The 463: Inside Tech Policy

Viva 230

[Editor's note: For the first time in five (?) years, I am not in lovely Aspen for the Progress and Freedom Foundation tech policy fest. As much I will miss the dichotomy of blue blazers and hiking boots, the Sky hotel jacuzzi, hot dogs at 2 am, and mile-(plus)-high hangovers, I am happy that 463er Dave McGuire is in effect this year. He even wrote a little ditty for this space today.... And we can expect more....]

If I told you I spent my morning in a basement conference room, packed with policy wonks, listening to a quartet of lawyers bickering about a subsection of a decade-old law, you might pity me.

Thankfully, the basement is in beautiful Aspen Colorado, the lawyers are nationally recognized experts, and that boring legal subsection? It may just have paved the way for Web 2.0.

I'm here in Aspen for the Progress and Freedom Foundation's annual Aspen Summit, a fine excuse for a gaggle of bright people to descend on an off-season ski town to mull over the future of Internet policy.

The first panel this morning dealt with mounting attempts to force Internet companies, such as ISPs, social networks and Web site operators, to crack down on the content created by their customers.

As it stands, Internet companies are largely protected from liability for the content their customers create under Communications Decency Act (CDA) -- specifically Section 230. Although the Supreme Court rightfully struck down much of the CDA on First Amendment grounds, Section 230 survived, and arguably paved the way for the Internet we see today.

Without 230, it's difficult to imagine how applications like Facebook or YouTube would have ever been created. If the Facebook could be held legally responsible every time one of its millions of users said something potentially defamatory, or Google could be sued within an inch of its life every time a YouTube user violated copyright law, it'd be hard to justify maintaining either of those services...or developing them in the first place.

Unfortunately, some lawmakers, content owners, and others are increasingly pushing to "deputize" Internet companies, forcing them to play an active roll in policing the content they host. It's a troubling trend, and one that threatens to undermine the user-generated revolution that Web 2.0 has wrought.

Most of the lawyers on the panel seemed to agree (though being lawyers, the managed to argue about it for an hour) that Section 230 would survive efforts to undermine its core protections, but probably not without their, and our efforts in its defense.

Learnings from THE Cyberporn Story

I ran across this classic, infamous Time Magazine cover the other day and was blown away that it's now 13-years-old. The story is here.

Besides making me think about my own age and what I was doing when I first saw it back in 1995, I had a few thoughts on it (that aren't all necessarily related)...

--As you may know, the story was riddled with faulty research, alleged bad journalism and a lot of fear mongering presumptions. In a nutshell, one Carnegie Mellon researcher did a study that found that 83.5 percent (!) of online images were pornographic and published his findings in a non-peer-reviewed law journal. (The punch-line was that the source of the images were private BBS services and not the public Internet). The researcher and the law journal supposedly gave Time the journal article and select pieces of the results under the condition that Time couldn't see the full study before it went to press. This is obviously completely insane and the law journal says it wasn't true. But, regardless, Time ran with the piece nonetheless and wrote (their caps, not mine): "What the Carnegie Mellon researchers discovered was: THERE'S AN AWFUL LOT OF PORN ONLINE."

For a blow-by-blow excavation of the story, see this critique and this timeline by Brock Meeks (long-time journo, current CDT communications guy).

--At the time of the piece, the Communications Decency Act train was warming up in the station and the Time story gave it a head of steam. In an interesting piece of current research, Alice Marwick writes about "technopanics" and uses the Time piece and the resulting legislative actions as exhibit A...

The day after the Time issue was published, Iowa Senator Charles Grassley directly referred to the Rimm study on the floor of the U.S. Senate. Congress was in the process of debating the Communications Decency Act (CDA), an amendment to the Telecommunications Act which made it a federal crime to make pornographic materials available online where children could view them. Grassley had read the Time magazine cover story and gave a strident speech to Congress the day after it was published:

Eighty–three point five percent of all computerized photographs available on the Internet are pornographic. Mr. President, I want to repeat that: 83.5 percent of the 900,000 images reviewed — these are all on the Internet — are pornographic, according to the Carnegie Mellon study. Now, of course, that does not mean that all of these images are illegal under the Constitution. But with so many graphic images available on computer networks, I believe Congress must act and do so in a constitutional manner to help parents who are under assault in this day and age. There is a flood of vile pornography, and we must act to stem this growing tide, because, in the words of Judge Robert Bork, it incites perverted minds.

