in their counter-manifesto. (Hell, Wayne Crews and I once even came up with a sort of Declaration of our own back in 2001).  But I think we now need to impose a moratorium on all these new “Declarations” and “Bill of Rights” proposals until we get a hell of a lot more serious about honoring the originals.

JUST SAY NO to new “Declarations” and “Bill of Rights” proposals, and JUST SAY YES to the real deals!

P.S. For a light-hearted take on the excesses of our entitlement age, you might enjoy my old essay: “Broadband as a Human Right (and a short list of other things I am entitled to on your dime)“

In his latest weekly Wall Street Journal column, Gordon Crovitz has penned a review of the new Jeff Jarvis book, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live . Gordon’s review closely tracks my own thoughts on the book, which I laid out last week in my Forbes essay, “Is Privacy Overrated?”  Gordon’s essay is entitled “Are We Too Hung Up on Privacy” and he finds, like I do, that Jarvis makes compelling case for understanding the benefits of publicness as the flip-side of privacy. Instead of repeating all the arguments we make in our reviews here, I’ll just ask people go check out both of our essays if they are interested.

I did, however, want to elaborate on one thing I didn’t have time to discuss in my review of the Jarvis book. While I like the approach he used in the book, I thought Jarvis could have spent a bit more time exploring some the thorny legal issues in play when advocates of privacy regulation look to enshrine into law quite expansive views of privacy “rights.”

One of the things that both Crovitz and I appreciated about the Jarvis book was the way he tries to get us to think about privacy in the context of ethics instead of law. “Privacy is an ethic governing the choices made by the recipient of someone else’s information,” Jarvis argues, while “publicness is an ethic governing the choices made by the creator of one’s own information,” he says. In my review, I explained why this was so important:

Jarvis’ approach to thinking about privacy and publicness in terms of ethics is particularly smart precisely because privacy is such a subjective human condition—a “conceptual jungle” and a “concept in disarray,” says law professor Daniel J. Solove, author of Understanding Privacy. Thus, a good case can be made for restraint when it comes to legislating to define and protect privacy. That doesn’t mean privacy isn’t important—it is. But how we go about “protecting” it needs to be balanced against other rights and responsibilities. For example, we’d all agree with Thomas Jefferson and the Founders that we have a “right to pursue happiness,” but a right to happiness would be a different matter altogether. Government can’t guarantee happiness. It wouldn’t even be able to define it. The same is largely true of privacy. We certainly have the right to pursue private lives and take steps to secure facts about ourselves. At the margins, law can sometimes help us do so—most often by safeguarding us against fraudulent activities. And there are plenty of tools on the market that can help people protect their personal data. By contrast, legalistic efforts to define privacy as a strict “right” leads us back into that “conceptual jungle,” which is full of unintended consequences.

Let’s unpack this a bit more because if one agrees with the argument that Jarvis makes–that privacy is better thought of as a matter of ethics and social norms–it has important ramifications for ongoing efforts to speak of privacy in legalistic ways. It’s not that I’m against any sort of privacy “rights,” but I do believe it is important to acknowledge that other important values are at stake here and we must appreciate how increased privacy controls could conflict with them.  “Recognizing that we are legislating in the shadow of the First Amendment suggests a powerful guiding principle for framing privacy regulations,” argues Kent Walker, a privacy expert who now serves as a general counsel at Google. “Like any laws encroaching on the freedom of information, privacy regulations must be narrowly tailored and powerfully justified.”

Ironically, many privacy advocates are strongly critical of copyright law and claim that, as currently structured, it represents an unjust or excessive information control regime. Yet, privacy regulation would constitute a stronger information control regime by creating the equivalent of copyright law for personal information, which would, in turn, conflict mightily with the First Amendment. [See my essays, “Two Paradoxes of Privacy Regulation” and “Privacy as an Information Control Regime: The Challenges Ahead.” The rest of this essay borrows from those pieces as well as this big filing I submitted to the FTC in February.]

In his recent book Skating on Stilts, Stewart Baker reminds us that the famous 1890 Samuel Warren and Louis Brandeis Harvard Law Review essay on “The Right to Privacy”—which is tantamount to a sacred text for many modern privacy advocates—was heavily influenced by copyright law.  As Baker explains:

Brandeis wanted to extend common law copyright until it covered everything that can be recorded about an individual. The purpose was to protect the individual from all the new technologies and businesses that had suddenly made it easy to gather and disseminate personal information: “the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.”  […] Brandeis thought that the way to ensure the strength of his new right to privacy was to enforce it just like state copyright law. If you don’t like the way “your” private information is distributed, you can sue everyone who publishes it.

Incidentally, it is important to recall that their call for such a regime was essentially driven by a desire to censor the press. In their article, Warren and Brandeis argued that:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.

So angered were Warren and Brandeis by reports in daily papers of specifics from their own lives that they were led to conclude that:

man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

It is unclear how one could have greater “pain and distress” inflicted by words than “by mere bodily injury,” and yet the law review article that essentially gave birth to American privacy law articulated such a theory of harm.  And it only follows, then, that they would advocate fairly draconian controls on speech and press rights if they felt this strongly.

Taken to the extreme, however, giving such a notion the force of law would put privacy rights on a direct collision course with the First Amendment and freedom of speech.  As Eugene Volokh argued in a 2000 law review article entitled, “Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking about You”:

The difficulty is that the right to information privacy—the right to control other people’s communication of personally identifiable information about you—is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of “fair information practices”) generally bars the government from “control[ling the communication] of information,” either by direct regulation or through the authorization of private lawsuits.

This is what makes efforts to untether privacy regulation from a harms-based model or mode of analysis so troubling. For example, the Federal Trade Commission’s recent privacy review says that “the FTC’s harm-based approach also has limitations [because] it focuses on a narrow set of privacy-related harms—those that cause physical or economic injury or unwarranted intrusion into consumers’ daily lives.”  The Commission then suggests that “for some consumers, the actual range of privacy-related harms is much wider and includes reputational harm, as well as the fear of being monitored or simply having private information ‘out there,’” and suggests “consumers may feel harmed when their personal information… is collected, used, or shared without their knowledge or consent or in a manner that is contrary to their expectations.”

Not only does the Commission fail to offer any data on how this supposed harm manifests itself, how severe it is, or what trade-offs it presents to society, but it utterly fails to account for the dangerous slippery slope of speech control it puts us on. If appeals for regulation are based on emotion instead of concrete evidence of consumer harm, where will this take us next? If, for example, the Commission is to regulate based upon the fact that “consumers may feel harmed… when their personal information… in a manner that is contrary to their expectations,” how long will it be before some suggest this standard should trump First Amendment rights in other contexts?

For example, this more emotional approach to privacy regulation brings us one step closer to a “right not to be offended” or a “right to be forgotten,” as some in Europe favor. Here in the U.S., we see a similar effort underway with the so-called “Internet Eraser Button” idea, which has even been floated in federal legislation. How could a journalist even conduct their business in such a world? By their very nature, good reporters are nosy and, to some extent, disregard the privacy of the people and institutions they report on.

This is why privacy regulation must not be reduced to amorphous claims of “dignity” rights, where an assertion by a small handful that they “feel harmed” comes to replace a strict showing of actual harm to persons or property. To go down that path would have grave consequences for the future of freedom of speech, transparency, openness, and accountability.

Of course, there are many different types of privacy concerns, each of which demands its own analysis and legal consideration.  While I think most privacy concerns should be left to the realm of personal responsibility, user empowerment, and industry self-regulation, other privacy issues are more serious and should be elevated to the level of “rights.” When we speak of government search and seizure or surveillance concerns, “rights” talk certainly makes more sense. Likewise, identity theft is more than just a violation of privacy, it’s a violation of personal property rights.

With such notable exceptions, however, I prefer we speak of privacy in terms of ethics and norms. Legalistic, rights-based conceptions of privacy invite excessive government interventions with myriad unintended consequences.

PFF has just released the transcript of an excellent panel discussion I moderated last week entitled, “Let’s Make a Deal: Broadcasters, Mobile Broadband, and a Market in Spectrum.”  As I’ve mentioned here before, one of the hottest issues in DC right now is the question of broadcast TV spectrum reallocation.  Blair Levin, who serves as the Executive Director of the Omnibus Broadband Initiative at the Federal Communications Commission, recently raised the possibility of reallocating a portion of broadcast television spectrum for alternative purposes, namely, mobile broadband. Such a “cash-for-spectrum” swap would give mobile broadband providers to spectrum they need to roll out next generation wireless broadband networks while making sure broadcaster receive compensation for any spectrum they hand over.  The FCC just recently released a public notice on “Data Sought on Users of Spectrum,” (NBP Public Notice # 26) that looks into the matter. “This inquiry,” the agency says,” takes into account the value that the United States puts on free, over-the-air television, while also exploring market-based mechanisms for television broadcasters to contribute to the broadband effort any spectrum in excess of that which they need to meet their public interest obligations and remain financially viable.” Meanwhile, the House Energy and Commerce Communications Subcommittee is set to hold a hearing on the issue next Tuesday.

PFF’s panel discussion on this issue featured an all-star cast of characters, including opening remarks by Blair Levin, and a terrific discussion ensued. [You can hear the full audio from the event here.]  Down below I have highlighted some of the major points each speaker made during the discussion and also embedded the complete transcript in a Scribd reader.  Also, just a reminder that my PFF colleague Barbara Esbin and I authored a short paper on this issue recently: “An Offer They Can’t Refuse: Spectrum Reallocation That Can Benefit Consumers, Broadcasters & the Mobile Broadband Sector.”

