Late last night, FCC Chairman Julius Genachowski made explicit what he’d been hinting for weeks–that he was going to call for a vote in December on the agency’s long-running net neutrality proceedings.
Today, the Chairman gave a speech outlining a new version of the rules he has circulated to fellow Commissioners, which will be voted on on Dec. 21, 2010..
The new order itself has not yet been made public, however, and the Chairman’s comments didn’t give much in the way of details. The latest version appears to reflect the proposed legislation circulated before the mid-term recess by then-Commerce chair Henry Waxman. That version, for those following the ball here, was itself based on the legislative framework proposed by Google and Verizon, which itself emerged from informal negotiations convened over the summer at the FCC.
So in some sense the agency is moving, albeit non-linearly, toward some kind of consensus.
I have a brief article this morning in the Orange County Register laying out the pros and cons of this latest iteration, to the extent that is possible without seeing the order.
The timing of today’s announcement, however, is significant. This was Genachowski’s last chance to wrap up the proceedings before the new Congress , with its Republican House and more even Senate, clocks in. Republicans on their own don’t have the votes to pass legislation that would have blocked the FCC from voting on net neutrality later, but Republican leaders had threatened to use their oversight authority to put additional pressure on the FCC not to enact new neutrality rules.
That might still happen, of course, and already today several Republican leaders have promised to do whatever they can do undo today’s developments. Assuming the Commission approves the rule at its December 21, 2010 meeting, there’s also a strong likelihood of litigation challenging the rules and the FCC’s authority to issue them.
So this is not the end of the net neutrality soap opera by any stretch of the imagination. If anything, it suggests a new chapter, one that will take the discussion farther away from the technical architecture of the Internet and the best interests of consumers and closer to pure political theater.
I was quoted this morning in Sara Jerome’s story for The Hillon the weekend seizures of domain names the government believes are selling black market, counterfeit, or copyright infringing goods.
The seizures take place in the context of an on-going investigation where prosecutors make purchases from the sites and then determine that the goods violate trademarks or copyrights or both.
Several reports, including from CNET, The Washington Post and Techdirt, wonder how it is the government can seize a domain name without a trial and, indeed, without even giving notice to the registered owners.
The purpose of forfeiture laws is to help prosecutors fit the punishment to the crime, especially when restitution of the victims or of the cost of prosecution is otherwise unlikely to have a deterrent effect, largely because the criminal has no assets to attach. In the war on drugs, for example, prosecutors can now seize pretty much any property used in the commission of the crime, including a seller’s vehicle or boat. (See U.S. v. 1990 Toyota 4 Runner for an example and explanation of the limits of federal forfeiture law.)
Forfeiture laws have been increasingly used to fund large-scale enforcement operations, and many local and federal police now develop budgets for these activities based on assumptions about the value of seized property. This has led to criticism that the police are increasingly only enforcing the law when doing so is “profitable.” But police point out that in an age of regular budget cuts, forfeiture laws are all they have in the way of leverage.
Sometimes the forfeiture proceedings happen after the trial, but as with the domain names, prosecutors also have the option to seize property before any indictment and well before any trial or conviction. Like a search warrant, a warrant to seize property requires only that a judge find probable cause that the items to be seized fit the requirements of forfeiture—in general, that they were used in the commission of a crime.
The important difference between a seizure and a finding of guilt—the difference that allows the government to operate with such a free hand—is that the seizure is only temporary. A forfeiture, as here, isn’t permanent until there is a final conviction.
The pre-trial seizure is premised on the idea that during the investigation and trial, prosecutors need to secure the items so that the defendant doesn’t destroy or hide it.
If the defendant is acquitted, the seized items are returned. Or, if the items turn out not to be subject to forfeiture (e.g., they were not used in the commission of any crimes the defendant is ultimately convicted for), they are again returned. Even before trial, owners can sue to quash the seizure order on the grounds that there was insufficient (that is, less than probable) cause to seize it in the first place.
All of that process takes time and money, however, and many legal scholars believe in practice that forfeiture reverses the presumption of innocence, forcing the property owner to prove the property is “innocent” in some way.
In current (and expanding) usage, forfeiture may also work to short-circuit due process of the property owner. (Or owners—indeed, seized property may be jointly owned, and the victim of the crime may be one of the owners, as when the family car is seized when the husband uses it to liaison with a prostitute.)