--The CDA, of course, passed, was signed and then got struck down by the Supreme Court. It also launched the careers of about 1143 geek activists.

--As the "technopanic" piece notes, there is a direct corollary from the Web 1.0 cyberporn freak-out and the social networking predator wig-out. Adam Theirer and others spit in the wind for a long time about how faulty research was on social networks and the risks of sexual predators. Still, despite a recent trend toward more reasonable data, a whole host of bad legislation has been introduced since 2006 to cure the Internet of its social networking evils. DOPA was the classic, but there have also been all sorts of attempts at the state level for age-verification mandates (which have been uniformly scuttled).

--But, think that in these modern ubiquitous media days that a single story can't have an impact on a policymaker? Think again. It certainly wasn't as specious as the Time piece, but consider one New York Times story written by the generally very good Brad Stone last summer. Headlined "New Scrutiny for Facebook Over Predators". In it, the Connecticut AG says that he is investigating "three or more" cases of convicted sex offenders on Facebook. Lightweight claim? Fair point? You make the call.

Regardless, this news is supported by an anonymous email to the Times that was received by a received from a “concerned parent” who had “posed” as a 15-year-old on Facebook and received solicitations from adults. Apparently, this fake 15-year-old signed up for groups that included ““addicted to masturbation ... and you know if you are!”, “Facebook Swingers” and “I’m Curious About Incest.” The fake user subsequently received propositions from adults who could see her profile photo and message her via the group. A couple of the men had naked photos of themselves on their profile. (Note that Facebook has since fixed this issue on several levels).

In response to the Times story, one blogger remarked: "What?! Adults posing as teenagers looking for "random play" and joining 36 sex groups get propositioned? The system is totally broken!"

Regardless, I don't think it was a complete coincidence that less than two months after the piece, the New York Attorney General announced the results of a “weeks long” investigation into the site that mirrored what were covered in the story and started a public crusade against Facebook. This was very quickly concluded by an agreement between the AG and the company. Still, damage done.

--Is the social networking technopanic too 2006-07 for you? Okay, how about this USA Today piece that came out last week that ledes with: "Sexual predators are using gaming consoles such as the Wii, PlayStation and Xbox to meet children online."

Look for related legislation soon.

--Another interesting bit from the initial reaction to the cyberporn story, was the recalling of how this could have been the first major instance of "crowdsourcing" to find the facts necessary to create a significant reaction (in this case from a major weekly newsmagazine). The seminal early-Internet geek-zone, the Well, is given credit in a 1995 story:

In the hours and days after the Time story was published, something extraordinary happened in the Media conference on the Well, the Sausalito-based computer conferencing system: Scholars, reporters and activists examined the Time story and the Carnegie Mellon University study it was based upon and took them apart, line by line, statistic by statistic, in full public view.

The Well is a popular hangout for journalists and journalism junkies; the author of the Time story, Philip Elmer-DeWitt, is among its regulars. Over the past 10 days, anyone who pulled up a virtual chair on the Well could follow all the principals in this controversy as they thrashed out their disagreements.

Initially, a Time editor (awesomely) only promised a "letter to the editor" to the dissenters. But, as the reaction dragged on, Time eventually ran what was supposedly a "qualified" retraction. (I can't find it).

--Of course, the Well could also be seen as a pre-cursor to the current circle jerk of tech bloggers who constantly affirm each other in their own special enlightened world. [UPDATE: Check out Brock Meeks' erudite refutation of this point in the comments.]

--Indeed, the author of the Time piece notes in an interview right after it ran...