• Blair Levin, Executive Director of the FCC’s Omnibus Broadband Initiative, began the discussion by describing how additional spectrum will be needed to expand wireless broadband and why spectrum currently held by broadcasters would be a good option.  In addition to identifying spectrum that has the technical qualities to support broadband, he explained, “You also would look at things like where there’s an economic gap between the current use and potential wireless use.  You would want to look at bands where maybe there are regulations which constrain the market mechanism.  You also might want to look at bands where you can have a meaningful reallocation of spectrum while, nonetheless, preserving current uses.”
• Coleman Bazelon, Principal at The Brattle Group, presented findings from his recent paper on the value of spectrum currently held by broadcasters if it was reallocated to commercial mobile or wireless broadband uses. “This analysis shows that there are significant gains from reallocating the broadcast band, and I think the takeaway should be that there are significant gains, not that its $42 billion or $51 billion, but that its tens and tens of billions of dollars,” Bazelon stated.
• David Donovan, President of the Association for Maximum Service Television, Inc., questioned the estimates of the additional value of broadcast spectrum that could be gained if it was auctioned for other uses.  “If you are valuing over the air television broadcasting and its importance to the American public, using a snapshot based on an auction valuation at a particular point in time is really highly inappropriate,” he stated. “The business model of broadcasting is heavily regulated. … and that defines, of course, the value, just like heavy zoning defines the price of land.”
• Kostas Liopiros, Principal of The Sun Fire Group, discussed the technical feasibility of using various blocks of spectrum for wireless broadband use.  “Only additional spectrum can produce the required gains of capacity in the future, but if the gains capacities are oriented towards wireless broadband, for national wireless broadband capability, you need to focus on the right type of spectrum,” he explained.
• John Hane, Counsel in the Communications Practice Group of Pillsbury Winthrop Shaw Pittman LLP, warned of the legal difficulties of modifying broadcast licenses.  “Extinguishing licenses requires a hearing, potentially hundreds of them, each one affecting one or more Congressional districts.”  Although the FCC is able to modify a license without the licensee’s consent, he continued, “that is a very long and complicated process with an uncertain time frame.  If there really is a spectrum crisis, the stick approach …is not going to solve it very fast.”
• Paul Gallant, Senior Vice President of Concept Capital, discussed the possible effects of Congress involvement in auction of broadcast spectrum.  If broadcasters are reluctant to modifying their business model, Gallant explained, it might be beneficial for them to have Congress involved in such a deal.  However, he warned that Congressional involvement could also result in uncertainty for the broadcasters.  “It is not clear, if Congress does pass a bill, whether broadcasters come out better or worse than they would if they had worked something out with the FCC.  The main reason is there is tremendous budget pressure in Congress today.  They are looking for new sources of revenue,” Gallant explained.
• Andrew Jay Schwartzman, President and CEO of Media Access Project, expressed that he was resistant to the idea of auctioning spectrum.  “It isn’t property,” He stated.  “They favor incumbents.  They’re rigged.  They don’t generate the revenues that OMB and Congress seem to think they will.” He also warned of the possible impact of auctions on innovation. “Auctions lock in existing technology and near-term foreseeable technology. The people who are able and willing to bid are basing it on technology that they know they can generate and that does not allow the spectrum to be used in better ways coming down the road.”

Transcript of Dec 1 PFF Event on Broadcaster TV Spectrum Reallocation [PFF – Thierer] http://d1.scribdassets.com/ScribdViewer.swf?document_id=23980532&access_key=key-wdpoolnrm5gxq1xu7c6&page=1&version=1&viewMode=list

Along with my colleague Barbara Esbin, the Director of PFF’s Center for Communications and Competition Policy, I have just released a new paper on discussing the possibility of reallocating a portion of broadcast television spectrum for alternative purposes, namely, mobile broadband. As I discussed here before, Blair Levin, the Executive Director of the FCC’s Omnibus Broadband Initiative, has been suggesting that it might be possible to craft a grand bargain whereby broadcasters get cash for some (or all) of their current spectrum allocations if they return spectrum to the FCC for reallocation and re-auction, likely to mobile broadband services.

In our paper, “An Offer They Can’t Refuse: Spectrum Reallocation That Can Benefit Consumers, Broadcasters & the Mobile Broadband Sector,” [PDF] Barbara and I argue that:

the benefits of such a deal could be enormous for wireless broadband providers, developers of digital technologies, and consumers.  Expanding the pool of spectrum available for next-generation wireless broadband offerings will ensure that innovative new networks, devices, and services are made available to the public on a timely basis.  Ultimately, that will mean more high-speed choices for consumers, especially those in rural areas harder to reach with high-speed wireline networks.  Finally, more generally, anything that moves us in the direction of a freer market in spectrum is a good thing. But fairness to broadcasters lies at the heart of this spectrum reallocation plan. If a deal can’t be structured that broadcasters would find acceptable, they should not be forced to come to the table. When we speak of an offer they can’t refuse, we mean one so attractive that no rational businessperson or investor would pass it up. It is essential broadcasters be willing partners in the deal, and be full participants in the process of shaping its contours.

Read the entire thing here, or below the fold as a Scribd document.

Broadcast TV Spectrum Reallocation (Thierer & Esbin – PFF) http://d1.scribdassets.com/ScribdViewer.swf?document_id=22365493&access_key=key-2cs1sry5qv9xd3x6d5bv&page=1&version=1&viewMode=list

I’ll be heading to Oxford University this week to participate in an Oxford Internet Institute (OII) forum on the subject of “Child Protection, Free Speech and the Internet: Mapping the Territory and Limitations of Common Ground.”  It’s being led by several experts from the OII as well as my good friends John Morris and Leslie Harris of the Center for Democracy & Technology (CDT).  The aims of this forum are:

• To facilitate a dialogue between NGOs campaigning to protect respectively, child protection and children’s rights online, and freedom of speech and other civil liberties online.
• To promote a better understanding of each others’ positions, to share perspectives and information with a view to identifying areas of common ground and areas of disagreement.
• To identify any shared policy goals, and possible tools to support the achievement of those goals.
• To publicize the findings of the forum in international policy debates about Internet governance and regulation.

Conference participants were asked to submit a 2-3 pg summary of their views on a couple of questions that will be discussed at this event.  I have listed those questions, and my answers, down below the fold.  It’s my best attempt to date to succinctly outline my views about how to balance content concerns and free speech issues going forward. 

What is the nature of your interest or experience in this field?

I have spent the last 18 years covering the intersection of child safety concerns and free speech issues at four different think tanks.  In recent years, I have tied together all my research in a constantly updated Progress & Freedom Foundation special report entitled, “Parental Controls & Online Child Protection: A Survey of Tools & Methods.” The 4^th edition of this 250-page report was released in August.

Are there particular values or principles which underlie your work?

The goal of my research has been to explore the tension between free speech and child protection and to identify methods of striking a sensible balance between these two important values.   It is my hope and belief that we are now in a position to more fully empower parents such that government regulation of content and communications will be increasingly unnecessary.

In the past, it was thought to be too difficult for families to enforce their own “household standard” for acceptable content. Thus, many believed government needed to step in and create a baseline “community standard” for the entire citizenry.  Unfortunately, those “community standards” were quite amorphous and sometimes completely arbitrary when enforced through regulatory edicts.  Worse yet, those regulatory standards treated all households as if they had the same tastes or values—which is clearly not the case in most pluralistic societies.

If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own “household standard”—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information.  Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families. In my work, I refer to this as the “household empowerment vision.”

Will we ever be able to achieve a world of perfect parental control over all online content and communications?  That is unlikely since both content and technology will continuously evolve and make that goal elusive. But government regulation of speech should yield where less restrictive alternatives such as household-based controls and strategies exist.  Given the value associated with free speech and the danger of government censorship, these alternatives need not be perfect to be preferable to government regulation.

What are the issues/policies or laws which you see as most problematic in terms of creating or illustrating a conflict between online child protection and free speech?

It is essential that policymakers resist the temptation to extend traditional broadcast industry regulatory statutes and standards to new media outlets and digital technologies.  In a world of media convergence and increasing user empowerment, traditional regulatory rationales make increasingly less sense.  Nonetheless, many ongoing social problems and challenges remain to achieving the “household empowerment vision” I outlined above, including:

• The “lack of awareness” problem: Some parents remain unaware of empowerment tools.
• The “bad parent” problem: Some parents don’t use tools even when aware of them.
• The “bad neighbor” problem: “Good” parents fear what happens when their kids visit other kids with more permissive parents.
• The “generation gap” problem: Kids sometimes know more about new digital technologies than their parents.
• The “technological surprise” problem: Rapid emergence and diffusion of new digital technologies can catch some parents by surprise.
• The “bad corporate actor” problem: Most companies self-regulate, but a handful push the boundaries of good taste in ways that create social concerns that reflect on industry generally.
• The “user-generated content” problem: Even when “professional” content can be managed, it is difficult to control “amateur” expression and creations.
• The “peer-on-peer bullying” problem: While many are concerned about predators, the real online safety problem turns out to be cyber-bullying among peers.

Because of these ongoing social challenges or concerns, legal and regulatory proposals will continue to be put forward. But each has serious downsides:

• Future of filtering: Centralized, network-based or decentralized, user-based?  The former creates serious censorship threats, as we see in China and other repressive states. The latter is more consistent with the household empowerment vision.
• Middleman deputization: Should online intermediaries be required to police the Net for various social ills?  If so, as hand-maidens of the state, they could become over-zealous speech regulators.
• Universal content ratings: Can policymakers mandate unified (or “scientific”) content media ratings?  Doing so puts regulators in a position to dictate content standards—for better or worse.  Moreover, this does nothing to address user-generated “amateur” content.
• Mandatory online age / identity verification: Potentially threatens anonymity, privacy, and free speech rights.  Moreover, to the extent “bad guys” continue to get into “secured” environments it creates a false sense of security for parents and kids.
• Expanded data retention: Although it would help facilitate some law enforcement goals, it also gives rise to new privacy and data breach risks.

Might any of these conflicts be avoidable, e.g. through the use of improved legislative instruments or greater clarity and accountability in processes of self-regulation?

For the above reasons, it makes more sense to put our energies into finding new self-regulatory mechanisms, social norms, and user empowerment strategies to solve ongoing social problems instead of focusing on regulatory solutions or mandates.  Instead of providing greater clarity, legislative instruments are more likely to instead create greater ambiguity, or at least uncertainty, for content creators and consumers alike. This is because, as was noted above, “community standards” are notoriously subjective; they are ham-handed attempts to gloss over the diverse needs and values of a diverse citizenry. By contrast, self-regulation, social norms, and empowerment strategies are evolutionary in character and more responsive to differences among cultures and households.

