Adam Thierer's Blog, page 58

Could governments make themselves regulators of content on the new TLDs?

On Sunday, the New York Times ran a story by Natasha Singer on the ongoing generic top-level domain (gTLD) expansion. Singer correctly notes that there is a great deal of skepticism that the new gTLDs will add social value. After all, what is the social value of .book when there is already .book.com?

Singer also raises cultural, expression, and competition concerns:

There’s a larger issue at stake, however. Advocates of Internet freedom contend that such an expanded address system effectively places online control over powerful commercial and cultural interests in the hands of individual companies, challenging the very idea of an open Internet. Existing generic domains, like .net and .com, overseen by Verisign Inc., a domain registry, have an open-use policy; that means consumers can buy domain names ending in .com directly from retail registrars like GoDaddy. With a new crop of applicants, however, Icann initially accepted proposals for closed or restricted generic domains, a practice that could limit competing views and businesses.

It’s true that there is concern over “closed generics,” but I think there is a deeper problem than anti-competitiveness that could emerge from TLD expansion.

Suppose that, as anticipated, TLD registries are able to restrict the scope of the sites that can use their domain name. For example, Google intends to restrict .app to uses related to (Android?) applications. These restrictions could make a great deal of economic sense—owning a .app domain name could function as a certification of a certain level of quality.

Putting aside any anti-competitive concern, restricted TLDs raise the question of who, exactly, is the final arbiter. Let’s suppose that Google rejects an application for a .app domain name for whatever reason. Can the rejected applicant appeal? And to whom?

Google is a Delaware corporation based in California. ICANN is incorporated in California. I can imagine lawsuits in Delaware or California over domain name rejections.

But the scarier possibility is that ICANN will try to resolve these disputes internally, possibly with input from its Governmental Advisory Committee (GAC). This would be problematic because the GAC is not known for its adherence to any sort of rule of law.

If GAC intervention in .app doesn’t worry you, consider the .gay TLD. At least one vision of .gay is as a safe online space for the global gay community. Suppose that the .gay registry, after winning its bid and publicly setting out content guidelines, rejects sites that engage in hate speech against gays. If disputes over such rejections end up in the GAC, then that could be disastrous, as countries like Saudi Arabia and Iran have objected to the mere existence of the .gay TLD.

We can debate whether restricted TLDs should be allowed in the first place, but we should all agree that if they are, the GAC should have no role in policing the content restrictions that registries impose to maximize the value of the namespace. The last thing we need is the world’s governments making policy about expression online.

Liberty – Not Chinese Industrial Policy – Drives Innovation in America

Last week on The Diane Rehm Show, Susan Crawford, former special assistant to President Obama for science, technology, and innovation policy, claimed that China “makes us look like a backwater when it comes to [broadband] connectivity.” When she was asked how this could be, Ms. Crawford responded:

It happened because of [Chinese industrial] policy. You can call that overregulation. It’s the way we make innovation happen in America.

Ms. Crawford is wrong on the facts and the philosophy.

The Actual Facts

Two months ago, Ms. Crawford’s former employer, the Office of Science and Technology Policy, released a report with these conclusions:

“Broadband networks at a baseline speed of >10 megabits per second now reach more than 94% of U.S. homes.”



“In 2012, North America’s average mobile data connection speed was 2.6 Mbps, the fastest in the world, nearly twice that available in Western Europe, and over five times the global average.”



“Just two of the largest U.S. telecommunications companies account for greater combined stateside investment than the top five oil/gas companies, and nearly four times more than the big three auto companies combined.”



“The average connection speed in the United States in the fourth quarter of 2012 was 7.4 Mbps, the eighth fastest among all nations, and the fastest when compared to other countries with either a similar population or land mass.”

In comparison, the same source used in the President’s report indicates that China’s average connection speed in the fourth quarter of 2012 was only 1.8 Mbps – seventy-five percent slower than in the United States.

