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Published: Mon, 18 Dec 2017 00:00:00 -0500

Last Build Date: Mon, 18 Dec 2017 04:08:42 -0500

 



Lack of Net Neutrality Can't Stop the FCC's 'Harlem Shake' Video, But Copyright Law Might!

Fri, 15 Dec 2017 14:15:00 -0500

(image) As part of his campaign to roll back the net neutrality rules imposed in 2015, Federal Communications Commission Chair Ajit Pai released a short parody video listing some things you'll still be able to do online after the vote. (The quick version: pretty much everything.) Toward the end of the video, Pai does the Harlem Shake, a dance that became a meme back in 2013.

Pai has attracted the ire of many an ill-informed opponent of the rollback. One of them, apparently, is Baauer, the producer behind the Harlem Shake. Baauer has announced he's taking legal action against the video.

Opponents of the rollback claim it threatens a "free and open" internet, but onerous intellectual property laws pose a far greater threat to a free and open internet than Pai's mild deregulation. It is copyright, after all, that Baauer is using to suppress a video whose message he doesn't like.

The Federal Communications Commission appears to have pulled the video off its YouTube channel (although it still appears on the Daily Caller website). That's unfortunate but not unsurprising. Baauer doesn't have a case: The use of the song pretty clearly falls under fair use as a parody (it appears in a portion of the video about driving memes to the ground). But copyright laws make bullying like this easy, and they've had an undeniable chilling effect on free expression online. Most content creators don't have the resources to fight even a specious takedown order, and so they often back down when facing a legal threat instead of trying to fight for their rights.

If you supporting Baauer's tactic, you don't actually support a free and open internet. Or at the very least, you don't have a good grasp of what a free and open internet entails.




The FCC Just Voted to Roll Back Obama-Era Net Neutrality Rules

Thu, 14 Dec 2017 13:13:00 -0500

The Federal Communications Commission (FCC) voted on a party line vote today to rescind the net neutrality rules passed by the agency under President Obama. Two Republican-appointed commissioners joined agency Chairman Ajit Pai in a 3-2 vote to rescind the order and return to a standard that closely resembles the way the internet has been regulated for most of its existence. The vote was briefly delayed after security cleared the hearing room in the middle of Pai's remarks in order to conduct a search. The Obama era rules reclassified internet service from a Title I information service to a more heavily regulated Title II telecommunications service, essentially treating it as an early 20th century utility, like the phone system. (As part of the reclassification process, however, the FCC declined to exert some of its regulatory authority.) The rules generally required internet service providers to treat most pieces of information that flowed over the internet equally, effectively setting up a non-discrimination standard for network management, content, and pricing. Those requirements will no longer be in force. Instead, the FCC will require ISPs to be transparent about their services, meaning that bandwidth throttling or other network management practices, which have sometimes been opaque to consumers, would have to be clearly labeled. The Federal Trade Commission (FTC), meanwhile, would be empowered to regulate anti-competitive or anti-consumer behavior, stepping in when internet companies make promises to provide a service that they do not keep. Pai has framed the move as a return to the sort of "light-touch" regulation that has governed the internet since the Clinton era. "Under my proposal, the federal government will stop micromanaging the Internet," Pai said in November when details of his plan were released. In a statement today, FCC Commissioner Brendan Carr, a Trump appointee who voted in favor of undoing the Obama era rules, noted that the internet would still be subject to federal oversight, noting that prior to the Title II reclassification, the FTC brought numerous privacy actions against ISPs and that federal antitrust law would still apply to internet service. "We are not giving ISPs free reign to dictate your online experience," he said. "Our decision today includes powerful legal checks." The Obama-era regulations came with numerous exceptions and exemptions, and called for the FCC to make many decisions about how ISPs could manage network traffic on a case-by-case basis rather than on clear rules. Supporters argued that the goal was to avoid undesirable rule-driven outcomes, but the effect was to empower federal regulators to decide which internet management innovations would be allowed and which would not. The regulatory rollback has been the subject of intense criticism from Democrats and activists, and even a small number of Republican lawmakers: In recent days, both Sen. Susan Collins (R-Maine) and Rep. Mike Coffman (R-Colorado) requested that the FCC delay the vote. Sen. John Thune (R-South Dakota) called on Congress to pass net neutrality legislation, but the idea has so far gained little traction amongst Republicans. The FCC began its net neutrality push during the Bush administration with a series of policy guidelines supporting the principle of nondiscrimination. But the effort to install stronger rules became a priority under President Obama, who campaigned on setting up internet nondiscrimination regulations. The rules took multiple forms, and were consistently challenged in court. It is possible, and perhaps even likely, that today's move will end up the subject of legal challenges as well. The Obama-era rules focused the FCC's regulatory authority on ISPs over other types of internet companies. Although the net neutrality debate is often framed as one that pits consumers versus large internet providers, it can also be understood as a regulatory tug-of-war between two types of companies on the web. Many of the largest internet content companies — so called "edge [...]