What are the issues where you think there might be most scope for finding some common ground?

In two words: empowerment and education. Because reliance on legislation is perilously difficult and enforcement of regulatory mandates is complicated (and sometimes impossible in an increasingly borderless world), efforts to better empower families and educate both kids and parents offer the most sensible path forward.  All stakeholders involved in child safety and free speech debates can generally agree that empowerment efforts, media literacy programs, awareness-building programs, and so on, are both effective and unobjectionable.

At the international level, are there certain key principles which we ought to be defending above all others?

Because of the “values clash” at the international level, it’s hard to imagine we’ll ever achieve consensus on some of these issues.  Countries vary widely in their sensitivities about speech, making any attempt to devise “universal principles” complicated.  For example, Europeans generally deride America’s prudish ways when it comes to matters of sexuality or “indecency.”  By contrast, most Americans cannot understand European concerns about “hate speech” or violently-themed media.  Meanwhile, governments in many other parts of the world are still busy trying to quell political or religious dissent.  “Harmonization” among those competing cultural norms remains complicated, therefore, and it would be a mistake if international harmonization was accomplished by sacrificing free speech rights for countries and cultures who cherish them.

by Adam Thierer & Berin Szoka — (Ver. 1.0 — Summer 2009)

We are attempting to articulate the core principles of cyber-libertarianism to provide the public and policymakers with a better understanding of this alternative vision for ordering the affairs of cyberspace. We invite comments and suggestions regarding how we should refine and build-out this outline. We hope this outline serves as the foundation of a book we eventually want to pen defending what we regard as “Real Internet Freedom.” [Note:  Here’s a printer-friendly version, which we also have embedded down below as a Scribd document.]

I. What is Cyber-Libertarianism?

Cyber-libertarianism refers to the belief that individuals—acting in whatever capacity they choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their own tastes and interests online.

Generally speaking, the cyber-libertarian’s motto is “Live & Let Live” and “Hands Off the Internet!”  The cyber-libertarian aims to minimize the scope of state coercion in solving social and economic problems and looks instead to voluntary solutions and mutual consent-based arrangements.

Cyber-libertarians believe true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.

B.  Application in Social & Economic Contexts

The cyber-libertarian draws no distinction between social and economic freedom when applying this vision:

• Social Freedom: Individuals should be granted liberty of conscience, thought, opinion, speech, and expression in online environments.
• Economic Freedom: Individuals should be granted liberty of contract, innovation, and exchange in online environments.

Cyber-libertarians also argue that social and economic freedoms are inextricably intertwined:  It is not enough to support liberty of action in one sphere; foreclosing freedom in one sphere will eventually affect freedom in the other.

C.  How “Code Failures” Are to Be Addressed

The cyber-libertarian believes that “code failures” (the digital equivalent of so-called “market failures”) are better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions.   From a practical perspective, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those responses.  Stated differently, cyber-libertarians have a strong aversion to the politicization of technology issues and efforts to replace market processes with bureaucratic processes.

Importantly, the cyber-libertarian defines “markets” broadly to include monetary and non-monetary transactions as well as proprietary and non-proprietary modes of production.  To be clear, collaborative, non-proprietary technologies and efforts ( e.g., Wikipedia and open source software) are not at odds with cyber-libertarianism.  But the cyber-libertarian does reject the notion these models are the only acceptable model or that they should be imposed on us by law.  The proper policy position with regards to the “open vs. closed” or “proprietary vs. non-proprietary” debate should be one of techno-agnosticism.  Lawmakers and courts should not be tilting the balance in one direction or the other.

More generally speaking, instead of seeking to define or impose a single utopian vision, the cyber-libertarian seeks to enable what libertarian philosopher Robert Nozick called a “Utopia of Utopias:” a framework within which many different models of organizing commerce and community can flourish alongside, and in competition with, each other.

D.  General Relationship to “Internet Exceptionalism”

Internet exceptionalists are first cousins to cyber-libertarians:  They believe that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene.  [See Section IV for an expanded discussion.]

II. The Intellectual Foundations of Cyber-Libertarianism

A.  Traditional Libertarian Philosophy

• Natural Rights philosophers –John Locke, Ayn Rand, The Founders
• Utilitarian philosophers – John Stuart Mill (On Liberty), Herbert Spencer
• “Austrian School” of Economics – Ludwig von Mises, F.A.  Hayek, Murray Rothbard
• Milton Friedman (Free to Choose)
• Robert Nozick – argument for a minimalist state; “utopia of utopias” notion
• Thomas Sowell – critique of “The Vision of the Anointed”
• Richard Epstein – vision of “Simple Rules for a Complex World

B.  Modern Cyber-Libertarian Theorists

• Ithiel de Sola Pool (Technologies of Freedom)
• Alvin Toffler (The Third Wave , Future Shock)
• George Gilder (Microcosm , Telecosm)
• Peter Huber (Law & Disorder in Cyberspace)
• Tom W.  Bell
• Technology Liberation Front bloggers

C.  Internet Exceptionalists[see Sec.  IV below]

• Nicholas Negroponte (Being Digital)
• John Perry Barlow (“Declaration of the Independence of Cyberspace”)
• David Post
• Eric Goldman
• H.  Brian Holland

III. The Contrast with Cyber-Collectivism

A.  Cyber-Collectivism Defined

Cyber-collectivism is the opposite of cyber-libertarianism.  Cyber-collectivism refers to the general belief that cyber-choices should be guided by the State or an elite class according to some amorphous “general will” or “public interest.”  The distant influence of Plato, Rousseau, and Marx can often been seen in the work of cyber-collectivists.

Cyber-collectivism comes in many flavors, however.  “Left”-leaning cyber-collectivists, for example, are more focused on social concerns than economic ones.  Some “Right”-leaning cyber-collectivists are focused on controlling the impact of the Internet on culture or security.  In other words, cyber-collectivism is not as philosophically coherent as cyber-libertarianism—which, though it comes in many flavors, shares a larger core of common agreement

B.  General Relationship to “Information Commons” Movement

There is a close relationship between the Leftist variant of cyber-collectivism and the “digital commons” or “information commons” movement, which generally refers to the belief that digital resources should be shared or perhaps commonly owned instead of held privately—both because cyber-collectivists think this is more equitable and because they generally think such arrangements will ultimately work better.

Cyber-collectivists are typically not Marxists; few of them call for state ownership of the information means of production.  Rather, cyber-collectivists might better be thought of a “cyber social Democrats” (in a European sense) or “Digital New Dealers” (in the American tradition).  They advocate a generous role for law and regulation in many online matters, but do not typically resort to full-blown nationalization.

C. Exponents of Cyber-Collectivism

Some notable cyber-collectivists or information commons adherents (and their key works):

• Lawrence Lessig (Code , Free Culture)
• Tim Wu (Who Controls the Internet?)
• Yochai Benkler (The Wealth of Networks)
• Jonathan Zittrain (The Future of the Internet & How to Stop It)
• David Bollier (Viral Spiral)
• Harvard Berkman Center*
• New America Foundation*
• Public Knowledge*

(*We are, of course, generalizing a bit here. Not everyone in these institutions is a cyber-collectivist and, again, there are many flavors of cyber-collectivism, just as there are many flavors of cyber-libertarianism. Individuals in some of these organizations diverge significantly in attitudes towards technological change and the proper scope of government influence throughout the high-tech sector.)

IV. Relationship Between Cyber-Libertarianism & Internet Exceptionalism

Some non-libertarians occasionally join ranks with cyber-libertarians out of a belief that the Internet is different and deserving of special consideration and care. This is commonly referred to as “Cyber-Exceptionalism” or “Internet Exceptionalism.” John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace” was probably the earliest (and most extreme) articulation of “Internet Exceptionalism”:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions. You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions. You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

Similarly, in 1994, The Progress & Freedom Foundation brought together four leading technology visionaries (Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler) to pen A Magna Carta for the Knowledge Age. In that manifesto, the authors argued:

Cyberspace is the land of knowledge, and the exploration of that land can be a civilization’s truest, highest calling. The opportunity is now before us to empower every person to pursue that calling in his or her own way. The challenge is as daunting as the opportunity is great. The Third Wave has profound implications for the nature and meaning of property, of the marketplace, of community and of individual freedom. As it emerges, it shapes new codes of behavior that move each organism and institution—family, neighborhood, church group, company, government, nation—inexorably beyond standardization and centralization, as well as beyond the materialist’s obsession with energy, money and control. Turning the economics of mass-production inside out, new information technologies are driving the financial costs of diversity—both product and personal—down toward zero, “demassifying” our institutions and our culture. Accelerating demassification creates the potential for vastly increased human freedom. It also spells the death of the central institutional paradigm of modern life, the bureaucratic organization. (Governments, including the American government, are the last great redoubt of bureaucratic power on the face of the planet, and for them the coming change will be profound and probably traumatic.)

As that last paragraph suggests, this “Magna Carta” for cyberspace contained some hints of cyber-libertarian thinking, but the general thrust of the document was more generally of the Internet Exceptionalist school of thought.

Internet Exceptionalists are sometime critiqued for sounding like techno-utopians, but it is a mistake to conflate the two. There are not always synonymous.

