Adam Thierer's Blog, page 111

Johnny Ryan on the the history of the Internet and its future

On the podcast this week, Johnny Ryan, Senior Researcher at the Institute of International and European Affairs, discusses his recent book, "A History of the Internet and the Digital Future." The book is a comprehensive overview of the Internet and where it came from. Ryan discusses some of the core concepts, including what made the Internet revolutionary, and how many of these ideas came from RAND Corporation researcher Paul Baran. He explains that the initial concept for packet switching did come from the need to build a communications system to withstand nuclear attack. The discussion then turns to the advent of communication between computers, which sprang from a group of graduate students who used a collaborative process to create the network. Finally, Ryan discusses Web 2.0, and how technologies like cloud computing and 3-D printing will disrupt industries in the future.

Related Links

A History of the Internet and the Digital Future , by Ryan"Paul Baran and the Origins of the Internet", Rand Corporation"Is collaboration the future of invention?", CNN.com

To keep the conversation around this episode in one place, we'd like to ask you to comment at the webpage for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?

What Explains the Decline in Internet Safety Legislation / Online Content Regulation?

This week I will again be attending the Family Online Safety Institute's excellent annual summit. The 2-day affair brings together some of the world's leading experts on online safety and privacy issues. It's a great chance to learn about major developments in the field. As I was preparing for the session I am moderating on Thursday, I thought back to the first FOSI annual conference, which took place back in 2007. What is remarkable about that period compared to now is that there was a flurry of legislative and regulatory activity related to online child safety then that we simply do not see today.

In fact, just 3 1/2 years ago, John Morris of the Center for Democracy and Technology and I compile a legislative index [summary here] that cataloged the more than 30 legislative proposals that had been introduced in the the 110th session of Congress. There was also a great deal of interest in these issues within the regulatory community. Finally, countless state and local measures related to online safety and speech issues had been floated. Today, by contrast, it is hard for me to find any legislative measures focused on online safety regulation at the federal level, and I don't see much activity at the agency level either. I haven't surveyed state and local activity, but it seems like it has also died down.

Generally speaking, I think this is a good development since I am opposed to most proposals to regulate online speech, expression, or conduct. But let's ignore the particular wisdom of such measures and ask a simple question: What explains the decline in Internet safety legislation and online content regulation? I believe there are three possible explanations:

1) The effectiveness of education and awareness-building strategies

I would like to believe that all the efforts made by various groups and individuals (including myself) to encourage policymakers to adopt  "Educate & Empower" approaches over "Legislative & Regulate" approaches are finally bearing fruit. The first instinct for many policymakers is to legislate immediately and then worry about the consequences later (if at all). But such approaches, no matter how well-intentioned, often backfire and have myriad unintended consequences (including the problem addressed next). So, perhaps it is the case that lawmakers and regulators are finally coming to realize that education and awareness approaches — married to empowerment-based efforts – are actually the more sensible approach compared to a flurry of legislative measures that ultimately accomplish very little.

2) The deterrent effect of inevitable and lengthy constitutional challenges

Here are two things I know for certain: First, almost every Internet-related measure faces a constitutional challenge, typically on First Amendment grounds (but sometimes also on Sec. 230 grounds). Second, most of those challenges succeed. I don't have hard stats to back up this assertion, but I'd bet that there are few areas of modern law that have witnessed a higher percentage of successful constitutional challenges in recent years than the field of cyberlaw.  Taking that as a given, one must assume that at some point it becomes a deterrent to additional state action in this field.  Why waste years legislating and regulating if it is all enjoined and then overturned a short time later?

3) Resurgence of privacy as major policy issue and the emergence of cybersecurity as a policy issue

It could also be that case that privacy policy crowds out congressional interest in online safety legislation. In fact, it seems like these issues often move in opposing waves. When a wave of online safety legislative and regulatory activity is cresting, interest in privacy policy seems to fall. That certainly seemed to be the case between roughly 2005 and 2008 when online safety dominated congressional debates and privacy was hardly on the radar.  Today the reverse is true. Privacy has been the dominant Internet policy issue of the past year or so. It is sucking all the oxygen out of the room — whether that room is a congressional hearing room, a regulatory agency event, or even academic conferences.