Government Is the Cause of—Not the Solution to—Online Censorship

Thu, 14 Dec 2017 08:15:00 -0500

While Americans are screaming at the Federal Communications Commission about their fears of private censorship if "net neutrality" goes away, the reality is that governments, in the United States and overseas, are consistently the driving force behind attempts to control what people are allowed to see and read online. Some supporters of net neutrality have gotten it into their heads that an absence of government-enforced net neutrality will lead private internet providers to institute cost-based access gatekeeping that will serve as a form of censorship. This belief is misguided (as Andrea O'Sullivan has explained very thoroughly), and yet the amount of public pushback FCC Chairman Ajit Pai is getting over the vote to overturn the "Open Internet Order" is much more furious than the response to lawmakers and politicians who openly demand authority to censor what is and is not permitted to be on the internet. At the same time Pai and the FCC are making their decision, the Committee on Standards in Public Life in the United Kingdom is encouraging Prime Minister Theresa May to change the law so that it can hold social media companies like Facebook, Twitter, and Google legally liable for content the country deems to be illegal. Its latest report says: We understand that they do not consider themselves as publishers, responsible for reviewing and editing everything that others post on their sites. But with developments in this technology, the time has come for the companies to take more responsibility for illegal material that appears on their platforms. The report notes that the European Union's online commerce regulations treat these tech companies as "hosts," not publishers. The report also notes that Brexit is a thing, so after the United Kingdom leaves the European Union, they're recommending British laws be changed to treat these tech companies more like media outlets. "What could go wrong?" is baked right into this report, focused as it is on trying to control abusive and harassing speech directed at public officials, particularly members of Parliament. Some of this communication includes threats of violence. The United Kingdom, however, does not have as broad a view of free speech as the United States and outlaws "hate speech," as well as speech that harasses or causes "distress" to individuals. Even with the European Union's regulations, other countries aren't much better. Facebook has agreed to hire hundreds more people to respond to demands by the German government to censor and remove content they have declared illegal. Otherwise they could face huge fines. Demands by governments to censor will expand if they're not stopped. Westerners tend to associate internet censorship with oppressive countries like China, forcing Apple to remove apps from its store. But focusing on the extreme ignores censorship threats on our own doorstep. Danielle Keats Citron, in a policy analysis paper hosted by the Cato Institute, warns of the potential long-term consequences of allowing these European countries to set the terms for free speech across the globe: Definitional ambiguity is part of the problem. "Hateful conduct" and "violent extremist material" are vague terms that can be stretched to include political dissent and cultural commentary. They could be extended to a government official's tweets, posts critiquing a politician, or a civil rights activist's profile. Violent extremist material could be interpreted to cover violent content of all kinds, including news reports, and not just gruesome beheading videos. Censorship creep isn't merely a theoretical possibility—it is already happening. European regulators' calls to remove "illegal hate speech" have quickly ballooned to cover expression that does not violate existing EU law, including bogus news stories. Commenting on the hate-speech agreement, European Justice Commissioner Věra Jurová criticized the Companies for failing to remove "online radicalization, terrorist propaganda, and fake news." Legitimate debate co[...]



Posting or Hosting Sex Ads Could Mean 25 Years in Federal Prison Under New Republican Proposal

