Adam Thierer's Blog, page 65

Satellite Carrier Subsidies Are Unwarranted

DISH Network gets another opportunity on Tuesday to plead with Congress for another Satellite Home Viewer Act reauthorization—ostensibly to protect consumers from unwarranted rate increases and program blackouts, but actually to preserve and expand DISH Network’s and DirecTV’s access to broadcast programming at regulated, below-market rates.

A couple minor provisions in the Act that have nearly outlived their original purpose are due to expire, but DISH Network is taking advantage of this opportunity to argue that  “there is much more that Congress can do to expand consumers’ access to local programming…”  DISH’s plea is an example of the narcotic effect of supposedly benign regulation intended to promote competition by giving nascent competitors a leg up.  DISH Network, in particular, has become addicted to artificially low prices for broadcast programming, and will seize any opportunity to reduce its programming costs some more through regulation.One of the problems with betting your shareowners’ company on regulation is that in politics, nothing lasts forever.  Another is that there are certain laws of economics, and they still apply.  Shareowners really ought to be on high alert for the appearance of a Beltway, State Capitol or City Hall strategy—firms that can compete and win in the marketplace have no need for regulatory advantages.

When the Act was passed, broad-beam satellite technology meant that carriers had to transmit the same programming across North America.  The carriers were given the right to retransmit distant broadcast signals from “superstations” (without first having to obtain the broadcaster’s consent) to households that could not receive an adequate over-the-air signal from any local station affiliated with a particular major network.

Spot-beam technology now allows the carriers to deliver local broadcast signals to each of the 210 corresponding local viewing areas.  And as a result of significant investment by the satellite carriers, very few households are without access to major networks or local stations.

In that sense, the Act and its progeny can be viewed as a success.  On the other hand, SNL Kagan estimates that, in 2013, programming fees received by broadcasters will represent a total of only $2.7 billion, compared to $31.5 billion for basic cable networks.  This data suggests the possibility that broadcasters are not recovering the fair market value of their programming.  If that’s the case, their ability to continue producing popular programming is in jeopardy.

DISH Network Chairman Charlie Ergen complains that broadcasters “cling to the status quo instead of meeting consumer demand and embracing new technologies and business models.”

But clearly, broadcasters are adapting to the fact that advertisers who used to underwrite the entire cost of broadcasting now have many more options that include cable networks.  It’s unrealistic to pretend we were still living in the 1970’s, when broadcasters had market power.

The facts are: (1) broadcasters are competing for their lives, and (2) broadcasters are a potent source of competition in content and delivery.  The last thing policymakers should be contemplating is forcing broadcasters to subsidize their competitors.

Under current law, satellite carriers will no longer be able to retransmit distant network signals to unserved households without first obtaining the consent of the broadcaster after Dec. 31, 2014.  Nor will broadcasters be prohibited from engaging in exclusive contracts for carriage of their signals.

As content producers, broadcasters generally have an incentive to reach as many viewers as possible by any means. But there are exceptions.  If both a professional ball club or a movie studio and a cable network or broadcaster, for example, believe it is in their mutual best interest to strike an exclusive deal, what’s wrong with allowing them to recover the full economic value of their collaborative enterprise?

If you are DISH Network and if reason prevails and your lobbyists cannot persuade Congress to prohibit exclusivity, there is a solution.  You can become the exclusive supplier of must-see content.

Consumers are best served in the long run by an efficient economy that expands prosperity, not by unholy alliances between struggling firms and policymakers.  Consumers benefit when a producer of something is permitted to obtain the full economic value of his or her product, because then they will produce more of it and look for ways to improve it.

So far, no one has demonstrated that consumers will be harmed if these expiring provisions—which are quite narrow in scope—are allowed to sunset.  The reality is that satellite carriers pay market-based rates for cable networks but don’t want to pay market-based rates for broadcast programming.  The simple fact is DISH Network is receiving a subsidy, and if Congress preserves it that is corporate welfare.

Land Rights, Bottom Up, Using GPS and Satellite Data

Check out how tribal villagers in parts of India are establishing a basic right that we take for granted. Using GPS and satellite imagery, they’re marking out the plots of land that they have lived on, unrecognized, for decades, and they’re making it their property.

The project is described here, and you can noodle around and find plots that they’ve mapped out here.

