The moderators set up the core questions: "Is net neutrality a solution in search of a problem? Or is net neutrality required to ensure a fair and open Internet?" As the reader may imagine, I argued, as I have in the past, that net neutrality remains a solution in search of a problem, and Riley argued, as Free Press has, that it is required to ensure a fair and open Internet. In my presentation, I focused on the lack of evidence of a market problem or consumer harms to be redressed by this regulatory remedy; the FCC's lack of "ancillary" jurisdiction to impose the proposed net neutrality mandates; and the possibility that the rules would be found to infringe on the First Amendment rights of broadband Internet service provider. Similarly, Riley, in his presentation, argued that broadband ISPs have the incentive and ability to engage in harmful discrimination in the carriage of Internet traffic; that we should not permit ISPs unbounded discretion to decide what traffic gets priority treatment; that the government need not wait for harm to occur but may be proactive in protecting consumers and competition; and that net neutrality would protect the free speech rights of consumers, as Free Press has maintained.

I was pleased, however, to find at least one, perhaps inadvertent, area of agreement. Riley gave as a policy goal of net neutrality the avoidance of "unbounded agency/provider discretion." Although we disagree on the need to curb provider discretion, I am in complete agreement with Riley's policy goal of avoiding unbounded agency discretion. In fact, that is why I have been so distressed by the FCC's claims that it has ancillary -- and utterly discretionary -- jurisdiction to regulate, or not regulate, the provision of Internet services without any regard to statutory limits. In comments that I filed in the FCC's net neutrality rulemaking, I demonstrated that Congress did not delegate to the FCC unbounded discretion to decide whether and how to regulate the Internet or the provision of Internet services. Such unbounded discretion is unacceptable as both a matter of administrative law and good government.

Another interesting difference between our views is over nomenclature. In my comments, I criticized the FCC's attempt to distinguish what it refers to as "the Internet," which it disclaims it will be regulating, from the broadband Internet service providers it does seek to regulate. As my net neutrality comments explain, by the FCC's own definition, as well as most other definitions of the Internet, the downstream Internet service providers appear to constitute "the Internet" just as much as the upstream Internet content, applications and services providers. Riley made very clear during the question and answer period that by regulating the broadband ISPs, the FCC would not be regulating "the Internet." The latter, in his view, consists solely of the Internet content, applications, and service providers the proposed rules are designed to benefit.

This is a very convenient linguistic dividing line for proponents of net neutrality regulation, because it endeavors to permit the FCC to regulate only the broadband ISPs, without having to concern itself with either potential or actual anti-competitive or anti-consumer activities of the Internet content, applications, and services providers that may also threaten the "open Internet." Thus, it would permit the agency to maintain that the Congressional policy contained in Section 230(b) of the Communications Act, that the vibrant and competitive free market that presently exists for the Internet remain unfettered by federal or state regulation, protects only upstream software companies and the like, no matter how any of them may imperil the "open Internet." Of course, this line cannot hold.

If the stated purpose of the FCC's proposed net neutrality rules is to protect the open Internet from censorship, blockages, filtering, and similar behavior, there is no reason to stop at the edge of the broadband ISP's network. In theory, if not in reality, a dominant search engine or content provider could just as easily imperil the open Internet with insidious blockages, filters, or censorship. But is the Internet marketplace really so broken that the FCC needs to regulate any of these Internet functions and service providers? Do we think Congress intended the FCC to be regulating in this area? Do we even want to go down this path of high tech "mutually assured destruction" where all participants in the complex ecosystem that comprises the Internet find themselves subject to FCC regulation because the "open Internet" theory used by net neutrality proponents to establish FCC jurisdiction knows no bounds? I think not.

When Congress stated in Section 230(b) that it is the policy of the United States that "the vibrant and competitive free market that presently exists for Internet and other interactive computer services" remain "unfettered by federal or state regulation," I believe it meant what it said. As I wrote in my net neutrality comments, the statutory definition of "interactive computer services" includes both "information services," and "a service or system that provides access to the Internet." Thus the FCC's attempt to cleave off "Internet access service" as something separate and apart from the services Congress intended to remain unregulated will likely be found unavailing by reviewing courts. Moreover, as I wrote in my comments, the FCC has said in four separate rulings over the course of a five year period that broadband ISPs provide information services. The Internet itself is an interconnected network of networks, and it includes the networks of broadband ISPs. It is they, after all, who provide Internet service to the public. The FCC's proposed net neutrality rules simply cannot be reconciled with Section 230(b), which is of course ironic, since the FCC relies on this provision as the principle basis for its ancillary jurisdiction.

The Webinar also touched upon many other of the now familiar net neutrality topics: whether the government needs to proactively protect Internet innovation or whether there is sufficient marketplace competition do so; the effect of the proposed rules on investment incentives; whether we can trust businesses to "do the right thing;" who should control network management decisions; whether broadband ISPs should be prevented from experimenting with new Internet service business models; and whether net neutrality rules would promote or violate free speech rights under the First Amendment.

I recommend this Webinar for those interested in a good overview of the on-going and ever-evolving debate that surrounds net neutrality. While many aspects of the net neutrality controversy will remain shrouded in mystery, the Webinar may help elucidate some of these key flashpoints. I recommend "Demystifying Net Neutrality" for those interested in a good overview of the on-going and ever-evolving debate that surrounds net neutrality.

I'm not going to go into yet another lengthy dissertation about what it so misguided about his thesis that cyberspace is becoming more "regulable" and that digital "generativity" is dying because of the rise of devices like the iPhone & iPad, or sites like Facebook. Instead, I will just point you to the many things I've written before explaining just how far off the mark Prof. Zittrain is on this point. [See the complete list down below + video of our debate.]

But let me just say this... Ignoring that fact that he is an iPhone user himself -- which makes no sense considering that he thinks of Apple as the font of all cyber-evil -- he can't muster any substantive empirical evidence proving that the Net and digital devices are being more "closed, sterile, and tethered," as he repeatedly claims in his book and editorials. And that's not surprising because the reality is that the digital world is more open and generative than ever, and even if there are some "closed" devices and systems out there, they are actually quite innovative and not perfectly closed as Zittrain suggests. The spectrum of "open vs. closed" systems and devices is incredible diverse and nothing is perfectly "open" or "closed." We can have the best of both worlds: many open systems with some partial "walled gardens" here and there (or hybrid systems combining both). Regardless, we are witnessing greater digital "generativity" and innovation with each passing year. Until Zittrain can prove the opposite, his thesis must be considered a failure.