Mon, 11 Dec 2017 15:55:00 -0500

Looking forward to a future when federal agents monitor Tinder? We won't be far off if some folks in Congress get their way. Under a proposal from Rep. Bob Goodlatte (R–Va.), anyone posting or hosting digital content that leads to an act of prostitution could face serious federal prison time as well as civil penalties. This is obviously bad news for sex workers, but it would also leave digital platforms—including dating apps, social media, and classifieds sites such as Craigslist—open to serious legal liability for the things users post. In effect, it would give government agents more incentive and authority to monitor sex-related apps, ads, forums, and sites of all sorts. And it would give digital platforms a huge incentive to track and regulate user speech more closely. Goodlatte's measure was offered as an amendment to another House bill, this one from the Missouri Republican Ann Wagner. The House Judiciary Committee will consider both bills on Tuesday. Wagner's legislation (H.R. 1865) would open digital platforms to criminal and civil liability not just for future sex crimes that result from user posts or interactions but also for past harms brokered by the platforms in some way. So platforms that followed previous federal rules (which encouraged less content moderation in order to avoid liability) would now be especially vulnerable to charges and lawsuits. The bill currently has 171 co-sponsors, including ample numbers of both Republicans and Democrats. Specifically, Wagner's bill would amend Section 230 of the federal Communications Decency Act, which says that websites and other online platforms should not be treated as the creators of user-posted content. What this means in effect is that these third-party platforms can't be sued or prosecuted for users' and commenters' illegal speech (or illegal actions resulting from speech)—with some major exceptions. Digital platforms do not get a pass for content they actually create "in whole or part," for instance. As it stands, states cannot generally prosecute web services and citizens cannot sue them when user-generated content conflicts with state criminal law. Rep. Wagner's bill—like the similar and more-hyped "Stop Enabling Sex Traffickers Act" (SESTA) in the Senate—would end this state and civil immunity for digital platforms in cases of "sex trafficking" or "sexual exploitation of children." But while that may sound like a small concession, it actually opens up a huge range of activity for liability. At the federal level, the above offenses encompass everything from the truly horrific and unconscionable (like sex trafficking by force) to things like sexting between teenagers. And at the state level, definitions can be even more varied and blurry. Wagner's bill doesn't just stop at carving out a new Section 230 exception. It also creates a new crime, "benefitting from participation in a venture engaged in sex trafficking," and makes it easy to hold all sorts of web platforms and publishers in violation. Any "provider of an interactive computer service" who hosts user-posted information "with reckless disregard that the information provided...is in furtherance of [sex trafficking] or an attempt to commit such an offense" could face a fine and up to 20 years in prison, the bill states. And nothing "shall be construed to require the Federal Government in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider." So in cases like, say, Hope Zeferjohn, the teen girl convicted of sex trafficking for talking to a younger teen on Facebook about prostitution, Facebook could be facing a federal charge for participating in a sex trafficking venture. Goodlatte's proposal, meanwhile, would work by amending the Mann Act, a century-old prohibition on transporting someone across state lines for prostitution. The new section would declare that "whoever uses or operates a facility or means of interstate or foreign commerce or attemp[...]



You Don't Lose Your Right to Anonymity Just Because You Lost a Lawsuit

Wed, 06 Dec 2017 16:40:00 -0500

(image) Good news for people who like to write anonymously online: The Sixth Circuit Court of Appeals has now ruled that losing a lawsuit does not automatically mean you lose your right to anonymity.

The case, Signature Management Team vs. Doe, revolves around Amthrax, a blog that criticizes multi-level marketing schemes. The site's anonymous author posted a training manual that had been copyrighted by Signature Management Team. The trial court concluded that the blogger, referred to in the proceedings as John Doe, was liable for violating the company's intellectual property. But the court rejected the business's request to unmask Doe, ruling instead that it would only order Doe to destroy his copies of the copyrighted material.

Signature Management Team appealed the decision to the Sixth Circuit, which agreed that Doe should not be forced to reveal his identity. According to the Electronic Frontier Foundation (EFF), which filed an amicus brief in the case, this is "the first time a federal appellate court has recognized that the First Amendment can protect speakers' ability to remain anonymous even when they have been found liable in a civil lawsuit."

The court did set conditions for when a defendant's identity can be revealed. These standards include, in the EFF's words, "the public's interest in the litigation, the plaintiff's needs to know the defendant's identity to enforce the judgment against them, and the anonymous speakers' ability to show that they engage in substantial protected speech that unmasking will chill."

Anonymous speech has been a cornerstone of American society since the founding—just ask the then-anonymous authors of the Federalist Papers—but it has been an easy target for vilification in the internet era. This decision is a small but welcome step in the right direction.




No, the FCC Isn’t 'Overturning Net Neutrality'