Three cheers for Rep. Lofgren’s new cellphone unlocking and anti-circumvention bill

Earlier this year, Ryan Radia and I spilled a lot of ink on these pages critiquing the various “cell phone unlocking” bills that were introduced in reaction to a successful White House petition. Our assessment of these bills was that they ranged from timid to unhelpful. Their biggest vice was that they were generally band-aids and temporary fixes aimed solely at cell phones and not the underlying problem of the DMCA’s anti-circumvention provision.

Today, I’m happy to see Rep. Zoe Lofgren introduced a bill that would not only fix cell phone unlocking, but also goes a long way in addressing the DMCA Section 1201’s fundamental problems. Quite simply, the Unlocking Technology Act of 2013 makes the DMCA’s anti-circumvention provisions applicable only in cases where the person circumvents a digital lock in order to infringe copyright. So, ripping a DVD in order to distribute a film without permission on BitTorrent would still be illegal, but ripping the same DVD in order to watch the film on your iPad would be OK. This is good sense and good policy.

The bill also would allow the manufacture, sale, and import of anti-circumvention tools now prohibited under DMCA 1201. Sounds nefarious, but in reality what this means is that, for example, Linux users may for the first time get a legal way to play DVDs on their computers. And making tools that help the blind read ebooks won’t get you in trouble with the FBI.

Finally, the bill requires NTIA to conduct a study and publish a report looking at whether the economic impact of the DMCA’s anti-circumvention provisions, and to look at whether Section 1201 should be further amended or even repealed. Yes folks, this bill uses the word “repeal” in its text.

Congrats to Rep. Lofgren and her bi-partisan co-sponsors, Reps. Massie, Eshoo, and Polis, for showing that common sense still has a shot on the Hill.

President Obama’s New E.O.: Open Data, Not Government Transparency

There’s a powerful irony lurking underneath the executive order and OMB memorandum on open data that the White House released in tandem today: We don’t have data that tells us what agencies will carry out these policies.

It’s nice that the federal government will work more assiduously to make available the data it collects and creates. And what President Obama’s executive order says is true: “making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.” GPS and weather data are the premier examples.

But government transparency was the crux of the president’s 2008 campaign promises, and it is still the rightful expectation of the public. Government transparency is not produced by making interesting data sets available. It’s produced by publishing data about the government’s deliberations, management, and results.

Today’s releases make few, if any, nods to that priority. They don’t go to the heart of transparency, but threaten to draw attention away from the fact that basic data about our government, including things as fundamental as the organization of the executive branch of government, are not available as open data.

Yes, there is still no machine-readable government organization chart. This was one of the glaring faults we found when we graded the publication practices of Congress and the executive branch last year, and this fault remains. The coders who may sift through data published by various agencies, bureaus, programs, and projects can’t sift through data reflecting what those organizational units of government are.

Compare today’s policy announcements to events coming up on Capitol Hill in the next two weeks.

On Thursday next week (May 16), the House Committee on Oversight and Government Reform will host a “DATA Demonstration Day” to illustrate to Congress and the media how technology may cut waste and improve oversight if federal spending data is structured and transparent. (That would include my hobby-horse, the machine-readable federal government organization chart.) We’ll be there demo-ing how we at Cato are adding data to the bills Congress publishes.

On May 22nd, the House Administration Committee is hosting its 2013 Legislative Data and Transparency Conference. This is an event at which various service providers to the House will announce not just policies, but recent, new, and upcoming improvements in publication of data about the House and its deliberations. (We’ll be there, too.)

The administration’s open data announcements are entirely welcome. Some good may come from these policies, and they certainly do no harm (barring procurement boondoggles–which, alas, is a major caveat). But I hope this won’t distract from the effort to produce government transparency, which I view as quite different from the subject of the new executive order and memorandum. The House of Representatives still seems to be moving forward on government transparency with more alacrity.

A response to Steve: It still doesn’t sit well

Over at Freedom to Tinker, Steve Schultze has a response to my Reason article about Craigslist suing its competitors. Steve expresses some surprise that I would suggest that we might want to recognize a new property right since I have been so critical of the excesses of our current IP regime. Let me take a stab at reconciling that seeming paradox.