"Frankly, I think there's a good story to be done, probably by me, in what's gone on in The Well. This might be self-serving, but it feels like poor Marty Rimm is being lynched there. He's not getting a fair trial; his study's not getting a fair trial. Mike Godwin has organized an attack, and there are precious few voices that are not already prejudiced to one side."

I't's hard to have a lot of sympathy for either the reporter or researcher in this case, but after seeing When Communities Attack many, many times in the last 13 years now, it's also hard not to hold out a bit of skepticism for prevailing wisdom promulgated by those who effusively agree with each other and collectively reject dissenting perspectives.

In a way, this whole episode was quite prescient -- both for better and for worse.

U2, I Mean, YouTube Now Faces Political Speech Regulation in Brazil

....and so does any other Internet publisher big or small that publishes political content.

According to a blog round-up on the excellent Global Voices, the top election law body in Brazil has created a legal environment where:

Broadcasting of any political propaganda on the Internet, radio or television - including, among others, community radio stations and television channels operating in UHF, VHF and by subscription - and, besides, rallies or public meetings are prohibited, from 48 hours before through 24 hours after the election.

This means that a blogger might need to black out a post advocating a candidate two days prior to election day. It means that questions over whether YouTube, for example, would be responsible to pull all Brazilian election content would be raised.

And, speaking of YouTube, just to get a sense of the Internet reading level that the Brazilian ministers were operating under, the Global Voices post translates the words of a Brazilian judge writing about the opinion:

As I heard the arguments being presented, I was increasingly surprised in face of the ministers' lack of knowledge to understand what the Internet is. It seemed - and this impression was very strong - that they did not know what they were talking about. To get an idea, Youtube was turned into U2.

Ultimately, this lack of understanding led to a confused opinion:

In the end, the decision was a clear sample that they did not know what they were deciding right then. It was decided that to the extent that problems arise, they would be dealt with, case by case. This is great for lawyers and too bad for voters, who are left with a Sword of Damocles hanging over their heads without knowing what they can and can not do.

I've said it before: The Internet has created the greatest generational divide since Rock 'n' Roll. This borderless divide has also proven that cultures of all stripes have the ability to enact profoundly counterproductive (and technically impossible) rules that increase the chasm between both sides.

Global Voices & Japan's Turn to Protect the Children

463 does a little project work with the Harvard Law Berkman Center for Internet & Society, but I somehow had missed running across a fascinating project of theirs called Global Voices. It's a "non-profit global citizens’ media project." Or, in other words, it's an easy way to read aggregated perspectives of sharp bloggers from places other than North America and Western Europe that you wouldn't otherwise be able to find or understand.

For example, as I write this, the home page features summaries of home-baked blog coverage of Ecuadorian Internet security and privacy concerns; opinions on the current state of affairs in Iraq; and, reports of social networking-fueled strikes in Egypt over pocketbook issues. Super interesting stuff.

What grabbed me most, though, was a thorough summary of Japanese blogger opinion on the all-too-familiar Internet content regulatory creep.

The post by Chris Salzburg explains that the two leading political parties are currently trying to out do each other with legislation aimed to regulate Internet content deemed "harmful" to minors. Moreover, despite mainstream coverage of earlier moves by Japanese officials to filter mobile content to minors and top news sites, the bloggers say that, inexplicably, there seems to be far too little attention being paid to how severe the new potential regulations could become...

Japanese bloggers have been making noise the past few days [ja] in reaction to two separate bills, submitted first by the ruling Liberal Democratic Party of Japan (LDP) and next by the leading opposition Democratic Party of Japan (DPJ), each aiming, in apparently similar ways, to legislate regulation over Internet content deemed to be “harmful” to minors (users under age 18).

On March 19th, LDP Diet Member Takaichi Sanae submitted a bill to a government panel to legislate the “prevention of browsing on the Internet of information harmful to young people” in an attempt to maintain the “sound upbringing of young people”. Shortly thereafter on April 2nd, Diet Member Takai Miho of the Democratic Party submitted a bill with the aim to create an environment that “makes it possible for children to safely use the Internet”. According to bloggers, the bills go significantly further than earlier legislation introduced late last year, which mandated default filtering on mobile phones for minors. Nonetheless, aside from a single article in Asahi shimbun [ja] on the topic, the two bills appear to have been granted no mainstream media attention.