Importantly, cybersecurity has rapidly emerged as a major new fault line in Internet policy debates. It, too, is eating up a lot of the "attention bandwidth" available among policymakers today.  And intellectual property matters always seem to be percolating out there.

It is my belief that because some of these Net policy issues are so complicated, policymakers are sometimes discouraged from doing a "deep dive" on them. To the extent they do, it seems unlikely that lawmakers are willing to invest serious time in more than a couple of these arcane matters at one time. Also, don't forget how busy the relevant committees (Commerce and Judiciary) are with other, not tech policy-related matters. On any given legislative day, they could be handling a wide range of other policy issues that crowd out the amount of attention they can devote to Net policy matters, which are often far down the list of legislative priorities. Again, I'm generally pretty happy about that fact! I'd rather lawmakers go slow on these issues, whether the slow pace of the action is intentional or not.

So, what do you think? Are there other possible explanations for why we've seen less activity on the online safety / Internet content regulation front in recent years?

Net Neutrality and Regulatory Reform

The Senate might vote this week on Sen. Hutchison's resolution of disapproval for the FCC's net neutrality rules.  If ever there was a regulation that showed why independent regulatory agencies ought to be required to conduct solid regulatory analysis before writing a regulation, net neutrality is it.

For more than three decades, executive orders have required executive branch agencies to prepare a Regulatory Impact Analysis accompanying major regulations.  One of the first things the agency is supposed to do is identify the market failure, government failure, or other systemic problem the regulation is supposed to solve. The agency ought to demonstrate a problem actually exists to show that a regulation is actually necessary.

But the net neutrality rules have virtually no analysis of a systemic problem that actually exists, and no data demonstrating that the problem is real.  Instead, the FCC's order outlines the incentives Internet providers might face to treat some traffic differently from other traffic, in a discussion heavily freighted with "could's" and "may's".  Then it offers up just four familiar anecdotes that have been used repeatedly to support the claim that non-neutrality is a significant threat  (all four fit in paragraph 35 of the order).  The FCC asserts without support that Internet providers have incentives to do these things even if they lack market power, and indeed in a footnote it dispenses with the need to consider market power: "Because broadband providers have the ability to act as gatekeepers even in the absence of market power with respect to end users, we need not conduct a market power analysis." (footnote 87)

Thus far, no administration of either party has sought to apply Regulatory Impact Analysis requirements to independent agencies. If administrations won't, Congress should.

 

Congress's Piracy Blacklist Plan: A Cure Worse than the Disease?

Over at TIME.com Techland, I write about the newly introduced Stop Online Piracy Act and the renewed push for a "rogue website" law.

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment.

The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

Read the whole thing here.

Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause

I just posted the following comment in response to Scott Cleland's piece on Forbes: Why Anti-Piracy Legislation Will Become Law.

Scott, have you read my colleague Larry Downes dissection of SOPA over on CNET?  The problem isn't that the bill is too hard on pirates, but that trying to punish piracy in such a crude and draconion manner has plenty of negative unintended consequences:

SOPA effectively introduces new monitoring requirements for all websites that allow user content, even comments posted to blogs. Rightsholders.. need only "a good faith belief that a Web site is 'avoiding confirming' infringement, and they can demand that payment systems and advertising networks cease doing business with the Web site."

Larry suggests that lawmakers' focus is simply misguided:

If parasitic foreign Web sites are truly costing the U.S. economy significant losses (a claim made regularly by content industries but without credible data to back it up), then the best use of government resources is not to surgically remove hyperlinks and DNS table entries. Rather, we should step up the pressure on foreign governments to enforce their own laws and international treaties extending U.S. protections abroad.

And indeed, one positive development in SOPA is a provision that does just that. It requires both the State and Commerce Departments to make protection of U.S. copyright and trademark a priority in both diplomatic and trade negotiations. To fulfill SOPA's stated goal of reducing foreign infringement of U.S. interests, that section should have been the beginning and the end of the bill.