That’s clearly a concern with the seizure of domain names. This “property” is essential for the enterprise being investigated to do business of any kind. So seizing the domain names before indictment and trial effectively shuts down the enterprise indefinitely. (Reports are that most if not all of the enterprises involved in this weekend’s raid, however, have returned under new domain names.)
If prosecutors drag their heels on prosecution, the defendant gets “punished” anyway. So even if the defendant is never charged or is ultimately acquitted, there’s nothing in the forfeiture statute that requires the government to make them whole for the losses suffered during the period when their property was held by the prosecution. The loss of the use of a car or boat, for example, may require the defendant to rent another while waiting for the wheels of justice to turn.
For a domain name, even a short seizure effectively erases any value the asset has. Even if ultimately returned, it’s now worthless.
Clearly the prosecutors here understand that a pre-trial seizure is effectively a conviction. Consider the following quote from Immigration and Customs Enforcement Director John Morton, who said at a press conference today, “Counterfeiters are prowling in the back alleys of the Internet, masquerading, duping and stealing.” Or consider the wording of the announcement placed on seized domain names (see http://news.cnet.com/8301-1023_3-20023918-93.html), implying at the least that the sites were guilty of illegal acts.
There’s no requirement for the government to explain the seizures are only temporary measures designed to safeguard property that may be evidence of crime or may be an asset used to commit it. Nor do they have to acknowledge that none of the owners of the domain names seized has been charged or convicted of any crime yet. But the farther prosecutors push the forfeiture statute, the bigger the risk that courts or Congress will someday step in to pull them back.
The fall has been filled with important developments in the technology world, and I continue to be a regular source for journalists as well as publishing frequent editorials and analyses of my own. I’ve just posted another ten items to the Media Page of my website, including several articles I’ve written for CNET News.com, an election-day op-ed in Roll Call, legal analysis for The Wall Street Journal and a long review of “The Laws of Disruption” in the International Journal of Communications. The accidents continue to pile up at the dangerous intersection of innovation and the law, the main theme of The Laws of Disruption.
Some highlights:
The U.S. Supreme Court heard arguments in EMA v. Schwarzenegger, which challenges California’s ban on violent video games on First Amendment ground. My article for CNET explained why the timing of the case is significant, with implications for all new media enterprises.
The European Commission is preparing new legislation to guarantee its citizens a “right to be forgotten. On CNET, I explain why that well-intentioned initiative could have disastrous consequences for the digital economy.
My election-day op-ed forRoll Call, the leading newspaper of Capitol Hill, urged Congress to stop the FCC’s dangerous plans to “reclassify” broadband Internet access and treat it like 1930’s-style telephone business.
In the important Vernor decision, the Court of Appeals in California ruled that licensing agreements that deny users a right to resell copies of software are enforceable. Though many viewed this decision as harmful to consumers, I explain why developments in the software industry have already relegated license agreements to the margins, in a controversial article for CNET News.com.
I published an opinion piece today at CNET, calling on all tech stakeholders in Washington to stop the pointless quibbling and sniping about net neutrality, reclassification, and other side-show issues. (I’m too depressed to list them here—but see “Fox-Cablevision and the Net Neutrality Hammer” for an example of just how degraded the conversation has become.)
Instead, why not focus on a positive message, one that has the potential for win-win-win-win? For example, the National Broadband Plan, issued in March, eloquently made the case for a U.S. commitment to universal broadband adoption. Not as a matter of gee-whiz futurism but in the interest of giving Americans “a better way of life.”
As a technology optimist, I happen to agree. Broadband Internet provides users with much more than cute kitten videos and finding old friends on social networking sites (not that there’s anything wrong with these). As the plan makes clear, it also gives them access to education and employment opportunities otherwise hard to find (and certainly at a much higher price), access to government services, public safety and better health care options. The Internet will play a key role in the development of a “smart” energy grid.
And as more urban countries with higher penetration rates and faster speeds have learned to their delight, the network effects of having everyone online generate all kinds of serendipitous positive returns.
Even better, achieving the goals of the NBP won’t require massive taxpayer spending, making it palatable to both Democrats and Republicans. Most of the $350 billion it will cost to get 100 mbps speeds to 100 million Americans—a key benchmark of the plan—will come from private investment, much of it already planned for.
So moving forward with the Plan will improve the lives of ordinary citizens, make government more responsive and responsible, stimulate the economy, and help keep the U.S. competitive in a global information economy. And it can be done without significant taxpayer expense or new regulatory overhead.