Although our average connection speeds lag those in South Korea and Japan, the differences in speed are less significant from a consumer perspective (7.4 Mbps is enough to delivery high definition video, 1.8 Mbps is not) and reflect differences in population densities and landmass.

The Winning Philosophy

Ms. Crawford believes government intervention “makes free markets and free speech possible.” The facts recited above and the First Amendment to our Constitution – written when government intervention in mass communications was commonplace – both refute that philosophy. Whatever you call it, this type of government intervention “has a record of failure so blatant that only an intellectual could ignore or evade it.”

In the communications context, that record of failure includes government-sanctioned telephone and cable monopolies that policymakers have spent the last two decades unwinding through market-based policies.

The results of that effort demonstrate that it is liberty – the absence of overregulation – that drives innovation in America. The market-based approach to communications regulation pioneered by the Clinton Administration in the 1990s yielded massive investment in new technologies, competition among communications networks, an explosion in new media, and unprecedented consumer choice. We don’t need government intervention for private sector innovation and investment to continue flourishing – we need continued government restraint.

New Law Review Article: “A Framework for Benefit-Cost Analysis in Digital Privacy Debates”

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

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

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

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

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

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

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

Aereo: Congress’ Rescuer?

There are few things more likely to get constituents to call their representative than TV programming blackouts, and the increase in broadcasting disruptions arising from licensing disputes in recent years means Congress may be forced to once again fix television and copyright laws. As Jerry Brito explains at Reason, the current standoff between CBS and Time Warner Cable is the result of bad regulations, which contribute to more frequent broadcaster blackouts. While each type of TV distributor (cable, satellite, broadcasters, telcos) is both disadvantaged and advantaged through regulation, broadcasters are particularly favored. As the US Copyright Office has said, the rule at issue in CBS-TWC is “part of a thicket of communications law requirements aimed at protecting and supporting the broadcast industry.”

But as we approach a damaging tipping point of rising programming costs and blackouts, Congress’ potential rescuer–Aereo–appears on the horizon, possibly buying more time before a major regulatory rewrite. Aereo, for the uninitiated, is a small online company that sets up tiny antennas in certain cities to capture broadcast television station signals–like CBS, NBC, ABC, Fox, the CW, and Univision–and streams those signals online to paying customers, who can watch live or record the local signals captured by their own “rented” Aereo antenna. Broadcasters hate this because the service deprives them of lucrative retransmission fees and unsuccessfully sued to get Aereo to cease operations.

Let’s back up. Broadcast television is–as my colleague Tom Hazlett says–the “killer app of 1952.” It’s an old technology featuring a few dozen channels that hasn’t fared well with the rise of subscription television offering hundreds of channels–Comcast, Dish, U-Verse, and others. Only about 10% to 15% of households rely on rabbit ears antennas to receive free broadcast TV, while the rest have a subscription.

As a condition of receiving free spectrum from the government decades ago, broadcasters must make their over the air programming free to the public. Because it’s a free public broadcast, three different nascent technologies have captured those signals and transmitted it to their customers for a fee. Cable companies did this in the 1970s, satellite companies did this in the 1980s, and antenna rental services like Aereo are doing this today. The first two times, Congress stepped in at broadcasters’ behest and added regulations that mandate payment to local broadcasters for retransmission rights.

I’m doubtful Congress will step in a third time and make online distributors like Aereo pay for retransmission. While the laws tilt in broadcasters’ favor, Aereo gives cable and satellite companies additional leverage since–if they have a protracted fight with a broadcaster–they can direct their customers to Aereo. TWC is, in fact, doing this in its current dispute with CBS. Since customers have an online option, no one needs to miss NFL preseason football or the latest How I Met Your Mother. Aereo is not an ideal solution, but it gives a cable or satellite provider another bargaining weapon.