Finally, I want to associate myself with this excellent critique of the Zittrain thesis by Prof. Ed Felten, who points out that Zittrain's argument doesn't even work for the iPad, which I would agree is a fairly "closed appliance" in the Zittrainian scheme of the things:

But even this -- even an appliance-style iPad -- would not be enough to prove Zittrain's thesis. Zittrain argued not just that appliances would exist, but that they would replace general purpose computers. Amazon's kindle is an appliance, but it doesn't prove Zittrain's thesis because nobody is ditching their laptop in favor of a Kindle. Instead, the Kindle is an extra device which is used for its purpose, while the general-purpose device is used for everything else. If the iPad ends up like the Kindle -- a complement to the laptop or netbook, rather than a replacement for it -- this will not prove Zittrain's thesis.

It seems unlikely, then, that the iPad, even if it succeeds, will provide strong support for Zittrain's thesis. General-purpose computers are so useful that we're not likely to abandon them.
Exactly right. And here's a few more things you might want to read to see why Zittrain's thesis doesn't add up (the first and the last one probably provide the best overview):

• Review of Zittrain's "Future of the Internet" (3/23/08)


• Apple, Openness, and the Zittrain Thesis (3/30/08)


• Another Problem for the Zittrain Thesis -- Old People! (4/12/08)


• [AUDIO] NPR "On Point" Debate over The Future of the Internet (5/13/08)


• iPhone 2.0 Cracked in Hours... What Was that Zittrain Thesis Again? (7/10/08)


• Enough anti-iPhone rants... just get another phone! (8/11/08)


• Another Review of Zittrain's "Future of the Internet" (9/20/08)


• [VIDEO] My Debate with Jonathan Zittrain at New America Foundation (11/6/08)


• Zittrain's Pessimistic Predictions and Problematic Prescriptions for the Net (7/20/09)


• Code, Pessimism, and the Illusion of "Perfect Control" (5/8/09)[1st part of Cato Unbound Debate "Ten Years of Code" (featuring Lessig, Zittrain, Declan McCullagh, and me]


• Our Conflict of Cyber-Visions (5/14/09) [part 2 of the Cato Unbound debate]


• Cyber-Libertarianism: The Case for Real Internet Freedom (8/12/09)


• You'd Have to Be Smoking Dope to Believe the Zittrain-Lessig Thesis (9/15/09)


• Oh Farts! The Droid, the iPhone & the Lessig-Zittrain Thesis (11/12/09)

Most interesting was the third panel of the day (agenda), which devolved into a shouting match as Dr. Frank Kardasz (resume) of the Arizona Internet Crimes Against Children (ICAC) Task Force basically accused Internet intermediaries of being willing accomplices in crimes of sexual abuse against children--and suggested that they could be charged as co-defendants in child porn prosecutions. A few industry folks in the room expressed their outrage at such slander. A retired law enforcement officer perhaps put it best when he said that he had never dealt with an ISP that didn't sincerely want to help law enforcement stop this monstrous crime.

Apart from those pyrotechnics, and a superb morning presentation by the Pew Internet Project's Amanda Lenhart about "Social Media & Young Adults," the most interesting part of the day concerned data retention mandates. Even as a debate rages in Washington about how much collection and use of online data should be permitted, Dr. Kardasz suggested online service providers should be required to hold user data for 5 years. A number of attendees noted the staggering costs of such a mandate given the sheer volume of information shared every day by use, especially for startups for whom building monitoring and compliance infrastructure can be a significant barrier to entry. Of course, practical objections are always answered with practical counter-solutions--in this case, several attendees asked why we couldn't just provide tax incentives or stimulus money to defray such costs. One attendee joked that we'd have to devote the entire state of Montana just to house all the necessary server farms.

But the strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.

Then the riposte from advocates of data retention mandates: Aren't online intermediaries already retaining huge amounts of consumer information? If they can do that, why can't they retain the data we need to track down child predators and child porn distributors?

They didn't specifically get into this example, but even a company like Phorm, which offers behavioral advertising based on inspecting packets sent back and forth by an Internet user doesn't actually retain the kind of "digital dossier" of a user's browsing activity that some advocates of increased data regulation fear--or that law enforcement wants. Instead, Phorm examines certain kinds of pages visited by users (e.g., no HTTPS or email) and looks for keywords (excluding sensitive things like phone numbers, social security numbers and credit card numbers) that suggest the user might be interested in a particular marketing category. The data about where the user has visited is then discarded, leaving only the marketing categories matched to that user's unique ID (e.g., dog-owner, fly-fisher).

So even when it comes to the much-feared "Deep Packet Inspection,"what advertisers want is profoundly different from the kind of data retention mandates proposed by Kardasz and others in law enforcement. Moreover, given the costs entailed in data storage and processing, the mere fact that something is theoretically possible doesn't mean advertisers are willing to pay for it just to try to tell you about their product! That critical point has been missing from most of the ongoing conversation about regulating "targeted" advertising, which tend to focus on the theoretical possibility of a particular data collection/use/aggregation practice rather than whether it's actually being done or even whether it would make economic sense to do so. So I'm glad to see John Morris and Chris Calabrese making these vital points.

I don't mean to pull a "gotcha!" on them as representatives of two organizations that have also been outspoken in calling for restrictions on the private use of data (especially since I can't do justice them by quoting them precisely here without a transcript of the event or the ability to go back and listen to this fascinating exchange again). I'm sure they would respond that the potential for abuse still exists when private companies collect data about users for advertising purposes: Some companies might collect so much data that it could be tied back to a particular user and cause actual harm if released, which is always a possibility. That would be a fair response, but it would at least place us in a constructive debate between reasonable people about the costs and benefits of data sharing and whether government regulation is really the best way to address privacy concerns.

The important point is that they recognize the difference in kind between the collection of limited amounts of data for advertising purposes and the kind of comprehensive data mandates proposed by Kardasz and others. If nothing else, that difference means that one can take a principled stance--as I do--against data retention mandates as a governmental invasion of our privacy but also in favor of reliance on user empowerment, education, targeted enforcement of existing laws, etc. as less restrictive alternatives to government regulation of private data use, just as with parental control and empowerment over parentalist censorship. As Adam Thierer and I have argued, because there are significant costs to regulation for consumers, free speech and culture, any government mandates should be narrowly tailored to addressing real, demonstrable harms rather than vague, unsubstantiated fears or amorphous concepts like "dignity interests."