The bills follow on a recent trend of increasing moves toward regulation of the Internet in Japan, but according to bloggers, this time Diet Members Takaichi and Takai are going significantly further — and advancing legislation significantly faster — than in the case of earlier proposals.

Global Voices notes that one blogger raises obvious big issue in the proposed regulation:

First of all, the definition of “information harmful to young people” covers a broad range, and there are many vague expressions like “something that causes …” and “something that poses a danger of …” that can be interpreted at the discretion of the “Committee on the Promotion of Sound Upbringing of Young People"

Check out the post for more classic good intentions; really bad application of law.

(Photo by nolando)

Dem FCC Chair Guessing Game

The good and connected Brooks Boliek at the Hollywood Reporter makes some educated guesses on who the next FCC Chair would be if either Senators Clinton or Obama are elected president.

For Clinton, Boliek hears that...

Susan Ness is the name bandied about among the tele-cognesceti. Ness, a former commissioner, has strong ties to the Clintons. She was a fundraiser and former campaign worker for President Clinton and has continued in that role actively campaigning for the senator. She has been named a "Hill Raiser" for raising more than $100,000 for Clinton and has been active in her campaign.

As for Obama...

...his campaign and Senate staffs are dotted with people who have close ties to the FCC. Connecting those dots, however, is Julius Genachowski, a former aide to Hundt and Kennard and a close friend of Obama's since they attended Harvard Law School....

Aside from commission experience, Genachowski was an executive at Barry Diller's IAC/InterActiveCorp. and a managing director at digital media specialist Rock Creek Ventures and is a special adviser to the private-equity group General Atlantic. (Ed note: Genachowski was Obama's representative at this year's Congressional Internet Caucus conference.)

"He got a lot of people interested in him early on," said Blair Levin, an analyst with Stifel Nicolaus who was a top adviser to Hundt. "There are a lot of people there that would be terrific choices, just as there are in the other campaigns."

Levin has also been mentioned as a possibility, but he dodged the question when asked if he wanted the job.

Boliek also mentions: Obama policy director Karen Kornbluh, who also worked at the commission under Hundt and Kennard; Don Gipps, an FCC veteran who was former Vice President Al Gore's domestic policy adviser and is now a top executive at Level 3; and, Larry Stcikling, a former chief of the FCC Common Carrier Bureau and an Obama campaign worker.

Add Pakistan to the List

YouTube is banned "till further orders"....

The Pakistan Telecommunication Authority (PTA) told the country's 70 Internet service providers Friday that the popular website would be blocked until further notice, the Associated Press reports.

The authority did not specify what the offensive material was, but a PTA official said the ban concerned a movie trailer for an upcoming film by Dutch lawmaker Geert Wilders, who has said he plans to release an anti-Koran movie portraying the religion as fascist and prone to inciting violence against women and homosexuals.

Even better, this move apparently cut off traffic to the video site for a mere two-thirds of the world.

Seemingly, this is not part of Pakistan's recent hire of a US PR firm to "polish its image".

UPDATE: One day later, the ban is lifted.

Johnny Watches "The L Word"; Mommy and Daddy Get a Fine

Adam Thierer at PFF and The Center for Democracy & Technology's Sophia Cope got hold of a two-year-old transcript of a panel discussion at the National Lawyers Convention.

No.... Wait!  Come back.  This is actually interesting.

Included in the debate is a little ditty by FCC Chairman Martin who throws out the idea that parents might be liable for their kids consuming "indecent" material.  How indecent?  The conversation at that point was centered on satellite radio "shock jocks."  And, previously, the parent liability issue is first raised by a "Morality in Media" rep who want to protect kids from HBO and Showtime.

Even if you assume that Martin's comment was made in the spirit of rhetorical legal debate (as I do), the suggestion is still note worthy enough.