Tue, 05 Dec 2017 09:11:00 -0500

The left is in a veritable state of hysteria as the Federal Communications Commission (FCC) moves to vote on Chairman Pai's deregulatory "Restoring Internet Freedom" (RIF) order on Dec. 14. It's gotten so bad that incensed supporters of so-called "net neutrality" have taken to harassing commissioners' children and even threatening to kill a congressman. It's a nasty state of affairs, and it's one unfortunately driven by a lot of false rhetoric and outright fearmongering over how policy is actually changing. Telling people that a policy change will "end the internet as we know it" or "kill the internet" can agitate troubled people into doing crazy things. In truth, the Obama administration-era "Open Internet Order" (OIO) that the FCC is overturning has little to with "net neutrality" at all. In fact, the OIO would still allow internet service providers (ISPs) to block content—to say nothing of the many non-ISP tech companies that can and do openly suppress access to content. Furthermore, repealing the OIO does not mean that the principles of "net neutrality" will not be upheld, nor that ISPs will be "unregulated." Rather, the RIF will rightly transfer oversight of ISPs to other regulatory bodies in an ex post fashion. The OIO allows all kinds of content filtering One of the biggest misconceptions of the OIO saga is that it achieved "net neutrality." It didn't. While proponents like to spin a lot of rhetoric about "treating all traffic equally," the actual implementation of the Obama administration's regulations did nothing of the sort. As my Mercatus Center colleague Brent Skorup has tirelessly pointed out, the OIO did not require all internet actors—ranging from ISPs to content platforms to domain name registrars and everything else—to be content-blind and treat all traffic the same. Rather, it erected an awkward permission-and-control regime within the FCC that only affected a small portion of internet technology companies. Not even ISPs would be truly content-neutral under the OIO. Because of First Amendment concerns, the FCC could not legally prohibit ISPs from engaging in editorial curation. The U.S. Court of Appeals made this very clear in its 2016 decision upholding the OIO. ISPs that explicitly offer "'edited' services" to its customers would be virtually free from OIO obligations. It's a huge loophole, and it massively undercuts any OIO proponent's claims that they are supporting "net neutrality." But importantly, the OIO still allowed the vast majority of internet companies to filter and block away to their heart's content. Indeed, one could argue that content aggregators and search engines, like Facebook and Google, have proven to be much more draconian in their censorship of controversial but legal content than the ISPs over which so many agonize. Consider the recent incident where Twitter decided to block the political speech of a pro-life American politician. Most people are far more worried that social media companies will block their content rather than Comcast or Verizon. FCC Chairman Ajit Pai made this very point last week at an R Street Institute event on the repeal. Major edge service providers like Google, Facebook, Reddit, and Twitter have made their opposition to OIO deregulation loud and clear to their user base. Some have displayed automatic messages on their front pages, urging visitors to take action and encourage others to do the same. Yet at the same time, these services engage in kinds of content blocking that they say broadband providers could possibly do. This hypocrisy is relevant for more than just ideological inconsistency. It's about economic power. By encouraging harsh regulation of ISPs that effectively controls the rates that major tech companies can be charged for bandwidth, these companies are engaging in a kind of regulatory capture. (It should be noted that there is some division within these firms: Google's Eric Schmidt, for instance, fam[...]



Online Video Is Better Than Television: Podcast

Sat, 02 Dec 2017 10:15:00 -0500

In the latest episode of the Reason Podcast, Reason TV Editor in Chief Nick Gillespie chats with Managing Editor Meredith Bragg and Deputy Managing Editor Jim Epstein about the 10th anniversary of our video platform, our backgrounds in journalism, what makes our channel unique, its history, and where it's headed in the years to come.

This is Reason's annual webathon week, during which we ask our audience to support our activities with tax-deductible donations. If you like what we do, please consider supporting us. More details here.

Audio production by Ian Keyser.

Photo Credit: Dreamstime

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Bitcoin Sends Elite Economists Into Glorious Fits of Confusion

Thu, 30 Nov 2017 11:15:00 -0500

If you're looking for another reason to take the plunge and finally buy some bitcoin, check out Nobel Prize-Winning economist Joseph Stigltiz's new interview with Bloomberg, in which he says it should "be outlawed" and warns that the government "could crack down at any moment and then [bitcoin] collapses." Stiglitz is the George Costanza of economists: Every instinct he has, do the opposite. In 2002, he coauthored an infamous paper concluding that "the risk to the government from a potential default on [Fannie Mae and Freddie Mac] debt is effectively zero." And it's almost a decade to the month since he was in Caracas praising Hugo Chavez's economic policies. Speaking of Venezuela, Stiglitz also told Bloomberg that bitcoin "doesn't serve any socially useful function." While it's true that cryptocurrency's world-altering potential won't be fully realized until the technology advances quite a bit, it's already enabling the citizens of that country ravaged by socialism to obtain life-saving food and medicine. Is it that Stiglitz is an advocate of expansive government power in all contexts (he's also urging the U.S. to outlaw cash), or is it that he's too arrogant to bother trying to understand the most successful free-market money system running on the internet? I say both. (Fellow Nobel Laureate Paul The-Internet-Will-Be-About-as-Useful-as-the-Fax-Machine Krugman is also a bitcoin skeptic.) One of the great pleasures of observing bitcoin's rapid rise in price and prominence is that it's sending elite economists into fits of confusion and stoking their insecurity. ("We ought to just go back to what we always have had," Stiglitz told Bloomberg.) What Bitcoin has done for me: Taught me to take lofty titles with a grain of salt (professor, Noble Prize winner, etc). Your title doesn't make you an authority on things you don't bother to understand. https://t.co/PoXTGriqeL — Alan Silbert (@alansilbert) November 29, 2017 In calling for bitcoin to be "outlawed," Stiglitz demonstrated that he doesn't understand that bitcoin is just code, which makes a global ban impossible. Thanks to the recently launched bitcoin satellite service, and a system in development for sending cryptocurrency transactions through radio signals, even shutting down the internet wouldn't stop bitcoin. Stiglitz is also unaware of one of cryptocurrency's most important paradigm shifts: It turned money into speech, thus affording it First Amendment protection. In the most recent episode of Forbes journalist Laura Shin's excellent Unchained podcast (published before Stiglitz' remarks), the prominent venture capitalist Naval Ravikant (arguably the most articulate thinker in the crypto space) expounded on this point: What bitcoin did is it turned code into money. So bitcoin is pure code—there's no paper, there's no guns, there's no federal government. It's just pure code. So to stop bitcoin you've got to stop code, and code is actually just speech. It's just a bunch of numbers and letters that I write down and that the computer interprets. So you have to stop me from writing those numbers or letters down in a certain sequence and conveying them to other people, [and then] to stop them from loading it on a computer somewhere in the world, [and then] to stop someone else from then turning that into money. So you can't control the way money flows unless you can stop the developers from...talking to each other, and thinking. And the regime that could do that would probably be one of the evilest regimes on the planet. Thanks to a landmark 1996 ruling by Judge Marilyn Hall Patel and later affirmed by the Ninth Circuit Court, there's strong legal precedent for the idea that code is speech. Mathematician Daniel Bernstein, with assistance from the Electronic Frontier Foundation, had sued the U.S. government in 1995 for blocking publication of an encryption program he had written[...]



