Adam Thierer's Blog, page 159

Yup, we agree: "It's not a privacy 'breach' when information about you is out there already."

Rob Pegoraro's article in yesterday's Washington Post is a worthy read, if only because it puts into context what is and isn't a privacy breach.

Recently, there's been a lot of noise–started by a Wall St Journal article–about a supposed privacy breach by Facebook surrounding the misuse of user data by applications installed on the user's page. But as Pegoraro relates, this information was all public anyway, much like a phone book displays your identity. Here's what he says is the difference between what is and isn't a breach:

Privacy breach: Exposes private information you tried to keep confidential, in ways that risk the loss of money or security or otherwise fairly earn the adjective 'Orwellian.'"

NOT a privacy breach: Information about you that is already made public to users of a website, including the "basic parameters of people's accounts:  their name, picture, gender and networks…."

The point is that we shouldn't conflate the use (or misuse) of public information with the breach of private information. Doing so elevates a lesser offense at the expense of something that is much more serious.

But as much as I like the article, I also have a few quibbles. Pegoraro says that if users are still offended by Facebook, they should blame the site for its default settings and switch to a competitor. And while losing customers is the ultimate penalty for any business, he misses the point in a couple of ways. First, we want to encourage innovation in social media and information sharing, which means companies need the freedom to set and change default settings (I've blogged on this before). Second, instead of switching sites users can just adjust their privacy settings! This simple, less drastic measure wasn't even mentioned.

Thierer Joining Mercatus Center's Technology Policy Program

I'm very pleased to announce that I am today joining the Mercatus Center at George Mason University as a Senior Research Fellow.  I will be working in the Mercatus Center's Technology Policy Program and covering many of the same issues I have been active on for many years now, including: free speech and child safety issues; privacy and advertising policy; communications and media law; Internet governance; online taxation and e-commerce regulation; and much more.

I'm particularly excited about joining Mercatus since it reunites me with my old Cato colleague Jerry Brito, who also blogs here with me here at the TLF, of course.  Jerry is also a senior research fellow at Mercatus and he has done a stellar job developing the Technology Policy Program at the Center.  I very much look forward to working closely with him, my old friend Jerry Ellig, and the many other skilled intellectuals working in various programs throughout Mercatus.  It's an amazing group of scholars Mercatus has assembled and I know I have much to learn from all of them.

For those not familiar with the Mercatus Center, it was founded in 1985 and has become the world's premier university source for market-oriented ideas.  As its website notes, Mercatus is a university-based research center that aims to bridge the gap between academic ideas and real world problems:

Mercatus works to advance knowledge about how markets work to improve our lives by training graduate students, conducting research, and applying sound economics to offer solutions to society's most pressing problems. Our mission is to generate knowledge and understanding of how institutions affect the freedom to prosper and find creative solutions to overcome barriers that prevent individuals from living free, prosperous, and peaceful lives.

Mercatus is led by a Faculty Director, appointed by the Provost of George Mason University, and the brilliant Tyler Cowen, a professor of economics at GMU, currently serves in that role.  I've discussed some of Tyler's work here before and can't tell you how excited I am to working with him.  If you're not already a regular reader of his wonderful MarginalRevolution.com blog, add it to your RSS feed right now.  Must read.

As a contributor to the Technology Policy Program at Mercatus, what I hope to accomplish with my colleagues is to develop a world-class university program covering the Internet policy / cyberlaw landscape from a market-oriented perspective and help push the Mercatus vision out to a broader audience.  Currently, most university cyberlaw, Internet policy, digital economics, and journalism programs are dominated by voices and perspectives that reject market-based insights or solutions.  In particular, there's widespread ignorance out there regarding the lessons that the Austrian school of economics and public choice scholars have to teach.  Finally, as I noted in my recent essay on "Two Schools of Internet Pessimism," there's a general undercurrent of gloominess, even hyper-pessimism, that haunts this field today.  Despite the fact that almost all signs point to the human condition being improved by digital technology and high-tech innovation, many scholars and policy activists seem determined to weave a very different, and quite defeatist, narrative about life in the Information Age.

Working with my Mercatus colleagues, I hope to start reversing that tide and make the case for a very different way of looking at the world.  I'm really looking forward to beginning this new challenge.