V. Cyber-Libertarianism’s Early Legal Foundations & Victories

• Section 230 of the Communications Decency Act of 1996 is probably the best example of cyber-exceptionalism in practice. It grants broad immunity to online intermediaries for third party content except for criminal and IP law—breaking with traditional tort liability standards. Specifically, Sec. 230 rejected the “deputization of the middleman” model of liability.
• Overturning of the Communications Decency Act’s indecency & obscenity provisions in Reno v. ACLU decision
• Various court decisions blocking enforcement of the Child Online Protection Act (COPA) of 1999
• The encryption wars & the defeat of the “Clipper Chip”
• The Internet Tax Freedom Act of 1998

VI. Applications: How Cyber-Libertarians Think about Various Policy Issues

• Free speech & online child safety: Favor parental empowerment and industry self-regulation over censorship. “Household standards” should trump “community standards.”
• Privacy policy & online advertising: Privacy is a subjective condition and efforts to regulate to “protect privacy” could have unintended consequences for freedom of speech and the growth of online content and commerce. User empowerment and industry self-regulation represent the superior way to address privacy concerns.
• Net neutrality / infrastructure regulation: “Open access” regulation is nothing more the infrastructure socialism. Network operators should be free to own, operate, and price their systems and services as they see fit, subject only to enforcement of their terms of service and other voluntary disclosures as contracts with their users. New entry and innovation are better alternative to regulating yesterday’s networks and technologies.
• Internet taxation: No special taxes should be imposed on online services or Internet access. To the extent the Net disrupts traditional tax bases that should be seen as an opportunity to reform those tax systems.
• Online gambling: People should be free to do what they want with their money and Internet gambling is likely impossible to shut down entirely anyway, given the nature of the Internet.
• Antitrust: “Market power” and “code failures” are best dealt with by spontaneous evolution of markets and new entry, not bureaucratic micro-management of old technologies or market structures. Regulation often creates, or tends to foster, most monopolies. As Ithiel de Sola Pool once noted, “The force that preserves most monopoly privilege is law… most would vanish in the absence of enforcement.”
• IP issues: Cyber-libertarians are deeply divided over IP issues (especially copyright) and this reflects a long-standing division within libertarian ranks on these issues more generally. Some believe IP rights are a natural extension of traditional property rights and/or a sensible way to incentivize scientific and artistic creativity. Others believe no one has a right to “property-tize” intangible creations or that copyright is simply industrial protectionism. And there are many views in between.

VII. Prospects for Cyber-Libertarianism

A. The Pessimistic View

• Government’s will quash online freedom and bring the Internet under their thumbs.
• Regulatory efforts are expanding at a breathtaking pace and will not slow anytime soon.

B. The Optimistic View

• “Technologies of Freedom” (tools and methods to avoid online regulation, censorship and control) will ultimately triumph.
• Technology is evolving faster than government’s ability to regulate it.

VIII. Related Reading on Cyber-Libertarianism & Internet Exceptionalism

• John Perry Barlow, Declaration of the Independence of Cyberspace (1996).
• Tom W. Bell, Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence , 87 U. Minn. L. Rev. 743 (2003).
• Esther Dyson, George Gilder, George Keyworth, & Alvin Toffler, The Progress & Freedom Foundation, A Magna Carta for the Knowledge Age (1994).
• Eric Goldman, The Third Wave of Internet Exceptionalism, Santa Clara Magazine (Winter 2008).
• H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, Kansas L. Rev. (2007).
• Peter Huber, Law & Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm (1997).
• Ithiel de Sola Pool, Technologies of Freedom (1983).
• David Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009).
• Adam Thierer, The Pragmatic Internet Optimist’s Creed, Technology Liberation Front Blog (Nov. 11, 2008).
• Technology Liberation Front Blog, About the Technology Liberation Front (August 2004, revised 2008).

Cyber-Libertarianism: The Case for Real Internet Freedom [Ver 1.0 – Thierer & Szoka] http://d.scribd.com/ScribdViewer.swf?document_id=18490847&access_key=key-14tt6eb4f2cdcil8wnf2&page=1&version=1&viewMode=

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.

Remember COPA?

To understand why COPPA expansion will raise serious First Amendment issues, we first need to step back and recall the legal battle over the Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA.  Both COPPA and COPA rest on a stratification of users by age, but the approach of the two laws is very different: While COPPA requires age verification if content is “directed at” minors under age 13, COPA would have required that all website operators restrict access to material deemed “harmful to minors” by minors under the age of 17 and therefore requires age verification of all users who attempt to access such content (in order to identify minors). COPPA is focused on certain kinds of potentially harmful contacts while COPA is focused on potentially harmful content.

But by expanding the age range of COPPA to include adolescents, COPPA 2.0 proposals essentially converge with COPA, reaching the same practical consequence: age verification mandates for large numbers of adults as users (not as parents). Only the scope of sites covered by the laws is different: under COPA, sites deemed “harmful to minors,” and, under COPPA 2.0, adolescent-oriented or certain social networking sites. Thus, to the extent that COPPA 2.0 proposals require age verification of adults, they would be subject to constitutional attacks similar to those against COPA.  But COPPA 2.0 proposals would also burden the rights of adults to communicate with adolescents and the free speech rights of adolescents.

Finally, the fact that COPPA (like COPA) applies only to commercial sites would do little to protect it from constitutional attack, because in a world of user-generated content, the commercial nature of a site has little to do with the commercial/non-commercial nature of the speech carried on it. For example, obviously commercial sites like MySpace and Facebook serve as platforms for a wide variety of not-for-profit and political communications.

How COPPA 2.0 Would Impact the Free Speech Rights of Adults

After a decade-long court battle over the constitutionality of COPA, the U.S. Supreme Court in January 2009 rejected the government’s latest request to revive the law, meaning it is likely dead. Three of the key reasons the courts struck down COPA would also apply to COPPA 2.0 proposals.

(1) First, like COPA, COPPA  2.0 would raise burden the speech rights of adults to access information subject to age verification requirements, both by making speech more difficult and by stigmatizing it.  In 2003, the Third Circuit noted that age verification requirements “will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial.” In 2008, in striking down COPA for the third and final time, the Third Circuit approvingly quoted the district court, which had noted that part of the reason age verification requirements deterred users from accessing restricted content was “because Internet users are concerned about security on the Internet and because Internet users are afraid of fraud and identity theft on the Internet.” The district court had held that: “Requiring users to go through an age verification process would lead to a distinct loss of personal privacy” by threatening their anonymity.

By imposing broad age verification requirements, COPPA 2.0 would restrict the rights of adults to send and receive information anonymously just as COPA did. If anything, the speech burdened by COPPA 2.0 deserves more protection, not less, than the speech burdened by COPA: Where COPA merely burdened access to content deemed “harmful to minors” (viz., pornography), COPPA 2.0 would burden access to material by adults as well as minors not because that material is harmful or obscene but merely because it is “directed at” minors! Thus, the content covered by COPPA 2.0 proposals could include not merely pornography, but communications about political nature, which deserved the highest degree of First Amendment protection.

(2) Second, like COPA, COPPA expansion threatens the speech rights of website operators. The necessary corollary of blocking adults from accessing certain content anonymously — and thereby deterring some users from accessing that content — is that COPPA 2.0, like COPA, would necessarily reduce the audience size of websites subject to age verification mandates. Furthermore, such mandates would encourage websites to self-censor themselves to avoid offering content they fear could be considered “directed at” adolescents because doing so might subject them to an age verification mandate — or to legal liability if they fail to implement age verification. The substantial cost of age verification could significantly impact, if not make impossible, the business models of many personal information-collecting (PI) sites, which generally do not charge for content and rely instead on advertising revenues. The Third Circuit cited all of these burdens on the free speech rights of website operators in striking down COPA.

(3) Third, less restrictive alternatives are available to COPPA 2.0, just as they were for COPA.

The Third Circuit drew on the Supreme Court’s 2004 decision striking down COPA on the grounds that “blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them.” Similarly, parental control software already empowers parents to restrict their kids’ access to PI-collecting sites. (It’s particularly easy for parents to restrict access to the leading social networking sites that seem to be driving so much of the push for COPPA 2.0, so that their kids.)

Thus, the free speech rights burdened COPPA 2.0 proposals are at least as important as those burdened by COPA, and blocking software already empowers parents to restrict their kids’ access to PI-collecting sites, just as it allows parents to restrict access to pornography. Of course, if COPPA 2.0 laws were actually enacted and subject to legal challenge, the outcome of the case would depend largely on the level of constitutional scrutiny involved. COPPA 2.0 advocates might argue that, whatever the rights at stake, a lower level of constitutional scrutiny should apply because COPPA 2.0 does not target a special category of content. If true, this could mean that, although age verification mandates to restrict access to “harmful” material are unconstitutional, far more sweeping mandates restricting access to non-harmful information could be constitutional. Such inconsistency is indeed a perverse consequence of the fact that our First Amendment jurisprudence focuses not on the rights at stake, but on whether a regulation is “content-neutral” in deciding what level of scrutiny to apply—which, in turn, often determines the outcome of the case. But in this case, COPPA 2.0 proposals likely would be subject to strict scrutiny to the extent that they are, like COPA, focused on a certain category of content: that “directed at” adolescents (rather than “harmful to minors”).

Legislators who attempt to escape strict scrutiny by defining the scope of their bill not by its targeted audience but by reference to specific functional capabilities (in the definition of “social networking site”) will likely find that a court will see through such window-dressing: If they recognize that such bills are nonetheless aimed at a certain category of adolescent-oriented content, they will apply strict scrutiny anyway. But even under intermediate scrutiny, COPPA 2.0 proposals would be subject to serious attack.

Minors Have Speech Rights, Too!

In addition, in COPPA 2.0 approaches, the government would restrict the ability of adolescents to access content, not because it could be harmful to them or because it is obscene, but merely because it is “directed to” them. While the First Amendment rights of minors may not be on par with those of adults, adolescents do have the right to access certain types of information and express themselves in certain ways. The Supreme Court has held (in Planned Parenthood of Cent. Mo. v. Danforth) that “constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.” It remains unclear how an expanded COPPA model might interfere with the First Amendment rights of adolescents, but it is clear that privacy and speech rights would come into conflict under COPPA 2.0, as they do in other contexts.

For example, how might the parental-consent based model limit the ability of adolescents to obtain information about “safer sex” or how to deal with trauma, depression, family abuse, or addiction. Would an abusive father authorize a teen to visit a website about how to report child abuse? Would a parent of an adolescent struggling with their sexual identity let their kid participate in a self-help social networking page for gay and lesbian youth? What rights are at play here and how do we reconcile them?