The proposed legislation, unfortunately, goes much farther, losing sight of any actual harms in need of legislative correction, and invoking repeatedly the likely application of the law of unintended consequences.

Larry's focus on the unintended consequences of regulation, and his emphasis on finding narrow solutions to clearly defined problems is what prudent policymaking should be about.  In fact, that's why Larry and I at TechFreedom have been so critical of net neutrality regulations as a sweeping, prophylactic remedy for an ill-defined problem when less restrictive alternatives like enforcing antitrust laws and consumer protection laws would work better.  In fact, I seem to recall that you on the same side as us in those arguments!

But I'm sorry to say that I realized long ago that, while we arrived at the same place on net neutrality, we came to it from profoundly different places.  I won't presume to speculate as to exactly what motivates you, but it sure isn't the prudent conservatism of Edmund Burke or F.A. Hayek's focus on the limitations of human knowledge and the dangers of top-down planning.

If anything, you seem to fall into precisely the same mentality that always motivates regulatory advocates: that intentions matter more than results.  The question here isn't whether the law is well intentioned, or even whether piracy is a huge problem (I'd agree it is). The question is whether this particular approach to combating piracy is worth its costs.  I am, as always, highly skeptical, for the reasons Larry explains (and has explained in his past work in this area).

Perhaps after you've read his work, you could enlighten us as to why he's mistaken about these apparently significant unintended consequences of draconian copyright enforcement.  The same concerns are shared by many other copyright lawyers and folks who've worked at the very companies that will have to try to figure out what this poorly-worded law means.  (Where did you study copyright law, again?  Or, which Internet companies have you worked at?)

In the meantime, I will limit myself to objecting to this paragraph:

Opponents' intimations that the Tea Party movement is somehow a strong ally against property rights enforcement is deceptive and does not withstand scrutiny. The Tea Party stands for the limited government principles of the Founding Fathers embodied in the U.S. Constitution. To see for yourself that this bill is completely aligned with the U.S. Constitution, which is clearly pro-property rights and property rights enforcement, just look at Article I Section 8: where it says: "The Congress shall have the power… to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…" and "…to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."

Your argument seems to be: this bill is pro-copyright, the Constitution is pro-copyright…. therefore… this bill is "completely aligned" with the Constitution!  This is precisely the sort of wooden application of the Constitution that gives serious constitutionalists such a bad name.  Our nation's framers, including Thomas Jefferson, thought it extremely important that any government action aimed at securing the exclusive rights of authors and investors be carefully and cautiously tailored to benefit society as a whole.  For example, see Jefferson's refutation of the suggestion that inventors "have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs" (which is how the Europeans still conceive of both copyright and patents).  Thus, if the the Copyright clause is "clearly" anything, it is utilitarian.  That is, Congress is granted the power to create and enforce copyrights "to promote the progress of science and the useful arts."

Thus, the questions about trade-offs Larry raises are precisely the questions the Constitution requires Congress to ask in legislating new copyright regulations—and make no mistake about it: however much you value rewarding content creators, copyright laws are regulations.  Like all regulations, they are subject to regulatory capture by special interests and to the law of unintended consequences.  (I know you get this in the context of net neutrality, but why not here?)

So, please, spare us your simplistic attempt to reduce this all to a "political clash between pro-IP forces and anti-IP forces."  There certainly are leftist groups criticizing the bill who never met a copyright law they liked; some might go so far as to defend clear examples of piracy.  I certainly would not.  My message on copyright is the same as my message on all attempts to regulate the Internet: Congress should (1) identify clear harms, (2) look for narrowly tailored solutions, (3) ask whether the regulation's benefits outweigh its costs, considering its likely unintended consequences, and (4) focus on finding the least-restrictive solutions available, which usually means .

This is what it means to fight for "tech freedom"—and what we at TechFreedom try to do across the board.  What are you fighting for, exactly?  Where's that healthy skepticism that made you worry about the unintended consequences of net neutrality regulation?  WWHS (What Would Hayek Say)?