Why Net Neutrality Was Mistaken From the Beginning (AOL Edition)

Sun, 26 Nov 2017 11:05:00 -0500

Current Federal Communications Commission (FCC) Chairman Ajit Pai memorably told Reason that "net neutrality" rules were "a solution that won't work to a problem that doesn't exist." Yet in 2015, despite a blessed lack of throttling of specific traffic streams, blocking of websites, and other feared behavior by internet service providers (ISPs) and mobile carriers, the FCC issued net neutrality rules that gave the federal government the right to punish business practices under Title II regulations designed for the old state-enabled Bell telephone monopoly. Now that Pai, who became chairman earlier this year, has announced an FCC vote to repeal the Obama-era regulations, he is being pilloried by progressives, liberals, Democrats, and web giants ranging from Google to Netflix to Amazon to Facebook, often in the name of protecting an "open internet" that would let little companies and startups flourish like in the good old days before Google, Netflix, Amazon, and Facebook dominated everything. Even the Electronic Frontier Foundation (EFF), which back in 2009 called FCC attempts to claim jurisdiction over the internet a "Trojan Horse" for government control, is squarely against the repeal. Pai is also being targeted by net neutrality activists, who have posted signs naming his children by his house and reportedly ordered pizzas as a nuisance: I have a friend that lives near @AjitPaiFCC. Net neutrality "activists" posted these signs, featuring his children's names, outside his house. Pizzas also reportedly sent to his house every half-hour last night. pic.twitter.com/jWI4gV6Hvc — Brendan Bordelon (@BrendanBordelon) November 25, 2017 Yet the panic over the repeal of net neutrality is misguided for any number of reasons. First and foremost, the repeal simply returns the internet back to pre-2015 rules where there were absolutely no systematic issues related to throttling and blocking of sites (and no, ISPs weren't to blame for Netflix quality issues in 2013). As Pai stressed in an exclusive interview with Reason last week, one major impact of net neutrality regs was a historic decline in investment in internet infrastructure, which would ultimately make things worse for all users. Why bother building out more capacity if there's a strong likelihood that the government will effectively nationalize your pipes? Despite fears, the fact is that in the run-up to government regulation, both the average speed and number of internet connections (especially mobile) continued to climb and the percentage of Americans without "advanced telecommunications capability" dropped from 20 percent to 10 percent between 2012 and 2014, according to the FCC (see table 7 in full report). Nobody likes paying for the internet or for cell service, but the fact is that services have been getting better and options have been growing for most people. Second, as Reason contributor Thomas W. Hazlett, a former chief economist for the FCC, writes in The New York Daily News, even FCC bureaucrats don't know what they're talking about. Hazlett notes that in a recent debate former FCC Chairman Tom Wheeler, who implemented the 2015 net neutrality rules after explicit lobbying by President Obama, said the rise of AOL to dominance during the late 1990s proved the need for the sort of government regulation he imposed. But "AOL's foray only became possible when regulators in the 1980s peeled back 'Title II' mandates, the very regulations that Wheeler's FCC imposed on broadband providers in 2015," writes Hazlett. "AOL's experiment started small and grew huge, discovering progressively better ways to serve consumers. Wheeler's chosen example of innovation demonstrates how dangerous it is to impose one particular platform, freezing business models in place." Deep confusion reigns on this point. In an explainer video posted earlier this year by the Wall St[...]