First, I should say I’m sympathetic to Steve’s position, which he shares with many others, and which may well be right. I wrote the Reason article more than anything to provide some balance to what I saw as a knee-jerk reaction in the blogosphere to the Craigslist ruling. I really didn’t see anyone giving Craigslist’s claims a fair shake (probably because the company is acting hypocritically given the public profile they have cultivated). That’s why in the article I’m ambivalent about whether Craigslist should have any remedy, and why I don’t make the case that trespass to chattels is the right approach. The point is that neither am I convinced that it’s clearly the wrong approach, or that Craigslist should clearly not be waging this suit.

That said, let me suggest that my thinking on this is not at odds with my thinking on copyright. Steve chides me for saying that maybe there’s something to Craigslist’s claims because what its competitors are doing doesn’t “sit well.” He says that “the notion that something doesn’t ‘sit well’ is not necessarily a good indicator that one can or should prevail in legal action,” and he’s right, which is why I don’t make that claim in the article. He goes on to admit that “to be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn’t seem right.” And that was my point. The fact that what Craigslist’s competitors are doing doesn’t sit well, I suggest, should give us a hint that this isn’t as open-and-shut a case as some have made it out to be, and that perhaps we should take a closer look.

I’m glad Steve brings up the common law. One of the central critiques I have made about copyright as a property right is that it did not develop at common law, and is instead a creature of statute. The fact that copyright is created by politicians guessing about the future (and influenced by special interests), rather than courts deciding actual cases and controversies, is what in large part leads to its excesses. I am much less skeptical of property rights that emerge at common law over time after an evolutionary process of trial and error, and as Steve points out, this process usually begins when a court is presented with a novel question that doesn’t “sit well.”

On to nitpicks about copyright. Steve says that “there is a bit of confusion around the copyright claims” that he wants to clear up and notes that, “The court held that Craigslist unambiguously does not hold copyright in user-created postings, except for those three ill-fated weeks last summer when they instituted that horrible terms of service.” That is a confusing statement in itself because at face value it implies that Craigslist does indeed have copyright over the postings created during the couple of weeks it required users to click through what Craigslist claims is a notice that assigns to it an exclusive license. Of course, as Steve knows, the court’s ruling was on a pretrial motion and whether Craigslist has copyright in that small set of listings has not yet been determined. And if I had to bet, I’d bet the click-thru won’t qualify as an assignment of an exclusive license.

He goes on to say that “Jerry’s claim … that no copyright exists in these posts whatsoever, seems weak.” Well, again, I made no such claim. The only thing I said on this was that “a site like PadMapper only copies facts about a listing (i.e. 3 bedrooms, 800 sq. ft., $2,000 a month, etc.), and mere facts are not subject to copyright.” I wasn’t suggesting that the listings in questions were Feist-style facts that could not be copyrighted, but that PadMapper is not copying the listings wholesale, but only taking mere facts, which would be unprotected given the merger doctrine. Steve seems to miss that distinction.

Even if I had said that the listings were not subject to copyright, Steve’s evidence that such a claim is weak is, well, weak. He points to the court’s ruling, which finds that the listings probably are copyrightable. Yet as Steve notes, the facts in the case are read in the light most favorable to the non-moving party, which is Craigslist since this is a motion to dismiss. So I’m not sure how a court looking at the issue in a light favorable to Craigslist and finding that Craigslist has adequately alleged sufficient facts to proceed is much evidence against the legal claim that the listings aren’t copyrightable.

Anyhow, after clarifying “confusions around the copyright claims” that I did not introduce, Steve takes me to task for “argu[ing] that maybe this is the right case to test out some novel approaches to applying physical-world torts to online things that feel kinda like property.” In this he’s probably right; this is likely the wrong case. It is “a messy fact pattern,” as Steve says. I think that’s true in part because Craigslist has not been adding new features to its site and has seemingly been resting on its laurels since the late 90s. A better case would be one that involved, say, a service that took Match.com and OKCupid listings without permission. It would be a much more clear-cut question if we had a plaintiff that was working hard to attract users’ listings only to see them taken without permission, as 3taps says in its white papers should be allowed. Alas, though, this is the case we have.