Maintaining the ability of kids to participate online interactions goes beyond content that most people would recognize as “serious”—from the perspective of both First Amendment values and the education of children. As a recent MacArthur Foundation study of the online youth Internet use concluded:

Contrary to adult perceptions, while hanging out online, youth are picking up basic social and technological skills they need to fully participate in contemporary society. Erecting barriers to participation deprives teens of access to these forms of learning. Participation in the digital age means more than being able to access “serious” online information and culture.

It was at least in part in recognition of such difficult First Amendment questions that Congress removed the requirement in the initial legislative draft of COPPA that would have required PI-based sites to “use reasonable efforts to provide the parents with notice and an opportunity to prevent or curtail the collection or use of personal information collected from children over the age of 12 and under the age of 17.”

Even if parents have an absolute right to block their adolescents’ access to such data, they can already exercise that right by applying strict controls on the computers in their home. COPPA 2.0 proposals go well beyond recognizing this right by setting the default to “parental consent required” for adolescents to access a wide range of content—meaning that parents must “opt-in” on behalf of their children before their children can participate in PI-collecting sites. This, in turn, burdens the ability of adolescents to communicate, because their parents might censor (rightly or wrongly) certain information, or simply fail to understand the technologies involved or to be actively engaged. But whatever the free speech rights of adolescents, if anyone should be interfering with those rights, it should be their parents — not the government.

Some parents may object that, however effective parental control software may be in the home, it does not allow parents to control what their kids’ access outside the home. This argument is understandable on some level, but in the end, it amounts to a demand that roadblocks be put up everywhere for the sake of particularly sensitive parents at the expense of everyone else in society, including potentially huge numbers of adult users — and of online anonymity in general.

But Illinois’s COPPA 2.0 proposal goes even further, not merely expanding COPPA to cover a particular variety of social networking sites, but requiring that such sites “allow the parent or guardian of the minor unrestricted access to the profile webpage of the minor at all times.” Congress considered just such a parental access mandate in the initial draft of COPPA legislation back in 1998, but ultimately removed it from the final version of the legislation, apparently because even some of COPPA’s supporters worried, given the bill’s initial application to the 13-16 age bracket, that “The establishment of a parental right to access all personal information about a teenager may intrude on older minors’ privacy, rather than protect.”

What about Communication between Adolescents & Adults?

Finally, COPPA 2.0 could infringe on the free speech rights of adults to communicate with adolescents online by driving PI-collecting sites to segregate users by age or to attempt to block access by adolescents. The vast majority of adult-minor interactions online are not of a harassing or predatory nature—indeed, they generally involve adults looking to help or assist minors in various ways. As the MacArthur Foundation study cited above concluded:

In contexts of peer-based learning, adults … have an important role to play, though it is not the conventionally authoritative one. In friendship-driven practices, direct adult participation is often unwelcome, but in interest-driven groups we found a much stronger role for more experiences participants to play. Unlike instructors in formal educational settings, however, these adults are passionate hobbyists and creators, and youth see them as experienced peers, not as people who have authority over them. These adults exert tremendous influence in setting communal norms and what educators might call “learning goals,” though they do not have direct authority over newcomers.

A substantial portion of those interactions involve parents talking to their own kids, older and younger siblings communicating with one another, teachers and mentors talking to their students, or even co-workers of different ages communicating. Even when adult-minor communications involve complete strangers, there is typically a socially-beneficial purpose. Think of two people — one an adult and one a minor — debating politics on a discussion board, or creating a Wikipedia entry together. What about a presidential campaign website that involves millions of volunteers of all ages communicating and collaborating to a common purpose? There are countless other examples. How would such interactions be affected by COPPA 2.0? Restricting such interactions would raise profound First Amendment concerns about freedom of speech as well as of association.

In any First Amendment analysis, a court must consider not only the free speech rights at stake and the availability of less restrictive alternatives to regulation, but the governmental interest being advanced. Again, neither COPPA nor the COPPA 2.0 proposals discussed herein (e.g., the New Jersey and Illinois proposals) requires exclusion of older users from a website, nor directly governs the sharing of personal information among users (where that sharing does not also constitute collection by the site itself). But separation of adolescents from adults is likely to be an indirect effect of COPPA 2.0 requirements—as COPPA 2.0 advocates probably realize—because, once PI-collecting sites are required to age-verify users, they will face reputational, political and potentially legal pressure to make interactions between adolescents and children more difficult in the name of “child safety.” More subtly, if PI-collecting site operators have an incentive to avoid being considered “directed at” adolescents, they will also have an incentive to discourage adolescent participation on their site—which achieves a similar result.

Here, one must further ask if attempting to quarantine children from adults (however indirectly) actually advances, on net, a strong governmental interest in child protection. Such a quarantine is unlikely to stop adults with truly nefarious intentions from communicating with minors, as systems designed to exclude participation by adults in a “kids-only” or “adolescents-only” area can be easily circumvented. Given the lack of strong identity records for minors, it’s much easier for an adult to pretend to be a minor than vice versa. The effect of age stratification on truly bad actors is likely to be marginal at best—or harmful at worst: Building walls around adolescents through age-verification might actually make it easier for predators to target teens, since a predator who gains access to a supposedly teen-only site will be less likely to be exposed as a predator by targeting an adult they think is a teen. So for the sake of marginal (if any) gains in child protection, would we not be excluding beneficial interaction between adults and minors?

To hear some of the advocates of COPPA 2.0 talk about how teens currently behave online, one might think that online environments in which adolescents were left to their own devices—imagine a “Teen MySpace” for the 13-17 crowd, walled off from the rest of MySpace—would be far worse, perhaps an online version of Lord of the Flies. These concerns are clearly exaggerated: The critics frequently complain about “the way kids talk to each other these days” while looking at their own past adolescent banter with rose-colored lenses. What is clear is that adolescents (and young adults) behave better in online environments where adults are present, too. Perhaps the best demonstration of this fact has been the uproar from adolescents and young adults that has accompanied Facebook’s explosive growth in popularity among older users in recent months. Many kids hate the idea of adults joining Facebook precisely because the presence of adults encourages kids to “self-regulate” by exercising better judgment and following better netiquette.

Anne Collier, founder and executive director of the child safety advocacy organization Net Family News, Inc. and editor of NetFamilyNews.org and ConnectSafely.org, suggests that the push for “segregation” by age (e.g., creating a teen-only version of Second Life) for safety’s sake is “losing steam” because:

it’s a response to the predator panic teens and parents have been subjected to in U.S. society, not to the realities of youth on the social Web. What nearly a decade of peer-reviewed academic research shows is that peer-to-peer behavior is the online risk that affects many more youth, the vast majority of online kids who are not already at-risk youth offline. Segregating teens from adults online doesn’t address harassment, defamation, imposter profiles, cyberbullying, etc. It may help keep online predators away from kids (even though online predation, or abuse resulting from online communication, constitutes only 1% of overall child sexual exploitation…), which is a great outcome, but it’s not enough unless all that parents are worried about is predators.

Collier discusses the particularly acute problem of “actual or perceived sexual orientation and gender expression,” which the Salt Lake Tribune has noted are “two of the top three reasons secondary school students said their peers were most often bullied at school.” This kind of harassment recently attracted widespread public attention after two 11-year-old boys committed suicide after experiencing anti-gay harassment and bullying at school. Nationwide, “Lesbian, gay, bisexual, transgender and questioning youth are up to four times more likely to attempt suicide than their heterosexual peers.” This child safety risk is painfully real, with anti-gay harassment being only its most obvious form. But “segregating” teens from adults seems likely to aggravate this problem by removing adults from the mix as a potential source of discipline.

Of course, adults play a critical role in disciplining interaction among the 0-12 age bracket, but not as direct participants in on-site interaction. Again, how many adults actually want to use Club Penguin? Instead, parents can supervise what their kids do online through parental control software. Parents could, of course, use that same software to monitor what their adolescent kids do, too. But as kids get older, most parents realize that the training wheels have to come off at some point. Few parents will want to spy on their 17-year old until the day before the kid starts college (or enlists in the military or gets married). But most parents probably would prefer that, if their kids are interacting in an online environment, they think twice about what they do and say online. It is by no means clear that restricting online interaction between teens and adults will serve that end.

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:

This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. […]  First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the ‘scarcity of radio frequencies’… to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity…  Second, even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. […]

Moreover, traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. Broadcast and other video programming is also widely available over the Internet. And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices.

Indeed, along with my friends as the Center for Democracy & Technology, I documented these trends in an amicus brief to the Supreme Court in this case and pointed out that, at some point, these facts must impact the constitutional equation when it comes to the way the FCC continues to regulate broadcast programming uniquely.  Justice Thomas appears to agree:

The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today. […] These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis. […] For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.

Unfortunately, this case apparently was not “the proper case” for Justice Thomas and so he joined the majority’s APA-driven decision and left the thorny constitutional issues for another day.  Eventually, however, the Court is going to have to come to grips with the issues that Justice Thomas has put front and center in his concurring opinion today.

Finally, in his otherwise outstanding statement, I was disappointed that Justice Thomas made no mention of the Court’s recent Internet jurisprudence, which has all gone squarely in favor of robust First Amendment protection for the Net and online speakers.  In particular, the “least restrictive means” test that has developed in those cases (i.e., deferring to user self-help tools before allowing state regulation) is equally applicable to programming television programming.  Just as parents have been empowered to take control of the online content that comes into their homes using filters and other tools, so too have parents been empowered to restrict or tailor television program to their tastes and values. How, then, is it the case that the Court upholds this logic in cases like Reno (the CDA case), Ashcroft (the COPA case), & Playboy (the cable TV signal scrambling case), but not in the case of broadcast TV programming, which is easier to control than ever before?  It makes zero sense.

Regardless, I hope other judges are listening to what Justice Thomas had to say today and taking these arguments seriously.

Much like the Beacon incident before it, I have mixed feeling about this latest kerfuffle over Facebook’s changes to its privacy policy.

