IDG News reports that the European Parliament has negotiated a telecom bill that “now contains a new Internet freedom provision that states that access to the Internet is a human right of every E.U. citizen, and that if authorities take away that right people must have the opportunity to defend themselves.” If indeed the bill merely creates what Americans would recognize as a “due process” right against government action, that may not be such a bad thing. IDG notes that, “The issue is very sensitive, and not just in Europe, where a number of countries including France and U.K. are passing laws threatening to sever users’ Internet connections if they are found to have breached the copyright on music or movies.” Whatever one thinks of such “three strikes” laws as a remedy for copyright infringement, it seems reasonable that users should indeed have the right to “defend themselves” if accused of copyright violations before their Internet access is turned off.

But we should all be uncomfortable anytime government purports to invent a new “fundamental right” if that right is a “positive” one—i.e., a moral entitlement to a particular product or service that must be guaranteed by other taxpayers paying for something someone can’t afford or simply doesn’t value enough to pay for out of their own pocket. That’s precisely what Finland recently did, guaranteeing Finns the “right” to a 1 megabit broadband connection. That sort of entitlement is pure cyber-collectivism. Cyber-libertarianism recognize instead that:

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.

So if the Europeans want to guarantee a due process right, I hope they would find another term for that concept doesn’t have such cyber-collectivist implications.

Remember, remember the Fifth of November,
The Gunpowder Treason and Plot Privacy Dashboard, so hot,
I know of no reason
Why the Gunpowder Treason Privacy Dashboard
Should ever be forgot.

Sorry, I couldn’t resist, this being Guy Fawkes day (a major traditional holiday for Britons and, more recently, geeky American libertarians such as myself, who dress up as V for Vendetta for Halloween). Google’s announcement of its Privacy Dashboard (TechCrunch) is a major step forward in both informing users about what data Google has tied to their account in each of Google’s many products and in empowering users to easily manage their privacy settings for each product. If users decide they’d rather “take their ball and go home,” they can do that, too, by simply deleting their data.

Users can access the dashboard at www.google.com/dashboard (duh). Or, from the Google homepage, you just have to:

1. Click on Settings at the top right > Google Account Settings
2. Click on “View data stored with this account” next to “Dashboard”

Once you log-in (for extra security), you can:

1. See what data is associated with your account in 23 of Google’s products (Google notes that it will incorporate its 18 other products in the near future).
2. Directly access the privacy management settings for that account.
3. Access more information—”Links to relevant help articles and information pages.”

Some critics have complained in the past that it’s too hard to find privacy settings links on Google and other sites. Indeed, Google could have made it easier—and now they have! Google has taken another major step forward in user education and empowerment—just as it pioneered transparency into its interest-based advertising product with the Ad Preference Manager launched in March (which I applauded here). (The Dashboard is only for data tied to a user’s Google account, while the APM is tied only to a cookie on the user’s computer.)

The Dashboard really couldn’t be much easier to use—yet we can be sure it won’t be good enough for some privacy zealots who arrogantly presume that their fellow homo sapiens are basically vegetables with hair—unable to use any tool online, no matter how simple, and barely able to tie their own shoelaces without government reminding them how. The principled alternative is to “Trust People & Empower Them.” Because privacy is so profoundly subjective and because there is an inherent trade-off between clamping down on data and the many benefits enjoyed by Internet users from sharing their data, Adam Thierer and I have argued for that “household standards” set by individuals should trump “community standards” imposed on everyone from above:

In an ideal world, adults would be fully empowered to tailor speech and privacy decisions to their own values and preferences. Specifically, in an ideal world, adults (and parents) would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block the things they don’t like—objectionable content, annoying ads or the collection of data about them—while also finding the things they want.

The Dashboard is exactly the kind of user empowerment tool we should be focusing on as a less restrictive—and probably more effective—alternative to one-size-fits-all government regulation of online data use and collection. (We’ve been cataloging other “Privacy Solutions” here.) Google has informed users about what it knows and given them the ability to easily manage privacy for themselves—thus making transparency highly “actionable.” What more could anyone want? Sure, it requires a wee bit of effort from users, but, to paraphrase the (probably) apocryphal Thomas Jefferson saying (and as V  himself might say), the “Price of Freedom Privacy is Eternal Vigilence.” What’s important is that Google, Facebook and other online companies work to lower that “price” through innovation and good UI design.

Some advocates of government restrictions on online data collection and use may applaud Google’s innovation but claim that it happened only because FTC regulators and lawmakers have turned up the heat on Google and other online operators. While the threat of regulation surely does increase the pressure for many companies to improve their user education and empowerment tools, I doubt that played much role in Google’s decision to launch this product. Instead, Google seems to be responding again and again to reputational incentives. With their much-trumpeted promise “not to be evil,” they’ve set high expectations for ongoing improvement in transparency, user control, data portability, etc. Simply by virtue of their size, they will always be the object of paranoia—but that “Googlephobia” plays a critical role in getting them to keep raising the bar. In turn, the standards set by Google up the ante for the rest of the industry. That’s what self-regulation really means: a dynamic process of competition among rivals for our trust online. That system takes time, but I think advocates of a more regulatory approach should bear a pretty high burden to justify why they think bureaucratic diktaks would work better for consumers in the long-term. I certainly don’t! Instead, I look forward to seeing how other companies respond, and how Google improves its Dashboard in the future.

Emerson once said that we should do the thing we fear, and then death of fear is certain. Similarly, parents that fear their child’s use of technology can use technology themselves to monitor, filter and block their children’s Internet use.

I’m a member of the NTIA Online Safety and Technology Working Group (OSTWG) along with TLF’s Adam Thierer (Mr. President of PFF). Adam organized our third meeting was on parental controls, child protection technologies and content rating methods.  He organized a wealth of speakers to discuss tools available from ISPs, tools existing in operating systems, browsers, and search, and settings that exist in some social networking websites.

Here are the highlights:

• Safety experts praised AOL’s parental tools that don’t report to parents every site that a child visits. Child abuse, contraception, and other sites are the kinds that many people feel children have legitimate privacy (and in abusive situations even safety concerns for their lives) surrounding the sites they visit.
• A representative from the Department of Education asked about “best practices” — a good idea in concept but given the diversity of online sites and services easier said then done.
• It is common to categorize children into age groups for parental controls but there’s data lacking about how children understand advertising and what is the harm, if any.
• Age groups: 7 and below–white list only. 7-12–no white list only but lots of restrictions. 13-17–very permissive, lots of sites accessible. 17+–only porn images blocked.
• Google will soon be launching a national media digital literacy citizenship campaign.
• FTC will release its virtual worlds report on Dec 10. There is an OECD conference on e-commerce on Dec 8-10.
• “Report abuse” icons on websites are often themselves abused and result in false positives and false reporting. Uniform buttons won’t work.
• The FCC wants to know why the V-Chip uptake has not been greater and has been ineffective (can comment on the FCC’s NOI).
• Carrie James, a Harvard researcher, has a report that shows that a higher percentage of kids that play online video games are more ethical than their peers that do not (due to the community that’s created playing games).

Next time we’ll be discussing data retention issues and what this means for child safety.

I have ranted once or twice before about the regulatory requirement that Google—a search engine—post a link to a privacy notice on its home page.

Not all computers all places may see it, but Google appears to be experimenting with a bit of javascript that leaves the page blank but for the Google image and the search field until you roll your cursor over it. But they’re leaving the privacy notice (and a copyright notice) there, probably for fear that privacy advocates will yelp about a modern-day paperwork violation.

This provides an opportunity to see the difference between a world with privacy notice regulation and one without. One is cluttered and overlawyered. The other is pure and clean and fresh.

Take a look for yourself. Which do you prefer?

This?

Or this?

I think the answer is obvious. The only difference, mind you, is aesthetic. If Google were permitted to have a truly good looking Web site, users’ privacy would be no worse off for it because they don’t read privacy notices.