Steve then goes on to the heart of the matter: my suggestion that it’s not clear that there shouldn’t be a property right here. Steve first says that “moving law in this direction is bad policy,” without providing any support for that assertion except to say that “Jerry has written extensively about the problems with propertization creep, so I don’t know why he would think that this makes sense.” I’ve already explained the difference between property rights that emerge at common law, and the creep we see from statutory property schemes, so I won’t repeat myself. The bottom line is that sometimes property makes sense, and sometimes it doesn’t. The question is, in a particular case, how do we increase human welfare? With a property right, or with a commons? As I said before, Steve and other commentators may be right that a commons is the way to go in this case, but it’s not as obvious to me as it seemingly is to them. I’d love to see the case made explicitly.

Steve goes on:

Jerry also turns to the economics of network effects to support his “it doesn’t feel right” hypothesis. As his argument goes, Craigslist built the network effects that it now enjoys, so competitors should have to do the same. I suppose that this satisfies a visceral sense of fairness, but it doesn’t say much about what is optimal for the market and for innovation.

I’d argue it says far more than Steve has said. As I explain in chapter one of Copyright Unbalanced (the subtitle of which Steve oh so cleverly zings in his concluding line) we do want to see new property rights emerge when it’s worthwhile to internalize (at least some of) an existing externality. In this case the externality is the network effect that listing platforms like Craigslist provide. What I’m suggesting is that it’s not obvious that we won’t get better platforms and more innovation by having competing closed platforms (Match.com vs. OKCupid) rather than one open one. Commentators like Steve, however, seem happy to forgo the analysis, dismissing such thinking as “Paleo-Schumpeterian,” and jumping right to the conclusion that any new propertization is bad. I’ve explained my limiting principle; I’d love to hear theirs.

Finally, so much of the reaction to Craigslist this past week was predicated on the company’s lack of innovation. As Steve points out,

Once you have a network effect in a market, your incentives to innovate decrease because of lock-in. Others, however, are strongly motivated to try to break into that market. Padmapper and others innovated—in a way that is no less “true” than Craigslist’s original innovation. Craigslist saw the value of that innovation and even tried to imitate it by creating its own mapping tool (arguably innovation in and of itself).

I don’t get it. If Craiglist is asleep at the switch and as un-innovative as Steve says it is, and if competitors are innovating, then why should we worry if it does have a property right? Won’t Craigslist eventually get disrupted and have the network effect wrested away from it by a competitor that entices aways its users? It’s how Facebook beat MySpace, and how MySpace beat Friendster. Lock-in didn’t stop them. And isn’t at least some of the incentive that draws those potential disruptors the chance of one day wearing the crown?

I’m not saying this is the right answer, but I don’t see anyone making a good case why a property model is obviously wrong, and a commons is obviously better.

Tiered Pricing in Broadband ≠ Monopoly

I plan to write more about broadband competition and the impact of Google Fiber but in the meantime, there is a New York Times article on the subject that I’ll briefly address.

The author, Eduardo Porter, misdiagnoses why tiered pricing in broadband exists, giving readers the impression that only monopolies price discriminate:

That means that in most American neighborhoods, consumers are stuck with a broadband monopoly. And monopolies don’t strive to offer the best, cheapest service. Rather, they use speed as a tool to discriminate by price — coaxing consumers who are willing to pay for high-speed broadband into more costly and profitable tiers.

Consumer advocacy groups regularly–and wrongly–equate price discrimination with monopoly. Price discrimination–where firms price different customers different prices because of their willingness to pay–tells us nothing about the existence of monopoly (and little about market power). Firms lacking monopoly–in industries like airlines, clothing retail, movie theaters, and restaurants–use price discrimination. No one alleges monopoly in these industries, so I don’t know why the author makes this connection between monopoly and price discrimination. Had Porter thought about it, this paragraph makes little sense since even in the urban areas that have 2 or 3 high-speed broadband providers you still see tiered pricing. This should be a tip-off that tiered pricing does not arise from monopoly.

Porter makes another error, which I think just signals the sloppy reporting in this piece:

The preferred strategy seems to involve more cooperation than competition. In 2011, Verizon tried to cobble together agreements with the nation’s major cable firms to jointly market each others’ services — offering itself as the wireless complement to cable’s wireline plans. It was foiled only because the Justice Department slapped the deals down as anticompetitive.