The other critical part of our "layered approach" to privacy concerns is building a higher "Wall of Separation Between Web and State." Concretely, that means opposing such onerous data retention mandates and reforming ECPA--a subject mentioned only at the end of today's meeting. In the comments I filed recently on the Notice written by CDT for the FCC, I praised CDT's work in this area and look forward to working with them (and the ACLU and groups like EFF) on that cause in the future, despite our differences on private data use regulation.

____________

Although we are still early in this process, there has already been a great deal of hand-wringing and even some dire predictions about the pending merger of Comcast and NBC Universal. I hope to put this proposed marriage in some historical context and explain why the deal certainly won't have the detrimental impact some critics fear, and also explain why it might even be one potential model for how to sustain traditional media going forward.

Beware Media Merger Hysteria

Other firms, however, have found ways to make deals work and deliver important new services that previously were unimaginable or simply too expensive to offer alone.[iii] Regardless, the point here is that we'll never know what works unless we permit marketplace experimentation with new and innovative business models.

More importantly, it's hard to believe the new firm would restrict its content to just Comcast-owned distribution networks since they would be losing the eyeballs, advertisers, and revenues that would accompany the carriage of their content on other video platforms. Likewise, it would make little sense for the firm to block new or competing channels on their own platform since they would incur the wrath of the programmers and the viewing public alike. And those channels will likely quickly find a home elsewhere, which could incentivize subscribers to switch video service providers. (See Exhibits 2-6)

Indeed, the great thing about the modern media marketplace is that there is always another place for consumers to turn to find what they want. Comcast faces increasingly robust competition in the video programming marketplace from satellite and telco providers, as well as from Internet-based video providers.^[v] (See Exhibit 7) And NBC Universal's stable of programming, while impressive, is a mere trickle in an ocean of content that consumers can choose from.^[vi]

Meanwhile, many consumers are increasingly "cutting the cable cord" altogether and instead getting the video they want from a bewildering array of online video services.[vii] Netflix, Hulu, Joost, Roku, Apple, the Sony PlayStation Store, the Microsoft Xbox store, and others offer traditional TV fare while sites like YouTube, Vimeo and Justin.TV offer a mix of professional and amateur content.

In sum, there has never been so much competition for our eyes and ears, and audiences and advertising dollars have become increasingly fragmented as a result.[viii] (See Exhibits 8-10)

What Future for Broadcasting & Local News in Turbulent Times?

Consider last week's news that NBC Universal saw quarterly profits plunge by a whopping 30% in the fourth quarter of 2009.[ix] This is indicative of the general downturn the entire media sector has been experiencing as of late. Why not then let Comcast help NBCU try to get back on track rather than force them to make it on their own in a radically uncertain future? And it goes without saying that Comcast might be better positioned to protect NBC Universal's copyrighted content from digital piracy, at least over its own pipes.

Those who are concerned about the future of broadcasting and local news should remember that news--and local broadcast news in particular--isn't cheap. Unless we want to embark on a massive government subsidization scheme to bailout traditional media providers, Congress and regulatory officials must be willing to grant private media operators the flexibility to restructure their business affairs so they can continue to provide important public needs while also turning a profit.[x] That can't happen unless we allow media markets to evolve and let operators experiment with new business models and ownership structures.[xi] Although there are no guarantees, creator/distributor alliances like Comcast-NBCU may be one model that helps firms create, extend, and then also monetize their media content. But, again, regulatory flexibility is crucial so we can figure out what works and what doesn't.

Thank you again for inviting me here to testify.

[ii] Adam Thierer, A Media Morality Play, Forbes, Dec. 15, 2009, www.forbes.com/2009/12/14/media-merger-antitrust-opinions-contributors-adam-thierer.html

[iii] A good example: Disney's seamless and successful integration of ABC Television Group (ABC + Disney cable properties), Walt Disney Studios, the Walt Disney Internet Group, its many ESPN properties, and its parks and resorts.

[iv] 2006 is the last for which the FCC has made data available, but as of that time the overall number of national programming networks available in America stood at 565 channels. That is up from just 70 channels in 1990, an astonishing increase in program choices. The FCC noted that, "Of the 565 networks, 84 (14.9 percent) were vertically integrated, or affiliated, with at least one cable operator." Federal Communications Commission, FCC Adopts 13^th Annual Report to Congress on Video Competition and Notice of Inquiry for the 14^thAnnual Report, Nov. 27, 2007, at 4, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-278454A1.pdf What that summary fails to mention, however, is that vertical integration has fallen steadily since the FCC's first Annual Video Competition Report was issued, when over 50 percent of all channels were affiliated with a cable operator. Indeed, the video marketplace exhibits less vertical integration than ever before. As far as vertically integrated industries go, no impartial observer would conclude that this industry is being controlled by "gatekeeper," pay TV platforms, as some critics suggest. Most new pay TV channels today are independently owned and offer an unprecedented diversity of programming options. This trend is a strong sign of how healthy and vibrantly competitive this marketplace is today. Finally, these numbers do not take into account the split between Time Warner Entertainment and Time Warner Cable, which represented a significant portion of the 15% of vertically owned channels before 2006. That is the percentage of cable channels owned by video distributors is in the single digits today.

[v] Adam Thierer, The Progress & Freedom Foundation, Video Competition in a Digital Age, Testimony before the Subcommittee on Communications, Technology and the Internet, U.S. House Committee on Energy and Commerce, Oct. 22, 2009, www.pff.org/issues-pubs/testimony/2009/10-22-09-thierer-testimony-video-competition-digital-age.pdf

[vi] Adam Thierer, The Media Cornucopia, City Journal, Vol. 17, No. 2, Spring 2007, at 84-89, www.city-journal.org/html/17_2_media.html

[vii] See generally The Progress & Freedom Foundation, "Cutting the Video Cord," PFF Blog Ongoing Series, http://blog.pff.org/archives/ongoing_series/cutting_the_video_cord/

[viii] Adam Thierer and Grant Eskelsen, The Progress & Freedom Foundation, Media Metrics: The True State of the Modern Media Marketplace, PFF Special Report, Summer 2008), www.pff.org/mediametrics

[ix] David B. Wilkerson, NBC Quarterly Profit Plunges 30%, MarketWatch, Jan. 22, 2010.