Brilliant

WillUsingthePrefixCyberMakeMeLookLikeanIdiot.com

Tim Wu Redefines "Monopoly"

Tim Wu appears hell-bent of redefining the English language.  After reading his new book, The Master Switch: The Rise and Fall of Information Empires [See my 6-part review: 1, 2, 3, 4, 5, 6] and his new editorial in today's Wall Street Journal, "In the Grip of the New Monopolists," it's clear to me that he has made it his mission in life to redefine some rather basic, widely-accepted economic terms to suit his own political purposes.  Among them: "market power," "monopoly," and "laissez-faire."  I addressed his misuse of the term "market power" here and misunderstand of the term "laissez-faire" here.

In today's Journal editorial, it's "monopoly" that Wu seeks to redefine.  He begins his essay by asking: "How hard would it be to go a week without Google?  Or, to up the ante, without Facebook, Amazon, Skype, Twitter, Apple, eBay and Google?"  He continues on to suggest that these "new monopolists" have an iron lock on their respective markets and that there appears little hope of escaping them.

But the problem with his argument that "we are living in an age of large information monopolies" begins with the fact that he speaks of "monopolies" in a plural sense and apparently misses the irony of that entirely.  If so many "information monopolies" exist, then Wu's thesis is undermined by the very fact that no one company dominates the Internet landscape.  What Wu is really suggesting is that the Digital Economy landscape is littered with dominant firms in industry sectors that he has defined extremely narrowly. 

But even if one accepts Wu's artificial, narrowly-defined industry sub-sectors (and I certainly don't), he completely ignores the competition taking place among many of these giants and the fact that innovation and new entry continues at a healthy clip.  This week's big news, for example, is the Google-Facebook war over email as Facebook readies a "Gmail killer."  And it's not like there aren't plenty of other email options out there from large and small companies alike (most of which are free).  Meanwhile, Google has been trying to whittle away at Facebook's social networking dominance, and many other social networking services exist for those unhappy with Facebook. (Some of us don't bother with FB at all, believe it or not!  I'm mostly a LinkedIn guy. My Facebook page just directs people to my LI account).  Meanwhile, Microsoft has desires of its own in these areas, of course, and continues to compete aggressively. And I guess everyone has forgotten about MySpace already, even though I bet Wu would have named it a "monopolist" if he would have penned his editorial in 2007 instead of today.

What about Amazon and eBay?  If you define markets as narrowly as Wu does, then a case could be made they have formidable market power in their respective fields.  Back in the real world, however, most of us know that there are plenty of places online to engage in shopping, and Amazon and eBay actually compete quite aggressively against each other for our allegiance while fending off countless scrappy smaller competitors.  While many of those competitors lack the comprehensiveness of either Amazon or eBay, it doesn't mean they don't give them a run for their money in niche markets.  Think cars, clothes, electronics, books, appliances, etc.  There are too many rivals in each of those niches and others to list here.

What about Apple?  It's certainly a big, successful company making some terrifically innovative products and services that some people can't seem to live without.  Yet, millions of us have completely rejected Apple.  I don't have a single Apple product in my home and — no offense to the Apple fanboys out there — I really can't understand why anyone would use anything the company offers considering the many wonderful competing products that exist in all the markets in which Apple competes: computers, tablets, operation systems, smartphones, online music stores, etc.  If Apple is a "monopolist," shouldn't it mean an information-hungry guy like me should be forced to own at least one thing the company offers?

Finally, Wu audaciously suggests that even Twitter is now a "monopolist"!  This is a company that didn't even exist a few years ago and yet Wu is willing to write off the market as theirs.  But what is Twitter's market, exactly?  Isn't it really in competition with many other forms of communication and information dissemination?  For me, Twitter is a partial substitute for IMs, email, phone calls, and my RSS feed. Yet, like most others, I continue to use all those other technologies and those technologies continue to pressure Twitter to innovate.  Is Wu really suggesting that nothing better will come along to compete against Twitter or even replace it entirely?  (It reminds me of all the hand-wringing we heard about AOL a decade ago when people predicted it's "walled gardens" would someday rule the Internet and IM).   Meanwhile, even if one accepted to premise that Twitter was a monopolist today, where is the harm?