As Gigi Sohn (who generally agrees with the author) points out on Twitter, this is not right either.

Great @nytimes piece on why US #broadband is mediocre: nytimes.com/2013/05/08/bus…Correction: DoJ did *not* block Verizon-cable spectrum deal

— Gigi Sohn (@gigibsohn) May 8, 2013

The agreements to jointly market others’ products were not in any meaningful sense “foiled.” Those agreements were approved with conditions, namely, that Verizon couldn’t market a cable company’s service where FiOS is available.

I don’t think these are minor nitpicks. The fact is, journalists and advocates regularly employ loose definitions of “monopoly,” often intentionally in order to increase the urgency to further some political end. And the portion about the Verizon deal gives readers the distinct impression that Verizon was doing something colluding and nefarious that was stopped by the DOJ, and that’s just not true.

Is Craigslist behaving like a bully—or legitimately protecting its business interests?

Over at Reason I take a look at the recent controversy around Craigslist suing some smaller competitors who have been using its listings data without permission. While I agree with most commentators that neither copyright nor CFAA claims make sense in this case, I depart from what seems to be the conventional thinking in arguing that it’s not so clear that Craigslist should have no remedy:

[I]t’s pretty easy to see why Craigslist should care that others are building on top of and extending its service. What makes the company so valuable is its strong network effect. People go to Craigslist because that’s where the people are. If it loses that, it loses its business.

PadMapper aggregates and presents listings not just from Craigslist, but from other apartment listing sites as well, including Apartments.com and Rent.com. This is great for users because they only need go to one site to browse all the listings across multiple databases. It’s bad for Craigslist, however, because it makes it less of a focal site. Such aggregators make it less important that an apartment be listed at Craigslist specifically as long as it is in the aggregated list.

PadMapper also offers listings of its own listings through its PadLister service. This means that PadMapper relies on the network effects that Craigslist has developed in order to draw in an audience, and then promotes and sells its own listing service to that audience. While that business model is certainly innovative, and may not violate copyright, it doesn’t sit well, either.

Craigslist disrupted the newspaper industry by decimating traditional classifieds. It did this by offering a better alternative to its competitors that attracted consumers away from newspapers. Craigslist didn’t copy newspaper ads to jumpstart its operation, just as Facebook didn’t jumpstart its network by copying over MySpace accounts. That’s true innovation: taking command of the network effect by offering a superior product. So shouldn’t we expect the same from new entrants in the classifieds space?

Check out the whole thing here.

W. Patrick McCray on visioneers

W. Patrick McCray, author of The Visioneers: How a Group of Elite Scientists Pursued Space Colonies, Nanotechnologies, and a Limitless Future, tells the story of these modern utopians who predicted that their technologies could transform society as humans mastered the ability to create new worlds.

Believing that the term “futurist” was too broad, McCray coined the term visioneers to describe those who not only had ambitious visions for future technology, but who carried out detailed and extensive scientific and engineering work to bring those visions into fruition, and who actively worked to promote their  ideas to a wider public.

McCray focuses on the works of Gerard O’Neil and Eric Drexler, detailing their early contributions as visioneers and their continuing impact particularly in the fields of space colonization and nanotechnology. He also identifies modern-day visioneers and their work.

Download

Related Links


The Visioneers: How a Group of Elite Scientists Pursued Space Colonies, Nanotechnologies, and a Limitless Future, McCray
Keep Watching the Skies!: The Story of Operation Moonwatch and the Dawn of the Space Age, McCray
Giant Telescopes: Astronomical Ambition and the Promise of Technology, McCray
We May Not Have Flying Cars Yet, But Visioneers Are Inventing a New Future, McCray

What to expect at the WTPF

Next week, I’ll be in Geneva for the 2013 World Telecommunication/ICT Policy Forum, better known by the acronym WTPF-13. This is the first major ITU conference since the WCIT in December, and the first real test of whether what some are calling the “post-WCIT era” really exists, and if so, what it means. For those just now tuning in, the WCIT was a treaty conference in Dubai in which some ITU member states pushed hard to make elements of the Internet subject to intergovernmental agreement, resulting in the refusal of 55 countries to sign the treaty. I published a retrospective account of my experience at the WCIT at Ars Technica.