On one hand, I just don’t see what the big deal is. People act like Facebook is taking away all their “rights” or possessions, which is just silly. They were just clarifying how information would be used. In one sense, I feel like saying ‘Chill out. And if you don’t like Facebook’s policies, go use some other social networking site for God’s sake!’

On the other hand, I appreciate the fact that some people are far more sensitive about these things and are seeking to collectively pressure Facebook to change its approach to information use and ownership, and I’m fine with that. In fact, like the Beacon hullabaloo, it’s an example of what Berin Szoka and I have argued is the power of voluntary persuasion and social pressure to remedy privacy concerns before we call on government to adopt coercive, top-down, ham-handed, one-size-fits-all regulatory solutions. As we noted in our recent paper about the looming threat of online advertising regulation:

there are many indirect pressures and reputational incentives that provide an important check on the behavior of firms and the privacy policies they craft.  Just as the Internet increases the ways advertisers can reach audiences, it increases the power audiences have to influence advertisers.  For example, when Facebook introduced its Beacon program in 2007, which shared users’ online purchases with their friends without sufficient warning about how the program worked and the ability to opt-out of the program, the response was swift and effective:  Users “collectively raised their voices” and “the privacy pendulum [swung] back into equilibrium” [according to the Interactive Advertising Bureau.]  Within two weeks of the Beacon program being first deployed, Facebook had created an opt-out procedure.

Again, markets work and self-adjust to satisfy consumer preferences.  Finally, I can also respect the argument that Internet companies should be expected to live up to the terms of their privacy policies since they constitute a contract of sorts with users.  Thus, I would never rule out legal action against companies that play games with their privacy policies and leave the consumer clueless about their end of the deal.

But, honestly, I still don’t see what people are getting so worked up about. You realize that you voluntarily joined Facebook, right?  And you know you can leave at any time, right?  There are plenty of other places out there where you can network with others.  Indeed, the more Facebook screws up, the more likely it is others will gain a toehold in this sector.  Seriously, what’s stopping a mass exodus to another SNS?  I dumped Facebook long ago and moved all my stuff over to LinkedIn, but they’re hardly the only option out there.

[More interesting thoughts on this episode here, here,  here, and here.]

Update: Here’s an outstanding piece by David Silversmith over at Internet Evolution about the issue. I highly recommend everyone read it.

With the publication of Understanding Privacy (Harvard University Press 2008), George Washington University Law School professor Daniel J. Solove has firmly established himself as one of America’s leading intellectuals in the field of information policy and cyberlaw.  Solove had already made himself a force to be reckoned with in this field with the publication of important books like The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press 2007), The Digital Person: Technology and Privacy in the Information Age (NYU Press 2004) and his treatise on Information Privacy Law with Paul M. Schwartz of the Berkeley School of Law (Aspen Publishing, 2d ed. 2006).  But with Understanding Privacy, Solove has now elevated himself to that rarefied air of “people worth watching” in the cyberlaw field; an intellectual — like Lawrence Lessig or Jonathan Zittrain — whose every publication becomes something of an event in the field to which all eyes turn upon release.

Like those other intellectuals, however, my respect for their stature should not be confused with agreement with their positions.  In fact, my disagreements with Lessig and Zittrain are frequently on display here and, we have been critical of Solove here in the past as well. [Here’s Jim Harper’s review of Solove’s last book, with which I am in wholehearted agreement.]  In a similar vein, although I greatly appreciate what Prof. Solove attempts to accomplish in Understanding Privacy — and I am sure it will change the way we conceptualize and debate privacy policy in the future — I found his approach and conclusions highly problematic.

Let me begin by summarizing Solove’s bold objective in Understanding Privacy. In the book, he attempts “to set forth a theory of privacy that will guide our understanding of privacy issues and the crafting of effective laws and policies to address them.” (p. 2) Solove’s “pragmatic” proposal to rethink privacy requires us to abandon the ways we have traditional thought about it. He begins by rightly noting that privacy has long been a “conceptual jungle” (p. 196) and a “concept in disarray.” (p. 1) “[T]he attempt to locate the ‘essential’ or ‘core’ characteristics of privacy has led to failure,” he says. (pg. 8 )

Consequently — and this is what make’s his approach so unique and important — Solove’s proposal to rethink privacy begins with a call to abandon the entire philosophical exercise of trying to tie privacy rights to some “common denominator” (pg. 8 ) since “Nobody can articulate what it means.” (p. 1) Actually, what he really means to say is that plenty of theorists can articulate what it means, it’s just that there is rarely any strong consensus about what justifies a particular theory of privacy. Indeed, in Chapter 2, he walks the reader through a half-dozen “conceptions of privacy” and illustrates how each has intellectual weaknesses and suffers from over- and under-breadth problems in terms of what it types of privacy it protects.

More importantly, according to Solove, not only has the effort “to locate the ‘essence’ of privacy” failed, but there is never any hope of it succeeding. Instead of continuing the futile search for such a grand, unified theory of privacy, Solove says we should tackle privacy issues from the “bottom up” by looking to “solve certain problems” (p. 75) The key to making it all work, he says, is “balancing”:

Because privacy conflicts with other fundamental values, such as free speech, security, curiosity, and transparency, we should engage in a candid and direct analysis of why privacy interests are important and how they ought to be reconciled with other interests. We cannot ascribe a value to privacy in the abstract. The value of privacy is not uniform across all contexts. We determine the value of privacy when we seek to reconcile privacy with opposing interests in the particular situations. (p. 87)

It is tempting to applaud Solove’s attempt to unhinge privacy from any “common denominator” and instead get more concrete about how to work through the details of practical privacy problems. After all, it is easy to get frustrated with some modern theories of privacy that have been tied up with amorphous, warm-and-fuzzy terms like “personhood” and “intimacy.” The inherent subjectivity of some of those terms makes it challenging to derive bright-line principles and tests to help craft law or resolve privacy disputes when they come before the courts.

But I believe there are serious problems with any attempt to completely divorce privacy policy from a theory of rights or justice. In my opinion, you can’t just dynamite all conceptual frameworks to the ground; value judgments will persist and references to rights theory will always be required. Even Solove’s pragmatic, bottom-up approach is value-laden; he just doesn’t acknowledge it. The majority of privacy controversies he attempts to work through in Chapter 5’s ambitious 16-part “Taxonomy of Privacy” mostly end up coming down in favor of taking stronger steps (i.e., rules, regulations, lawsuits, etc) to enhance privacy rights. He clearly has a bias in favor of enhancing and extending privacy rights relative to many other rights, but he doesn’t bother grounding it in any substantive theory of rights or justice.

Simply stated, even though Solove claims he can construct a new paradigm based strictly on a “pragmatic,” utilitarian, “problem-solving” approach, there is just no getting around the fact that, at some point, you are going to have to provide a more robust theory of rights or justice to explain why one right trumps another.

For example, let’s consider the frequent clash between privacy and free speech rights. As any casual reader of this blog knows, I feel quite passionately about the First Amendment and free speech rights. And, in all but the most extreme cases or circumstances, I will argue that speech rights should trump privacy rights. When would speech rights not trump privacy rights? For me, that would only occur when a clear, quantifiable harm resulted from the speech. But what is “clear, quantifiable harm”?  Reputation, for example, is not something one can easily quantify the loss of. When a company or a government agency loses or sells your personal health records without permission, however, that privacy violation gets a little more quantifiable. And in the case of someone stealing your personal information to engage in identity theft, the harm becomes still more quantifiable. But those cases often involve monetary damages, whereas something like defamation is much more difficult to quantify. However, when considering privacy-vs.-free speech trade-offs, I would first look to identify and quantify to concrete harm to an individual before allowing the state to curtain freedom of speech.

Solove acknowledges these privacy-speech trade-offs and cites the work of scholars like Eugene Volokh, Fred Cate, Virginia Postrel, and Solveig Singleton, who have all discussed these problems in their work. Volokh, for example, wrote an incredibly important 2000 law review article entitled, “Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You.” As he pointed out in that piece:

The difficulty is that the right to information privacy — the right to control other people’s communication of personally identifiable information about you — is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of “fair information practices”) generally bars the government from “control[ling the communication] of information,” either by direct regulation or through the authorization of private lawsuits.

Without reference to some higher set of first principles or theory of rights / justice, I believe it is very difficult to sort through thorny problems like these. We need to know how and when one right trumps another. A theory of rights that focuses on avoiding direct, tangible harm to others — but largely leaves individuals otherwise free to do what they wish — would generally place speech rights above many privacy “rights” (some of which perhaps should not quality be rights at all). Of course, this more libertarian construction of rights remains quite controversial in our modern society, and there are other theories of rights and justice that would minimize the importance of speech rights relative to privacy.

Importantly, there also needs to be some recognition of the qualitative difference between government threats to privacy versus private threats. The harm that can come from government violations of privacy are generally far more troubling (surveillance, taxation, fines, imprisonment, etc) than potential private harms. I don’t think Solove’s framework appreciates that distinction.

Regardless of which approach one adopts — reasoning from first principles, or working from the “bottom up” (a la Solove) — there will always be fair degree of “balancing” undertaken by legislatures and the courts when crafting privacy policies. Indeed, in many ways, I see Solove’s more “pragmatic” approach often getting us to the same point we would find ourselves in if we took a more philosophical, first principles-based approach. It’s just that under his approach, he would often give the nod to privacy concerns over other rights whereas others (like me) would first look to enhance other values, especially free speech.

In sum, I believe that if one attempts to divorce the exercise of “understanding privacy” from any theory of rights, inevitably, you end right back in the same “conceptual jungle” you were in before. In that sense, I regret to say that Solove’s approach in Understanding Privacy ultimately fails. There’s just no escaping a fight over first principles.

But make no doubt about it, Daniel Solove’s book — and his approach to classifying and dealing with privacy problems — will have a profound impact on all future privacy debates. In that sense, it is a vital text; a must read for all who follow, or engage in, privacy debates.

P.S. Prof. Solove contributed an article to this month’s big Scientific American special issue on “The Future of Privacy.” Many articles in that issue worth reading.