Ajit Pai: ‘We Are Returning to the Original Classification of the Internet’

Tue, 21 Nov 2017 13:55:00 -0500

Federal Communications Commission (FCC) Chair Ajit Pai announced this morning that he is submitting a proposal to repeal what he characterized as the "heavy-handed, utility-style regulation" of Internet companies adopted by the Obama administration in 2015. Colloquially (if misleadingly) known as "net neutrality" (see Reason's special issue on the topic from 2015) the rules, which included classifying Internet companies as "telecommunications services" under Title II of the 1934 Telecommunications Act instead of as "information services" under Title I, were intended by advocates to be a bulwark against private companies discriminating against disfavored service or content providers. In practice, Pai asserted today in a statement, net neutrality "depressed investment in building and expanding broadband networks and deterred innovation," and amounted to "the federal government...micromanaging the Internet." The measure will be voted on next month. Pai, appointed to the chairmanship by President Donald Trump after serving as a commissioner since 2012, is a longtime opponent of Net Neutrality, memorably describing it in a February 2015 interview with Nick Gillespie as a "solution that won't work to a problem that doesn't exist." The commissioner foreshadowed today's move in an April 2017 interview with Gillespie, arguing that the Title II reclassification amounted to "a panoply of heavy-handed economic regulations that were developed in the Great Depression to handle Ma Bell." Today's move is already being hailed by free-market advocates and slammed by many in the online activist community. Pai came on the latest installment of the Fifth Column podcast to explain and debate the announcement with Kmele Foster and myself. You can listen to the whole conversation here: src="https://www.podbean.com/media/player/am7gb-7caf67?from=site&vjs=1&skin=1&fonts=Helvetica&auto=0&download=0" width="100%" height="315" frameborder="0"> Partial edited transcript, which includes Pai's views on today's free-speech climate and this month's social-media hearings on Capitol Hill, after the jump: Foster: As all of you listeners know, because you're weird stalkers, I have a deep background in telecommunication, so I'm actually happy to be chatting with you today, Ajit. And I think you also are announcing some things, and we should perhaps start with the news that you are making. Pai: Sure, so I'm proposing to my fellow commissioners at the FCC to return to the bipartisan consensus on how to think about the Internet. And so instead of putting the government in control of how it operates and how it's managed, we're going to return to the light-touch framework that was established during the Clinton administration, one that served the Internet economy through the Bush administration and the first six years of the Obama administration. And we'll be voting on this order on December 14th at the FCC's monthly meeting. […] Essentially, we are returning to the original classification of the Internet. So, for many, many years, starting with the commercialization of the Internet in the 1990s all the way until 2015, we thought of Internet access as what's called an "information service." And as boring as the phrase is, it actually had significant import: It meant that the FCC would not micromanage how it developed, how it operated. We would let the market develop, and then take targeted action if necessary to protect consumers. In 2015, that changed, and we switched to calling it a "telecommunication service," essentially treating every Internet Service Provider in the country, from the big ones all the way down to the mom-and-pop fixed wireless providers in Montana, as anti-competitive monopolists to be regulated under 1934 rules that were developed for Ma Bell, the old telephone monopoly. And so we are simply retu[...]



Government Protection From Russian Misinformation Would Be 'Cure' Far Worse Than Disease

Sun, 05 Nov 2017 07:00:00 -0500

Is American society so fragile that a few "divisive" ads, news stories, commentaries, and even lies—perhaps emanating from Russia—threaten to plunge it into darkness? The establishment's narrative on "Russian election meddling" would have you believe that. On its face, the alarm over this is so ridiculous that I doubt any of the fearmongers really believe their own words. They're attempting to provoke public hysteria for political, geopolitical, and financial gain. There's no more to it than that. While we the people are not deemed worthy of being shown the evidence that "Russia"—which I take to mean Vladimir Putin—was behind the so-called meddling, even if we grant it just for the sake of argument, what does it amount to? Where's the existential threat to America that justifies the fevered rhetoric and bizarre policy proposals that are the staple of cable news? There is none. All I can say is, if that's the worst the Russians can do, I wouldn't lose any sleep over them. And even if we ignore the fact that the material in question amounted to drops in the vast ocean of information Americans encounter every day, the establishment's narrative and proposals are outrageous. Let's state the obvious: we live in an increasingly borderless world—and that's a good thing (no matter what the demagogue and ignoramus Donald Trump says). Information—and, yes, misinformation—flows more easily and cheaply than ever, making access nearly universal. It can't be controlled. That's a good thing. It does not justify panic. To grow up is to cultivate methods of separating the wheat from the chaff in what we see and hear. Early on we learn to discount—if not disbelieve—the claims we hear in television commercials because we understand the role interest plays in describing goods and services. We also learn (one hopes) to treat the claims of politicians, the traditional targets of American ridicule, the same way. There is no substitute for this sort of skepticism; it's is a sign of maturity. A government effort to protect us from misinformation in the name of preserving "our democratic institutions" would be a contradiction, not to mention a "cure" far worse than the alleged disease. The best protection against one-sided, erroneous, even dishonest assertions is competition, the universal solvent. Most people understand this but in too narrow a way. In every election season we are deluged with questionable, false, and even crazy claims. This didn't start with the internet. It's as old as politics. In fact, most campaigns today are more civil than in the past, when candidates' alleged extramarital affairs and illegitimate children were fair game. We have all heard of—or looked at—fringe websites that traffic in political stories even the National Enquirer might reject. But a call to shut down those sites would be rejected by most people—unless the sites were suspected of being Russian. Why should that make a difference? If a story is true, who cares who tells it? And if it is exaggerated or false, can't the people be trusted to exercise the same skepticism they are expected to exercise when the source is American? If not, why does anyone praise democracy? Isn't it odd for proud small-d democrats to lack that confidence in the people? Knowing the identity of the source doesn't indicate if a story is true. (The New York Times said—falsely—that Iraq had WMD and that all 17 intelligence agencies verified that Russia hacked the DNC.) Virtually all the material supposedly posted by Russians was authentic. (Much of it was redundant. Which bright Russian schemer thought it worthwhile to tell the people of Ferguson, Missouri, about police and racial issues there?) Were voters better or worse off because that material was made available? Was the American politi[...]