My colleague Jerry Brito and I are attending the annual meeting of the State Policy Network in Asheville, NC.  In the process, we’ve heard a lot of things said about open-source software that we don’t agree with, and some things that are just plain wrong.

The reasons for this are obvious.  There are a lot of folks who have an interest in talking down open-source CMS solutions—namely because they sell proprietary, closed-source systems.  But, there are non-interested parties out there who have given rave reviews to open-source solutions.  For example, Drupal and WordPress have consistently won CNET’s Webware Awards. The White House now runs on Drupal, the New York Times runs its blogs on WordPress, and sites that we have built, including those for CEI, the Mercatus Center, America’s Future Foundation, Stimulus Watch, and OpenRegs.com, are built using open source tools, and they have been very successful. Bottom line, one can’t say that using open-source software is never the answer.

So how do you decide what to use? What you have to consider are the relative merits of each approach.  Some web projects may be so unique that you’ll want to have a developer build a custom solution for you. You might also find a proprietary solutions that fits your needs perfectly. However, most public policy groups have very similar needs—publishing and promoting papers and press releases, creating profiles of their experts, highlighting past and future events, etc. For these cases, it’s very likely that there is an open-source solution available at a no cost, and with a large pool of independent developers who can implement it for you. And it’s certainly the case that open-source solutions can be infinitely customized to meet unique needs.

The main difference we want to point out, however, is that when you choose a proprietary solution, you’re not just tied to that solution, but to a vendor as well. Look carefully at their contracts, it will be quite clear that they own the software that runs your website. If you need to change or add functionality to your site, you need to go to that particular vendor. With an open-source solution, there are hundreds of developers you can turn to. You can keep your site exactly as it is, and simply change your contractor. Your platform is not tied to any vendor.

In the event you wanted to move to a new platform, open-source systems have the advantage that they operate with standard technologies with which all developers are familiar, making it very easy for a developer to transfer your content to a new platform. To move from a proprietary platform means your new developer has a steep learning curve ahead of him.

A great place to start thinking about open-source CMS solutions is the annual Open Source CMS Market Share report released by Water & Stone, a PR firm that analyzes the state of the open-source community.  It outlines what various open-source solutions can do, the size of their community, the number of sites running the CMS and various other facets of the software.  For example, the report shows that thousands of sites have been deployed using Drupal and WordPress.  These are thousands of users putting these platforms to the test and as a result improving them.  How many thousands of sites are deployed using your proprietary vendor’s solution?

These thousands of users create countless add-ons and plugins that can alter or expand the core functionality of the basic CMS.  This means that when new technologies or services become popular—think Facebook or Twitter—add-ons are quickly available for expanding the functionality of your site.  Add-ons for WordPress even make it possible to turn turn a WordPress site into a podcasting platform, bulletin board, research database, or even a social networking site.  These are just a handful of examples of the literally thousands of similar easy-to-implement add-ons for open-source platforms.  Why reinvent the wheel when these solutions are available for free?

Certainly open-source isn’t always the right choice—proprietary solutions have their applications—but when considering relationships with vendors, customization, future flexibility, and the incredible cost savings, open-source is likely the best solution for most public policy groups.

If you’d like to learn more about open-source solutions and how they might be used for your public policy group, feel free email me at cord.blomquist@gmail.com.

What to do about the influences of media and advertising on children? Generally, the saying goes that where you stand depends on where you sit–but that was not apparent at today’s event on children and media.

There were 4 seats (plus moderator) at the panel on “Media, Kids, and the First Amendment” that was co-hosted by Georgetown Law School and Common Sense Media–a professor, lobbyist, FCC regulator, and attorney general. Surprisingly, while there was common ground to be shared, only the lobbyist was truly advocating on behalf of a strong First Amendment.

The Professor: Angela Campbell. She doesn’t see a need for differing legal analysis for broadcast TV or the Internet. Media is media. But she also would like to see all laws meant to protect children be subject to intermediate scrutiny by a court, not strict scrutiny (so that more regulations could be passed). She also thinks the fleeting expletives case (the Fox case) is a joke. Where does she sit? Mostly on the side of Free Speech. Some laws are necessary to protect children, but we need to focus on the harm and weigh the costs of passing law versus not passing law. But the intermediate scrutiny is troubling for free speech advocates.

The Lobbyist: Dan Brenner. He worries about laws regulation communications as being vague (what does “indecent” mean?) and overbroad (makes legitimate speech unlawful). The Maine predatory marketing law that NetChoice has engaged in is an example of being both vague and overbroad.  Where does he sit? Firmly on the side of Free Speech. Dan made a powerful case that regulators have better things to do than worry about the occasional F-word or wordrobe malfunction on TV.

The Attorney General: Douglas Gansler. He trumped up the AG agreement with MySpace, talked up age verification as a way to solve our online ills, said Criagslist was running a virtual brothel with its adult ads, and talked about how Maryland teaches Internet safety in the schools. Where does he sit? On the other side of Free Speech. AG Gansler was disappointing. He talked tough on crime and forcing industry into “voluntary” agreements to effectuate his agenda. But it wasn’t clear he had identified the harms. Statements such as “everyone agrees” or “you know it when you see it” just aren’t nuanced enough coming from a state’s highest ranking law enforcer.

The FCC Regulator: Kim Matthews. She described the FCC’s August report on Child Safe Viewing Act and the recent NOI about empowering parents and protecting kids. Where does she sit? It is hard to tell which side. Despite the fact that Kim works at the FCC (which is not known for its 1st Am sensitivities) she came across very evenhandedly. In response to my question about regulating health-related information, she said that kids rely on the Internet for valuable health information and that we shouldn’t cut-off that access.

Overall, it was the lobbyist Dan Brenner that was carrying the first amendment flag. And while it is his clients that would be regulated, ultimately he’s carrying the flag for citizens that would lose out if there were more speech restrictions. And while this was a panel devoted to the role of government, educational efforts and parental involvement are the first line of defense to what people might consider content and marketing not suited to kids. There has to be a better way at protecting children and preserving free speech than just passing more laws.

Here’s an entertaining and timely video from the Sunlight Foundation.

Readthebill.org is where you can learn more about H. Res. 554.

Have a transparent Hallowe’en everybody!

PFF summer fellow Eric Beach and I have been working on what we hope is a comprehensive taxonomy of all the threats to online security and privacy. In our continuing Privacy Solutions Series, we have discussed and will continue to discuss specific threats in more detail and offer tools and methods you can use to protect yourself.

The taxonomy is located here.

The taxonomy of 21 different threats is organized as a table that indicates the “threat vector” and goal(s) of attackers using each threat. Following the table is a glossary defining each threat and providing links to more information.Threats can come from websites, intermediaries such as an ISP, or from users themselves (e.g. using an easy-to-guess password). The goals range from simply monitoring which (or what type of) websites you access to executing malicious code on your computer.

Please share any comments, criticisms, or suggestions as to other threats or self-help privacy/security management tools that should be added by posting a comment below.

OnGuardOnline.gov is a project of a dozen federal agencies and several private child safety organizations who have collaborated to create a website which “provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information.”  The Federal Trade Commission (FTC) is particularly instrumental in maintaining and promoting the site but it works closely with those other agencies and organizations to craft messages and programs.

OnGuardOnline has just released a terrific new online safety resource called Net Cetera: Chatting with Kids about Being Online. This 54-page document is an outstanding resource for parents.  The report’s advice and recommendations are spot on across the board and I particularly want to highlight the important section right at the front of the document entitled, “Talk to Your Kids.”  It begins: “The best way to protect your kids online? Talk to them. Research suggests that when children want important information, most rely on their parents.” Quite right.  And the NetCetra report goes on to offer the following excellent advice:

• Start early. After all, even toddlers see their parents use all kinds of devices. As soon as your child is using a computer, a cell phone or any mobile device, it’s time to talk to them about online behavior, safety, and security. As a parent, you have the opportunity to talk to your kid about what’s important before anyone else does.
• Create an honest, open environment. Kids look to their parents to help guide them. Be supportive and positive.  Listening and taking their feelings into account helps keep conversation afloat. You may not have all the answers, and being honest about that can go a long way.