Thierer says:

In a free society, public officials should not act in loco parentis when parents have the power to make media decisions on their own. Raising children, and determining what they watch, play, read, listen to, or download, is a quintessential parental responsibility. We should leave it that way and keep the threat of criminal sanctions for poor parental judgment out of the discussion.

And Cope raises the ante...

(Martin) seems to imply that the government should have the authority to regulate content at any cost, regardless of how burdensome the government’s chosen method is on the right to freedom of speech. We should expect more responsible rhetoric from a public leader who has such immense power to affect a fundamental liberty.

Not to pile on here (seems pretty unnecessary), but it's trial balloons like these that make people get apoplectic about seemingly innocuous pieces of legislation that might allow the FCC to tip their toe into Internet content regulation.

UK Government to Push ISP Filtering Plan

This will make some noise... (from the Times)...

People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week.

Internet service providers (ISPs) will be legally required to take action against users who access pirated material, The Times has learnt....

...Ministers will make an explicit commitment to legislate with the launch next week of a Green Paper on the creative industries. A draft copy, obtained by The Times, states: “We will move to legislate to require internet service providers to take action on illegal file-sharing.” A consultation paper setting out the options is promised within months.

It will be interesting to see how long it takes for those who want ISPs to filter "indecent" material to get in on the act as this process plays out.

Doesn't Anyone Remember the Movie "Heathers"?

The sad story goes like this.

Small Wales town named Bridgend.

Fourteen teen suicides in one year.

Despair. Anger. Reflection. Blame!

Pointed fingers. Right at the Web. "Social Networking Websites."

"it was revealed she used the computer hours before she died"

"Randall's death raised fears that the suicides were related to a desire for the "prestige" that is associated with having a memorial page on the social networking site Bebo."

Call to action! Now!

Conservative MP has a plan.

"A string of teenage suicides has highlighted the urgent need to tighten up internet safety for youngsters"

Self-regulation has failed.

Solution: An Internet Standards Authority -- A "co-regulatory structure" for the internet, bringing together parties including law enforcement agencies, government, charities and parents.

The enforcers?

ISPs. Of Course.

What to censor? Easy. "Harmful content would include content where cultural, taste and decency judgments have to be made."

Moreover. No sites with this: "glorification of violence and terrorism, pornography, cyber-bullying, suicide, internet gambling and anorexia websites"

ISPs would offer two-tiers of content for kids and adults. The "default" would be for kids. Opt-out. Like the Australian plan.

Need a password to read about anorexia.

No happy endings involving Winona Ryder.

Track Who Loves Children the Most

Children Are Our Future - The Simpsons
Students: Children, children,

Future, future.

Milhouse: Are you ready for the...
Students: ...children, whoa whoa who
Lisa: The future is a...
Students: ...coming, hey hey hey!

Children, children,
Future, future

Students: Children, children,
Children are the future!
Kids!

In order to get prepared for this great future, many in Congress have been quite busy crafting legislation that would protect said children from bad stuff emanating from various forms of media, including the Internet. As has been well documented on these pages, these efforts are largely well intentioned, some would work well, but others cross the line and create a slippery slope for regulation of new media content.

Because the legislation has been coming at a fast and furious pace and it's not always easy to instantly tell the difference between your S.602 and your HR.3845, the Center for Democracy and Technology and the Progress and Freedom Foundation have teamed up to provide a handy scorecard and guide to all these kid-loving laws.

It provides different ways to slice and dice the category of the rules, gives a quick summary and analysis.

You can download it here.

Both PFF and CDT provide their own analysis, too.

Adam Thierer at PFF writes:

This new CDT-PFF joint compendium of legislative activity shows that federal lawmakers have a growing appetite for regulating media content and online communications. Some of this legislative activity is warranted since it addresses legitimate threats, specifically, harm to children. But a great deal of the legislation being proposed today goes much further in an attempt to ostensibly sanitize the Internet and modern media platforms and content.

While Congress is right to take steps to protect children against actual harms—namely, child predation and child pornography—it would be unwise for lawmakers to expand the censorial schemes of the past.

And, after the jump, CDT says: