Adam Thierer's Blog, page 124

Pamela Samuelson on codifying the Google Books settlement

On the podcast this week, Pamela Samuelson, the Richard M. Sherman Distinguished Professor of Law at Berkeley Law School, discusses her new article in the Columbia Journal of Law & the Arts entitled, Legislative Alternatives to the Google Book Settlement.  Samuelson discusses the settlement, which was ultimately rejected, and highlights what she deems to be positive aspects. One aspect includes making out-of-print works available to a broad audience while keeping transaction costs low. Samuelson suggests encompassing these aspects into legislative reform. The goal of such reform would strike a balance that benefits rights holders, as well as the general public, while generating competition through implementation of a licensing scheme.

Related Links


Legislative Alternatives to the Google Book Settlement , by Samuelson
"Judge Rejects Google Books Settlement," Wall Street Journal
"Explaining the Google Books Case Saga," Time Techland

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

Brown v EMA and net neutrality?

John Perry Barlow famously said that in cyberspace, the First Amendment is just a local ordinance.  That's still true, of course, and worth remembering.  But at least today there is good news in the shire.  The local ordinance still applies with full force, if only locally.

As I write in CNET this evening (see "Video Games Given Full First Amendment Protection"), the U.S. Supreme Court issued a strong and clear opinion today nullifying California's 2005 law prohibiting the sale or rental to minors of what the state deemed "violent video games."

The 7-2 decision in Brown v. EMA follows last week's decision in Sorrell, which also addressed the role of the First Amendment in the digital economy.  Sorrell dealt with a Vermont law that banned data mining of pharmacy information.  That application, the Court said, was also protected speech.

The CNET article is quite long (duh), and I'll let it speak for itself.  There is also excellent commentary on both decisions from Adam Thierer and Berin Szoka here at the Technology Liberation Front.  Adam and Berin submitted an amicus brief in the EMA case that closely tracked the Court's opinion, which in fact quoted from another amicus brief from the Cato Institute.  Berin also contributed a brief in the Sorrell case, again on the winning side.

Perhaps the most interesting commentary on today's decision, however, comes from Prof. Susan Crawford.  Prof. Crawford's blog on EMA notes that an important feature of the majority decision (written by Justice Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan) is what she calls the "absolute" view it takes of speech.  Crawford writes of Scalia's opinion:

"Whether government regulation applies to creating, distributing, or consuming speech makes no difference," he says in response to Justice Alito's attempt to say that sale/rental is different from "creation" or "possession" of particular speech.

That view is absolute in the sense that it does not distinguish between different stages of the supply chain of information provisioning.  The "speaker," for First Amendment purposes, is not only the author of the content, but also distributors, retailers, and consumers.  Each is equally protected by the First Amendment's prohibition on government interference, whether that interference is a ban on certain content (violent video games) or a requirement to promote it (must-carry rules for cable).

Why does this matter?  Though I have written and tesftified extensively about the FCC's December, 2010 "Open Internet" order, I have so far avoided discussion of a possible First Amendment challenge.  Frankly, I hadn't initially thought it to be the strongest available argument against the legality of the rules.

But Prof. Crawford, a strong advocate for "net neutrality" in general, reads EMA as adding support to such an argument:

Today's opinion may further strengthen the carriers' arguments that any nondiscrimination requirement imposed on them should be struck down.  Although a nondiscrimination requirement arguably promotes speech rather than proscribes it, the long-ago Turner case on "must-carry" obligations for cable already suggested that the valence of the requirement doesn't really matter.

If challengers to the Open Internet order (which today added the State of Virginia to the list of those waiting in the wings to file lawsuits) can convince a court that rules requiring nondiscriminatory treatment of packets are effectively requiring carriers to speak, such a rule would be seen as content-based.  Under EMA and last year's decision in Stevens, such a rule could fail a First Amendment challenge.

It's an interesting argument, to say the least.  I think I'll give it a little more thought.

Brown v. EMA: SCOTUS Vindicates First Amendment for All Media, Empowerment & Opt-Out

Adam Thierer has already provided an excellent overview of the Supreme Court's decision in Brown v. Entertainment Merchants Association, striking down a California law requiring age verification and parental consent for the purchase of "violent" videogames by minors. It's worth calling attention to two key aspects of the decision.

First, the Supreme Court has clearly affirmed that the First Amendment applies equally to all media, including videogames and other interactive media. The Court has, in the past, often accorded lesser treatment to new media, as Cato's excellent amicus brief explains [pp 3-15]. This approach, if applied consistently by the Court in the future, will ensure that free speech continues to be protected even as technology evolves in ways scarcely imaginable today.

Second, the Court correctly rejected California's attempt to justify governmental paternalism as a supplement for parental responsibility [Brown at 15-17]. The existing content rating system and parental controls in videogame consoles already empower parents to make decisions about which games are appropriate for their children and their values. As in the Sorrell decision handed down last week, the Court has rejected what amounts to an opt-in mandate—this time, in favor of letting parents "opt-out" of letting their kids play certain games or rating levels rather than requiring that they "opt-in" to each purchase. This is the recurring debate about media consumption—from concerns over violent or offensive speech to those surrounding privacy. And once again, speech regulation must yield to the less-restrictive alternatives of empowerment and education.

Both these points were at the heart of the amicus brief I filed with the Supreme Court in this case last fall (press release), along with Adam (my former Progress & Freedom Foundation colleague) and Electronic Frontier Foundation Staff Attorney Lee Tien and Legal Director Cindy Cohn. Here's the summary of our argument in that brief, which provides as concise an overview of our reasoning as we could manage, broken down into separate bullets with quotations referencing the Court's decision on that point. As you'll see, the Court's decision reflected all our arguments except for one, which the Court's decision did not reach.

Our Brief, Point 1: This Court has long held that content-based regulation of speech must yield to less restrictive means that do not affect First Amendment interests of speakers and willing listeners. Here, amici explain how a highly descriptive content rating system, an extensive array of parental empowerment tools, numerous household media control methods, and enforcement of existing consumer deception laws together constitute a less restrictive alternative to California's law. Indeed, survey research conducted by the Federal Trade Commission shows that the videogame industry's official rating and labeling system is not only widely recognized and used by parents but is also well enforced. Whatever the state's interest, parents today already have the capacity to choose and control their children's videogame consumption based on their own household standards. Government can help build awareness of parental control tools and methods, and punish deception, but there is no Constitutional justification for restricting this new and evolving form of speech.
The Court: California cannot show that the Act's restrictions meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games … [noting the FTC report in particular]. This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest [Brown at 15-16].



Our Brief, Point 2a. Videogames are speech fully protected by the First Amendment, and both the "violence" and "interactivity" feared by California are integral, expressive aspects of books, plays and movies, as well as videogames.
The Court: [W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears. [2-3, internal quotation omitted]

While Justices Kennedy, Ginsburg, Sotomayor and Kagan joined this majority opinion, written by Justice Scalia, I must note my concern here with the concurrence written by Justice Alito and Chief Justice Roberts:

In considering the application of un-changing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution. [1-2]

When all of the characteristics of video games are taken into account, there is certainly a reasonable basis forthinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand. [16-17]

Fortunately, the five-vote majority carried the day, clearly establishing the principle that the First Amendment is medium-neutral over Alito & Roberts "wait and see, evaluate each new medium afresh" approach. Anyway, back to the good stuff: how well the Court lined up with our arguments!

Our Brief, Point 2b. Every state "violent" videogame law has therefore failed strict scrutiny, and the Ninth Circuit's decision was wholly consistent with the considered judgment of numerous courts.
The Court: Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of "sexual conduct," [5-6] … California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors [17].



Our Brief, Point 2c. Amici fear that California's age-based restrictions will migrate to the Internet, where the ineffectiveness of age-verification tools could inspire identity-verification requirements that would chill adults' access to fully protected speech.
The Court: [This is the one argument the Court did not reach, which is hardly surprising, given the complicated issues online age verification raises, going back to the extensive COPA litigation.]



Our Brief, Point 3a. The laboratory research on which California bases its legislative findings—to which California now asks this Court to defer—does not support harm to any compelling state interest. Social scientists hotly debate the methodological validity of media-violence research, and that research defines "violence" and "aggression" in ways that conflict with society's understandings: Research that classifies the well-known children's videogame "Super Mario Brothers" as "violent" is of dubious relevance to real-world concerns about violence.
The Court: The State's evidence is not compelling. California relies primarily on … studies [that] purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. [12-13]



Our Brief, Point 3. Moreover, Turner deference is completely inapplicable to content-based regulation of fully protected speech.
The Court: [California's] reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. California's burden is much higher, and because it bears the risk of uncertainty, ambiguous proof will not suffice. [12] … Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an "actual problem" in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. "It is rare that a regulation restricting speech because of its content will ever be permissible." [11]

In conclusion, let me again simply quote from the conclusion of our brief: "California's legislature has succumbed to moral panic, as lawmakers have so often done when confronted with the media of a new generation. Speech is undoubtedly powerful, and new forms of speech are always controversial. Time and again, however, the feared harms of new forms of expression have proven to be fears, not harms. This case is no different."

Thoughts on SCOTUS Video Games Decision in Brown v. EMA

The Supreme Court wasn't playing games with the First Amendment today. With its 7-2 decision in Brown v. EMA, the Court has protected video game creators and players from unconstitutional restrictions on what we can produce and play.

Today's decision ensures that video games have First Amendment protection on par with books, film, music and other forms of entertainment and will help block other regulatory efforts that are justified by blindly alluding to the rationale that "it's for the children." The decision fits nicely alongside an impressive and growing string of recent First Amendment cases from the Court that significantly raise the bar against legislative efforts to regulate freedom of speech and expression.

Quick background: In May 2010, the Supreme Court announced that it would review a California law regulating the sale of violently-themed video games to minors. The case was Schwarzenegger v. Entertainment Merchants Association, but the name of the case changed to after Jerry Brown became governor of California.  The Ninth Circuit Court of Appeals had struck down a California law which prohibited the sale or rental of "violent video games" to minors, but California appealed and the SCOTUS took up the issue.  [Note: When we were still with Progress & Freedom Foundation, Berin Szoka and I filed a big amicus brief with the Court in the case along with some folks at the Electronic Frontier Foundation.]  By a 7-2 vote, the Supreme Court backed the Ninth Circuit and overturned the California law. Justice Scalia wrote for the majority. Justices Thomas and Breyer dissented.

The crucial holdings in the decision are as follows:

Video games are protect speech deserving strict First Amendment scrutiny. The Court held: "Video games qualify for First Amendment protection.  Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.  And 'the basic principles of freedom of speech… do not vary' with a new and different communication medium."
Depictions of violence in video games cannot be treated as obscenity and regulated as such. The Court concluded flatly: "speech about violence is not obscene" and held that "a legislature cannot  create new categories of unprotected speech simply by weighing the value of a particular category against its social  costs and then punishing it if it fails the test." It continues on: "the State of California wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.  That is unprecedented and mistaken.  This country has no tradition of specially restricting children's access  to depictions  of violence."
The social science literature on the impact of violent games is inconclusive. The Court found that: "Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act  aggressively.  Any demonstrated effects are both small and indistinguishable from effects produced by other media."
Concerns about children cannot be used as an excuse for sweeping content regulation (especially when less-restrictive means exist of dealing with access to objectionable content.) Government cannot excuse censorship by pointing to fears about children's access to violent depictions of media. The Court noted that, "California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors," but that, "even where the protection of children is the object, the  constitutional limits on governmental action apply." Violently-themed media is as old as literature itself, the Court noted. As has been the case with previous forms of violent content, parental responsibility is the better way to regulate access to potentially objectionable media. And the Court noted that tools and ratings exist to help parents do so.

This is the proper approach for a society that cherishes free speech, freedom of expression, and personal responsiblity. The Court did a great thing here today. Honestly, I was expecting a loss and had a long essay ready to go that reflected my disappointment.  Never have I been so pleased to tear up something I had spent so much time on!

A great day for the First Amendment.

P.S. As if often the case, best line in the decision came in a footnote: "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are  not  constitutional ones.  Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less  forms of speech than The Divine Comedy," Justice Scalia wrote.

Additional TLF Reading on Video Games:

Again, Most Video Games Are Not Violent
Thoughts on Oral Arguments in Schwarzenegger v. EMA Video Game Case
EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
If We Ban Violent Video Games, Why Not Violent Theme Park Attractions?
Video Games, Media Violence & the Cathartic Effect Hypothesis
More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime
Will the Supreme Court Protect Kitten-Crushing Videos & Virtual Kid Porn but Not Video Games?
Video Games, Free Speech & the Lunacy of "Ecogenerism"
Like the Terminator, Video Game Censorship Efforts Just Won't Die
Video Games and "Moral Panic"
Kids, Video Games, Fantasy, & Imagination
Video Games, Violence, & Social "Science": Another Day, Another Fight
Dear Gov. Patterson… Regarding that Video Game Bill You Are About to Sign
Do video games create cop killers?
review: Dr. Kourosh Dini's "Video Game Play & Addiction"
review: Kutner & Olson's "Grand Theft Childhood"
presentation at PSU's conference on future of video games
Why hasn't violent media turned us into a nation of killers?
First Amendment & Video Games [Updated] Score: Gamers 11, Censors 0
Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing
Can Government Improve Video Game Ratings?
An Indecency Regime for Video Games?
Let's Consider the Facts Before We Call In Government to Regulate Video Games

In Which I Call Ed Felten "Baby"…

At the Computers Freedom and Privacy conference, I moderated a panel on "Do Not Track." I tried to make sure it was fun, and I think it was. Among other things, yes, I called Ed Felten, "baby." Check it out.

Local Government Meets the New Media

If you've been following Reason.com or Reason.tv for the past 48 hours you will know that Jim Epstein, a Reason TV reporter, was one of two journalists arrested Wednesday for videotaping a meeting of the Washington D.C. Taxi Commission.

Epstein and Pete Tucker, who blogs for TheFightBack.org, a site that spotlights local D.C. issues that affect minorities and low-income residents, were reporting from what was expected to be contentious meeting as the Taxi Commission was set to address a plan to introduce a medallion system for the District. The proposal had generated considerable opposition from the city's large base of cab drivers, many of whom attended the meeting to voice their opposition. They essentially believe a medallion system will concentrate cab ownership among a handful of large fleet operators and likely result in the loss of their livelihood.

The arrests were regrettable all around. Epstein's video, which shows Tucker, dressed neatly in a white shirt and tie, being handcuffed and led away, captures a deeply uncomfortable "it-can't-happen-here" moment. Epstein was arrested next. Epstein's video and statement can be found here.

Aside from the fact Epstein and Tucker were released a few hours later, the best thing that can be said is that the arrests were ordered by someone who can charitably be described as a low-level local government functionary, namely Dena Reed, interim chairman of the Taxi Commission. But that doesn't excuse it. Reed emerges from this affair looking like a third-grade hall monitor who's allowed that modicum of authority to go to her head.

What triggered Reed to have Epstein and Tucker arrested was Tucker's request to place a microphone near her chair. It was clear from the beginning that Reed did not want the meeting videotaped, although any journalist—make that any individual—had every right to under open meeting laws. Furthermore, in this day and age of Internet-based news and blogging, video is a legitimate means of documentation. Reed may as well have had the reporters arrested for taking notes.

Reed cited a policy that allows Commission officials to ban taping at their discretion. Policies like this need to change. When daily newspapers are giving their reporters camcorders with an eye toward Web media, there is no line between print and electronic media. A policy that bars video recording amounts to direct interference with modern newsgathering. If local officials insist on banning video, more reporters are going to push the issue. Good for them, because these acts of civil disobedience end up embarrassing the government far more than the reporter.

And let's not forget the Streisand Effect. Reed's power play to shut out news coverage resulted in D.C. medallion issue receiving much more attention than it would have if she had allowed Epstein and Tucker to do their jobs unmolested. Instead, now on a national stage, she validated critics' claims that the commission is arbitrary, unfair and incompetent.

It's also worth noting that the incident comes just two weeks after the Federal Communications Commission, in its "Future of Media" report, said that local news media does not need a government lifeline. The matter has been raised in Congress and in some state legislatures who see local newspapers and TV stations facing declining readers, viewers and advertisers as more people turn to the Web for news. The FCC itself, in its National Broadband Plan, raised the idea of subsidizing local media via the Universal Service Fund. Yet, after examining the issue, noted the potential of the Web to pick up the slack. Others have noted that more specialized sites, like TheFightBack.org, would improve local news coverage by tailoring coverage to narrower interest groups broadcasters overlook. Case in point here. No local TV stations were at the Taxi Commission meeting, but TheFightBack.org and ReasonTV were. Moreover, Tucker and his site are not outliers. The cab drivers were aware of his coverage of the mediallian issue and showed their outrage by walking out the meeting after the arrest.

But the primary lesson here is for all those petty bureaucrats and officials who still think they have a say in who covers their little part of the political mechanism and how they do it: Video is a part of everyday news reporting. Deal with it.

 

The FTC makes its Google investigation official, now what?

[By Geoffrey Manne & Joshua Wright.  Cross-posted at Truth on the Market]

No surprise here.  The WSJ announced it was coming yesterday, and today Google publicly acknowledged that it has received subpoenas related to the Commission's investigation.  Amit Singhal of Google acknowledged the FTC subpoenas at the Google Public Policy Blog:

At Google, we've always focused on putting the user first. We aim to provide relevant answers as quickly as possible—and our product innovation and engineering talent have delivered results that users seem to like, in a world where the competition is only one click away. Still, we recognize that our success has led to greater scrutiny. Yesterday, we received formal notification from the U.S. Federal Trade Commission that it has begun a review of our business. We respect the FTC's process and will be working with them (as we have with other agencies) over the coming months to answer questions about Google and our services.

It's still unclear exactly what the FTC's concerns are, but we're clear about where we stand. Since the beginning, we have been guided by the idea that, if we focus on the user, all else will follow. No matter what you're looking for—buying a movie ticket, finding the best burger nearby, or watching a royal wedding—we want to get you the information you want as quickly as possible. Sometimes the best result is a link to another website. Other times it's a news article, sports score, stock quote, a video or a map.

It is too early to know the precise details of the FTC's interest.  However, We've been discussing various aspects of the investigation here and at TOTM for the last year.  Indeed, we've written two articles focused upon framing and evaluating a potential antitrust case against Google as well as the misguided attempts to use the antitrust laws to impose "search neutrality."  We've also written a number of blog posts on Google and antitrust (see here for an archive).

For now, until more details become available, it strikes us that the following points should be emphasized:

For several reasons, the Federal Trade Commission's investigation into Google's business practices seems misguided from the perspective of competition policy directed toward protecting consumer welfare.  We hope and expect that the agency will conclude its investigation quickly and without any enforcement action against the company.  But it is important to note that this is merely an investigation–and at that, one that is not necessarily new.  More importantly, it is not a full-fledged enforcement action, much less a successful one; and although such investigations are extraordinarily costly for their targets, there is not yet (and there may never be) even any allegation of liability inherent in an investigation.
In any such case, the focus of concern must always be on consumer harm–not harm to certain competitors.  This is a well known antitrust maxim, but it is certainly appropriately applied here.  We are skeptical that consumer harm is present in this case, and our writings have explored this issue at length.  In brief, Google of today is not the Microsoft of 1998, and the issues and circumstances that gave rise to liability in the Microsoft case are uniformly absent here.
Related, most of the claims we have seen surrounding Google's conduct here are of the vertical sort–where Google has incorporated (either by merger, business development or technological development) and developed new products or processes to evolve its basic search engine in novel ways by, for instance, offering results in the form of maps or videos, or integrating travel-related search results into its traditional offerings.  As we've written, these sorts of vertical activities are almost always pro-competitive, despite claims to the contrary by aggrieved competitors, and we should confront such claims with extreme skepticism.   Vertical claims instigated by rivals are historically viewed with skepticism in antitrust circles.  Failing to subject these claims to scrutiny focused on consumer welfare risks would be a mistake whose costs would be borne largely by consumers.
The fact that Google's rivals–including most importantly Microsoft itself–are complaining about the company is, ironically, some of the very best evidence that Google's practices are in fact pro-consumer and pro-competitive.  It is always problematic when competitors use the regulatory system to try to hamstring their rivals, and we should be extremely wary of claims arising from such conduct.
We are also troubled by statements emanating from FTC Commissioners suggesting that the agency intends to pursue this case as a so-called "Section 5" case rather than the more traditional "Section 2" case.  We will have to wait to see whether any complaint is actually brought and, if so, under what statutory authority, but a Section 5 case against Google raises serious concerns about effective and efficient antitrust enforcement.  Commissioner Rosch has claimed that Section 5 could address conduct that has the effect of "reducing consumer choice"—an effect that some commentators support without requiring any evidence that the conduct actually reduces consumer welfare.  Troublingly, "reducing consumer choice" seems to be a euphemism for "harm to competitors, not competition," where the reduction in choice is the reduction of choice of competitors who may be put out of business by pro-competitive behavior.  This would portend an extremely problematic shift in direction for US antitrust law.