• Initiate conversations. Even if your kids are comfortable approaching you, don’t wait for them to start the conversation. Use everyday opportunities to talk to your kids about being online. For instance, a TV program featuring a teen online or using a cell phone can tee up a discussion about what to do—or not—in similar circumstances. News stories about internet scams or cyberbullying, for example, also can help start a conversation with kids about their experiences and your expectations.
• Communicate your values. Be upfront about your values and how they apply in an online context. Communicating your values clearly can help your kids make smarter and more thoughtful decisions when they face tricky situations.
• Be patient. Resist the urge to rush through conversations with your kids. Most kids need to hear information repeated, in small doses, for it to sink in. If you keep talking with your kids, your patience and persistence will pay off in the long run. Work hard to keep the lines of communication open, even if you learn your kid has done something online you find inappropriate.

Absolutely perfect; that’s a great model for all parents to adopt.  And the report offers excellent advice on a variety of issues from there.

This is exactly the sort of thing I called for the government to start doing in my report, Parental Controls & Online Child Protection.  In Sec IV.B(2) of my report (beginning on pg. 150 of Ver. 4.0), I called for public officials to get serious about online safety education and awareness building by using collaborative efforts and promotional tools to spread general safety messages.  This sort of education and awareness building is the constructive alternative to regulatory efforts that are all too often favored by some policymakers and regulators.

The FTC and all the other agencies and organizations involved in creating the Net Cetera report deserve high praise for what they’ve done here.  Absolutely outstanding work. Read it.

The Parents Television Council (PTC) released a new report today entitled Women in Peril: A Look at TV’s Disturbing New Storyline Trend. The report argues that “by depicting violence against women with increasing frequency, or as a trivial, even humorous matter, the broadcast networks may ultimately be contributing to a desensitized atmosphere in which people view aggression and violence directed at women as normative, even acceptable,” said PTC President Tim Winter.  As evidence the report cites… Nicole Kidman.  OK, it cites more than Nicole Kidman, but the 7-page report and accompanying press release does seem to place a lot of stock in the fact that, while being questioning by a House Foreign Affairs subcommittee hearing about violence against women overseas, “Ms. Kidman conceded that Hollywood has probably contributed to violence against women by portraying them as weak sex objects, according to the Associated Press.”  I’m not sure what Ms. Kidman was doing testifying before Congress on the matter of violence against women overseas — dare I suggest some congressmen were out for another photo-op with a Hollywood celeb? — but the better question is whether Ms. Kidman’s opinion has any bearing on the question of what relationship, if any, there is between televised violence and real-world violence against women. (Incidentally, if she really feels passionately about all this, is she prepared to go back and recut some of her old scenes in “Dead Calm,” “To Die For,” and “Eyes Wide Shut“?)

But let’s not nitpick about the credentials Ms. Kidman brings to the table or whether it makes any sense for PTC to elevate her opinions to proof of theory when it comes to a supposed connection between depictions of violence against women in film or television and real world acts of violence against women. PTC, however, suggests that’s exactly what is going on today. They allude to a few lab studies which are of the “monkey see, monkey do” variety — where the results of artificial lab experiments are used to claim that watching depictions of violence will turn us all into killing machines, rapists, robbers, or just plain ol’ desensitized thugs.

There’s just one problem with such studies, and the PTC report:  Reality.  Whatever lab experiments might suggest, the evidence of a link between televised media violence and the real-world equivalent just does not show up in the data. The FBI produces ongoing Crime in the United States reports that document violent crimes trends. Here’s what the data tells us about overall violent crime, forcible rape, and juvenile violent crime rates over the past two decades: They have all fallen.  Perhaps most impressively, the juvenile crime rate has fallen an astonishing 36% since 1995.

Now, let me be perfectly clear about something.  When analyzing such things it is vitally important to recall one of the first rules of statistical analysis: correlation does not necessarily equal causation. This works in both directions. Even if an increase in real-world violence was closely tracking depictions of violence on television or in video games, it wouldn’t necessarily mean there is a connection. But it would also be wrong to state that, on its own, an inverse correlation (with the trends moving in opposite directions) meant that there was absolutely no connection between these things.

At the margin, I believe that some media can have negative impacts on some people. Certainly, in heavy enough doses, watching non-stop depictions of sex or violence probably would have some sort of negative effect on some people — loss of sleep, if nothing else. Perhaps more.

Then again, I just cannot entirely dismiss the real-world evidence being so starkly at odds with the “monkey see, monkey do” theories bandied about by PTC and some researchers or regulatory proponents. At a minimum, the real-world evidence should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation, who all too often make casual inferences about the relationship between media exposure and various social indicators. Such a causal relationship is even more dubious today since all Americans, especially youngsters, are surrounded by a much wider variety of media than ever before. Even though television viewing has gone down slightly in recent years, it has been due to the rise of other media substitutes that command the attention of children, including the Internet, cell phones and video games. Overall, therefore, it appears that children are “consuming” as much, if not more, media than ever before. One would think that if depictions of violence in media really were leading to increased aggression among youth it would start showing up in some of these indicators at some point. But that’s just not occurring. [If you're interested, I've discussed all these issues at much greater detail here, here, here, and here.]

Another argument I often here is: ‘Well, the numbers would be even better if not for media violence!’  But there’s just no way to prove that one way or the other. Would the juvenile crime rate be down 46% instead of the 36% decrease we’ve actually since 1995?  I don’t know. Nobody can know. But I certainly hope that media critics and regulatory proponents aren’t so foolish as to suggest that the crime rate would drop to zero if we just forced everybody to watch “Mary Poppins” all day long.

Finally, let’s assume that the PTC is right and that depictions of violence against women are on the rise on TV. I can actually accept that statement. With all the forensic science shows and crime dramas on TV today, it’s clear that some of the plot lines are going to involve people dying in some fashion and many of those people will be women. And yes, some of the depictions will get pretty gritty. “Fringe” and the various “CSI” shows are clearly showing things we didn’t see on “Quincy” back in the day. (Bring back Jack Klugman! He was awesome.)

But, hey, culture has changed.  Envelopes have been pushed a bit.  A little less is left to the imagination.  But most of us can live with that fact.  Indeed, many of us actually enjoy that fact!  And for those who do not share that worldview or who have heightened sensitivities about depictions of violence in TV shows, movies, or games, I would like to tell them that I really do understand and appreciate where they are coming from.

Yet, there are many other ways you can deal with that without forcing us all to forgo content we might enjoy consuming. And, you guessed it, this is where I remind the world for the umpteenth time that I have written a whole book about parental control tools and methods! [The shameless self-promotion never ends here, folks!]  In fact, part of the reason I have invested so much time in that project — and my ongoing efforts to get companies and other third parties to expand the range of tools, ratings, and other information that we have access to — is because I genuinely want to make sure that those individuals and families who have different needs and values than I have the ability to craft their own “household media standard.”   I want each family to be empowered to make media content decisions for themselves such that they can find the media content they want and discard all the rest. 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.

I know that some critics including the PTC feel that the tools aren’t good enough, but I just don’t buy it. Sure, there’s always some room for improvement regarding parental control tools and rating systems, but the existing panoply of tools and methods offer families unprecedented control over their media consumption habits. And that includes tools and methods which enable them to find enriching and educational content, which we have more of than ever before.

I understand PTC doesn’t share my worldview on these matters.  But the difference between us is that they want to take something away from me (the right to watch certain types of content) while I want to give something to them (the ability to block that which they find distasteful).  To be fair, however, their report did not rush to the regulatory solution, even though they did call for more hearings and they warn that:

if the television industry is unwilling or unable to take serious steps to reduce or tone down such graphic images, then we will urge the Congress and the FCC, by virtue of their regulatory authority over the public airwaves, to step in and take action.