Put more simply: good intentions don't matter. You should know this better than anyone from having watched the FCC become a rogue agency because of the vague and broadly worded language of the Communications Act.  Sorting out this mess can't be left up to the courts: betting the Internet's future on the unpredictable whims of federal judges is a recipe for disaster and an affront to the rule of law.

My New Empirical Study on Defining and Measuring Search Bias

[Cross posted at Truthonthemarket.com]

Tomorrow is the deadline for Eric Schmidt to send his replies to the Senate Judiciary Committee's follow up questions from his appearance at a hearing on Google antitrust issues last month.  At the hearing, not surprisingly, search neutrality was a hot topic, with representatives from the likes of Yelp and Nextag, as well as Expedia's lawyer, Tom Barnett (that's Tom Barnett (2011), not Tom Barnett (2006-08)), weighing in on Google's purported bias.  One serious problem with the search neutrality/search bias discussions to date has been the dearth of empirical evidence concerning so-called search bias and its likely impact upon consumers.  Hoping to remedy this, I posted a study this morning at the ICLE website both critiquing one of the few, existing pieces of empirical work on the topic (by Ben Edelman, Harvard economist) as well as offering up my own, more expansive empirical analysis.  Chris Sherman at Search Engine Land has a great post covering the study.  The title of his article pretty much says it all:  "Bing More Biased Than Google; Google Not Behaving Anti-competitively."

One clarification is in order.  The  Search Engine Land piece quotes Geoff responding to the author indicating that the research was undertaken independently.  It's not clear from the way Sherman presents it in the article, but Geoff did acknowledge (as does the disclosure in the paper itself) that Google supports ICLE.  However, as Sherman notes, although the work was indirectly supported by Google, Google had no hand in the conception or execution of the project.  For that I'm the only one to blame, unfortunately.

Following is a summary of the study from the ICLE website.  I plan to blog about the results and their implications in the coming days in a series of posts.

Google has been the subject of persistent claims that its organic search results are improperly "biased" toward its own content.  Among the most influential is an empirical study released earlier this year by Benjamin Edelman and Benjamin Lockwood, claiming that Google favors its own content "significantly more than others."  The authors conclude in their study that Google's search results are problematic and deserving of antitrust scrutiny because of competitive harm.

A new report released by the International Center for Law & Economics and authored by Joshua Wright, Professor of Law and Economics at George Mason University, critiques, replicates, and extends the study, finding Edelman & Lockwood's claim of Google's unique bias inaccurate and misleading. Although frequently cited for it, the Edelman & Lockwod study fails to support any claim of consumer harm — or call for antitrust action — arising from Google's practices.

Prof. Wright's analysis finds own-content bias is actually an infrequent phenomenon, and Google references its own content more favorably than other search engines far less frequently than does Bing:

In the replication of Edelman & Lockwood, Google refers to its own content in its first page of results when its rivals do not for only 7.9% of the queries, whereas Bing does so nearly twice as often (13.2%).
Again using Edelman & Lockwood's own data, neither Bing nor Google demonstrates much bias when considering Microsoft or Google content, respectively, referred to on the first page of search results.
In our more robust analysis of a large, random sample of search queries we find that Bing generally favors Microsoft content more frequently—and far more prominently—than Google favors its own content.
Google references own content in its first results position when no other engine does in just 6.7% of queries; Bing does so over twice as often (14.3%).

The results suggest that this so-called bias is an efficient business practice, as economists have long understood, and consistent with competition rather than the foreclosure of competition. One necessary condition of the anticompetitive theories of own-content bias raised by Google's rivals is that the bias must be sufficient in magnitude to exclude rival search engines from achieving efficient scale. A corollary of this condition is that the bias must actually be directed toward Google´s rivals. That Google displays less own-content bias than its closest rival, and that such bias is nonetheless relatively infrequent, demonstrates that this condition is not met, suggesting that intervention aimed at "debiasing" would likely harm, rather than help, consumers.