The WTPF will be different than the WCIT in several important ways:

It’s not a treaty conference. The output of the meeting is instead a report and several opinions. Draft text of these have been negotiated over three preparatory meetings of an “Informal Experts Group” (IEG). The WTPF will finalize the text, which is non-binding, but is likely to be selectively quoted at future treaty conferences in order to pursue the agenda of each member state.
Sector members can participate. The ITU is an intergovernmental organization, and member states are its primary constituency. However, the ITU also allows for “sector members,” which are mostly corporations that are involved in international telecommunications. Sector members will have microphones and be able to address the chair during the WTPF, something they could not do during the WCIT. It has not yet been made conclusively clear to me whether sector members will be able to formally vote, if a formal vote is held. (Secretary-General Hamadoun Touré said there would be no voting at the WCIT, but both informal and formal votes were held.)
The Internet is explicitly on the table. The Secretariat promised that Internet governance would not be considered at the WCIT, but it ultimately was, which is one reason that the conference failed to produce a treaty that all countries could feel comfortable signing. But the official theme of the WTPF is “international Internet-related public policy matters,” so there is widespread agreement that the Internet is a suitable topic of discussion at the WTPF, even if there is little agreement on conclusions.
Anybody can download and read the official WTPF documents. Before and during the WCIT, working drafts and member state contributions were kept secret. Jerry Brito and I started WCITLeaks in order to give the general public access to these documents. For whatever reason—whether exposure of the lack of transparency in the WCIT process embarrassed the ITU Secretariat, or they were planning to make the WTPF more open anyway—all WTPF documents are available for your perusal, several in all six official ITU languages. Either way, I’m happy to applaud the decision to make the documents available.
The WTPF is only three days long. The WCIT was almost two weeks. This imposes significant limitations on the amount of deliberation that can occur. There is also a WTPF every 4 years, whereas a WCIT happens only on an as-demanded basis.

Since the conference is going to be short, I expect that most of the debate will focus on the six draft opinions that have been attached to the Secretary-General’s report. The report itself is probably too long to receive substantial revision in only three days. Consequently, the opinions are likely to be where the action is. The draft opinions are:

Promoting Internet Exchange Points (IXPs) as a long term solution to advance connectivity
Fostering an enabling environment for the greater growth and development of broadband connectivity
Supporting Capacity Building for the deployment of IPv6
In Support of IPv6 Adoption and transition from IPv4
Supporting Multi-stakeholderism in Internet Governance
On supporting operationalizing the Enhanced Cooperation Process

Opinions 1 and 2 will be consider in Working Group 1, 3 and 4 will be considered in Working Group 2, and 5 and 6 will be considered in Working Group 3.

The United States has expressed qualified support for the current draft text of all six opinions in its contribution to the WTPF:

The United States is prepared to endorse the consensus achieved by the IEG and adopt the six non-binding opinions as presented in the annex to the Secretary General’s report. We take this approach based on our desire for a successful forum, despite some concerns with respect to the opinions on multi-stakeholderism and enhanced cooperation. But we recognize, as we hope all participants do, that to attempt to renegotiate the text or introduce new topics or opinions during this meeting would cause significant difficulties and upset the consensus already achieved.

Nevertheless, other countries have proposed substantial changes to the draft IEG text. Perhaps the most controversial opinion is number 5 on multi-stakeholderism. Multi-stakeholderism is a tricky element of international Internet politics. Most participants have agreed at one point or another that the “multi-stakeholder” institutions that currently govern the Internet are an important part of the Internet’s success. However, this has led the more authoritarian countries to insist that governments are stakeholders too, and it has led those who support greater ITU involvement in international Internet policy to insist that the ITU is a multi-stakeholder organization.

For example, in a speech two weeks ago in Brussels, Secretary-General Touré said:

This opinion reiterates what I have been saying for some time—that the ITU has been multi-stakeholder from its inception, and that it was the success of the multi-stakeholder approach within ITU that inspired the multi-stakeholder principles agreed at the ITU-led World Summit on the Information Society, WSIS.