This is the feel-good story of the decade. Come on, everybody! We can use my barn.
It’s all in the plan. But given the strum and drang exerted over largely inside-the-beltway minutia, the NBP’s positive messages has been drowned out.
Case in point: a recent report from the NTIA reveals that among the 25% of American homes that don’t have a single Internet user, the most frequently cited reason not to sign up for a broadband service is that they just don’t want it. A full two thirds of the non-users, according to the report, “reported a lack of need or interest as their primary reason for not having broadband at home.” Cost was a much lower factor. Only four percent cited lack of availability.
It’s depressing and disappointing that so many of my fellow citizens haven’t gotten the message: the Internet is cool, and broadband access will pay for itself many times over.
It’s also frustrating to the authors of the NBP, whose herculean efforts were unfairly and unduly overshadowed by the universal hand-wringing that followed the D.C. Circuit’s decision in the Comcast case, which came out just a few weeks later. (For the record, NBP executive director Blair Levin agrees with legal scholars who don’t believe Comcast undermined the FCC’s ability to move forward with the plan itself: “I think there is a lot of good stuff that can be done to advance the National Broadband Plan,” he recently told CNET’s Marguerite Reardon, “that doesn’t require any action from Congress.”)
In some sense the mid-term elections have provided the opportunity for all stakeholders—Congress, the FCC, lobbyists and advocacy groups—to resurrect the NBP and feature it as the central document in a national dialogue on technology policy. It’s the right thing to do for the economy, and for individuals. And in one of those rare harmonic convergences, it’s also politically expedient. It’s positive! It’s bi-partisan! It’s high-tech!
A Nov. 4th report promises new legislation next year “clarifying” this right under EU law, suggesting not only that the Commission thinks it’s a good idea but, even more surprising, that it already exists under the landmark 1995 Privacy Directive.
What is the “right to be forgotten”? The report is cryptic and awkward on this important point, describing “the so-called ‘right to be forgotten’, i.e. the right of individuals to have their data no longer processed and deleted when they [that is, the data] are no longer needed for legitimate purposes.”
The devil, of course, will be in the forthcoming details. But it’s important to understand that under current EU law, the phrase “their data” doesn’t just mean information a user supplies to a website, social network, or email host. Any information that refers to or identifies an individual is considered private information under the control of the person to whom it refers. So “their data” means anyone’s data, even if the individual identified had nothing to do with its collection or storage.
And EU law doesn’t just limit privacy protections to computer data. Users have the right to control information about them appearing in printed and other analog formats as well.
As I say in the piece, the “right to be forgotten” begins to sound like Big Brother’s “memory hole” in Orwell’s classic 1984. But instead of Winston Smith “rectifying” newspaper articles at the direction of his faceless masters at the Ministry of Truth, a right to be forgotten creates a kind of personal memory hole. Something you did in the past that you would prefer never happened? Just issue orders to anyone who knows about, and force them to destroy any evidence.
Of course such a right would be as impractical to enforce as it is ill-conceived to grant.
Both Masnick and Crovitz, in particular, worry about the free speech implications of such a right, both for the press and for individuals. And those are indeed potentially catastrophic. Having the power to rewrite history devalues any information, including information that hasn’t been erased.
The social contract operates on facts and the ability to sort out truth from lie. A right to be forgotten gives every individual the power to rewrite that contract whenever they feel like. So who would sensibly enter into such a relationship in the first place?
My concern, however, is even more metaphysical. The privacy debate currently going on in public policy circles is disturbing, perhaps most of all because it is being framed as a policy discussion. Rather than work out what costs and benefits we get from increased information sharing with each other, those who are feeling anxious about the pace of change in digital life are running, as anxious people often do, to regulators, demanding they do something—anything—to alleviate their future shock. And regulators, who are pretty anxious people themselves, are too-often happy to oblige, even when they understand neither the technology nor the implications of their lawmaking.
Beyond the worst possible choice of forum to begin a conversation, the privacy debate in its current form is no debate at all. It is mostly a bunch of emotional people hurling rhetorical platitudes at each other, trading the worst-case examples of the deadly potential of privacy invasions (teen suicides, evil corporations) with fear-inspiring claims of the risk of keeping information secret (terrorists win).
It’s not really a debate at all when the two “sides” are talking about entirely different subjects. And when no one’s really listening anyway. All that is happening is that the stress level amps up, and those not participating in the discussion get the distinct impression that the world is about to end.