For several reasons, I think Congress may allow Aereo to proceed. First, with the variety of print, online, and television options consumers face today, broadcast programming is no longer a sacred cow. Congress, the FCC, and the tech and telecom industries are anxious to get more broadcasters off the air to make room for spectrum-hungry mobile technologies. That is the precise purpose of the pending incentive auctions. Broadcasters are a powerful group with compelling arguments for the status quo–they provide high-demand local news, sports, and weather, for instance–but many people are beginning to realistically imagine life without them.

Second, the primary political justification for protecting local broadcasters–local ownership and diversity–has “virtually vanished” because of industry consolidation in the 1990s and 2000s, as Harold Feld from Public Knowledge notes. It was easier in the past to defend these regulatory carve-outs for broadcasters when locally-owned operations were the beneficiaries, but today many broadcasters are owned by large media companies.

Finally, in the dynamic video marketplace, Congress may be hesitant to impose more regulations on new video technologies. Protecting a 1950s technology by enforcing 1990s laws on today’s Internet services makes little sense. Already, television laws passed in the 1990s look terribly dated and give Congress and the FCC headaches. Rewriting television and copyright laws is a huge task involving many powerful industries seeking protection from disruptive law changes. With the House and Senate controlled by different parties, this makes a grand compromise even less likely.

So Aereo and other antenna rental services represent some relief for regulators since it gives cable and satellite providers a little more leverage. The service is only in a few cities but is quickly expanding. If consumers adopt the service during future disputes, a semblance of equilibrium may return when subscription services bargain with broadcasters. For that reason, Congress may want to sit back and see how it plays out.

Cable blackouts: Inconvenience or crime against humanity?

Over at Reason.com, I write today about the ongoing Time Warner-CBS blackout and point out that Congress and the FCC have tipped the scales in favor of broadcasters with, inter alia, free spectrum, must-carry power, retrans consent rights, network non-duplication rules, and my personal favorite, syndicated exclusivity privileges. It’s just not a fair negotiating environment. But, and this is important, two wrongs don’t make a right.

Trying to plan the market got us into this mess, and making new rules to try to “even out” the playing field is only further distorting the market. As I say,

Congress should completely deregulate the video distribution marketplace by repealing broadcaster’s special rights. While the they’re at it they should also end compulsory copyright licensing that allows video distributors like cable companies to pay regulated rates for the programs they retransmit, rather than negotiate. And they should privatize the spectrum, rather than continue to give it away to broadcasters in the name of the “public interest.”

You can read the whole thing here. And after you’re done, you can listen to my colleague Adam Thierer make much the same case opposite Susan Crawford on the Diane Rehm Show earlier today. Audio is available here.

Plugs out of the way, I want to take a moment to address a small point that really grinds my gears, as Home Simpson would say. It’s the constant refrain I hear about blackouts that consumers are being “victimized” by the impasse in negotiations. Some examples,

Rep. Anna Eshoo: “It has been my long held belief that consumers should not be held hostage when retransmission disputes break down. Unfortunately, programming blackouts such as the one underway in eight U.S. markets have become far too common for consumers who simply want to enjoy the programming they pay for each month.”
Michael Calabrese: “This sort of brinksmanship between broadcasting and cable behemoths is becoming increasingly widespread—with consumers held hostage.”
Matthew Polka: “Shameful does not even begin to describe CBS’ brutal assault on consumers.”
Michael Hiltzik: “It’s as though these two adversaries are conspiring to use their market power to victimize their customers.”
Harold Feld: “[N]othing is going to prompt CBS to back away from further abusing consumers on a national basis and get both parties back to the negotiating table than the threat of actual legislation.”

Cry me a river. Really? “Hostages”? “Abuse”? “Victimized”? “Brutal assault”? I don’t know what most people think about consumers, but I don’t see them as such fragile creatures that the absence of a couple of television channels is the end of the world. If we had a completely free market in video distribution, as I’d like to see, you’d still probably see the occasional blackout when parties come to an impasse, but that’s just what happens in negotiations, and while consumers will never be pleased with such an outcome, I like to think that we’re all big boys and girls who can do without CBS or any other network for a couple of weeks while a messy market process works its way out.