The problem is, I don’t think PTC will ever rest until all this content is removed from the airwaves altogether, even if millions of Americans actually enjoy that programming.  Again, the better solution is for PTC to work with others to improve the tools and methods available to families to more effectively make this decision for themselves.  I certainly don’t want others making these determinations for my wife and me and our two kids.  We’ve got the job handled, thank you very much.

I have always regarded standard-setting organizations as serious players who take care to keep slightly boring the work of establishing uniformity in products and protocols. But a press release from the American National Standards Institute (ANSI) may cause me to reassess.

“IDSP Issues Report Calling for National Identity Verification Standard” is the release, and it’s bristling with error and malformed policy assertions. IDSP is the “Identity Theft Prevention and Identity Management Standards Panel,” an ANSI subgroup.

Take this doozy:

[T]he Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) and the REAL ID Act of 2005 require verification of identity prior to the issuance of birth certificates and driver’s licenses / ID cards, respectively. However, the IRTPA regulations have not yet been released even in draft form and the REAL ID regulations do not provide practical guidance on how to corroborate a claim of identity under different circumstances.

Folks, REAL ID repealed the identity security provisions in the Intelligence Reform and Terrorism Prevention Act. (It’s a good bet that regulations for a repealed law aren’t going to move out of draft form for a very long time, eh?) And REAL ID does not require verification of identity prior to issuance of birth certificates. What could that even mean?! “Hey you—little baby—let me see some ID before I issue you your birth certificate.”

The release repeats the tired mantra that 9/11 terrorists got U.S. identity documents—”some by fraud.” The 9/11 Commission dedicated three-quarters of a page to its identity recommendations—out of 400 substantive pages—and neither the commission nor anyone since has shown how denying people U.S. identity documents would prevent terrorism.

Are there needs for identity standards? Of course. And there are a lot of projects in a lot of places working on that. If an organization doesn’t know the law, and doesn’t know how the subject matter it’s dealing with functions in society, I don’t know how it could possibly be relied on to set appropriate standards.

ANSI should take a look at this subgroup and see if its work is actually competent. Judging by this press release, it’s not.

I was stunned last week when I saw many prominent tech VCs and CEOs from Silicon Valley sign letters endorsing the FCC’s move towards Net Neutrality, since, if the rule making goes ahead, it will mean regulating the Internet.  I happen to know a bunch of these folks, so I decided to call them to see if they really were endorsing regulations for the Net or if something else was going on.  Something else was going on.  Because the term “Net neutrality” is notoriously difficult to define, and is often put in terms of “free and open,” some people signed the letters without realizing it could lead to new regulations for the Information superhighway (these are busy people who spend more time running their companies than following the ins and outs of the FCC).   That said, unsurprisingly, there was a lot of suspicion regarding the phone and cable companies.  After many conversations, here is a potential solution that could put an end to Net neutrality games and ensure a bright future for the Net.

The upshot for those of you who don’t want to follow the link:

“If the tech industry and the major ISPs want to avoid government regulation and keep the Internet thriving, they need to come up with a way to solve the disclosure problem on their own in the marketplace.

Verizon has already started taking steps toward a more constructive stance by co-signing a letter with Google supporting an open Internet. Now it is time for all companies involved to take it to the next level. If that happens, U.S. innovators will be much safer from the claims of militant rent-seeking activists and regulators who want to get their hands on the Net.

The creation of TRUSTe helped the tech industry mobilize and avoid heavy-handed privacy regulations like those that befell Europe. Now it is time for ISPs to support an independent, private body to monitor neutrality issues. Such a move would deflate the pro-regulation lobby and allay the concerns of the industry that is driving U.S. growth.”

It’s a quiet, rainy evening at home for me tonight, and I chanced to watch a segment from the Daily Show with Jon Stewart dealing with ‘net neutrality regulation.

The segment’s title, typical of the show’s tenor these days, was, Duh, It’s So Obvious That the Administration is Right Again. Anyone Who Doesn’t Think So Is Just So Dumb. I Can’t Even Believe It.

Watching it, I noticed that a clip they used to show “krazy konservative TV people being obviously stupid” was the beginning of a segment I appeared in on Fox! See it, the first of the two clips, here. (”Well, Senator John McCain wants the government to keep its hands off the Innnterrnet.”)

But did they find some blundering overreach in my commentary? Somewhere in which I went a step too far, opening a flank to comedic ruin? No. The Daily Show people, having reviewed my segment, turned to mocking Phil Kerpen from Americans for Prosperity instead.

The obvious conclusion? What I said was too sensible to be lampooned—a tacit admission by Daily Show producers that I was right. Net neutrality regulation really is a transfer of power from consumers to Washington bureaucrats. Jon Stewart practically says so. Watch me again, getting it right, as confirmed by Jon Stewart.

Interesting lunchtime forum taking place this coming Monday, Nov. 2nd about “Media, Kids, and The First Amendment.”  It’s being co-hosted by Georgetown Law Center and Common Sense Media. Here’s the event description:

The rapidly changing world of digital media – including TV, videogames, the Internet and mobile devices – creates many opportunities for children, but also presents potential dangers, from cyber-bullying to exposure to inappropriate content. The Supreme Court has remanded FCC v. Fox Television back to the Third Circuit for further consideration. The Senate recently held a hearing on the Children’s Television Act in the digital age. Is new legislation or regulation imminent?

Panelists include:

• Daniel Brenner, Partner, Hogan and Hartson
• Angela Campbell, Professor, Georgetown Law Center
• Kim Matthews, Attorney Advisor, Media Bureau, Policy Division, Federal Communications Commission
• Douglas Gansler, Attorney General of Maryland
• Jim Steyer, CEO & Founder, Common Sense Media [moderator]

Location is the Gewirz Student Center, 120 F Street, NW, 12th Floor. Start time = 12:00 Noon.

It’s an open event but those interested should RSVP via email to: rsvp2@law.georgetown.edu and indicate that they are replying for the Nov 2nd event.   I have already told my friends at Common Sense Media I will be there to cause some trouble! (and get a free lunch, of course).

Well, I don’t often get a chance to sing the praises of Hillary Clinton, so let me take the opportunity to loudly applaud her stand on religious defamation policies, which are becoming a growing international concern. According to The Washington Post, while unveiling the State Department’s 2009 Report on International Religious Freedom:

Secretary of State Hillary Rodham Clinton criticized on Monday an attempt by Islamic countries to prohibit defamation of religions, saying such policies would restrict free speech. … While unnamed in Clinton’s speech, the Organization of the Islamic Conference, a group of 56 Islamic nations, has been pushing hard for the U.N. Human Rights Council to adopt resolutions that broadly bar the defamation of religion. The effort has raised concerns that such resolutions could be used to justify crackdowns on free speech in Muslim countries.

Here’s specifically what Secretary Clinton had to say:

some claim that the best way to protect the freedom of religion is to implement so-called anti-defamation policies that would restrict freedom of expression and the freedom of religion. I strongly disagree. The United States will always seek to counter negative stereotypes of individuals based on their religion and will stand against discrimination and persecution.  But an individual’s ability to practice his or her religion has no bearing on others’ freedom of speech. The protection of speech about religion is particularly important since persons of different faiths will inevitably hold divergent views on religious questions. These differences should be met with tolerance, not with the suppression of discourse.

Quite right.  Thank you, Secretary Clinton, for this bold stand.  Freedom of religious worship and expression — including the criticism of religion — is essential.  Now, can we talk about your old positions on video game regulation?!

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH

So declared the Party in George Orwell’s classic novel 1984. The corruption of language with a constant theme of Orwell’s work, most notably his 1946 essay “Politics and the English Language.” So Orwell would not have been surprised to see the term “Internet Freedom” captured by those who advocate an increased role for government (i.e., Big Brother) online. Nor would Orwell had been surprised to see these advocates claim Orwell for themselves, insisting that opponents of government regulation are the ones corrupting language. There is perhaps no better example of this than MSNBC’s Rachel Maddow’s comments in an interview with Boing Boing’s Xeni Jardin about the divisive issue of “Net Neutrality” regulations:

Rachel Maddow [dripping with sarcasm]:  Sen. McCain’s bill, as you mentioned, is actually called the  ”Internet Freedom Act of 2009,” and he’s deriding the government effort to keep telecoms from walling off the Internet as “government intrusion” and “trying to regulate the Internet.” What that means is that he’s picked better branding, he’s picked better names.  It doesn’t really relate the facts of what he’s doing. I’m wondering if it’s too late for a rebranding of the other side here. We need to get better about talking about this, because the language seems sort of corrupt at this point.