How Denmark Has Overtaken the U.S. as a Telecom Policy Leader

Tue, 24 Oct 2017 08:30:00 -0400

In the 1990s, the world looked to the United States as a model for deregulatory telecom and tech policy. Not only was the country fortunate enough to house Silicon Valley's pressure cooker of internet innovation, but its policy makers seemed to deeply understand the need for a culture and regulatory approach that truly embraced experimentation and permissiveness. Regulators around the world took notice and strove to emulate the success of the U.S. approach. Denmark in particular styled its own telecommunications regulations on the U.S. model, slashing its chief telecom regulator altogether and assigning small regulatory functions to other departments. It was a smash success. Today, the Danes enjoy some of the highest quality broadband and mobile penetration in the world at affordable prices with little government intervention, explains a recent Mercatus research paper by telecom scholars Roslyn Layton and Joseph Kane. By eliminating a source of regulatory capture and streamlining regulatory obligations, regulators could dedicate resources to working on actual problems, like creating a lean, digital bureaucracy appropriate for the information revolution. Ironically, a decade later, the U.S. has since slid back into a precautionary mindset towards technology policy. Today, it seems that the Danish student has surpassed the American teacher, and the Federal Communications Commission (FCC) may well be turning to the Danish model to recapture some of our earlier progress. This was the takeaway of a recent event hosted by the Mercatus Center on the topic of Danish telecom deregulation as a model for U.S. policy. The discussion—emceed by yours truly—presented two panels on the respective topics of Denmark as a case study and the concrete lessons that the U.S. can extract from the Danish experience. Such great promise On the first panel, my Mercatus Center colleague Brent Skorup facilitated a dialogue with Layton, former FCC Commissioner Robert McDowell, and Phoenix Center president and telecom scholar Lawrence Spiwak on the Danish telecom miracle. Deregulation not only spurred a veritable renaissance of broadband investment and deployment, it also cut down on cronyism by eliminating a major target of corporate lobbying. Layton's policy recommendations were clear: "The job of a telecommunications regulator is to put itself out of business." At one point, the U.S. was moving close to that ideal. President Bill Clinton's extraordinary "Framework for Global Electronic Commerce" of 1997 outlined a hands-off posture toward Internet technologies that could have been drafted by Milton Friedman himself. Good riddance to the heavy-handed, precautionary regulation of the past. In its place would be a "market-driven arena" in which government involvement would be limited to ensuring "industry self-regulation and private sector leadership." The FCC started to turn over a new leaf as well. Unlike the booming new native internet industry, the underlying telecom infrastructure that made such developments possible were theretofore unfortunately burdened by antiquated telephone regulations established in the wake of the Great Depression. That government-first mindset changed with the ascendancy of Chairman William Kennard to the FCC in 1997. Kennard fully understood the potential of the internet to revolutionize commerce and daily life. More importantly, he was acutely aware of the potential for bad policy to stifle the amazing opportunities that digital technologies presented. In his view, the best way to promote fast, expansive, affordable telecom access was to "resist the urge to regulate" and allow the market to drive development. So Kennard steered the FCC to peel back bad regulations and leave as much space for innovation for new technologi[...]