Which gets to perhaps most stunning thing about Wu's editorial today: He never even posits a "harm" that might be coming from the rise of these "new monopolists."  That's not surprising, of course, since he'd be hard-pressed to make the case that the sky is falling or that consumers are somehow the victims of some horrendous plight.  Hell, most of these service don't cost consumers a dime!  And they are constantly innovating and offering an improved consumer experience.  If this is "monopoly," then give us more!

What Tim Wu is really doing is propagating the simplistic old saw that "Big Is Bad."  We could argue about how big is too big, but we shouldn't confuse that debate with Wu's mistaken redefinition of the term "monopoly."  He has intentionally watered down the term "monopolist" such that it now means any combination of big firms he personally doesn't approve of in markets that he has defined far too narrowly.   That's not a proper understanding of the term "monopoly" and it most certainly isn't an accurate representation of the real world of exciting digital innovation and ingenuity that we live in today.

It's a shame Tim Wu continues to adopt such a hyper-pessimistic worldview and take such static, myopic snapshots of the state of the Digital Economy.   We should be celebrating the world we live in today, not bemoaning it.

Privacy as an Information Control Regime: The Challenges Ahead

This week, we've seen reports in both The New York Times ("Stage Set for Showdown on Online Privacy") and The Wall Street Journal ("Watchdog Planned for Online Privacy") that the Obama Administration is inching closer toward adopting a new Internet regulatory regime in the name of protecting privacy online.  In this essay, I want to talk about information control regimes, not from a normative perspective, but from a practical one.  In doing so, I will compare the relative complexities associated with controlling various types of information flows to protect against four theoretical information harms: objectionable content, defamation, copyright, and privacy.

From a normative perspective, there are many arguments for and against various forms of information control.  Here, for example, are the reasons typically given for why society might want to impose regulations on the Internet (or other communications channels) to address each of the four issues identified above:

Content control / Censorship: We must control information flows to protect children from objectionable content or all citizens against some other form of supposedly harmful speech (hate speech, terrorist recruitment, etc).
Defamation control: We must control information flows to protect people's reputations.
Copyright control: We must control information flows to protect the property rights of creators against unauthorized use / distribution.
Privacy control: We must control information flows to protect against information flows that include information about individuals.

Again, there are plenty of good normative arguments in the opposite direction, many of which are based on free speech considerations since, by definition, information control regimes limit the flow of forms of speech.  For privacy, I discussed such speech-related considerations in my essay on "Two Paradoxes of Privacy Regulation."  But what about the administrative or enforcement burdens associated with each form of information control?  I increasingly find that question as interesting as the normative considerations.

Let's begin with a self-evident statement about which most of us can (hopefully) agree: Information control can be complex and costly.  This was true even in the scarcity era with its physical and analog distribution methods of information dissemination.  All things considered, however, the challenge of controlling information in the past paled in comparison to the far more formidable challenges nation-states face in the digital era when they seek to limit information flows.

The movement of bits across electronic networks and digital distribution systems creates unique problems I have previously discussed in my essay on "The End of Censorship." To recap, efforts to to control information today are greatly complicated by problems associated with:

Convergence : Media content and information distribution outlets are blurring together today thanks to the rise of myriad new technologies and competitors. These new technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. In other words, convergence means that media content is increasingly being "unbundled" from its traditional distribution platforms and finding many paths to the consumers. As a result of these developments, it is now possible to disseminate, find, or consume the same content / information via multiple devices or distribution networks.  In this way, convergence complicates efforts to create effective information control regimes.
Scale : In the past, the reach of speech and information was limited by geographic, technological, and cultural / language considerations. Today, by contrast, media can now flow across the globe at the click of a button because of the dramatic expansion of Internet access and broadband connectivity.  While restrictions by nation-states are still possible, the scale of modern digital speech and content dissemination greatly complicates government efforts to control information flows.
Volume :  The sheer volume of media and communications activity taking place today also complicates regulatory efforts. In simple terms, there is just too much stuff for regulators to police today relative to the past. As a 2oo2 blue ribbon panel assembled by the National Research Council to examine the regulation objectionable content concluded: "The volume of information on the Internet is so large — and changes so rapidly — that it is simply impractical for human beings to evaluate every discrete piece of information for inappropriateness."  While it may have been possible to oversee a handful of newspapers or TV and radio stations in each community or country in the past, today's electronic media universe is so diverse and enormous—and evolving so quickly—that content controls significantly complicate enforcement burdens.
Unprecedented individual empowerment / user-generation of content : In this new world in which every man, woman and child can be a one-person publishing house or self-broadcaster, restrictions on viewing, listening or uploading and downloading will be become increasingly difficult to devise and enforce.   By comparison, few of those opportunities were available to the citizenry in the past.