What makes Maddow’s comments so stunning is not her view that corporate America, rather than government, is the real enemy of freedom. That view is simply part of the long-regnant political orthodoxy. No, what’s stunning is that she actually thinks that her side is losing the “war of words” just because Sen. McCain had the gall to use the term “Internet Freedom” as a rallying-cry for the outdated, bourgeois notion that “freedom” means the absence of coercion by the one entity that can enforce its commands at the point of a gun and call it “justice”: that coldest of all cold monsters, the State. That’s precisely what “liberalism” used to be about until people like Rachel appropriated that word and words like “liberty” and “freedom” as slogans for control. Xeni Jardin picks up where Rachel left off by appropriating the concept of rights, too:

Xeni Jardin: the Internet really is a basic right, it’s a necessity,such a fundamental way for communicating and accessing information now.  Telecoms shouldn’t be able to throttle, to block, to slow down our access to something that might not be in their corporate interests.

This is pure, unadulterated cyber-socialism: Rights become not the sacred defense of the individual, but a positive assertion of entitlement to a vaguely defined principle of access: by guaranteeing this access through ever-expanding “neutrality regulation”, government gains unlimited control over the Internet itself.

As Adam Thierer and I have warned, that way lies madness: Inviting the government to regulate online content and services in the name of “neutrality” (or “privacy” or any of the many “glittering generalities” ending in “-y” Orwell would have denounced) would be the death of real Internet Freedom, which requires a strict “Separation of Web and State.”

If you want to see this bastardization of the language of “freedom” in action, watch the video. Just as nauseating is the way that McCain and is “disdainfully dismissed” as a corporate whore because he’s—GASP!—received donations from the telecom industry. Obviously, he must only be committing these thought crimes because evil enemies of the People’s Revolution paid him to do so! (Of course, donations may to politicians that support increased regulation of the Internet don’t corrupt them because their intentions are pure! Anyone can support any cause they like with donations so long as the cause is the right one, as determined by the People’s Revolutionary Guard.)

In the last issue of The New Republic, Lawrence Lessig published the unfortunately titled article “Against Transparency.” In it he criticizes what he calls the “naked transparency movement.”* The article has drawn several responses, with Ellen Miller and Michael Klein’s being the best and most direct. I’d like to offer a libertarian perspective.

Lessig’s thesis is that the revolution in government transparency that modern information technology makes possible is a double-edged sword because what it uncovers is simply the general corruptibility of government–and he speaks of Congress in particular. Tools like MAPLight.org show that there is a strong correlation between campaign contributions and legislative votes. Some of these may indeed be corrupt bargains, and some may not. But the fact is that “the contributions are corrupting the reputation of Congress, because they raise the question of whether the member acted to track good sense or campaign dollars.”

Because citizens are prone to rational ignorance (although Lessig insists on relabeling the concept “lack of attention-span”), they will not investigate individual votes or other actions very deeply, and they will unfairly ascribe a certain susceptibility to influence to all in Congress. As a result, the naked transparency movement won’t inspire reform, but instead “will simply push any faith in our political system over the cliff.” Lessig writes:

At this time the judgment that Washington is all about money is so wide and so deep that among all the possible reasons to explain something puzzling, money is the first, and most likely the last, explanation that will be given. It sets the default against which anything different must fight. And this default, this unexamined assumption of causality, will only be reinforced by the naked transparency movement and its correlations. What we believe will be confirmed, again and again.

His solution? “A system of publicly funded elections would make it impossible to suggest that the reason some member of Congress voted the way he voted was because of money.” Take the money out of politics, Lessig argues, and you also take away the cynicism that forestalls change.

Lessig’s solution reminds me of airline regulation in the 60s and 70s. Prices where set by government, so airlines were forced to compete on other margins. First came the elaborate meals, then the in-flight bar lounges and later piano bars, and then “the musicians, magicians, wine-tasters, and Playboy bunnies.”

Take the “money out of politics” and interest groups will similarly compete on other margins. They already do. Lobbying is a $3.2 billion industry without counting campaign contributions. Interests seek influence in many ways besides giving money:

• hiring lobbyists on call to simply show up at critical times
• spending great sums of money on research to support their cause
• non-monetary perks for members of Congress and their staffs
• organizing to knock on doors and get out the vote

As long as citizens continue to be rational and ignore the minutiae of every bill and spending decision that Congress makes, Congress will be successfully influenced by organized interests, direct money contributions or no. That’s why it’s called public choice.

However you slice it, Lessig is correct that one likely outcome of increased transparency will be that citizens will grow to have less faith in government. And it’s not for lack of context or lack of better institutional design. The fact is that as long as Congress has as much power as it has–as long as it can vote to spend billions of dollars to bail out failing banks and auto companies, provide huge subsidies for ethanol, or maintain a giant military complex for foreign adventures–there will be those who will seek to influence Congress. Rules of thumb often emerge because they work, so there may be some usefulness after all for the popular heuristic that Lessig finds so distasteful: “Washington is all about money.”

There are many of us in the transparency movement who have little faith in government. We fight for transparency precisely because we believe that by removing the covers off of our political system will our fellow citizens understand why we are justified in having such little faith. Maybe if faith in government is driven “over the cliff” will citizens demand the only reform that can withstand influence: less government. Less government means less power to grant goodies, which in turn means special interests will have less to fight for and therefore, hopefully, there will be less corruptibility. Less government also means more power to individuals who have no “lack of attention-span” for their own personal interests.

* Luckily for me, Lessig noted in his article that “Without a doubt, the vast majority of these transparency projects make sense. In particular, management transparency, which is designed to make the performance of government agencies more measurable, will radically improve how government works.” That is the topic of a newly released paper [PDF] that I co-authored with Drew Perraut, at which I hope you’ll take a look. ↩

Cross-posted from Surprisingly Free. Leave a comment on the original article.

There are a lot of interesting weekly roundups on the ‘Net. A search on “this week in” using Google reveals these weekly segments (among the top 50 results) on:

pictures

science

education

the history of chemistry

the Poconos

blackness

evolution

virology

amateur radio

Palestine

My colleagues at ACT aim to join the Poconos and Palestine by adding “antitrust” to the list! Per the ACT blog:

Today, we’re kicking off a new feature on the blog, a weekly round up of the tech industry’s various antitrust cases and “potential” antitrust concerns. While last week’s antitrust news was dominated by competition concerns outside the technology industry (health insurers and the BCS), there were a few notable stories coming out of the world tech competition.

It goes on to list antitrust discussion around Amazon, IBM, Google, Microsoft, and Oracle/Sun. Given the hard line talk from Christine Varney, head of DOJ’s antitrust division, this could be an ACTive weekly blog.

Just a reminder about this week’s event on the 50th anniversary of Ronald Coase’s seminal article, “The Federal Communications Commission.”  As Jerry noted here before, Coase’s critique of the political allocation of radio spectrum, and his arguments for achieving efficient allocation by allowing the government to sell rights to the spectrum, has had a profound effect on the course of communications policy. This event will explore the impact of Coase’s ideas and the legacy of his article and life’s work on communications and media policy.

This event will take place on Thursday morning at 9:00 in Hazel Hall, Room 121 (ground floor) at the George Mason University School of Law in Arlington.  The event is being co-hosted by The Mercatus Center at George Mason University and The Progress & Freedom Foundation and Jerry Brito and I will be co-moderating the session.

Opening remarks will be given by Commissioner Robert M. McDowell of the Federal Communications Commission and his remarks will be followed by a panel discussion that includes:

• Prof. Thomas W. Hazlett, George Mason University School of Law
• Dr. Jeffrey A. Eisenach, Empiris LLC & George Mason University School of Law
• Dr. Evan Kwerel, Federal Communications Commission
• John Williams, Federal Communications Commission

We hope you can make it!  Please RSVP here.

CNET reports that Amazon has halted plans to sell wine online. The reason:  too many inconsistent state laws. Per the article:

Since the Supreme Court ruled in May 2005 that states must grant the same shipping rights to out-of-state and in-state wineries, winery-to-consumer shipping has become legal in 35 states, according to wine advocacy group Free the Grapes. But state laws governing direct wine shipping vary greatly, creating an onerous task in managing compliance.

Amazon has become a great marketplace for countless products–it’s a shame to see wine makers shut out from this market due to regulatory barriers to e-commerce.

The imagination of the open source community never ceases to amaze me.  But these days the sheer number of people using open source solutions makes the previous statement akin to saying “people never to cease to amaze me,” which they don’t.  However, with thousands of a developers adapting open platforms to problem I never knew existed, I should get used to the constant stream of innovations.

WordPress has become an especially vibrant community that often throws total curve balls my way when I’m looking at lists of plugins, which I all-to-frequently do. Today, I discovered two particular gems worth sharing.

TextImage and Censortive, two plugins compatible with the most current versions of WordPress, are ingenious little bits of programming for skirting around the “Great Firewall” and any other attempts to censor the Net.  The two plugins work by turning some or all of the text of a blog post into .PNG images of those words—making them readable by humans, but not by machines set to filter out web pages featuring forbidden words like “Falun Gong” and “Dalai Lama.”

While TextImage will image-ify your whole post—the fail-safe way around the censors—Censortive allows users to create a list of likely-to-be-censored terms which will then be replaced with images of those words. This means that text is still search-able, but words considered off-limits by big brother won’t set off any flags at your local office of the cultural ministry. Simply Brilliant!

Recent history has shown us that regimes in Egypt, Iran, and Australia can’t control content for long, thanks to quick and easy workarounds like these.  It’s a shame that they keep trying.

Some people have labored under the impression that “net neutrality” regulation was about the government stepping in to ensure that large corporations would not control the Internet. Now that the issue is truly joined, it is clear (as exhibited in this Wall Street Journal story) that the debate is about one set of corporate interests battling another set of corporate interests about the Internet, each seeking to protect or strengthen its business model. The FCC is surfing the debate pursuing a greater role for itself, meaning more budget and power.

Tim Lee’s paper, The Durable Internet, dispells the idea that owners of Internet infrastructure can actually control the Internet. The better approach to “net neutrality” is to let Internet users decide what they want from their ISPs and to let ISPs and content companies do unmediated battle with one another to create and capture the greatest value from the Internet ecosystem. If the FCC were to reduce its power by freeing up more wireless spectrum—either selling it as property or dedicating it to commons treatment—competition to provide Internet service would strengthen consumers’ hands.

These are notions I have tried to get across in some recent television interviews, which you’ll find after the jump.

In this first one, I say, “This is governmental tinkering with a marketplace that is working really well and growing,” which comes off as slightly glib. TV talk is extemporaneous, of course. I tend to lean Julian Sanchez’ way, believing that competition is insufficient in many respects. This is a product of FCC policy as much as anything, of course, and even the situation we’ve got is better than throwing up our hands and giving the FCC regulatory authority over network management forevermore.

On Friday, the Federal Communications Commission (FCC) released a new Notice of Inquiry entitled, “Empowering Parents and Protecting Children in an Evolving Media Landscape” (MB Docket No. 09-194).  The purpose of this investigation is to:

seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks. (p. 2)… Our goal with this NOI is to gather data and recommend-ations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully. (p. 3)

This Notice builds on the FCC’s August 31st Report to Congress (”Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming”) that was required pursuant to the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of that bill and the FCC’s proceeding (MB Docket No. 09-26) was to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” [I filed 150+ pages worth of comments in that proceeding, and here’s my analysis of why the bill and the FCC’s proceedings are worth monitoring. In previous posts here, I also listed all the major filings and reply comments that were submitted to the FCC in the matter.]

While the FCC’s new Notice outlines several positive impacts that media use may have for children, it then goes on to itemize a variety of concerns about media exposure:

While we recognize that electronic media technologies offer these potential benefits to children, we also explore the risks of harm that media use presents. As discussed below, these risks include (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek comment on these risks, whether parents, teachers, and children are aware of them, and what can be done to protect children from them.

It’s not really clear to me where the FCC finds the jurisdictional authority to investigate some of these things (hate speech? bullying?), but let’s not worry about that here. The question a lot of folks — especially those with strong First Amendment leanings — will be asking is: Where is the FCC heading with this in terms of new speech controls or content regulation?

In my earlier work on the “Child Safe Viewing Act,” I worried that the bill and resulting FCC investigation might be the beginning of “convergence-era content regulation.” I was pleasantly surprised, however, with the FCC’s final Report to Congress about the Child Safe Viewing Act, which did a very nice job highlighting the amazing diversity of parental control tools and methods on the market today.  That being said, the proceeding noted that “no single parental control technology available today works across all media platforms” and might have left the impression in minds of some critics that it was somehow possible to create a “universal” parental control or rating mechanism to deal with content across platforms.

Not only is it highly unlikely that such a silver-bullet solution is possible, but it’s unclear that it is even desirable.  I spent some time addressing this issue in my big filing to the FCC earlier this year.  If you jump to pg. 98 of my filing, you will find a section on “The Perils of Mandatory Controls, Restrictive Defaults or ‘Universal’ Ratings.” In it I argue:

the search for technological silver‐bullet solutions and “universal” ratings or controls represents a quixotic, Holy Grail‐like quest. Simply stated, if it sounds too good to be true, it probably is. There are no simple solutions or quick fixes to concerns about objectionable media content or online child safety. Only a “layered” approach—involving many tools, methods, and strategies—can get the job done right. And technological blocking controls are probably the least important part of that mix. Education and mentoring are far more important.

Moreover…  any move to force “universal,” top‐down solutions could destroy future innovation in this space. [There are] unforeseen downsides to mandating controls and defaults as well as efforts to create universal rating or labeling schemes.

Again, to be clear, the FCC’s final report to Congress did not recommend any such thing, and the agency is to be commended for that.  But, at the end of the Child Safe Viewing Act report to Congress, the agency also noted that another Notice of Inquiry would dig a little deeper into possible solutions, and now here it is.  But it still remains unclear where the FCC might take this in terms of concrete steps. I was pleased to see a strong focus on the importance of education and media literacy in the agency’s latest notice, so that’s very good news. But there’s also plenty of hand-wringing about the supposed negative impacts of media throughout the report, which leads one to believe that the agency isn’t going to just settle for education-based solutions.

Importantly, there’s also a lot of talk about the supposed dangers of advertising to children in the new Notice:

Exposure to excessive and exploitative advertisements is a significant risk children face from electronic media. Advertisements of particular concern for children include: (i) those that promote products specifically to children; (ii) those that promote unhealthy food, thereby contributing to childhood obesity, and (iii) those that contain inappropriate content, such as offensive language, sexual content, and

This is actually one area where the FCC does have a little jurisdictional authority under the Children’s Television Act of 1990. But I don’t see how the agency can read that statute, which was intended for broadcast television, too broadly.  Regardless, if I had to bet on one thing we are certain to see come out of this proceeding, I’d say some expanded advertising restrictions are in the works.  But, again, the agency’s limited jurisdiction makes it hard for me to understand where they plan to go with this or how it would pass muster in the courts once challenged.

Anyway, stay tuned. Comments in the matter are due to the FCC by late December.  Meanwhile, one wonders how long it will be before Sen. Rockefeller and others up on Capitol Hill start to engage more on content-related issues.  They’ve been fairly silent so far this year.  In light of Sen. Rockefeller’s past efforts on this front, it seems likely he’ll eventually engage in this debate — and likely in a very pro-regulatory fashion.