[x] W. Kenneth Ferree, The Progress & Freedom Foundation, Another Naïve Proposal for Government Entanglement with the Fourth Estate, PFF Blog, Feb. 1, 2010, http://blog.pff.org/archives/2010/02/another_naive_proposal_for_government_entanglement.html; Adam Thierer, Socializing Media in Order to Save It, City Journal, March 27, 2009, www.city-journal.org/2009/eon0327at.html; Adam Thierer, The Progress & Freedom Foundation, Public Option for Press Should Get the Red Pen, Progress Snapshot 6.4, Jan. 25, 2010, www.pff.org/issues-pubs/ps/2010/ps6.4-OP-ED-for-Daily-Caller-A-Public-Option-for-the-Press.html

[xi] W. Kenneth Ferree, The Progress & Freedom Foundation, Media Ownership Proceedings, Testimony before the Federal Communications Commission, Nov. 3, 2009, www.pff.org/issues-pubs/testimony/2009/11-03-09-ferree-media-ownership-testimony.pdf; Adam Thierer, Media Myths: Making Sense of the Debate over Media Ownership (The Progress & Freedom Foundation, 2005), www.pff.org/issues-pubs/books/050610mediamyths.pdf

Testimony of Adam Thierer - House Hearing about Comcast-NBC Merger 2-4-10

For over two thousand years the principles underlying our First Amendment protections for free speech and free thought have been the hallmark of just and free societies. Indeed, the advance of civilization is one marked by progress on a path away from state control of speech and thought toward private autonomy in the area of ideas and their communication. It comes as no surprise that the most repressive regimes and movements included among their tenets the suppression of seditious or heretical thought, from the Inquisition of the late Middle-Ages to the most anti-democratic governments of the 20th Century.

By contrast, for over two hundred years, our Constitution has provided the most rigorous bulwark the world has ever known protecting the free dissemination of ideas. It certainly is not always a comfortable fit; the safeguards sometimes protect speech or speech-conduct that is repulsive to many. But there can be little doubt after more than two centuries of our Constitutional experiment that liberty and justice are served by more, not less, freedom of speech.

For that reason, the FCC's recently announced inquiry into "the future of media and information needs of communities in a digital age" should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC's claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.

Can there be any doubt but that any category of speakers that are even indirectly regulated by the FCC will be mindful of this new inquiry and will curb the nature of their conduct and communications in light of it? What great potential for mischief the FCC has spawned merely by initiating this little inquiry! Regulation by "raised eyebrow" has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the Commission has taken the concept to a level heretofore unknown - this inquiry is regulation by penetrating leer.

Oddly, there is an element of schizophrenia to the entire enterprise. The FCC for years has defended policies that without question have impaired the economic freedom of its licensees (and related others). Now, as those licensees struggle to survive in a rapidly expanding media environment, the FCC is using those struggles as a predicate and premise for its wide-ranging inquiry into the "future of media."

And one must ask, "what if the FCC concludes that the whole media culture is corrupt and failing"? What is it to do? Is it the appropriate role of government agencies to help structure a media market that works? Does the government really have any role in making sure "all Americans have access to vibrant, diverse sources of news and information that will enable them to enrich their lives, their communities and our democracy" (as the FCC so boldly declares in the opening paragraph of the inquiry)? When did that become a charge of the government in general and the FCC in particular? From whence did the FCC's power and authority to be the arbiter of whether or not the media and press are meeting the needs of our free society arise?

To posit the question is to reveal the answer - the FCC has no such power or authority, and never has it been charged with exercising any such. The inquiry is a based on an illusion. Unfortunately, merely by suggesting that it has the power to engage in this sweeping inquiry, the FCC has unconstitutionally snatched some level of control of the national debate from the hands of the people, where it belongs, and rested it in the hands of federal bureaucrats, where it most assuredly does not.

To shorten a longer story, Professor Edward Felten recently disclosed a summary of the results of a forthcoming "Sahi-Felten study" of files available to users of a "trackerless" BitTorrent-based file-sharing program. According to Professor Felten's summary, statistical analysis showed that 99% of the files available were infringing. Ben Sheffner then authored a blog post that described this summary as "[v]aluable information to keep in mind while debating net neutrality rules and IPS's right to manage their networks and fight piracy."

But Mr. Sheffner's observation outraged the allegedly pious data-prudes at Copycense. In an unsigned "Editorial" entitled Science vs. Advocacy, the crack team at Copycense thus sanctimoniously denounced Mr. Sheffner for daring to suggest that such imperfect "summary" data should ever affect important debates about network neutrality: Calling his post "reflexive" and "impetuous" they denounced his conclusion: "drawing such correlations at this point--with respect to the summary, the resulting paper, (which has not yet been vetted, reviewed, or published), or Felten's perceived or actual personal or professional biases--is premature and careless."

I will not summarize the droning Copycense account of a few of the many, many things that can inarguably go wrong during statistical analyses of sociological phenomena. Indeed, that would be pointless because Copycense itself actually concluded its sanctimonious sermon by agreeing with the substance of the conclusions that it had just denounced as "premature and careless":

"We can say with a strong level of confidence, however, that the way the current statutes are written, it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law."

Nevertheless, the collective rhetoricide of Copycense still begs a question: Why did even the data-prudes at Copycense feel compelled to admit that they do not really need to scrutinize the details of a published Sahi-Felten study before they can non-prematurely and non-carelessly "say with a strong level of confidence [that]... it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law"? Well, I suspect that either or both of two factors can explain why.

First, perhaps Copycense secretly knew that the Sahi-Felten study is hardly the first statistical analysis of how piracy-adapted file-sharing programs and networks are actually used. Perhaps they also knew that its findings do not differ significantly from those of past analyses.

For example, in A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001), the district court found, and the appellate court affirmed, a statistical analysis that showed that 87% of the files available on the Napster network were copyrighted. Similarly, in In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003), the court found no evidence of non-infringing use of the defendant's file-sharing program.

In MGM Studios v. Grokster, 454 F. Supp. 2d 966, 985 (C.D. Cal. 2006), the Court found that the distributors of the Gnutella-based file-sharing program Morpheus intended to induce the users of their program to infringe copyrights, based, in part, upon a statistical sampling study showing that while over 87% of the files available on Gnutella were infringing or highly likely to be infringing "[a]lmost 97% of the files actually requested for downloading were infringing or highly likely to be infringing."

More recently, Illinois State University's "Digital Citizen Project" conducted disclosed monitoring of campus use of a broad range of file-sharing programs and protocols. See Alexandre M. Mateus & Jon M. Pena, Dimensions of P2P and Digital Piracy in a College Campus, 1, 21, 29 (TPRC 2008). The resulting conclusions included the following:

• "[W]e found no evidence that large numbers of students use P2P for these legal purposes and not to transfer copyrighted material."