This week, I have been up at Harvard University participating in another meeting of the Internet Safety Technical Task Force (ISTTF), of which I am a member. The ISTTF was organized earlier this year pursuant to an agreement between 49 state attorneys general (AGs) and social networking giant MySpace.com. A group of experts from academia, non-profit organizations, and industry were appointed to the Task Force, which is charged with evaluating the market for online child safety tools and methods and issuing a report on the matter to the AGs at the end of this year.  ISTTF members have been meeting privately and publicly in both Cambridge, MA and Washington, D.C. The Task Force has been very ably chaired by John Palfrey, co-director of Harvard’s Berkman Center for Internet & Society.

Although the ISTTF is looking at a wide variety of tools and methods associated with online child protection (ex: filters, monitoring tools, educational campaigns, etc.), many of the AGs who crafted the agreement with MySpace that led to the Task Force’s formation have made it clear that they are most interested in having the ISTTF evaluate age verification / online verification technologies.  In fact, at the start of this week’s session at Harvard Law School, AGs Martha Coakely of Massachusetts and Richard Blumenthal of Connecticut both spoke and made it abundantly clear they expect the Task Force to develop age and identify-verification tools for social networking sites (SNS). AG Blumenthal said we need to deal with “the dangers of anonymity” and repeated his standard line about online age verification: “If we can put a man on the moon, we can make the Internet safe.”  [Of course, putting a man on the moon took hundreds of billions of dollars and a decade to accomplish, but never mind that fact! Moreover, one could also argue that if we can put a man on the moon we can cure hunger, AIDS, and the common cold, but some things are obviously easier said than done. Finally, putting a man on the moon didn’t require all Americans or their kids to give up their anonymity or privacy rights in order to accomplish the feat!]

On many occasions here before, I have outlined various questions and reservations about proposals to mandate online age verification.  Last year, I also published a lengthy white paper on the issue and hosted a lively debate on Capitol Hill [transcript here] about this.  I also have discussed age verification in my book on parental controls and online child safety. [Braden Cox also talked about his experiences up at Harvard this week here, and CNet’s Chris Soghoian had a brutal assessment of this week’s proposals on his “Surveillance State” blog.]

In this essay, I will discuss the new fault lines in the debate over online age verification and outline where I think we are heading next on this front.  I will argue:

• There is now widespread understanding that it is extraordinarily difficult to verify the ages and identities of minors online using the methods we typically use to verify adults. Because of this, age verification proponents are increasingly proposing two alternative models of verifying kids before they go online or visit SNS…
• First, for those who continue to believe that we must do whatever we can to verify kids themselves, schools and school records are increasingly being viewed as the primary mechanism to facilitate that. This raises two serious questions: Do we want schools to serve as DMVs for our children? And, do we want more school records or information about our kids being accessed or put online?
• Second, for those who are uncomfortable with the idea of verifying kids or using schools, or school records, to accomplish that task, parental permission-based forms of authentication are becoming the preferred regulatory approach. Under this scheme, which might build upon the regulatory model found in the Children’s Online Privacy Protection Act of 1998 (COPPA), parents or guardians would be verified somehow and then would vouch for their children before they were allowed on a SNS, however defined.  But how do we establish a clear link between parents and kids?  And will parents be willing to surrender a great deal more information (about themselves and their kids) before their kids can go online? And, is it sensible to use a law that was meant to protect the privacy and personal information of children to potentially gather a great deal more information about them, and their parents?
• It remains very unclear how either of those two verification methods would make children safer online. Indeed, that could actually make kids less safe by compromising their personal information and creating a false sense of security online for them and their parents.
• It is highly unlikely the Internet Safety Technical Task Force will be able to reach consensus on this complicated, controversial issue. A small camp will likely flock to the sort of proposals mentioned above. Another, larger camp (including me) will flock to education-based approaches to child safety as well increased reliance on other parental empowerment tools and strategies, industry self-regulatory efforts, social norms, and better intervention strategies for troubled youth. But the age verification debate will go on and, as was the case over the past two years, the legal battleground will be state capitals across America, with AGs likely pushing for age verification mandates regardless of what the Task Force concludes.

Continue reading if you are interested in the details.

How We Could Verify Kids, and Why We Should Not Do It

Let’s assume that we want to achieve AG Blumenthal’s “man-on-the-moon” dream of verifying all kids before they go online. How would we do it?  There are really only two solutions: (1) full-blown national ID cards for kids, or (2) tapping school records about kids to somehow age-verify kids (sort of a “National ID card-Lite” scheme).

National ID Cards for Kids

The first scheme is fairly straightforward, but incredibly frightening to those of us who care about civil liberties. Basically, government could demand that all minors be issued the equivalent of a domestic passport or a national ID card. After all, minors aged 14 to 17 are already required to obtain a passport before they travel overseas. Minors under 14 must have both parents or legal guardians appear together to vouch for the child when applying for a passport. Conceivably, government could simply extend this model to incorporate a domestic identification requirement. Once the youngster had been issued such a domestic passport, it could be requested by others — including social networking sites — as proof of age. Sites could cross-reference a government national ID database to verify identity.

Clearly, however, imposing such a solution domestically would raise serious privacy concerns because it would require the collection, retention and processing of sensitive information about children.  Adults are not required to carry such a domestic passport or national ID card, so why should children? Indeed, all the same privacy concerns related to national ID cards for adults would be amplified with children because, as a society, we generally take extra precautions to protect the privacy of minors and their personal information. And a national ID card for kids would need to include a great deal of information about themselves to allow the card to be used by third parties online as an age-verifying tool. Government would need to issue an age-verified identity, user name, and password to every child.

Particularly concerning is the fact that a national ID card for children would require the creation of more government databases and bureaucracy. The potential for “mission creep” then enters the picture in that more tracking of children by government (and others) becomes possible. What other uses might there be for such information? We don’t know, and we probably don’t want to find out.

The costs of setting up and enforcing such a system would be substantial and must also be considered. Although the cost of digital storage continues to fall, we’re talking about potentially massive digital databases here. But the more important cost factor is the human time and effort that would go into  collecting, processing, and organizing such records and databases.

For those reasons, a government-issued ID card or age verification scheme for kids is a nonstarter. It would raise grave privacy concerns, induce public paranoia, probably encourage a great deal of evasion, and require significant government expenditure to enforce. Moreover, a national ID card would do little to prevent youngsters from visiting offshore sites.

Using the Schools to Help Verify Kids

So, let’s work from the assumption that National ID cards for kids is not going to fly as an online identity authentication solution.  The only other realistic scheme would involve getting the schools involved in the process.  Why?  Because to paraphrase Willy Sutton: “That’s where the data is.”  Schools have more information about our children than probably every other institution or organization combined.  They have very detailed records about kids, their ages and much more, which makes schools a logical candidate for participation in a possible age verification system for minors.  But involving schools in any age verification scheme would raise serious privacy concerns and administrative problems.

Depending on how the scheme worked, the administrative burdens imposed on schools could be significant. Someone at each school would have to be in charge of answering phones calls and e-mails from potentially hundreds of website operators looking to age-verify minors. Who will be liable if things go wrong? The school? The school district? An employee in the school’s administrative department who accidentally releases thousands of digital records? And will schools receive the additional funding needed to administer whatever scheme is mandated?

Moreover, if schools are required to create more accessible databases containing personal information about minors, who else besides social networking websites would be given access? Data breaches would become a real concern for both students and schools alike. Such a scheme could run up against federal or state laws. For example, the Family Education Rights and Privacy Act of 1974 makes it illegal to release school records without written permission from parents. Both parents and government officials have long demanded that access to school records be tightly guarded because, as a society, we take the privacy of our children very seriously.

Thus, serious questions remain about the wisdom and practicality of roping the schools into the age verification process. Most schools and school districts are already over-burdened with federal and state mandates and probably wouldn’t like the sound of additional mandates of this variety.  But what if a technology vendor could serve as the middleman and facilitate the easy transfer of some basic data about kids from the school system in an effort to provide digital credentials? That’s probably where we are heading.  Even the most vociferous advocates of age verification for minors must realize how absolutely radioactive this issue could become since school records about our kids are in play here.  Identity theft concerns are already running at an all-time high in our country and the thought of being required to surrender more info about our kids in this environment is not going to go over well with many parents.

But, again, what if we could keep to a minimum the amount of data being transferred about the child to the vendor or the SNS?  Perhaps at the beginning of each school year when a minor is registering they could be given a “secure” digital token or ID number that only associated a grade year (i.e., “sophomore”) with their name, and little or no additional info was included in that token in order to minimize the threat of identity theft or privacy violations.  Of course, the fewer pieces of information contained in that token or credential, the less likely it will be a credible verification tool, or the more likely it is it will be easy to forge or defeat (especially by kids themselves).

Regardless, whether we like it or not — and I do not like it one bit — schools are now at the center of the online age verification debate. It will be very interesting to hear what the educational community itself has to say about this development going forward.  Incidentally, no one from the educational community was present at Harvard this week as these proposals were flying.  Something tells me that school administrators and educational officials aren’t going to look too kindly on proposals that would turn them into the equivalent of a DMV for kids.

How about Parental Permission Slips for Online Verification?

Another potential way to go about online verification is to avoid verifying the kids directly and instead just verify parents (or guardians) and then get them to vouch for their children.  Some age verification advocates are now calling for such parental consent-based forms of child verification.  Specifically, they are now attempting to drive regulation through the prism of the Children’s Online Privacy Protection Act (COPPA) of 1998.

By way of background, COPPA required websites that marketed to children under the age of 13 to get “verifiable parental consent” before allowing children access to their sites. Generally speaking, the goal was to make sure that such websites were not collecting personal information about children without getting parental permission. The Federal Trade Commission (FTC), which is responsible for enforcing COPPA, adopted a sliding scale approach to obtaining parental consent. The sliding scale approach allows website operators to use a mix of the methods to comply with the law, including print-and-fax forms, follow-up phone calls and e-mails, and credit card authorizations. The FTC also authorized four “safe harbor” programs operated by private companies that help website operators comply with COPPA.