Joe Tighe, an IT Infrastructure Consultant, has an interesting essay up over at Circle ID.  He takes a hard look at Rep. Ed Markey’s proposed “Internet Freedom Preservation Act of 2009″ and makes an argument that many of us here have made ad nauseum — regulation involves trade-offs and unintended consequences:

One of the main problems with the proposed legislation is the lack of recognition of costs to provide internet services. Some applications, such as video are bandwidth hogs and require significantly greater network infrastructure and associated costs to deliver when compared to the network infrastructure costs to deliver email access. Under the proposed legislation, services providers would have to charge the low bandwidth users (casual browsers and email readers) more to offset the higher costs of the video users. One result of the proposed legislation would be less consumer choice and a hidden “bandwidth hog tax”. Today, most service providers offer tiered products and pricing to consumers and businesses to account for the additional costs to deliver bandwidth intensive applications. You pay more if you use more under the tiered pricing model. These are not “discriminatory” practices. Rather, tiered pricing and application prioritization are sound business models delivering reliable, profitable product choices and unburdened internet ecommerce. Consumers and businesses currently have choices. The proposed legislation takes away choice and increases costs to consumers and businesses.

Quite right.  Read the whole essay here.

I’ve been meaning to say something about this new paper by Renee Newman Knake of Michigan State University College of Law, which calls for a new paradigm to analyze, and then likely regulate, video game content. Knake’s paper is entitled, “From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations.” In it, she proposes to extend an emerging legal philosophy known as “ecogenerism” to the field of video games and the First Amendment treatment thereof. “Ecogenerism” is largely the creation of Barbara Bennett Woodhouse and the theory argues that we should apply lessons or legal frameworks from the field of environmental law to the area of media and children. “Under an ecogenerist model,” states Knake, “media harm decisions should prioritize concern about the level of ‘toxic’ media which children are exposed over free speech interests.”  Simply stated, we should treat “toxic media” like toxic chemicals.

There have been other efforts to get courts to relax the legal scrutiny applied to video game content from “strict” to something more relaxed or intermediate in character. For example, there is the “violence as obscenity” approach proposed by Kevin Saunders, who, like Knake, is also with the Michigan State University College of Law. But whereas Saunders has proposed applying an adjacent legal theory or framework (obscenity law) to legal analysis of the constitutionality of regulation of video game content, Woodhouse and now Knake propose a much broader, and more radical, reformulation of First Amendment law along the lines of entirely different body of jurisprudence — again, environment law and regulation.

Of course, this is nuts. The notion that words or images are as “toxic” as chemicals is preposterous, and yet that is exactly what Knake and Woodhouse want us to accept. We can determine with a great deal of certainly the physiological impact of too much mercury or lead on the development of the human brain or body. Generally speaking, we know what dose would kill or deform. The same cannot possibly be said of media, and the very allusion to toxic materials or chemicals is ludicrous to begin with since words and images have never directly killed anyone. EVER!

Another problem with the analogy: Video game content, like many other forms of content, can also have profound societal value even when it is of a sexual or violent nature.  Even heavy “doses” of such media can be entirely acceptable (even beneficial) for some even if they are not for others. The same would not be said of toxic chemicals. Too much of a dose would be lethal to all.  In his latest “Law of the Game on Joystiq” column, Mark Methenitis does a nice job picking apart this paper in more detail and he really nails what’s wrong with this analogy between games and harmful chemicals, dangerous diseases, or potential deadly weapons:

A video game is not meningitis or AIDS, where occasional, isolated, or incidental exposure can lead to serious injury or death. Nor is a video game anything like a handgun, where exposure can lead to someone being seriously wounded, maimed or killed. Spending an hour with Halo or Borderlands at a friend’s house isn’t even in the same galaxy of potential harm as a kid having a gun or a serious illness at school.

Indeed, he rightly points out that many of the video games most likely to be regulated under an ecogenerist approach, like “Grand Theft Auto” or “Metal Gear Solid 4,”  have “a significant storyline with the same kind of political statement as the average Scorsese film.” Thus, he notes, “these [ecogenerist] restrictions would be impacting political speech, which is the most sacred and the most protected form of speech under the First Amendment.”  He also takes the authors of these theories to task for failing to seriously investigate the content they seek to censor.  “It is this lack of a true knowledge of the content that continually appears in so many arguments for video game regulation,” he notes.  Quite right.

Finally, we have better ways of dealing with objectionable media content, including video games, than to ban them outright or have regulators curtail content they don’t like. There is a rich mosaic of parental control tools and methods available to parents and guardians to deal with content they find unacceptable, and video game ratings and parental control tools are among the very best of any of those tools and rating systems.  As I have pointed out here far too many times to mention, we are at the stage now where our traditional reliance upon “community standards” regulation can give way to a “household standard” approach when it comes to “regulating” content.  Here’s how I put it in a recent paper I presented at Oxford University:

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.

And, luckily, that’s the direction most free speech jurisprudence has been turning in the U.S. in recent years. It’s the right approach for a nation that values freedom of speech and expression.  The ecogenerist approach, by contrast, would open the floodgates to unprecedented censorship of speech in this country.  It would leave lawmakers and regulators free to play the role of national nanny and censor any sort of content they found personally objectionable by equating it with toxic chemicals or dangerous weapons.  That’s lunacy and it must be rejected as antithetical to our nation’s rich First Amendment history.

[Below is an old slide show presentation I did at Penn State University about "Video Games & Public Policy." Thought it made sense to repost it here.]

There was some buzz earlier this year when the White House used the free, open-source Drupal content management platform for Recovery.gov. Now the administration’s marquee Web site Whitehouse.gov will be using it.

The AP story linked just above does a good job of recounting the benefits of open source in this application: chiefly, low cost and high security.

Arnold Kling wrote recently on the Library of Economics and Liberty blog relating the work Elinor Ostrom did to win the nobel prize in economics to how the Internet enables private provision of public goods—no regulation, little to no centralized authority at all.

Open source is nothing if not an example of that, and it’s good to see this use of open source joining many others across the big, beautiful Internet.

A large group of privacy advocacy groups and individuals sent a letter to the leadership of the House Homeland Security Committee today, suggesting that the role of Chief Privacy Officer at the Department of Homeland Security should be scrapped.

The DHS CPO has shown an extraordinary disregard for the statutory obligations of her office and the privacy interests of Americans. Outreach is certainly important, but the job of Chief Privacy Officer is not to provide public relations for the Department of Homeland Security. The job as defined in the statute is to protect the privacy of American citizens, through investigation and oversight. If an internal office cannot achieve this, then the situation calls for an independent office that can truly evaluate these programs and make recommendations in the best interests of the American public.

The current CPO, Mary Ellen Callahan, has not been on the job long enough to lay all these concerns at her feet, but the substance of the complaint is valid. Does the Privacy Office actually help protect privacy, or has it, over years, favored the paperwork function over privacy protection, falling into the role of apologist for DHS programs?

I serve on the DHS Privacy Committee, which advises the CPO. The views stated here, of course, are my own.

I wrote on Privacilla in 2001: “As a management matter, government privacy officers may become antagonistic to the agencies with whom they deal, and lose effectiveness, or they may be captured by agencies and become professional apologists for government erosion of privacy.”

And when I joined the committee four years later, I expressed my concern with the potential for co-option, saying in a Privacilla press release: “I have asked friends and family members to beat me up if I change or mute my advocacy for privacy, civil liberties, and freedom.”

I very much enjoyed Dennis Baron’s new book, A Better Pencil: Readers, Writers, and the Digital Revolution, and highly recommend you pick it up. Baron does a wonderful job exploring the history of techno-pessimism and the endless battles about the impact of new technologies on life and learning, something I have written about here before in my essays on “Internet optimists vs. pessimists” (See: 1, 2, 3).