Now, Opinion 5 does not say that the ITU is a multi-stakeholder organization (read it yourself), and the ITU is certainly not and has never been a multi-stakeholder institution, unless “multi-stakeholder” is defined as simply having multiple stakeholders. Among those who originally advocated multi-stakeholderism, the term connotes a certain bottom-up, voluntary, inclusive, and even informal process, which is incompatible with intergovernmentalism. This…loose talk…by the Secretary-General appears to be intended to position the ITU to take a more active role in Internet governance. Some member states share Dr. Touré’s apparent agenda. For example, Brazil’s proposed replacement for Opinion 5 explicitly says, “ITU is a multistakeholder organization.”

Russia’s proposed edits to Opinion 5 focus much less on the ITU itself and more on the role of government. For instance, it invites member states:

to exercise their rights on Internet Governance to control distribution, appropriation and development of Internet numbering, naming, addressing and identification resources and support the operation and development of the basic information and communication infrastructure, include the Internet, at the national level.

In other words, Russia wants to supplant existing Internet governance structures with national laws.

Aside from Opinion 5, the other major issue I am keeping my eye on is Working Group 2 on IP addresses and the IPv6 transition. Late last week, there was an unexpected shuffling of Working Group chairs. The chairwoman of WG3 was removed, the chairman of WG2 was moved to WG3, and Musab Abdullah from Bahrain was announced as the new chairman of WG2.

Those of us who were at the WCIT remember Mr. Abdullah as a forceful advocate for measures, like calling party identification and government-managed naming and numbering resources, that would have enabled greater government control of telecommunication services. And Bahrain is one of the most repressive regimes with respect to the Internet in the world. Reporters Without Borders considers Bahrain one of only five “state enemies of the Internet” in 2013.

So why did this shakeup of Working Group chairs happen, and why is one of the world’s top censors now chairing the Working Group on IP addressing? Could there be a strong push in favor of an expansive role for governments in assigning IP addresses, one that would allow governments to more easily link IP addresses to individuals in order to support censorship? We’ll find out next Wednesday morning when WG2 convenes.

For updates during the WTPF, follow me on Twitter. As always, any views expressed in this post or in future posts and tweets are my own, and should not be attributed to any government or delegation.

Do Not Track, Silver Bullets, and Long-Term Privacy Protection

Today over at the International Association of Privacy Professionals (IAPP) Daily Dashboard blog, I have a guest post entitled, “Let’s Not Place All Our Eggs in the Do Not Track Basket.” The essay builds on my Senate Commerce Committee testimony last week by arguing that:

If there’s one lesson I’ve learned in twenty-one years of covering information technology policy, it’s that there are no simple silver-bullet solutions to complex issues like online safety, hate speech, spam, cybersecurity, data breaches or digital privacy. Problems such as these demand a layered, multifaceted approach that incorporates many solutions, the first among these being education and awareness-based efforts.

I continue on to explain why that means we should be cautious about placing too much faith in privacy techno-fixes like Do Not Track, which won’t likely be any more successful than past silver bullet efforts. (Note: Justin Brookman of CDT will be offering a counterpoint to my essay next week on the IAPP blog. I look forward to seeing what he has to say. He also testified alongside me in the Senate last week.)

By the way, for those of you not familiar with the IAPP, it is “the largest and most comprehensive global information privacy community and resource, helping practitioners develop and advance their careers and organizations manage and protect their data. More than just a professional association, the IAPP provides a home for privacy professionals around the world to gather, share experiences and enrich their knowledge.” In my opinion, the IAPP is doing amazing work and deserves the attention of anyone who cares about the future of privacy and privacy policy. I strongly recommend you check out their excellent site and explore all the important resources they provide and other things they do.

Anyway, if you are interested in the issues discussed in my IAPP guest post, you might also want to check out some of the related essays down below the fold:

Additional Reading:

Senate testimony of Adam Thierer on Do Not Track standard – Apr. 24, 2013
A Better, Simpler Narrative for U.S. Privacy Policy – March 19, 2013
On the Pursuit of Happiness… and Privacy – March 31, 2013 (condensed from Harvard Journal of Law & Public Policy article, “The Pursuit of Privacy in a World Where Information Control is Failing”)
Isn’t “Do Not Track” Just a “Broadcast Flag” Mandate for Privacy? – Feb. 20, 2011
Two Paradoxes of Privacy Regulation – Aug. 25, 2010
Privacy as an Information Control Regime: The Challenges Ahead – Nov. 13, 2010
When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed – Apr. 29, 2011