In a February 2007 report to Congress about the status of the COPPA and its enforcement, the FTC said that no changes to COPPA were necessary at this time because it had “been effective in helping to protect the privacy and safety of young children online.” In discussing the effectiveness of the parental consent methods, however, the agency also said that “none of these mechanisms is foolproof” and that “age verification technologies have not kept pace with other developments, and are not currently available as a substitute for other screening mechanisms.” This seems to imply that the FTC does not regard COPPA’s parental consent methods as the equivalent of perfect age verification.

Nonetheless, what should be evident here is that COPPA’s parental consent framework could serve as a vehicle for pushing through greater regulation of all social networking sites, not just those sites geared toward kids under 13.   Indeed, we have already seen that proposed at the state level.  For example, in the debate that took place over age verification in the North Carolina statehouse last summer, a parental permission-based verification proposal supported by North Carolina Attorney General Roy Cooper was billed as a way to strengthen and expand the COPPA framework.  (Never mind the fact that COPPA is a federal statute, or that the state of North Carolina is likely barred from regulating Internet speech and commerce thanks to the First Amendment and the Commerce Clause of the Constitution!)

In other words, future age verification mandates could arrive in the form of COPPA amendments, or at least cite COPPA’s regulatory framework as precedent.  Specifically, the proposal would be to: (a) extend COPPA’s coverage to kids up to the age of 18 and then (b) broaden the range of SNS sites that are covered by its parental consent requirements.

There are many problems associated with such a proposal, and I will get to some of them in a moment. But here’s the more interesting question that few have asked: Is COPPA really working?  It is very much unclear to me that COPPA actually works as billed, but to the extent it does, it is likely because of the very limited scale and nature of the operations it covers.  As I have said in my past writing on the issue, there is a direct relationship between the size of a site and the likelihood of success in attempting to verify its users / members. Of course, that is hardly surprising.  But let’s get a little more concrete about why that is important.  Here are the two reasons that I believe the COPPA / parental consent regime has generally worked so far, or at least hasn’t failed miserably:

(1) Many smaller sites charge a fee for admission; and

(2) The functionality of those sites is usually tightly limited. They are closed, walled gardens.

Regarding the first point: Obviously, the more a site charges for access, the more likely it is that the parent / guardian pays attention to what their kid is doing.  Of course, that doesn’t mean a bad guy couldn’t still get into those “verified” environments under false pretenses.  And there’s the problem of minors with access to credit cards.  Moreover, even assuming credit cards worked as an age verification method, there is the more practical question of whether lawmakers have the guts to mandate that every social networking site in the land start charging admission for access.  Since almost all SNSs are free-of-charge today, that is not going to be a very popular mandate!

Nonetheless, for very small, niche-oriented social networking sites geared toward younger kids, credit cards and fees are part of the reason people think COPPA has “worked.”  In essence, it acts as a bit of a roadblock or hassle thrown in the way of access, and that gets parents thinking and talking to the kids about those sites. That is the argument put forward by Denise Tayloe of Privo, one of the four FTC-approved COPPA safe harbor providers.   Ironically, Tayloe has noted that one of the problems associated with the current COPPA regime is that “Children quickly learned to lie about their age in order to gain access to the interactive features on their favorite sites. As a result,” she notes, “databases have become tainted with inaccurate information and chaos seems to be king where COPPA is concerned,” she says.

Despite these problems, Tayloe argues that COPPA serves an important role.  Even though “there is no perfect solution” and it is not possible to completely “stop a child from lying and putting themselves at risk,” Tayloe believes that COPPA “provides a platform to educate parents and kids about privacy.”  Of course, providing a platform to educate parents and kids about online privacy or safety is very important, but it is not necessarily synonymous with strict age verification.  And we don’t really have any idea what level of parent-child interaction COPPA incentivizes.  More importantly, we don’t really have any good data regarding the accuracy of claims made pursuant to COPPA’s requirements regarding the relationship between parents and the kids seeking access to the site.  How many people (kids or adults) were able to gain access under false pretenses? We don’t know.

Nonetheless, the operating assumption here is that by creating an added economic hurdle or barrier to entry (in the form of the hassle of filling out paperwork or forms), COPPA gets some parents (perhaps most?) to put more thought into what their kids are doing online, and that somehow improves online safety in larger scheme of things.  The problem is that that does not necessarily mean that their kids are operating in perfectly “secure” or “verified” environments.  The danger is that – to the extent some “bad guys” are getting on those sites under false pretenses – kids and parents may fall prey to a false sense of security after they are told the site is COPPA-verified.  Of course, COPPA wasn’t put on the books to keep “bad guys” away from kids online; it was about keeping site operators from collecting personal information about kids.

The second reason COPPA has “worked” to a limited degree is that SNS sites geared toward younger kids tightly limit functionality.  In essence, the site administrators “cripple” the sort of functionality we find in SNS sites geared toward older kids.  That fact alone makes these sites far less likely to be subject to fraudulent entry or dangerous interactions.   If I am an older teen or a pervert, why would I ever want to gain access to a site that has nothing more than drop-down menus and a few buttons to click on when interacting with others?  Thus, the primary reason that kids are likely safer in those environments has almost nothing to do with COPPA’s parental consent mechanisms and almost everything to do with the fact that most of the sites it covers are tightly controlled walled gardens with very limited functionality.

With these facts in mind, let’s gets back to the ultimate question: What would happen if we tried to apply COPPA to all social networking sites for kids of all ages? The threshold question that would need to be answered remains the same as it does today: How do we verify the parent-child relationship when someone asserts they are the parent or guardian?  That’s a very thorny question.  But let me just list out the many other questions that everyone is overlooking here:

(1) What sort of mechanisms will need to be put in place to guarantee that the parent or guardian is who they claim to be (for both initial enrollment and subsequent visit authentication)?  Sign-and-fax forms can be easily forged, so credit cards (and perhaps mandatory user fees) will likely become the default solution. A third method, follow-up phone calls, just doesn’t seem practical.  But might lawmakers demand a mix of all of the above?

(2) Regardless, how burdensome will those mandates be for parents / guardians?

(3) And how burdensome will those mandates be for SNS site operators? What kind of compliance costs / legal penalties are we talking about?

(4) Will the barriers to site enrollment become economic in character such that it requires previously free social networking sites to charge admission?

(5) If so, could that be a disadvantage to low-income families / youth?

(6) If compliance costs go through the roof for SNS sites, will this be a recipe for massive industry consolidation in order to comply with the mandates?

(7) Who is collecting the massive databases of information created by such a mandate for all SNS? Who has access to that data? What might government use it for?

(8) Will this new regime be applicable to offshore sites? And will kids flock to offshore sites as a result of such mandates on domestic sites? If some do, how will we stop them?

And so on.  Bottom line: The future of age verification battles will likely be increasingly tied up with COPPA and the question of how well parental permission-based forms of authentication might work. It is unlikely, however, that such a framework could be easily applied on “Internet scale.”  There is a world of difference between something like Disney’s “Club Penguin” and MySpace, Xanga or Bebo.  And with social networking capabilities being integrated into every site and service these days — from CNN.com to Microsoft’s Xbox Live service — one wonders how that will magnify the compliance costs and hassles for all involved.  Are parents really going to be expected to verify themselves and then their kids for every “social networking site” their kids want to visit?  That seems unnecessary, unworkable, and potentially counter-productive.

Finally, the irony of a proposal to expand COPPA in this fashion is that lawmakers would be using a law that was meant to protect the privacy and personal information of children to potentially gather a great deal more information about them, and their parents!  It’s important we not overlook the privacy implications of any effort to expand COPPA to do something it was not originally intended to cover.

Conclusion

It will likely be very difficult for the Technical Task Force to reach consensus on these controversial and complicated issues.  There are many challenging technical, legal, and even philosophical issue in play here.  The problem is that this Task Force is charged with looking at technical solutions and yet most child safety advocates and academics on the Task Force are of the mind that technical solutions are only one part — and probably the smallest part — of the sort of “layered solution” to online child safety that I describe in my book on “Parental Controls and Online Child Protection.” As I argue in that book:

“the best answer to the problem of unwanted media exposure or contact with others is for parents to rely on a mix of technological controls, informal household media rules, and, most importantly, education and media literacy efforts.”

In sum, we need to get serious about talking to our kids about online safety and proper online behavior. Education is the key, and government has a major role to play in that regard in the classroom and through awareness-building efforts. And technical tools that empower parents to better monitor and guide their child’s online experiences can help too. Social networking sites and other online service providers can offer more of those tools and also take additional steps to improve the safety of their sites and encourage a dialog about appropriate and inappropriate online behavior. Again, it’s a multi-layered effort with education and communication at the core of the plan.

It’s not like I am saying anything new here. Indeed, that layered approach was the recommended approach of two previous online safety blue ribbon task force efforts: The 2000 COPA Commission and the 2002 National Academy of Sciences “Thornburgh Commission.” And every major book about online child safety published over the last 5 years has come to the same conclusion.

But that is not likely going to be enough for state attorneys general. There is no other way for me to state this than to just come right out and say it: The AGs are looking for a silver-bullet technical solution to a complex problem they do not fully understand.  And age verification schemes are the technical bullet du jour.

Alas, for all the reasons I have stated here and elsewhere, age verification schemes are likely to fail miserably.  Even if age verification systems worked as billed, it is unlikely that kids would really be any better off.  All the academic research in this field points to a single, inescapable conclusion: The primary danger to kids online is not adult predators, it is other kids.  In particular, it is peer-on-peer harassment and cyber-bullying.   As parents and a society, we have to do more — a lot more — to address that problem.

Age verification schemes, however, aren’t going to help us solve that problem.  Worse yet, by creating the illusion of safety, it could compromise our children’s privacy in the process and create a false sense of security when kids or their parents come to believe they are operating in “trusted” online environments.  For the sake of our children, it is essential we not fall prey to such a fatal conceit.