I have a complete review of Baron’s A Better Pencil now up on the City Journal’s website here.  I’ve also pasted it down below.
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Plato Wrote it Down
by Adam Thierer

a review of A Better Pencil: Readers, Writers, and the Digital Revolution, by Dennis Baron (Oxford University Press, 280 pp., $24.95)

In the beginning, Dennis Baron reminds us in his new book, A Better Pencil, there was the word—the spoken word, that is. Oral tradition, the passing of knowledge through stories and lectures, was the primary method of instruction and learning throughout early human civilization. But then a few innovative souls decided to start writing everything down on stones and clay. Almost as soon as they did, a great debate began on the impact of new communications technology on culture and education. And it rages on today, with a new generation of optimists and skeptics battling over the impact that computing, the Internet, and digital technologies have on our lives and on how we learn about the world.

Baron, a professor of English and linguistics at the University of Illinois, begins his splendid history of these debates with the well-known tale from Plato’s Phaedrus about the dangers of the written word. The Egyptian god Theuth boasts to King Thamus about how his invention of writing will improve the wisdom and memory of the masses. Thamus shoots back, “The discoverer of an art is not the best judge of the good or harm which will accrue to those who practice it.” Thamus then passes judgment on writing’s impact on society, saying he fears that the people “will receive a quantity of information without proper instruction, and in consequence be thought very knowledgeable when they are for the most part quite ignorant.”

Of course, as Baron points out, we remember this warning only “because Plato wrote it down.” It’s one of the recurrent ironies in the history of techno-skepticism that while “the shock of the new often brings out critics eager to warn us away,” those critics often embrace—or, at the very least, benefit from—the very tools that they want the rest of us to shun. Whether it’s Luddites On-Line winning Yahoo’s “Cool Site of the Day” award, or the Writing Instrument Manufacturers Association promoting National Handwriting Day via the Internet, or Ted Kaczynski’s Unabomber Manifesto attracting unprecedented readership thanks to its availability on the Web, those who have a “common tendency to romanticize the good old ways” of doing things often fail to appreciate how new technology can benefit society—including themselves.

Baron walks us through a litany of historical examples—the printing press, the telegraph, telephones, typewriters, pocket calculators, personal computers, word processors, webpages, blogs, social-networking sites, and more—and identifies the usual pattern: we greet each new technology with deep distrust and dire warnings, but in time we adapt to the new realities. Indeed, as a species, we have an unparalleled ability to learn new ways of doing things. We don’t always like technological change, and often we deeply resent or fear it, but in the end, we learn to live with it and eventually to embrace it.

With the rise of the Internet and digital technologies, we see this pattern unfolding once again. “According to the latest generation of critics and naysayers,” Baron notes, “today it is computers that are producing texts whose value and credibility we question; computers that are giving too many people control over the creation and publication of text; computers that are wreaking havoc with our handwriting.” Contemporary critics also fret over “information overload.”

The backlash against computers and digitization began while the Internet was still in its cradle, with the 1992 publication of Neil Postman’s anti-technology screed, Technopoly: The Surrender of Culture to Technology. Postman’s intellectual descendants include Internet critics such as Lee Siegel, Andrew Keen, and Mark Helprin, whose works drip with disdain for all things digital. They warn of a coming dystopia where truth and authority vanish, culture crumbles, and political polarization breeds closed-mindedness and even the death of deliberative democracy.

These overly pessimistic critics turn a blind eye to both the wonders of the digital age and humanity’s ability to adapt. As Baron persuasively argues, “English survives, conversation thrives online as well as off, and on balance, digital communications seems to be enhancing human interaction, not detracting from it.” In fact, we live in a world of unprecedented media abundance that previous generations would have found unimaginable. As Baron puts it: “The Internet is a true electronic frontier where everyone is on his or her own: all manuscripts are accepted for publication, they remain in virtual print forever, and no one can tell writers what to do.” Such human empowerment is worth celebrating, even if it does have the occasional downside. Abundance is better than a world of scarce choices and few voices.

Baron’s retelling of the history of techno-skepticism is edifying, but it leaves one with the nagging feeling that these debates will never cease. Each generation will witness a technological watershed that brings out a fresh crop of both pollyannas and pessimists. Like Plato, however, most of us will embrace whatever’s next and move forward.

Just read this AP article that reported on a Tuesday hearing of the Ohio Supreme Court about an Ohio “harmful to minors” law. According to the article, the statute makes it illegal to distribute harmful material to minors through “direct communications by people who know or have reason to believe the recipient is a minor.”

The case is in the 6th Circuit Court of Appeals, which has asked the Ohio Supreme Court to interpret “mass distribution” and “personally directed devices.” Per the law:

2) A person remotely transmitting information by means of a method of mass distribution does not directly sell, [etc.] … if either of the following applies:

(a) The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
(b) The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.

In the hearing (see the video) Justice Robert Cupp coins this beauty of a statement:  “It’s not really the statute that’s confusing here, it’s the technologies.” Judge say what?

Isn’t the whole point of a statute to be applied to factual situations? Anything can make sense in the abstract (even law!). But applied to everyday life, the simplistic becomes complex — and can have unintended consequences.

Such is especially true with laws that regulate Internet communications. The Ohio AG is attempting to narrow the statute by saying it applies only in situations where a speaker (1) directly communicates the harmful material, (2) knowing or has reason to know the recipient is a minor, and (3) the speaker has control over the medium — ie. not applicable to general broadcasting (forums or chat rooms) but applicable where publishers can exclude or limit the audience (direct email).

Are these limitations enough to not cover legitimate communications on the Internet? The Plaintiff, American Booksellers Foundation for Free Expression, wants an exemption for the Internet. I generally think that it is best to not bifurcate the Internet and non-Internet worlds, particularly when we think of child safety issues (digital natives see the Internet as an extension of everyday life much more than us old fogies).

Media Coalition has a page dedicated to the case here. Stay tuned.

Pre-release rumors and press reports were making it sound like the Obama administration let Rep. Ed Markey draft the FCC’s Notice of Proposed Rulemaking to “Preserve the Free and Open Internet.”

Maybe there was a last-minute change of plan.

There were rumors and/or reports that the NPRM would contain a “viewpoint diversity” mandate and only allow forms of network management which someone has managed to prove to the FCC satisfy a “strict scrutiny” test.

In the Markey-Eshoo bill, the strict scrutiny test is defined as follows:

[A] network management practice is a reasonable practice only if it furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available.

But in paragraph 137 of the NPRM, the commission declines to adopt a strict scrutiny standard.

We recognize that in a past adjudication, the Commission proposed that for a network management practice to be considered “reasonable,” it “should further a critically important interest and be narrowly or carefully tailored to serve that interest.” We believe that this standard is unnecessarily restrictive in the context of a rule that generally prohibits discrimination subject to a flexible category of reasonable network management. We seek comment on our proposal not to adopt the standard articulated in the Comcast Network Management Practices Order in this rulemaking.

There were also reports the NPRM would include a carve-out for application and service giants like Google. But the definitions in the draft regulations included in the NPRM are so broad that many applications and services arguably could be included:

Broadband Internet access. Internet Protocol data transmission between an end user and the Internet. For purposes of this definition, dial-up access requiring an end user to initiate a call across the public switched telephone network to establish a connection shall not constitute broadband Internet access.

Broadband Internet access service. Any communication service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public.

The regulations, if adopted, would apply to wireless broadband services. Which is no surprise.

The NPRM must be a disappointment for regulatory proponents, and will be bitterly fought over in the coming months. The deadline for public comments is January 14, and March 5 for replies.

But the NPRM is by no means a victory for broadband providers or sound public policy. The following language from the proposed regs:

Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner

allows the FCC virtually unlimited discretion to allow or reject network management practices in the future. Broadband providers will have to seek FCC pre-approval, formally or informally, for everything they do.

That was the paradigm in the old days of the telephone monopoly. It was a golden era for lawyers and lobbyists, but not for investment and innovation.