Stop the Stop Online Piracy Act!

For CNET today, I have a long analysis and commentary on the "Stop Online Piracy Act," introduced last week in the House. The bill is advertised as the House's version of the Senate's Protect-IP Act, which was voted out of Committee in May.

It's very hard to find much positive to say about the House version. While there's considerable evidence its drafters heard the criticisms of engineers, legal academics, entrepreneurs and venture capitalists, their response was unfortunate.

Engineers pointed out, for example, that court orders requiring individual ISPs to remove or redirect domain name requests was a futile and dangerous way to block access to "rogue" websites. Truly rogue sites can easily relocate to another domain, or simply have users access them with their IP address and bypass DNS altogether.

There are millions of DNS servers, according to Verisign, so getting all of them to make the change would be impossible, splintering the system. And redirecting DNS requests is some sense introducing a bug in the system, one that is inconsistent with upcoming security measures aimed at protecting users from being hijacked.

But all the drafters of SOPA seemed to have heard was the part about "futile." Their response has been to make the DNS provisions vaguer and more open-ended, in hopes that whatever mechanisms the rogue sites come up with to evade the law will also be illegal.  Blocking is now extended not just to "parasite" sites but to a "portion thereof," for example.

And the Attorney General can now apply for injunctive relief against any "entity" that provides "a product or service designed or marketed for the circumvention or bypassing of measures" taken in response to an earlier court order.

Similar efforts are found throughout SOPA, particularly in the felony streaming provision, and the private right of action (or what the bill calls the "market-based system") for private enforcement of copyright and trademark abuses.  Where clarity isn't possible, the drafters have opted for vagueness, open-ended definitions, and hedges.  Even the term "including" is defined, to be clear that it means "including but not limited to."

The point to criticism of Protect-IP was instead that it was impossible to regulate technology that is changing so quickly, and that any effort to do so would only prove obsolete on arrival.  As previous efforts from CAN-SPAM to ECPA and back make clear, you cannot future-proof legislation aimed at specfiic features of emerging technologies.

That, unfortunately, is exactly what SOPA tries to do.  And beyond making the legislation clumsy and imprecise, the intentional vagueness greatly increases the potential for unintended consequences.  I describe several unintentionally dangerous examples from SOPA in the CNET piece; other analysts have done the same in pieces listed at the end of this post.

Two good things I found in the 79-page draft:

1.  The failure of Protect-IP to define "nonauthoritative domain name server" has been addressed.  That term is now defined, and the definition looks correct to me.

2.  SOPA recognizes, at least, the better approach to solving the problem of foreign websites that blatantly violate copyright and trademark.  Near the back, Section 205 calls on the State and Commerce Departments to make enforcement of existing international law and treaties regarding information products and services a priority.  This includes the assignment of new attaches dedicated to information products.

Would that SOPA started and ended with this provision, there would be little basis to fault its drafters.  If the problem SOPA is attempting to solve, after all, is the scourge or foreign websites that distribute movies, music, and counterfeit goods without a license (often pretending to be legitimate), then surely the solution is one of foreign and trade policy and not micromanaging Internet protocols.

Instead, we have a bill that treats all U.S. consumers as guilty until proven innocent, and hands Hollywood the keys to the inner workings of the Internet.  Just what they've always wanted.

 

Worth reading:

Ryan Radia, "Preliminary thoughts on SOPA "  (TLF)
David Sohn, "House Copyright Bill Casts Dangerously Wide Net"  (CDT)
Corynne McSherry, "Disastrous IP Legislation Back–and it's Worse than Ever "  (EFF)
Sherwin Siy, "House Version of Rogue Websites Bill Adds DMCA Bypass, Penalties for DNS Workarounds" (Public Knowledge)
Mike Masnick, "E-Parasites Bill Ends Internet as we Know it"  (TechDirt)

 

5 Questions New FCC Commissioners Should Ask About Need for New & Existing Regulations

Yesterday, President Barack Obama announced two nominations to the Federal Communications Commission: Jessica Rosenworcel, replacing Democratic Commissioner Michael Copps, and Ajit Pai, replacing Republican Commissioner Meredith Attwell Baker.

