CNET has just run the guest column, "Just say no to Ma Bell-era Net neutrality regulation," Adam Thierer and I wrote in response to "Just say no to fake Net neutrality" by Derek Turner (of Free Press), which decried the win-win-win compromise suggested by Amazon's Paul Misener, just as Free Press has more recently denounced the compromise proposed by Google and Verizon.

We make a few key points:

1. History demonstrates the dangers of regulatory capture, and the costs to consumers of regulation from lost investment and innovation.


2. These dangers and costs far outweigh the purported benefits of regulation (in addressing a non-existent harm).


3. Broadband markets are competitive enough to prevent the kinds of abuses advocates of net neutrality regulation fret about.


4. Government could foster more broadband competition by deregulating spectrum and local wireline franchising.

I've been having a lively debate with the commenters on the piece, so feel free to join in! Unfortunately, we don't seem to be getting much substantive engagement with our argument--just the usual mix of "These guys are just corporate whores!" and "Can't you see the sky is falling?"

If you're as fascinated as I am by the interplay of privacy, identity and innovation, I hope to see you at the pii2010 conference in Seattle, August 17-19! Organized by the folks who've put on the top-notch Tech Policy Summit since 2003, and co-sponsored by The Progress & Freedom Foundation (among others), this event offers a truly unique perspective on privacy--not just another policy food fight, but a true roll-up-our-sleeves, in-depth seminar on what to do about privacy, especially through technological innovation.

I'll be on the "pii & Digital Advertising: Navigating the Regulatory Landscape" panel on the 18th at 10am, giving my usual talk about the need to be careful about the trade-offs inherent in privacy regulation. Check out the detailed agenda here.

TLFers Larry Downes and Carl Gipson will also be attending, so we're planning a long-overdue "Alcohol Liberation Front" happy hour after the conference on August 18--details to be announced soon.

Check out the discussion around the #pii2010 hashtag on Twitter. And register today! Mid-August is supposed to be paradise in Seattle, and the week of the conference also happens to be Seattle GeekWeek, so there are a bunch of other events worth checking out in town before and after the pii2010 conference.

The Senate Commerce Committee will hold yet another hearing today (7/27/10) at 2pm Eastern with two panels:

• Witness Panel 1
  
  
  
  • FTC Chairman Jon Leibowitz
  
  
  • FCC Chairman Julius Genachowski
  
  
  
  


• Witness Panel 2
  
  
  
  • Guy "Bud" Tribble, Apple's VP for Software Technology
  
  
  • Bret Taylor, Facebook CTO
  
  
  • Alma Whitten, Google's Privacy Engineering Lead
  
  
  • Jim Harper, Cato Institute
  
  
  • Dorothy Atwood, AT&T's Senior Vice President, Public Policy & Chief Privacy Officer
  
  
  • Prof. Joe Turow, University of Pennsylvania
  
  
  
  

Join me to watch the livecast. I'll be livetweeting on the #Privacy hashtag.

I summed up most of my thoughts on the online privacy issue in my written testimony to the FTC's privacy roundtable last fall. Also check out my paper Privacy Polls v. Real-World Trade-Offs, which explains why Prof. Turow's polls can't really show us what choices consumers would make if actually presented with the trade-off between locking down on the use of their data and the content and services supported by advertising that relies on that data for its value.

"Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it." Thus did Ronald Reagan capture the essence of big government. The two biggest challenges facing defenders of free markets in technology policy lie in Reagan's second point:

• Telling the "Good News Story" about how "it" (human ingenuity--what the great economist Julian Simon called our "Ultimate Resource") keeps "moving" (by inventing new hardware, software, services, etc.)


• Holding the line against efforts to extend the regulatory regimes of the past over new technologies, and chipping away at those regimes as best we can

So one might think that believers in limited government would celebrate a company like Google as a great American success story: A university research program launched by two smart kids (one of whom fled Communist oppression) that grew from a garage start-up into a global tech titan whose wide-ranging innovations are revolutionizing more and more of the economy. Surely free marketeers would rally to the defense of such a company when, say, the New York Times--that if-it-moves-regulate-it bastion--calls for bringing "into the regulatory fold," right?

Unfortunately, all too many free marketeers seem willing to hang Google out to dry, or at least stay silent because they resent the pro-regulatory policy positions taken by the company or the political leanings of its employees and leadership. The company has hardly been a champion of digital capitalism in Washington, allying itself with a number tax/regulate/subsidize groups, pushing for net neutrality regulation, and using antitrust as a sword against its rivals (some of whom seem willing to return the favor). But the principles at stake are too important for free marketeers to gloat, as Adam Thierer argued in an op/ed for National Review Online earlier this week: Government vs. Google: Why Free Marketeers Should Rally Against "Search Neutrality."