• "Most users are intensive users of P2P to transfer copyrighted material."


• "Some might suggest that there are many people who use P2P for the legal transfer of software, such as Linux, or for the transfer of adult material (which may or may not be copyrighted), but do not engage in the illegal transfer of copyrighted material. However, we found no evidence of this among college students."


• "[A]s for the legal transfer of software, the percentage of P2P users found transferring Linux out of those that do not transfer copyrighted media is not statistically different from zero."

Consequently, even the summary of the Sahi-Felten study is valuable, in part, because its findings accord well with those of prior analyses. That is certainly one reason why Copycense or others could already "say with a strong level of confidence [that]... it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law."

Second, perhaps Copycense also secretly knew that the needs of lawful and unlawful commerce differ so dramatically that once a theoretically "neutral" program, network or website is widely used for unlawful purposes, that almost certainly means that it will rarely appeal to those acting lawfully.

This is particularly true in the case of what I would call "piracy-adapted" file-sharing programs, networks, and tracker-sites. As used here, the term "piracy-adapted" does not imply (until a court so concludes) that these programs, networks, and tracker-sites were intended for infringing use, but only that they happen to be fairly well suited to that purpose. In particular, such programs, networks, and tracker-sites tend to be best suited for distributing files already made popular through some other means. For obvious reasons, and with some rare exceptions, (e.g., Linux distributions), such files will inevitably tend to be infringing.

Indeed, just as the statistical data cited above would suggest, piracy-adapted file-sharing programs have actually degenerated over the past decade. Today, they tend to be less-well-suited for non-infringing uses than they were a decade ago. For example, back when Napster was the most popular file-sharing program, its centralized search-index enabled Napster users to find even rare files shared by just one Napster user. By contrast, here is a developer of the Gnutella-based file-sharing program LimeWire explaining why programs like LimeWire are actually less useful to today's garage bands than Napster was a decade ago: "Here's modern p2p's dirty little secret: It's actually horrible at rare stuff." He also notes that--albeit for different reasons--the same conclusion follows as to BitTorrent-based programs: "BitTorrent is horrible at rare stuff! As soon as a file becomes rare, it looses [sic] seeders and dies."

This may also explain why even the most sanctimonious Copycense Editors do not really need to exhaustively review every jot and tiddle of the forthcoming Sahi-Felten study in order to conclude "with a strong level of confidence [that]... it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law."

Finally, let me clarify why I find the ineptly affected data-prudery of Copycense offensive. We will never have perfectly "scientific" data about the prevalence or effects of any illegal activity--including online copyright piracy. Nevertheless, we should still want debates as important as those about network neutrality to focus upon (at least) the best available data about how piracy-adapted file-sharing programs, websites, and networks are actually used in practice. Sadly, to date, that has not been how network-neutrality law and policy have been made--as any competent Copycense Editor would know.

Consequently, only dishonest hypocrites could piously wail that some collective fall-from-policymaking-grace occurred when Ben Sheffner's blog post noted that Professor Felten's forthcoming statistical study of BitTorrent files seemed relevant and valuable to ongoing debates about net neutrality. Even if imperfect and tentative, that summary could still improve the now-dismal quality of such debates. Consequently, Copycense has tried to obscure a simple truth: It may be unfortunate that policymaking based on imperfect or tentative statistical data is often the best that we can do in an imperfect world--but it sure beats policymaking based upon mere ignorance and anecdote.

So Ben Sheffner was right--even the summary of the Sadi-Felten study can be valuable to net-neutrality debates even though it is inarguably less valuable and less reliable than a final, published study will be. Perhaps the FCC should halt its ongoing "net-neutrality" rulemaking until it can be informed by scientific studies that fully assess how the file-sharing programs that now generate most Internet traffic are actually being used. But if it does not, then it is idiocy to suggest that the FCC either can or should plow forward obliviously--ignoring all tentative or existing usage data just because it is less perfect today than it will be tomorrow.

After all, it is not as if the FCC has required prior debates about network neutrality to be informed by scientific statistical sampling to ensure that claims about how network-clogging file-sharing programs are used can be generalized from particular cases to entire population of persons using Gnutella-based or BitTorrent-based file-sharing programs. It certainly has not.

To the contrary, major debates about network neutrality--like the bizarre FCC proceeding that generated the so-called "Comcast Network Management Order"--have been driven by purely anecdotal "evidence" supplied by groups like Public Knowledge and Free Press--piracy advocates that, in Grokster, ended up defending commercial copyright piracy even more zealously than the criminal-investigation-fearing corporate pirates that they chose to defend. According to these groups, file-sharing programs are used for wonderful purposes. Gnutella? Why, Gnutella-based file-sharing programs are mostly used to "share" recordings of public-domain barbershop-quartet recordings.... BitTorrent? Why, BitTorrent-based file-sharing programs are mostly used to "share" copies of The Bible....

Even Copycense knows that such contrived stunts are wholly unrepresentative of how such programs are actually used. But here is the joke: such absurd tactics actually worked--briefly. Indeed, during the last Administration, a few contrived anecdotes actually duped three gullible FCC Commissioners into making the second-most idiotic claim yet made about file-sharing programs and networks: These Commissioners declared that although such programs and protocols had once served mostly "unsavory or even unlawful purposes," "BitTorrent and other peer-to-peer technologies, such as Gnutella, have entered the mainstream." See Comcast Network Management Order, at ¶ 4.

That claim was dead-wrong when made, and unsupported by any data then before the Commission. Nor has the passage of time made it less absurd--a point made quite clearly by Fung, the Digital-Citizen study, and, now, the Sahi-Felten summary.

Worse yet, the three Commissioners who made this claim were not just engaging in baseless, dead-wrong speculation. No, they were engaging in baseless, dead-wrong speculation that can mislead parents and endanger children. The Comcast Network Management Order suggested that parents need not worry if they discover that their teenager has installed a Gnutella-based file-sharing program like LimeWire or FrostWire on the family computer. To the contrary, while out-of-it old people might dimly recall that such programs were once used mainly for "unsavory or even unlawful purposes," federal experts at the FCC knew that by 2008, "peer-to-peer technologies, such as Gnutella, have entered the mainstream."