The FCC faces a unique challenge: Because it regulates the communications industry, essentially every rule it issues implicates the free speech values at the heart of our Constitutional heritage. The First Amendment was intended to be a shield against government meddling, not a sword for regulatory activism, however well-intentioned. Moreover, the FCC regulates an industry being transformed by the Digital Revolution.

We at TechFreedom look forward to working with these new Commissioners to ensure that FCC regulations serve consumers by advancing competition and innovation while respecting free speech rights. The Commission should ask, and explicitly answer, the following questions whenever considering the need for new, or existing, regulations:

What free speech rights are at stake?
How substantial is the government's interest? Has the market failed?
Can regulation, always slow to start and slower to adapt, really address the problem better than technological change?
Will the regulation's benefits outweigh its costs, considering its likely unintended consequences?
Are there less-restrictive and more speech-protective ways government can achieve its interest, such as enforcing existing antitrust and consumer protection laws, supporting consumer education, empowering users to make their own decisions, or compelling disclosure to consumers?

Alisdair Gillespie on restricting access to the Internet

On the podcast this week, Alisdair Gillespie, Professor of Criminal Law and Justice at De Montfort University in Leicester UK, discusses his new paper in the International Journal of Law and Information Technology, Restricting Access to the Internet by Sex Offenders. Gillespie discusses whether access to the Internet is a human right, and if so, when that right can be curtailed. He establishes that access to the Internet could be a negative right, then turns to how Internet access can be restricted in the case of sex offenders. Gillespie talks about different ways to prevent these offenders from using the Internet for ill, including complete restriction as well as technological tools similar to parental control software, and the difficulties that arise when trying to implement any one of these schemes.

Related Links

Restricting access to the internet by sex offenders , by Gillespie"The U.N. Declares Internet Access a Human Right", The Atlantic Wire"If Banning The Internet For Sex Offenders Is Unfair, Is Banning The Internet For Copyright Infringers Fair?", Tech Dirt

To keep the conversation around this episode in one place, we'd like to ask you to comment at the webpage for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?

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Event: "A New Framework for Broadband and the FCC" (Nov. 9, 10:00am)

On Wednesday, November 9th, the Mercatus Center will be hosting an event on "A New Framework for Broadband and the FCC." It will take place at the Reserve Officers Association from 10:00am – 11:30am. At the event, telecom experts Raymond Gifford, Jeffrey Eisenach, and Howard Shelanski that will examine if a new framework might be needed for broadband policy and the possibility of reforming the Federal Communications Commission. Both Eisenach and Gifford will be presenting new papers at the event and Shelanski will be offering commentary. RSVP here to hold a seat.  Complete event summary follows.

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Broadband policy continues to be a contentious subject of debate with many policymakers and advocates suggesting that a new framework might be needed to foster increased competition, innovation, higher speeds, greater coverage, and lower prices. Meanwhile, there's talk in Washington once again of reforming the Federal Communications Commission (FCC) to bring the agency into the information age.

These issues are explored in new studies by Raymond Gifford, a Partner at the law firm of Wilkinson Barker Knauer, LLP, and by Jeffrey Eisenach, a Managing Director and Principal at Navigant Economics and an Adjunct Professor at George Mason University Law School. In a new Mercatus Center working paper, Gifford outlines what substantive FCC reform would entail and considers what antitrust agencies and enforcement can teach us about the way the FCC should work going forward.  In a similar vein, Eisenach's new study considers how competition oversight of broadband markets could be modeled after modern antitrust principles.

Gifford and Eisenach will outline these alternative approaches to broadband policy and FCC reform in a Mercatus Center event on Wednesday, November 9th at 10:00am at the Reserve Officers Association. Also joining us for the discussion will be Howard Shelanski, Professor of Law at Georgetown Law School who previously served as Chief Economist for the Federal Communications Commission and as a Senior Economist for the President's Council of Economic Advisers at the White House. Register for the event here.

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