First of all, if you can’t miss a show, today more than ever there are other ways to get the programming you want, including satellite, phone company video services, internet offerings like iTunes and Netflix, and even going to a friend’s house or a bar to catch a game. We can deal. We are not going to feel “abused” or “victimized” or “assaulted” as a result.

Second, and this is what really grinds my gears, it’s that the discussion seems to take for granted some kind of god-given right to television programming. Causing viewers to miss a couple episodes of Big Bang Theory is an inconvenience that will harm both companies’ reputations; it is not a human rights atrocity.

So, I really hope we can get past the “hostage-taking” and “abused victim” language when it comes to blackouts and acknowledge that consumers are adults, not fragile snowflakes. Market negotiations (and hopefully we’ll have real ones some day) are tough, messy things, and that’s OK. Viewers will deal by watching any of the other 300 channels, or visiting millions of websites, or taking a walk in the park.

Announcing WHPetitions.info, a New Site to Help the White House Keep Its Petition Promises

President Obama has promised to run the most transparent presidential administration in history, and as part of that initiative, in 2011, the White House set up its We The People site. In their words:

We the People is a new, easy way for Americans to make their voice heard in our government. It is a platform on the White House website where individuals can create and sign petitions that call for action by the federal government on a range of issues facing our nation. If a petition gathers enough signatures, it will be reviewed by White House staff and receive an official response. We the People helps the White House understand the views of the American people and have a focused and civil conversation with them.

A laudable step. But the site has an interesting quirk: there is a section of the site dedicated to open petitions, and there is a section for White House responses, but there’s no similar section dedicated to petitions that have met their signature thresholds and are awaiting a response.

So I decided to fix that.

The result is WHPetitions.info, a single-serving site that simply lists petitions that the White House has promised and neglected to answer. The oldest petitions are at the top.

Speaking of oldest petitions, some of the petitions awaiting a response are pretty old! For example, there is a petition to require genetically-modified food to be labeled that has been waiting since October 23, 2011, which was the first possible day a petition could qualify for a response. Six petitions currently on the site are over a year old, and the average time that the 30 (as of this writing) pending petitions have been waiting is 240 days.

Now, the White House never specified when they would respond. In fact, they explicitly say there is no firm timeframe for a response:

We will do our best to respond to petitions that cross the signature threshold in a timely fashion, however, depending on the topic and the overall volume of petitions from We the People, responses may be delayed.

But a 240-day average for pending petitions still seems like a lot to me; they have responded to 202 petitions so far in an average of 61 days.

It’s also interesting to see which issues the White House is neglecting. At the moment, 10 of the 30 outstanding petitions deal with Asian foreign policy. There are two petitions to fire the prosecutors whose overreach caused Aaron Swartz to commit suicide, as well as a recent petition to pardon Edward Snowden. Petitioners don’t want the FDA to regulate premium cigars or e-cigarettes. And some petitions are a little offbeat: for example, here is one asking the president to spend an hour talking tax policy with Neal Boortz.

Still, on the whole, most of the unanswered petitions raise substantive policy issues that deserve a response. Here’s hoping my site nudges the White House to keep its promise to answer.

P. S. — WHPetitions.info couldn’t have been made without the great API offered by the White House web team. Kudos to them.

Sherwin Siy on digital copyright

Sherwin Siy, Vice President of Legal Affairs at Public Knowledge, discusses emerging issues in digital copyright policy. He addresses the Department of Commerce’s recent green paper on digital copyright, including the need to reform copyright laws in light of new technologies. This podcast also covers the DMCA, online streaming, piracy, cell phone unlocking, fair use recognition, digital ownership, and what we’ve learned about copyright policy from the SOPA debate.

Download

Related Links


Sherwin Siy, Public Knowledge


What the DMCA cell phone unlock ban means to you, Reardon

Why The Library Of Congress Has A Lock On Your Phone, Henn

CBS, Time Warner Cable & TV Blackouts: What Should Washington Do?