Now, let's go back to the four issues I identified above and think abut the implications.  In terms of content controls, defamation, and copyright, it's fairly clear how these considerations complicate enforcement efforts.  Of course, some regulatory efforts have succeeded after governments pushed back aggressively enough, and I certainly don't mean to suggest that governments are powerless to control information flows in the Informati0n Age.  Read through Access Controlled and you'll find plenty of examples of how nations across the globe are doing so using various methods of control: Surveillance, centralized filtering, strict liability regimes, government ownership of key facilities / companies, etc.   Let me also make clear that  I am not entirely against all information control efforts.  Generally speaking, I want strict limits placed on governments efforts to control information flows, but I've also endorsed efforts to use some of these regulatory approaches to deal with child pornography and extreme forms of copyright piracy.

Anyway, I want to just make two more points here about how this relates to privacy regulation as an information control regime.  First, while I think most people understand the complexities associated with information control efforts in the content, defamation, and copyright fields, I don't think scholars or policymakers are spending nearly enough time considering the complexities of enforcing an information control regime for privacy.  All too often, privacy advocates seem to suggest that privacy regulation will be frictionless and cost-free.  Once they jump to the assumption that privacy is a "human right," or must be done in the name of "human dignity," any discussion of enforcement hassles or the costs of regulation seemingly goes right out the window.  In reality, of course, privacy regulation will have profound consequences for online sites and services by potentially undermining the goose that lays the Internet's golden (and mostly free) eggs: online advertising and the data collection that powers it.  Again, this is somewhat secondary to my point in this essay, which is just to suggest that the complexities associated with the mechanics of information control are not being fully considered in the privacy context.  Either way, it's time we stop pretending privacy regulation is a free lunch.

Second, I would like to suggest — but I cannot prove at this time — that enforcing a privacy information control regime will be more complex than the regimes needed to control information flows for content, defamation, and copyright.  Now how can that possibly be, you ask?  It requires a much deeper dive into the specifics of various privacy regulatory proposals, but consider two recent privacy-related regulatory regimes: a "Do Not Track" list and a "right to be forgotten." Both sound simple enough in theory, but the details are quite devilish.

How, for example, would government go about verifying proper compliance with such regulations without also ensuring some sort of online authentication system is in place to verify people are who they say they?  Must every browser be retooled to comply and then regulated accordingly?  What about apps downloaded on tablets or smartphones that don't require browsers at all?  Are IP addresses "personal information" that are also subject to regulation? Which agencies are responsible for creating authentication systems, policing online data flows, and reviewing new innovations and sites to ensure they are complying?  Who in government has access to the data about individuals that is collected for such purposes, and what else are they doing with it?  What systems will need to be put into place by online operators, large and small alike, to ensure compliance?  And so on.  Enforcement problems will also be complicated by the subjectivity of privacy norms from one individual to another as well as the fact that these norms change over time (and seem to be changing quite rapidly in recent years).

Again, more research needs to be done to better document the potential costs associated with a privacy information control regime, but I would hope we could begin by accepting that fact that it is an information control regime and that it will be complicated to enforce and will have costs — both in economic and speech-related terms.  Advocates of such a regulatory regime for the Internet should at least be mature enough to admit that what they are proposing is comparable in complexity and cost to the censorship and copyright regulatory regimes they typically oppose.

How to Control iTunes' "Ping" Social Network

I've had quite enough of service providers of one kind or another making me part of their new social network. (I'm looking at you, Google Buzz.)

So here's an article about how to control iTunes' new Ping social network, which comes with iTunes 10.

Apple did a couple things right: They made it very clear in the "Terms and Conditions" click-through for the new version of the software that you're getting Ping. It also appears to default to "off." That's what I found when I followed the directions in the article linked above, anyway.