Together Geoffrey Manne and Joshua Wright are the authors of two articles on the antitrust law and economics of Google and search engines more broadly, Google and the Limits of Antitrust: The Case Against the Case Against Google, and If Search Neutrality Is the Answer, What's the Question?

Manne is also the author of "The Problem of Search Engines as Essential Facilities: An Economic & Legal Assessment," an essay debunking arguments for regulation of search engines to preserve so-called "search neutrality" in TechFreedom's 2011 book, The Next Digital Decade: Essays on the Future of the Internet.

Among our recent blog posts on the topic are the following:

What's Really Motivating the Pursuit of Google

Barnett v. Barnett on Antitrust

Sacrificing Consumer Welfare in the Search Bias Debate

Type I Errors in Action, Google Edition

Google, Antitrust, and First Principles

Microsoft Comes Full Circle

Search Bias and Antitrust

The EU Tightens the Noose Around Google

When Google's Competitors Attack

Antitrust Karma, The Microsoft-Google Wars, and a Question for Rick Rule

DOJ Gears Up to Challenge the Proposed Google ITA Merger

The ACLU is Looking for a Technologist/Senior Policy Analyst

Deets after the jump.

Career Opportunity

TECHNOLOGIST / Senior Policy Analyst [SPT-04]

American Civil Liberties Union Foundation

Speech, Privacy and Technology Project, NY

The American Civil Liberties Union Foundation (ACLU), founded in 1920, is a nationwide, nonprofit, nonpartisan organization with more than 500,000 members, and is dedicated to the principles of liberty and equality embodied in the U.S. Constitution.  The Speech, Privacy and Technology Project of the ACLU's National office in New York City is seeking applicants for the full-time position of Technologist / Senior Policy Analyst.

OVERVIEW

The Speech, Privacy and Technology Project is part of the ACLU's Center for Democracy, which works to strengthen democratic institutions and values, including the values of government transparency and accountability, and to reinforce the United States' commitment to human rights and the rule of law.  The Center for Democracy includes, in addition to the Speech, Privacy and Technology Project, the Human Rights Project and the National Security Project.

The Speech, Privacy and Technology Project is dedicated to protecting and expanding the First Amendment freedoms of expression, association, and inquiry; expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology.  The project is currently litigating cases and conducting other advocacy efforts on a variety of issues, including political protest, freedom of expression online, privacy of electronic information, journalists' rights, scientific freedom, and openness in the courts.

The Technologist will be responsible for staying abreast of technological developments that have potential consequences for civil liberties, identifying new and emerging civil liberties concerns, and advising ACLU staff on technological matters.  The Technologist will also communicate with the public, in writing and through media interviews, about issues relating to new technology.

ROLES AND RESPONSIBILITIES

·         Monitor technologies and technological developments that have potential consequences for civil liberties.

·         Collaborate to devise organizational strategies and responses to issues relating to technology and civil liberties.

·         Build and maintain links between the ACLU and technology communities.  Connect ACLU staff with outside experts when necessary.

·         Advise ACLU litigators, policy and legislative staff, and others on technological matters.

·         Educate the public about technology and civil liberties issues through blog posts, social media, and white papers.

·         Serve as a spokesperson for the ACLU to the public and the media regarding technological issues relating to civil liberties.

EXPERIENCE AND QUALIFICATIONS

A Bachelor's degree in computer science or another relevant technical field required.  Advanced degree preferred.
The ability to identify, follow and understand technical issues relating to the Internet, computers, and surveillance and other technologies with implications for civil liberties.
Significant expertise in one or more specific areas such as Internet architecture, network protocols, cybersecurity, system administrations, etc.
The ability to delve into and master the relevant operations of technological systems outside one's area of expertise.
Strong communications skills, especially the ability to communicate complex technical issues to ACLU staff and the general public.
A proven record of publication in policy and/or academic publications is preferred.
Ability to work independently as well as within a team.
Strong analytic skills.
A commitment to the mission and goals of the ACLU.

COMPENSATION

The ACLU offers a generous and comprehensive compensation and benefits package, commensurate with experience and within parameters of the ACLU compensation scale.