CBS and Time Warner Cable have been embroiled in a heated contractual battle over the past week that has resulted in viewers in some major markets losing access to CBS programming. When disputes like these go nuclear and signal blackouts occur, it is inevitable that some folks will call for policy interventions since nobody likes it when the content they love goes dark.

While some policy responses are warranted in this matter, policymakers should proceed with caution. Heated contractual negotiations are a normal part of any capitalist marketplace. We shouldn’t expect lawmakers to intervene to speed up negotiations or set content prices because that would disrupt the normal allocation of programming by placing a regulatory thumb too heavily on one side of the scale. This is why I am somewhat sympathetic to CBS in this fight. In an age when content creators struggle to protect their copyrighted content and get compensation for it, the last thing we need is government intervention that undermines the few distribution schemes that actually work well.

On the other hand, Time Warner Cable deserves sympathy here, too, since CBS currently enjoys some preexisting regulatory benefits. As I noted in this 2012 Forbes oped, “Toward a True Free Market in Television Programming,” many layers of red tape still encumber America’s video marketplace and prevent a truly free market in video programming from developing. The battle here revolves around the “retransmission consent” rules that were put in place as part of the Cable Act of 1992 and govern how video distributors carry signals from TV broadcasters, which includes CBS.

But those “retrans” rules are not the only part of the regulatory mess here. There are many related federal rules that tip the scales toward broadcasters and content creators, such as the requirement that video distributors carry broadcast signals even if they don’t want to (“must carry”); rules that prohibit distributors from striking deals with broadcasters outside their local communities (“network non-duplication” and “syndicated exclusivity” rules); regs specifying where broadcast channels appear on the cable channel lineup; and prohibitions against carrying sporting events on cable when the local stadium doesn’t sell all its seats on game day (“sports blackout rule”).

As they say on TV.. “But Wait, There’s More!” Working in the favor of video distributors are the compulsory licensing requirements of the Copyright Act of 1976, which essentially forced a “duty to deal” upon broadcasters. Broadcasters have to let cable operators and other video distributors retransmit local stations, though the system at least ensures they get compensated for it. As I noted in my old Forbes essay, along with must carry rules, “Compulsory licensing is the original sin of video marketplace regulation. We could have avoided most of the regulatory mess of the past quarter century if Congress had simply left these rights and contractual negotiations alone. Once Congress forced broadcasters to share their programming, however, marketplace manipulation was off and rolling.”

Of course, the more primal and problematic intervention came decades before in the 1920s and ’30s when the government decided to nationalize spectrum management. Once mandates instead of markets where chosen as the primary allocation agent, America was off and running with a grand experiment in spectrum central planning. We’re still living with the results today. The very fact that spectrum is licensed and can only be used and sold for very narrow purposes as detailed in meticulous FCC regulations is a sign of just how far-removed we are from a pure free market here.

The question now is, what are we going to do about this fine mess? And is there any chance we can get it done?

The problem in this debate is that there are multiple layers of interventions that have built up over the years and created constituencies that are wedded to their preservation. Broadcasters, networks, independent content creators, big cable companies, small cable companies, satellite companies, sports leagues, and viewing consumers themselves — they all have conflicting interests and a stake in how this debate turns out. In his 2012 Mercatus Center working paper, “Consumer Welfare and TV Program Regulation,” media economist Bruce M. Owen noted that “What distinguishes TV programs from other mass media content, including both traditional print and new online media, is the extreme eagerness of Washington to engage in efforts to prevent markets from working freely, often in response to interest group pressures and opportunities for political advantage and with almost complete indifference to the welfare of consumers.”

As a result, if you talk to almost anyone involved in this debate, they will all insist that only their very specific reforms are the ones that can or should be implemented. Consequently, comprehensive reform will be challenging precisely because of all the conflicting interests and layers of law and regulation that must be eradicated.