I'm in the Valley today livetweeting the Space Frontier Foundation's NewSpace 2010 conference. Check out the exciting agenda or join the discussion on Twitter (#NewSpace2010).

The conference runs all weekend, 8:30-5:30 Pacific time. As readers may know, I've been involved with the Foundation since 2005, was chairman 2008-2009 and was just re-elected to its Board of Directors. Here's the Foundation's credo:

The Space Frontier Foundation is an organization of people dedicated to opening the Space Frontier to human settlement as rapidly as possible.

Our goals include protecting the Earth's fragile biosphere and creating a freer and more prosperous life for each generation by using the unlimited energy and material resources of space.

Our purpose is to unleash the power of free enterprise and lead a united humanity permanently into the Solar System.

The livecast video follows below:

I've long been a fan of Danny Sullivan, who edits Search Engine Land, and probably knows more about search engines than anyone outside the companies that actually run them. But my respect for his wit, eloquence and perspective  has reached new heights with his latest piece:  The New York Times Algorithm & Why It Needs Government Regulation, a lampoon of the NYT's foolish call for search neutrality in an editorial yesterday, turning the Times' arguments right back at them, and pointing out the hypocrisy by which the established press often tries to deny First Amendment protection to newcomers to the speech business. Danny's post is truly a masterpiece of satire, worthy of Jonathan Swift. But one section deserves special attention:

I've been covering the search space closely for nearly 15 years, from before Google itself even existed, so I have seen these types of claims far longer and examined them in far more depth than what went into that New York Times editorial.

My guess is that the editorial staff (the staff that writes the newspaper's editorials, which are opinion pieces, which is confusing when the newspaper also has an editorial staff that writes "editorial" stories elsewhere that are supposed to be unbiased) spent about an hour or so discussing recent Google news, then someone was probably assigned to write the editorial and invested all of about three hours on it.

That's not much time or care for a major and well-respected newspaper (in many quarters) to decide the government should evaluate "fairness" when it comes to making editorial judgments in search results, be they from Google or any other search engine.

I'm afraid Danny's right. What a shameful day for the "Grey Lady." Anyway, here are a few of the pieces Adam and I have written about the dangers inherent in the seductive idea of search neutrality:

Sen. Amy Klobuchar just released a letter to Facebook demanding the site require "a prominent safety button or link on the profile pages of users under the age of 18"--akin to the so-called "panic button" app launched earlier this week by the UK's Child Exploitation & Online Protection Centre (CEOP). She doesn't seem to realize that this app is available to all Facebook users, not just those in the UK. But her focus on empowerment tools and education is admirable, and it's certainly a fair question to ask what sites like Facebook and MySpace are doing in these areas.

Unfortunately, Klobuchar's letter also engages in blatant fear-mongering:

Recent research has shown that one in four American teenagers have been victims of a cyber predator.  And when teens experience abusive behavior online, only ten percent discuss it with their parents and even fewer report the misconduct to law enforcement.  It's clear that teenagers need to know how to respond to a cyber attack and I believe we need stronger reporting mechanisms to keep our kids safe.

Klobuchar doesn't actually cite anything, so it's not clear what research she's relying on. The 25% statistic is particularly incendiary, suggesting a nationwide cyber-predation crisis--perhaps leading the public to believe 8 or 9 million teens have been lured into sexual encounters offline. Perhaps the Senator considers every cyber-bully a cyber predator--which might get to the 25% number. But there are two serious problem with that moral equivalence.

First, to equate child predation with peer bullying is to engage in a dangerous game of defining deviancy down. Predation and bullying are radically different things. The first (sexual abuse) is a clear and heinous crime that can lead to long-term psychological damage. The second might be a crime in certain circumstances, but generally not.  And it is even less likely to be a crime when it occurs among young peers, which research shows constitutes the vast majority of cases. As Adam Thierer and I noted in our Congressional testimony last year, there are legitimate concerns about cyberbullying, but it's something best dealt with by parents and schools rather than prosecutors (like Klobuchar in her pre-Senate career).

Second, a series of official taskforces have concluded that the cyberpredator technopanic is vastly overblown.

Adam and I have been pretty hard on the FTC's current leadership for pushing to dramatically expand regulation of online data use with little thought to the impact on ad-supported media, while in the next breath opening the door to dramatic expansion of direct government support of media, and all the while seeking sweeping new regulatory powers from Congress.