HOW TO APPLY

Applicants should submit a letter of interest, resume, writing sample, and the names and contact information of two references by email to hrjobs@aclu.org – reference [SPT-04/ACLU-W] in the subject line or mail to:

Human Resources
American Civil Liberties Union Foundation
RE: [SPT-04/ACLU-W]
125 Broad Street, 18th Floor
New York, NY 10004

Please indicate in your cover letter where you learned of this career opportunity.

Applications will be accepted until the position is filled, which will not be before July 24, 2011.

The ACLU is an equal opportunity/affirmative action employer and encourages applications from all qualified individuals including women, people of color, persons with disabilities, and lesbian, gay, bisexual, and transgender individuals.

The ACLU comprises two separate corporate entities, the American Civil Liberties Union and the ACLU Foundation. Both the American Civil Liberties Union and the ACLU Foundation are national organizations with the same overall mission, and share office space and employees. The ACLU has two separate corporate entities in order to do a broad range of work to protect civil liberties. This job posting refers collectively to the two organizations under the name "ACLU."

After Sorrell v. IMS Health: Reconciling Free Speech with Privacy Protections

The Supreme Court yesterday handed down a 6-3 decision in Sorrell v. IMS Health Inc. striking down a Vermont law restricting marketing to doctors based on their past history of writing drug prescriptions. The law required that doctors opt in before drug companies could use data about their prescription patterns to market (generally name-brand) drugs to them.

I've been closely following this case, having filed TechFreedom amicus curiae brief with the Supreme Court earlier this year, written by First Amendment expert litigator Richard Ovelmen, and previously joined with other free speech groups in an amicus brief before the Second Circuit.  Our media statement on the Supreme Court brief provides a pretty concise summary of our views and what's at stake in this case, and Jane Yakowitz's initial blog reactions are especially worth reading.

The lopsided decision should surprise no one: Vermont's law was a brazen effort to suppress speech disfavored by the state based on the paternalist assumption that name-brand drug marketing is "too effective."  In essence, the Court has reaffirmed the core meaning of the First Amendment: government must trust the marketplace of ideas unless fraud or deception occurs.  Anyone who takes the First Amendment seriously should be roused to applaud when Justice Kennedy writes, for the majority, that "fear that speech might persuade provides no lawful basis for quieting it."  Clearly, this principle is as true for commercial advertising as for any form of speech. I'm particularly glad to see that Justice Sotomayor joined in this decision.

This is just the latest in a line of cases upgrading protection for commercial speech stretching back over 30 years since Central Hudson and including Lorillard (2001) and 44 Liquormart (1996).  But the opinion will also surely be remembered as the beginning another line of cases that attempt to guide lawmakers trying to protect legitimate privacy interests without suppressing speech.  The First Circuit, upholding a similar law, had previously deemed prescriber-identifying information "as a mere 'commodity' with no greater entitlement to First Amendment protection than "beef jerky.'" But the Supreme Court rejected this, unequivocally declaring that "information is speech," including both its creation and dissemination, even while recognizing the privacy problems raised by the "capacity of technology to find and publish personal information."

Thus, restrictions on data collection, use and transfer must satisfy First Amendment scrutiny.  Future courts will therefore strike down privacy laws that burden too much speech, such as by requiring opt-in rather than opt-out (one of the things hinted at by the Sorrell court).  The government must clearly establish the need for privacy regulation and consider the availability of less-restrictive alternatives, such as user empowerment, education and the enforcement of existing laws—which has been our message on privacy generally all along. Or, for example, government might set basic standards for the de-identification of data, as Jane Yakowitz has proposed, before rushing to implement draconian mandates such as rigid purpose specification requirements that make difficult or impossible many unexpected, serendipitous uses of data for pro-consumer innovations like Google Flu Trends.

Policymakers should carefully consider the values recognized by the Court today before further clamping down on the flow of data that drives speech throughout the information economy.  Unfortunately, in all the frenzy in Washington over proposed privacy legislation, and the FTC's staff report on privacy, little attention has been paid to how to reconcile privacy protections with the First Amendment.  I hope this decision spurs a serious consideration of that challenge.  To that end, TechFreedom will shortly be announcing an event discussing this case and what it means for privacy and the free flow of data. Stay tuned!

Non-Terrible Podcast About Privacy and Do-Not-Track

This podcast, put together by the high-performance folks at the Performance Marketing Association, is pretty good, though I do use the word "hedonic" at one point, which is a bit much.