But that was and is horribly wrong. Worse yet, it is wrong in ways that can end promising careers, ruin families, destroy businesses, increase health-care costs and fraud, compromise national security, endanger the wife and children of President Obama--or even end the lives of children in the worst possible way. Gnutella-based file-sharing programs never "entered the mainstream"--available data suggests that they have always been used overwhelmingly for "unsavory or even unlawful purposes" like piracy, identity theft, and distributing child pornography. Consequently, the Sahi-Felten summary can already contribute something valuable to the "net neutrality" debate--just by reminding federal officials how badly they can mislead and endanger the public by assuming that contrived antics concocted by piracy-loving "public interest" groups actually represent "mainstream" file-sharing.

Copycense thus spouted nonsense. Fortunately, its exercise in self-contradiction has ensured that its attempt to conceal advocacy of continued ignorance and anecdote beneath a pious veneer of respect for the integrity of "science" was too incompetently executed to do any real harm.

So I am not criticizing the crack team at Copycense because they want policymakers to know that they intend to go over the Sahi-Felten study with a fine-toothed comb in order to expose any of "[Professor] Felten's perceived or actual personal or professional biases...." Fine: Have at it.

Rather, I am criticizing them because--given that even they admit that we can already "say with a strong level of confidence" that it would be "shocking" if the summarized conclusions of the Sahi-Felten study failed to be correct--then nothing but grotesque hubris seems to explain why Copycense could claim that responsible policymakers must ignore the Sahi-Felten summary and study and keep basing decisions about net-neutrality laws on ignorance and anecdote until Copycense bestows upon humanity whatever contributions to "science" can be made by persons who cannot keep their own story straight during one blog post.

1. concerns about information overload and multitasking;


2. the role of computers and digital technology in education & learning; and,


3. the nature and impact of virtual reality and virtual worlds on real-world life and culture.

The program opens on a pessimistic note with interviews and survey data suggesting that digital multitasking strains attention spans, especially among students. We hear of studies suggesting that brain scans suggest a 2-fold increase in brain activity when individuals multitask. And a trip by Rushkoff to South Korea discusses how that early-adopting nation is trying to deal with Internet and gaming addiction among youth. "Causalities of the digital revolution," Rushkoff calls these kids. He visits addict camps and clinics that focus on re-connecting such kids with the outside world and the simple life.

Similarly, when the program turns to the question of whether the Net and digital technologies help kids learn, we hear from several educators and parents who express concern that the Internet and digital technologies are "dumbing down" this latest generation of kids / students. We hear from critics such as Todd Oppenheimer, author of The Flickering Mind: Saving Education from the False Promise of Technology, Mark Bauerlein, The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (Or, Don't Trust Anyone Under 30), and Clifford Nass of Stanford University, author of the forthcoming book, The Man Who Lied to His Laptop: What Computers Can Teach Us About Human Interactions.

They question whether technology is helping improve learning & culture, or even suggest that it is destroying opportunities to learn. We here them and others claiming that "kids don't read anymore" or that youngsters just "think in paragraphs" and can't write at length or put ideas together in a coherent fashion without getting distracted. They and others express concern that, unless steps are taken, it could have a permanent impact on how future generations think or behave, although they never really get concrete about the actual ramifications or what steps should be taken to avoid them.

The Optimistic Take: Things Are Getting Better

Dretzin and Rushkoff also highlight some schools that have successfully integrated digital technologies into their programs with great result. "Technology is like oxygen" we hear one school administrator note when he stresses how important is is for educators accept the reality of digital technology in the lives of students and find ways to make it work for them. While some educators continue to worry about students being driven to distraction by all the things vying for their attention today, others seem willing to embrace this as an opportunity to teach kids about new subjects using new methods of interactive instruction.

Professors James Paul Gee and Henry Jenkins, both experts on new media and its impact on youth and culture, stress that we've been here before to some extent. "There are always gains and losses," Gee notes, since every new technology giveth and taketh away something simultaneously. We suffered loss of memory capability after writing and print came on the scene since we no longer needed to remember and recite long stories. Was that a Net loss for society and culture? Plato thought so. But as Jenkins notes, concerns about technology-as-distraction is not a new issue, yet humans have survived and adapted over time. [Update: Here are some of Henry's thoughts about the documentary from his blog.]

My Thoughts: We Are Adapting & Learning to Cope, But Not Without Some Heartburn Along the Way

But there are people on either side of these debates who are closer to reasonable middle ground position. There are skeptics who understand technology brings disruptive change but rightly caution humility in the face of that change. And there are optimists who welcome change but also are willing to acknowledge the short-term growing pains associated with new technologies.

I'm generally more sympathetic to the latter position, which I have labeled "pragmatic optimism." As I argued in a previous essay, "Can Humans Cope with Information Overload?":

I guess I have have a bit more faith in humans than the pessimists do. We humans adapt. We learn to cope. We're actually pretty good at it, too. It's not like this is the first social or technological revolution we've lived through, after all. In fact, one could make a good case that many previous revolutions were far more jarring than our modern Digital Revolution.

We also can't ignore evidence pointing to the very real physical toll that too much screen time takes on our eyes, ears, and body. I have seen it myself -- quite literally -- with the rapid deterioration of my eyesight in recent years and the increasing pains in my fingers from all these endless hammering on keyboards, which (like screens) just keep getting smaller and smaller.

And then there are concerns about how digital life is affecting real life and living -- sociability and manners, in particular. I've noted here before how I've tried "push the pause button" increasingly by working mini-"digital sabbaticals" into my life. I try to find specific moments each day to shut the lid on my laptop, toss my smartphone in the drawer, and turn off all my other digital gizmos and gadgets and just go do something terribly old-fashion and non-techie in character. But the struggle continues.

At the end of the day, however, I continue to believe that we are better off in an age of information abundance that our past eras of information poverty. You don't need to think that far back to recall a time when the sum of our informational and entertainment experiences were so limited that you could count them on one hand. When I watch my 8 year old daughter and 5 year old son sit in front of a computer today and explore the world, I simply cannot express how joyful I am for the world that lies at their fingertips -- and how envious I am that I had none of that when I was growing up! Sure, when I was growing up in rural Illinois and Indiana back in the '70s , I had a great collection of books, a nice National Geographic collection, 3 or 4 broadcast TV channels, and a local movie theater. But today my kids have all that plus much, much more at their disposal. The challenge is figuring out how to make sense of it all and assimilate all these new technologies and new informational inputs into their lives. But that's a wonderful dilemma for me (and society) to face! I'll take that problem over the previous one of information scarcity any day of the week.

Anyway, make sure to check out "Digital Nation." [watch it here] It's a terrific overview of this incredibly interesting ongoing debate. And here are some additional reactions to the program from my friends Stephen Balkam, Larry Magid, and Anne Collier. Finally, Stephen Balkam's Family Online Safety Institute (FOSI) will be hosting a screening of "Digital Nation" here in DC on February 25th. Rachel Dretzin will be on hand to discuss the program and I've been asked to provide some thoughts afterward. Looking forward to that and hope those of you in the DC area will join us.