Politicians—Unsurprisingly—Want to Regulate Political Ads on Facebook

Thu, 19 Oct 2017 14:40:00 -0400

The obsession with the idea that the Russians are responsible for President Donald Trump's election is now being used to push for more regulation of social media. Sens. Mark Warner (D-Va.) and Amy Klobuchar (D-Minn.) are being joined by Sen. John McCain (R-Ariz.) to make their effort to regulate online political advertising a bipartisan affair. Today they plan to introduce what they're calling the Honest Ads Act, which aims to introduce ad disclosure regulations similar to those for television. The text of the bill is not yet available, but here's a summary of the contents via Quartz: Make public digital copies of any advertisement these groups purchase, including the dates and times published. Include a description of the audience and political ad target, and the number of times it was viewed. Disclose contact information for the ads' purchaser, and how much they paid for the ad. Make "reasonable efforts" to ensure that any political ads or messaging isn't purchased by a foreign national, directly or indirectly. The justification for the bill is the discovery that a Russian company linked to the Kremlin spent $100,000 on Facebook ads, which is chump change when compared to domestic campaign advertising spending. But let's be clear here: Russian meddling is just being used as an excuse to do what politicians and federal agencies have wanted for a long time—to regulate how people campaign online. As The New York Times notes, the Federal Election Commission has been attempting to regulate online political advertising for years, and tech companies have been resisting. As is often the case when lawmakers attempt to regulate campaign advertising, there's very little thought about how these lawmakers are not exactly disinterested parties. I mean, it's not terribly surprising that McCain, in a permanent feud with Trump, might want to find ways to work with the Democrats to control online political ads. Restrictions on campaign advertising pretty much always benefit incumbents and powerful parties, because they already have a significant amount of money, influence, and media access. Challengers have an uphill climb, and anything that controls campaign expenditures and advertising methods makes that climb steeper. And in the end, all that Russian advertising "meddling" was about taking advantage of Americans' dissatisfaction with choices made by established political interests. It's telling how much of the coverage of Russian interference is unwilling to look at the reasons it may have worked, and instead revolves around how to stop it. When the discussion does explore the meaning of the meddling, the coverage almost always announces that Russia is "taking advantage" of cultural divisions. At The Washington Post, Casey Michel breathlessly declares that a Russian-run group on Facebook encouraged Texas to secede from the union, and that Facebook allowing that to happen represents "one of the greatest frauds in recent American history." But the Texas secession movement is absolutely not new, and that fact that this particular effort wasn't a real thing means nothing in terms about how many Texans feel about their relationship to the federal government. Remember, the official report from our national intelligence agencies on Russia's involvement on the presidential election, a summary of which was released back in January, focused heavily on how the country, via RT, was giving voice to Americans who were dissatisfied with the government. One of its examples was that RT brought in third-party political candidates and pointed out that many Americans were unhappy with the two parties. As I noted then: I don't dispute the findings here about RT, but look at those examples and they could apply not just to Reason[...]



Supreme Court to Decide if Data Stored Overseas Can Be Demanded with Warrants

Mon, 16 Oct 2017 12:30:00 -0400

The Supreme Court agreed today to hear and rule whether the federal government can demand access to emails and other data files when they are stored in another country. In United States v. Microsoft Corp., the Department of Justice has been trying since 2013 to get access to emails of a Microsoft customer, looking for evidence this person was involved in drug trafficking. Some of the suspect's data was being stored on a server in Dublin, Ireland. Microsoft has turned over data stored within the United States, but argued, even with probable cause warrants, the feds did not have the authority to make them hand over foreign-stored info. Privacy advocacy groups, tech companies, and the U.S. Chamber of Commerce are on Microsoft's side here. The Department of Justice and 33 states (and Puerto Rico) are on the other. Several court rulings have upheld Microsoft's argument, but the full 2nd Circuit Court ruling was split 4-4. This split keeps the ruling in Microsoft's favor, but there's a clear disagreement among judges about the limits of the authority of the Stored Communications Act—the 1986 federal law that oversees forced disclosures of data by third parties like tech companies. The Justice Department, of course, went full 9/11, arguing limits to their warrant authorities would jeopardize terror investigations. Microsoft, meanwhile, worries about the reaction if the United States sets a bad example here. Via Reuters: "If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what's to stop the government of another country from getting your emails even though they are located in the United States?" Brad Smith, Microsoft's president and chief legal officer, said in a blog post on Monday. The Justice Department said in its appeal that the lower court ruling "gravely threatens public safety and national security" because it limits the government's ability to "ward off terrorism and similar national security threats and to investigate and prosecute crimes." Reuters notes that tech companies are also concerned that customers may not trust the privacy cloud-based computing services if governments could seize their data. The Justice Department, on the other hand, worries that companies would be able to deprive the government of access to domestic data and communications simply by storing it all overseas. That outcome, frankly, sounds kind of awesome. This is a highly technical case that will probably produce a fairly specific ruling about Congress' intent with the Stored Communications Act and the limits of what that law authorizes. Do not expect a broad ruling about the either the limits of warrants under the Fourth Amendment nor a revised view of the limits of the Third-Party Doctrine that allows the government to access data about private citizens that is stored by tech companies and private firms. Read the Justice Department's petition here.[...]



Brickbat: See No Evil

Fri, 13 Oct 2017 04:00:00 -0400

(image) United Kingdom Home Secretary Amber Rudd has called for a law that would criminalize reading "terrorist content" online, including "jihadi websites" and "far right propaganda." Those convicted under the law would face up to 15 years in prison.