After all that complaining (and bashing their Soviet Realist-style statue, "Man Controlling Trade"), you might think we had it in for the agency. But as I've said repeatedly, we're actually big fans of the FTC's core consumer protection mission: holding companies to their promises. (Indeed, we want to make sure they stay focused on that mission, and have the staff, resources and technological tools to pursue it effectively--which might mean, as I've pointed out, increased funding rather than increased powers.) We've also repeatedly praised the FTC's efforts to educate kids, parents, and Internet users in general about things like online privacy, advertising, spyware, user empowerment tools, online scams, etc.

But I don't want to be accused of being only a fair-weather friend of the agency. So I wanted to point out a particularly good concrete example of the FTC doing what we talk about in the abstract: holding companies to their promises.  Grant Gross notes that the FTC sent a stern letter earlier this month to the company that is seeking to buy the subscriber info and photos and other assets of the now-defunct XY Magazine, which served primarily gay U.S. teens, warning them that the FTC would hold them to the terms of the privacy policy under which XY collected information from its subscribers.

This is a great example of how the FTC can effectively use its existing authority to protect consumers against clear harms involved in the disclosure of truly sensitive data, sometimes even prophylactically--in this case, outing around 100,000 gay youths and young adults--collected by companies that make unambiguous promises to protect users' data. This incident also illustrates how privacy law can evolve in an organic fashion from a growing body of such well-justified preemptive warnings, enforcement actions brought against truly bad actors, and ultimately court decisions that decide whether the FTC has properly weighed the interests at stake. In other words, just because we don't have a privacy code enforced by a Data Protection Authority as in Europe doesn't mean our legal system doesn't protect privacy!

The Second Circuit just threw out the FCC's broadcast indecency rules--which had led to heavy fines for "fleeting expletives"--as "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." What's ultimately most important about this decision is not what the court did, but what it said: The Constitutional framework that has allowed broadcast censorship has been rendered obsolete by the rise of the Internet and parental empowerment tools for new and old media.

In short, the court utterly rejected the Supreme Court's 1978 Pacifica decision--which gave the FCC great discretion in regulating indecency on broadcast radio and television in order to protect children who might be in the audience during daytime and early evening hours, citing the unique "pervasiveness" and "invasiveness" of broadcasting into the home.  The court fully embraced what we've been saying for years--neither rationale holds true anymore:

we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a "uniquely pervasive presence in thelives of all Americans."

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast....  The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.... Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. (15-16)

Thus, the Second Circuit all but begged the Supreme Court to throw out Pacifica completely, but quickly noted that it is "bound by Supreme Court precedent, regardless of whether it reflects today's realities" (17). Fortunately, the court was able to reach the same result on vagueness grounds. It's worth reading this key passage to see what a consistent approach to the First Amendment would look like:

Congressmen working on national intelligence and homeland security either don't know how to secure their own home Wi-Fi networks (it's easy!) or don't understand why they should bother. If you live outside the Beltway, you might think the response to this problem would be to redouble efforts to educate everyone about the importance of personal responsibility for data security, starting with Congressmen and their staffs. But of course those who live inside the Beltway know that the solution isn't education or self-help but... you guessed it... to excoriate Google for spying on members of Congress (and bigger government, of course)!

Consumer Watchdog (which doesn't actually claim any consumers as members) held a press conference this morning about their latest anti-Google stunt, announced last night on their "Inside Google" blog: CWD drove by five Congressmen's houses in the DC area last week looking for unencrypted Wi-Fi networks. At Jane Harman's (D-CA) home, they found two unencrypted networks named "Harmanmbr" and "harmantheater" that suggest the networks are Harman's. So they sent Harman a letter demanding that she hold hearings on Google's collection of Wi-Fi data, charging Google with "WiSpying." This is a classic technopanic and the most craven, cynical kind of tech politics--dressed in the "consumer" mantle.

The Wi-Fi/Street View Controversy

Rewind to mid-May, when Google voluntarily disclosed that the cars it used to build a photographic library of what's visible from public streets for Google Maps Street View had been unintentionally collecting small amounts of information from unencrypted Wi-Fi hotspots like Harman's. These hotspots can be accessed by anyone who might drive or walk by with a Wi-Fi device--thus potentially exposing data sent over those networks between, say, a laptop in the kitchen, and the wireless router plugged into the cable modem.

Google's Street View allows you to virtually walk down any public street and check out the neighborhood