But at least there is a blueprint for how to get the job done right. Many times here before I have written about “The Next Generation Television Marketplace Act,” which was floated last session by Rep. Steve Scalise (R-LA) and then-Senator Jim DeMint (R-SC). It proposed wiping off the books all the archaic rules outlined above. Alas, the bill never went anywhere in the last Congress and now that Sen. DeMint has left to lead the Heritage Foundation, there is no supporter in the Senate this session. Instead, we have some lawmakers floating bad ideas like S.912, the “Television Consumer Freedom Act of 2013,” which just proposes more regulatory gaming of an already over-gamed system.

We instead need policy reforms like the old DeMint-Scalise bill that clean up the regulatory mess of the past. But there just isn’t much appetite for such a house-cleaning. Most parties affected by these rules want very specific outcomes and deregulation won’t give them any such guarantees. After all, there will still be blackouts after deregulation. And the cost of some content may continue to go up in response to demand. And there will still be fights over sports programming. And there’s no certainty that all local broadcasters or small video distributors will survive. And so on, and so on.

But it is also true that a deregulatory environment is more likely to lead to even more experimentation and innovation with new business models, technologies, and methods of content creation and delivery. We already see much innovation in this marketplace despite all the red tape that exists. Just look at what’s been going on recent years with alternative video delivery platforms, including: Netflix, Hulu, XBox Live, Vudu, Roku, Redbox, Boxee, Amazon, Apple TV, Aereo, Google Chromecast, and so on. And don’t forget the strides that the old broadcast and cable giants have made here, too. CBS is actually a pretty good model for how content can be re-purposed online in creative ways on a firm’s own digital platform. Likewise, cable companies like Time Warner Cable are slowly but surely adapting to consumers’ demand for video to be delivered to multiple devices.

Of course, there there will always be hiccups along the road to video nirvana. Some regulatory activists seemingly expect that all content can be delivered effortless and cheaply to consumers without giving a thought in the world to just how complicated it is to get that content financed and distributed in the first place. Great content and great delivery platforms don’t just happen by magic or the good intentions of activists or policymakers. Those platforms happen because new markets and monetization mechanisms develop to facilitate them. If we cut back the regulatory deadwood in our modern information marketplace, we’d likely get even more experimentation and innovation that would likely produce all new ways of financing, creating, and delivering content to consumers. But we’ll never know unless we are willing to embrace change and kill all those old regulatory weeds that continue to grow in our information garden.

Alas, if Congress can’t muster the courage to do that, then lawmakers ought to at least consider asking the broadcasters to return all that juicy spectrum they are sitting on. After all, the current retrans racket gives the broadcasters an increasingly lucrative revenue stream when they deliver content on cable and satellite systems (in addition to the advertising revenues they already receive). No good reason exists to give them preferential treatment relative to any other cable channel out there today. Don’t forget, there are all sorts of garden-variety cable carriage disputes that happen outside the regulated retrans system today. (Remember last year’s big spats between AMC vs. Dish and Viacom vs. DirecTV?) There are no special rules that either side can rely on in those instances. So why should special rules be applied to other content companies simply because some of their properties are broadcast channels? Answer: they shouldn’t.

But if no other reforms occur and if companies like CBS still want to be more like a cable mega-channel — albeit, a very handsomely compensated cable channel — then by all means go for it. In the meantime, however, they can return all that spectrum for re-auction for some better purpose. In fact, back early 2009, CBS Corp. President and CEO Les Moonves told an investor conference that moving all CBS network programming to cable and satellite platforms would be “a very interesting proposition.” I agree! But, absent other reforms, it might be time to make that “interesting proposition” a mandatory one.

What’s the #1 reason why many older Americans use the web?

Answer: To check health information. Seniors who can investigate a symptom online will save a trip to the hospital. Not knowing whether a symptom is serious and not having the ability to investigate the condition online, many seniors without internet access go to emergency room to answer their health related questions.