If you want to be in yet another social network, you can enable Ping using those directions. You also might want to get your head checked. Something might be wrong in your real life.

Jon Stewart Satire of Videogame Violence Case

Adam and I spent a lot of time on our joint amicus brief with EFF—which Larry has artfully summarized. But Jon Stewart has outdone us both with this witty satire on the case:

The Daily Show With Jon Stewart
Mon – Thurs 11p / 10c


You're Welcome – Violent Video Games


www.thedailyshow.com









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Cap. Hill Event on Earmark Transparency – Monday

If you're in the D.C. area, come join the fun next Monday, November 15th, as the Advisory Committee on Transparency kicks off with its first event: The Future of Earmark Transparency (2:00 p.m., 2203 Rayburn House Office Building).

The Sunlight Foundation's Daniel Schuman moderates a discussion that includes Steve Ellis of Taxpayers for Common Sense and yours truly. My WashingtonWatch.com project crowdsourced over 40,000 earmark requests last year, which we displayed on this map.

Earmarks are a hot topic right now. The new Republican Congress may make a move to ban them, but the Senate leadership may not be ready to go quite that far.

Will full-fledged earmark transparency be the compromise? It might provide a model for far more transparent processes throughout Congress.

Joseph Isenbergh on open versus closed systems

Joseph Isenbergh, a professor at the University of Chicago Law School, discusses his new essay about open versus closed operating systems, their respective marketing strategies, and their influence on the smartphone market. Isenbergh talks about early competition between Macintosh, with its closed operating system integrated with its PC hardware, and Microsoft, with its openly-licensed operating system that could be installed on any PC. He discusses the trade-off between open platforms that offer lots of consumer choice and the ostensible enhanced user experience created by bundling software with hardware. Isenbergh speculates about the future of the smartphone market, Apple's iOS, and Google's Android. He also comments on VHS versus Sony Betamax recording systems, tie-in strategies in wine-selling, and Blu-ray versus HD-DVD formats.

Related Links


"Last Apps Standing", by Isenbergh
"Letter From Silicon Valley: Doing the Math on Android vs. Apple", Wired
"Android as a Bottom-Up Platform", by Tim Lee
"Why Android will smash Apple's iOS", Digital Trends

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?

Cyberbullying . . . and Mighty Entertaining!

At BIGGOVERNMENT.com, Seton Motley takes the effort to regulate Internet service provision in the name of neutrality and stomps on it with both feet.

If this were high school (and politics really sort of is), Net Neutrality would be sitting alone at lunch — shunned even by the members of the marching band and the audio-visual club. Having had its lunch money taken, it would have only enough for milk (and would sadly be unable to open the container). It would be planning to take its aunt to prom.

His brief, unkind history takes the push for Internet regulation from its bright beginnings in 2006 through a four-year-long fade. It ends with the PR catastrophe the Progressive Change Campaign Committee produced when it signed 95 Democratic candidates onto a "Network Neutrality Pledge" and they all lost.

That fiasco doesn't reveal anything about the merits of the proposal to turn Internet service providers into federally regulated public utilities. But it is emblematic of the immaturity and amateurishness of the push for net neutrality regulation. The effort never fixed on an actual, defined problem. Instead it rotated through corporate missteps with text message services, with web sites, and sometimes with actual Internet service. The movement was long on slogans and short on concrete proposals.

Proponents of net neutrality regulation never answered the conundrum posed by "regulatory capture"—that the FCC they wanted to "control" ISPs might end up controlled by them. They never countered the point that technologists and marketplace actors would husband the behavior of ISPs, a point made ably by Tim Lee in his paper, The Durable Internet.

Motley caps off his cyberbullying of the Internet regulation effort with an Examiner piece today noting that the Progressive Change Campaign Committee raised a pitiful $300 for its efforts.

[W]ith the PCCC's feeble efforts and Tuesday's historic pro-freedom Congressional demographic shift – the free market, free speech assault that is Net Neutrality now lies broken on the ash heap of Internet and tech history. To which we say – good riddance to bad rubbish.

If the push for net neutrality regulation survives, it will have to regroup/grow up, identify a concrete problem and a defensible solution, and then carry that credible message beyond its own echo chamber. All in all, the movement to regulate net neutrality seems to have been "playing at" advocacy rather than seriously advocating.