____________

• Brian L. Roberts, Chairman and CEO, Comcast Corporation


• Jeff Zucker, President and CEO, NBC Universal


• Colleen Abdoulah, President and CEO, WOW! Internet, Cable, and Phone


• Mark Cooper, Ph.D., Director of Research, Consumer Federation of America


• Michael J. Fiorile, President and COO, The Dispatch Printing Company, Chair of the NBC Affiliates Board


• Adam D. Thierer, President, Progress and Freedom Foundation

Incidentally, I wrote a paper back about the proposed deal back in December entitled, "A Brief History of Media Merger Hysteria: From AOL-Time Warner to Comcast-NBC" as well as this editorial for Forbes.

For a concrete example of what I was talking about, review Clash of the Titans, an interesting, opinionated, and perceptive account of the recent clash between Amazon.com and Macmillan over ebook pricing. It represents a thoughtful analysis of the complexities lurking behind these debates. Moreover, the issues outlined are relevant to debates about online pricing of all types of expressive works--music, video, news, periodicals, etc.

Thanks to Marginal Revolution for highlighting this post.

PS: Speaking of Patry's vile book Copyright Wars, I just belatedly perceived another of its many glaring ironies. Around a year ago, the unhinged Patry was putting the finishing touches upon its false and hate-filled claims, (e.g., "I cannot think of a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries."), in order to depict an ugly alternate reality in which copyrights had so failed to support the production of innovative works that they should be wholly repealed: "In other areas where a government monopoly, created to serve the public interest, is blatantly abused over a long period of time, it is taken away" (p.199).

Meanwhile, back on Earth, funding provided by copyright industries was empowering Director James Cameron to put the finishing touches on the years of work and the millions of dollars in R&D required to create the beautiful alternate reality depicted in his wildly popular film Avatar. A finer testament to the vacuity of Patry's rabid, unreasoned hate is scarcely conceivable....

The paper is premised on the notion that the government has for many years and in many ways subsidized and/or regulated the news media, and it concludes that enhancing those efforts will forestall the decline of news and information media. The paper fails, however, to: 1) grapple with the question of whether those earlier efforts helped or hindered the media; 2) address the fundamental question of whether there is some systematic reason that news and information services cannot survive on their own merits; and 3) provide a satisfactory answer to the question of whether government entanglement with the media is consistent with a free society.

On a technical level the paper provides a short and somewhat selective history of postal subsidies and tax incentives that have one way or another benefited various forms of publication over the past two centuries. It also covers in cursory fashion federal regulations that have had an impact on purveyors of news and information. Again, the question it never asks or answers, however, is whether the government's meddling on the periphery of the news business was helpful or harmful -- it merely assumes the former. Superficially, this does not seem an unreasonable assumption. But as much as a crutch can help one stand, it can also slow one down in a race. I, at least, am not at all convinced that the government's "assistance" to the media has been a positive force over time. Indeed, some of the media's current problems may well result, at least in part, from past government policies that were intended to benefit the media or to otherwise improve the quality of news and information services provided to the American people.

Which leads to the paper's greatest failing - not exploring the implications of increased government entanglement with the "Fourth Estate." The authors implicitly assume that government can both subsidize and regulate the news media for benign ends using value/content free means. I am not so sanguine about the prospects for a media culture that is all but fully dependent upon government props.

To begin with, I have the perspective of having run, briefly, the Corporation for Public Broadcasting. CPB, among other things, is charged with insulating the public broadcasting system from improper government influence tied to federal funding. Whatever the theory, the reality is that it is all but impossible to provide an impenetrable wall between those who control the purse strings and those who depend upon the largess of the government for their survival. Indeed, during my time at CPB, there was a controversy surrounding the supposed efforts of the Chairman of the CPB board (all of whom are, of course, politically appointed) to influence programming in the system. That was not the first time the issue has come up and it will not be the last.

More fundamentally, I question the underlying assumption that the government has any role - at all - in enhancing or protecting the news media. The authors of the report take that role for granted, but it strikes me as fundamentally inconsistent with the First Amendment freedoms. The framers of our founding document were well aware of the dangers of government entanglement with the press. At the time of the country's founding, there were about three-dozen newspapers in all of the colonies. Those publications were, for the most part, highly commercial and extremely partisan. The founders did not, however, craft a basic law that would allow for regulation to increase "fairness" or enhance diversity of viewpoints, or to change the way the papers were packaged or sold. Instead they came up with the elegantly simple: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." As Justice Black famously said, "no law means no law." Congress and our elected officials may sincerely believe that a healthy media is essential to a democratic state, but the Constitution expressly carves the areas speech and press out of the sphere of appropriate government action. A truly free press must be truly free of the government's tentacles.

• To the extent consumer anxiety about online privacy is, as many claim, actually discouraging some Americans from fully utilizing broadband, the FCC could indeed recommend that Congress take action on online privacy--even though the FCC has no jurisdiction to regulate online privacy itself (beyond the limited CPNI rules it has already imposed on the communications services it licenses).
• But when Congress charged the FCC with drafting a plan for promoting broadband adoption, it set specific goals: The FCC may only recommend that Congress enact policies the agency concludes on the basis of real data will, on net, help achieve "affordability" and "maximum utilization" of broadband.
• The quality and quantity of online services depends on the ability of service providers to collect and use data about web browsing habits to analyze site use, personalize content, tailor advertising, and measure its effectiveness.
• So imposing additional regulations on the private sector comes with real costs to users and it's far from clear that such regulations would, on the whole, promote broadband adoption.
• The Commission simply doesn't have the data to evaluate this trade-off,, nor the time to collect it (as the FTC is trying to do) since the National Broadband Plan is due to Congress in a matter of weeks.
• But no such trade-offs exist with regards to government access to consumer data, which creates far more demonstrable and serious consumer harms. So the Commission should limit its legislative recommendations on privacy to endorsing enhanced limitations on government access, such as CDT has proposed.
• The Commission should be particularly wary of opinion polls as evidence of consumer expectations because they cannot tell us about the trade-offs inherent in the real world.

• "Many Commenters and roundtable participants noted that consumers are concerned about the extent to which companies may be collecting and using consumer information without their knowledge or consent" and also that


• "Others observed that consumer expectations are difficult to measure and may not adequately account for services or benefits made possible by information collection and use."