This is the fourth post in a series about broadband. It investigates criticisms about America’s broadband market by Susan Crawford. Other posts are available here and here.

Crawford notes on a recent blog post, “One recent 2012 study showed that even after going through digital literacy training, 22% of participants still did not have a connection.”  The part that Crawford doesn’t mention is that 73% of the 33,000 people who participated in the digital literacy program (30 hours of classroom instruction on the basics of the computers and internet) went on to become sustainable broadband adopters (SBAs), meaning they secured their own broadband connection at home.

The National Technology Information Association reports that 99% of Americans have access to broadband download speeds of 3 Mbps, and 96% of Americans have access to download speeds of 6 Mbps.  Deployment– the provision of broadband infrastructure–is not issue with broadband in America; it is rather, adoption or users taking advantage of broadband, which needs improvement.  One-third of Americans don’t connect to the internet, even though their home is passed by a broadband technology.

Samantha Schartman-Cycyk, is the Assistant Project Director for OneCommunity, a non-profit expanding broadband adoption.  She leads the program Connect Your Community (CYC) that was offered in Detroit, MI; Wintson-Salem, NC, Bradenton, FL; Lexington, KY, Cleveland and surrounding areas in northeast Ohio. Schartman-Cycyk notes “There is no one silver bullet” for solving the adoption problem.  There are many reasons why people don’t connect to the internet, including fear, lack of interest, and to a lesser extent, cost.

Her report, a survey of 2267 participants in the CYC program, offers an encouraging story about narrowing the digital divide.  22% of all participants report  a positive workforce impact. Of this group, 35% who had never used a computer before, now do for their job as a result of the program. Additionally 65% now pay bills online who didn’t before, 29% communicate online with a health care provider, and 59% report feeling independent.

Once participants completed the program, instructors helped them find an affordable broadband provider.  In some locations, there are reduced price programs from carriers.  “We found that most of those we worked with are excited to add a home broadband connection and to use their new-found computer skills.”  The #1 reason to get online, more than twice the #2 reason of finding a job, is to find health information including managing prescriptions.  Over 80% of the participants surveyed said that the program helped them find health information.

This project speaks to the importance of investigating root causes of lack of broadband access.  Critics frequently offer oversimplified platitudes such as “people are poor” or “there is no access”. It’s important to break down the demographics to get at key reasons of poor broadband adoption.

Age is an important determinant in whether one has broadband access. ”The younger the population, the higher the connectivity”, notes Schartman-Cycyk.  Having children in the home is associated with higher rates of broadband.

Older adults who are not online are often ”digitally naive”, the opposite of a ”digital native”.  Many fear computers and associate the interent  with identity theft. Moreover many believe that the internet is not relevant for them. After all, they grew up without the internet, and their lives were not empty.  ”It’s not until older adults are shown how to do things online that reflect their personal interests that they make a connection to broadband.  This means health information, recipes, coupons, and communicating with family more regularly,” observes  Schartman-Cycyk

The program also speaks to the need for more research about how people use the internet. ”If the goal is to close the digital divide, ultra-expensive fiber to the home is not going to be the answer for thousands of people who don’t use broadband at home today,” notes Schartman-Cycyk  Without programs such as CYC, many Americans will never get online, even if fiber is brough to their home.  Thus public resources may be better spent on digital literacy programs such as CYC than on network infrastructure.

Are Privacy Property Rights and Contracts Even Possible?

In my latest essay for the IAPP “Privacy Perspectives” blog , I ponder the question: Why is it that better methods of digital contracting and data ownership have not yet developed to help us protect our privacy online?  I note that the idea has long been floating around out there, but never gone anywhere. I offer a couple of explanations for why that has likely been the case. But I also note that there may still be some reasons to believe that private data contracting has a future.

Read the whole thing.

(Note: I discuss these issues in greater detail in my forthcoming George Mason Law Review article, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” It will be out before the end of the month and I will post it here once it is live.)