The latter point was made eloquently by Adam Thierer at the December 7 Roundtable, echoing my earlier paper on privacy surveys. Given the intensity of this debate and the need for much more data, there's just no basis for the FCC to include anything in the National Broadband Plan about the need for more private sector regulations or what they should look like.

I'll have more to say about this when I've had a chance to read all the other comments in this important proceeding. For now, I recommend Braden's and those filed by the Interactive Advertising Bureau about the benefits of self-regulation over preemptive government intervention.

Comments to the Federal Communications Commission in the Matter of Privacy Issues Raised by the Center for ...

The situation brings to mind the 1993 film, "Groundhog Day," in which an egotistical and sardonic TV meteorologist, Phil Connors must travel to Punxsutawney, Pennsylvania for the hated annual assignment of reporting on the emergence of the groundhog "Phil" from winter hibernation with his weather report. A blizzard, which Phil reported would miss the area, soon strands our meteorologist in Punxsutawney. By virtue of some cosmic loop, Phil discovers that every time he awakens it is February 2nd, Groundhog Day and he must once again repeat the same day. No one but the erstwhile Phil, however, remembers the actions of the day before. Armed with the knowledge that there will be no long term consequences, Phil begins to misbehave. Eventually, he decides to use what he learns each day to improve himself and the lives of those around him. The phrase "Groundhog Day" has since passed into the popular vernacular as a reference to an unpleasant situation that continually repeats, or seems to.

Are we doomed to continually replay the debate over the imposition of common carrier requirements on broadband ISPs, without learning from our past? Or will we, like Phil the meteorologist, learn from regulatory history, and remove, rather than impose, regulatory barriers to investment and innovation? I hope the answer to this question does not depend on whether the sky over Washington is cloudy or sunny the day the D.C. Circuit Court of Appeals issues its ruling in the appeal of the FCC's Comcast P2P Order. It now appears that nearly everyone, including even the most ardent proponents of the agency's ancillary jurisdiction, understands that the expansive jurisdictional theory that the FCC used to justify its 2008 action against Comcast met with a very frosty reception by the panel hearing oral argument in the case. Talk of a jurisdictional "Plan B" was quick to emerge in the press, to be followed in short order by the request for the FCC to take up the reclassification of broadband services as part of its National Broadband Plan.

Setting aside the legal question of whether the courts will now simply accept an FCC "reclassification" of that which has already been classified (by no means a slam dunk), reopening the question of how the Communications Act applies to broadband Internet services would recommence the protracted regulatory classification debates that occupied the time of regulators, regulatory attorneys, service providers, and the nation's courts for nearly 10 years. Reams of paper, if not whole forests, were expended in search of an answer. This debate, while unavoidable, had its costs, as will any new effort to breathe life into this settled question. Although Public Knowledge is correct to note that reclassification as a common carrier telecommunications service would solve certain problems, including how to quickly re-direct universal support funding--now restricted to telecommunications services--to the re-classified broadband services, it would likely come at a steep cost to the overarching goal of ubiquitous broadband deployment and service improvement.

The cessation of legal uncertainty concerning the treatment of broadband Internet services has brought benefits to the public in the form of increased investment and deployment of broadband infrastructure and more varied and sophisticated broadband Internet service offerings. In 1999, there were only 2.8 million high-speed Internet connections serving homes and small businesses in the U.S. As of 2008, there were 132.8 million connections and broadband Internet service was available to 96 percent of households that could receive cable TV service. Such forward progress would be put at severe risk were the FCC to re-open the regulatory classification issue, thus forcing itself back into a pre-Brand X time loop. The imposition of common carrier economic regulation on the provision of broadband Internet services would likely chill, rather than thaw, the on-going capital formation necessary to build out broadband capability to the unserved, and would do nothing to enhance the rate of broadband adoption for those who remain off-line today.

The FCC should politely decline the invitation to introduce, at this late date, the shadow of regulatory reclassification into its National Broadband Plan effort. Such an action will invariably be met with a blizzard of responsive filings that re-hash the classification arguments from decades past. This would likely strand the Plan within the corridors of the FCC, where every day will feel like Groundhog Day. Such a course of action, I fear, would not provide a happy ending for the blockbuster National Broadband Plan under development at the agency. It should therefore be avoided at all costs.

• Obama Administration is looking at nexus between privacy & innovation


• Success of Internet has depended upon creative use of information


• Predictability and certainty is imp for both consumers and companies on this front


• Believes we CAN have both innovation and privacy protection; but there will be some tensions


• Challenge of the 3^rd decade of Internet policymaking = to get together set of policies to bring security to Net while preserving freedom


• Does domestic & global patchwork of #privacy policies hurt or help innovation?


• Need to take a hard look at the traditional notice & choice framework


• Rules for COLLECTION or USE of data is key question


• Concepts of "accountability" ... to what or whom?


• a Notice of Inquiry coming from NTIA about privacy to help shape privacy policy for Obama Admin

• Data collection has vast opportunities but drawbacks also


• "non-price dimensions" of privacy important


• Talking about recent Facebook privacy changes


• Privacy is not "over" as McNealy once said; recent public outcry about Facebook changes make that clear


• "delicate balance" between data collection and consumer control


• Concerned about privacy in the mobile environment


• "Apple could do more to require baseline level of privacy disclosures"; other could set such defaults too


• Similar fears about privacy in the cloud; difficult for consumers to define privacy expectation in the cloud; fear of lock-in concerns


• Wants more data portability


• Concerned that anonymization doesn't work good enough; Perhaps our faith in current technologies is misplaced


• Must address the question of privacy by design sooner rather than later

• Discusses lessons from FTC December workshop...


• Consumers have little understanding of data collection practices, both offline & online


• Privacy policies written by lawyers not effective communications tools for consumers


• Consumers uncomfortable with behavior advertising


• AdBlock Plus is most popular Firefox download


• #1 most emailed article on New York Times recently was about how consumers can protect privacy on Facebook


• We should encourage more technological innovation to empower people to do what they want to do and learn about data


• Technology raises public policy concerns, however


• "a troubling technological arms race" between consumer empowerment tools and technologies that allow greater data collection


• New concerns about social networking, mobile environment, location-based services;


• How well do disclosure policies work on small mobile screens?


• Need to bake-in privacy upfront

Incidentally, Berin and I testified at the FTC's first Exploring Privacy workshop, which took place on December 7th. You can find webcasts of the panels here, and here are Berin's comments and my summary of what we had to say that day.