A starting point for a real conversation about privacy—one that is dangerously absent from any of the current lawmaking efforts—is an understanding about the nature of information. Privacy in general and a right to be forgotten specifically begins with the false assumption that information (private or otherwise) is a kind of property, a discrete, physical item that can be controlled, owned, traded, used up, and destroyed. (Both “sides” have fallen into this trap, and can’t seem to get out.)
The fight often breaks down into questions of entitlement—who initially owns the information that refers to me? The person who found it and translated it into a form that could be accessed by others, or the person to whom it refers, regardless of source? Under what conditions can it be transferred? Does the individual maintain a universal and inalienable right of rescission—the ability to take it back later, for any reason, and without compensating the person who now has it?
But these are the wrong questions to be asking in the first place. Information isn’t property, at least not as understood by our industrial-age legal system or popular metaphors of ownership. Information, from an economic standpoint, is a virtual good. It can be “possessed” and used by everyone at the same time. It can become more valuable in being combined with other information. It can maintain or improve its value forever.
And, whether the law says so or not, it can’t be repossessed, put back in the safety deposit box, buried at sea, or “devoured by the flames” like the old newspaper articles Winston Smith rewrites when the truth turns out to be inconvenient to the past. That of course was Orwell’s point. You can send down the memory hole the newspaper that reported Big Brother’s promise of increased chocolate rations, but people still remember that he said it. You can try to brainwash them, too, and limit their choice of language to eliminate the possibility of unsanctioned thoughts. You can destroy the individual who rebels against such efforts.
But it still doesn’t work. The facts, warts and all, are still there, even when their continued existence is subjectively embarrassing to an individual. Believe me, I wish sometimes it were otherwise. I would very much like to “rectify” high school, or my parents, or the recent death of my beloved dog. The truth often hurts.
But burning all the libraries and erasing all the bits in the world doesn’t change the facts. It just makes them harder to access. And that makes it harder to learn anything from them.
Maybe the European Commission was just being sloppy in its choice of words. Perhaps it has something much more limited in mind for a “right to be forgotten.” Or perhaps as it begins the ugly process of writing actual directives that must then be implemented in law by member countries, it will see both the impossibility and danger of going down this path.
Perhaps they’ll then pretend they never actually promised to “clarify” such a right in the first place.
But we’ll all know that they did. For whatever it’s worth.
Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.
There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.
But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.
And in the famous Pacifica case, the Court upheld fines levied against a radio station for airing the famous George Carlin monologue that, not-so-ironically, satirizes the FCC for banning seven particular words from being uttered over the public airwaves.
The basis for that decision was that children could be negatively influenced from hearing such language. And children have easy access to radio and TV, while parents had no effective way to keep particular broadcasts out of the house.
In today’s argument, California’s legal arguments center largely on another case, the Supreme Court’s 1968 decision in Ginsberg. There, the Court upheld state restrictions on the sale of pornography to minors, even though the material was protected speech for adult purchasers.
In Schwarzenegger v EMA, California is urging the Court to extend Ginsberg’s reasoning to include content that meets it definition for violent video games. The statute defines “violent video games” as those “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
Ginsberg, the state argues in its brief, upheld a ban the sale of sexual content to minors because such content is dangerous to their development. So too, they argue here, with violent video games. (Parents and other adults, of course, could still buy the games for minors if the statute were to go into effect.)
Indeed, the state argues that such material has as much if not more of a negative impact on the development of children than does sexual material.
That, of course, is a question open to considerable debate. After the fact, the state cites a number of academic studies that find a correlation between violent video game exposure (including games, such as Super Mario Brothers, well outside the the California definition) and anti-social behavior. But, as excellent reply briefs from the Entertainment Merchants Association and a joint brief from the Electronic Frontier Foundation and the Progress and Freedom Foundation point out, the methodology in these studies has been roundly criticized.
Moreover, California doesn’t seem to understand that the statistical significance of a correlation does not necessarily translate to real-world behavior—correlation is not the same as causation, no matter how strong the statistics. And even the authors of the studies most relied on by the state recognize that it isn’t clear in which direction the correlation moves—are children who play violent video games more likely to have violent thoughts because they played the game, or are pre-existing violent thoughts what attracts them to the games?
Why Video Games? Why Now?
The Court may focus on those studies in its decision, but I have a different question. Why are California and other states picking on video games, and why now? That, to me, is the more interesting problem, one that gets little attention in the briefs and, I would guess, in the Court’s eventual decision.
Perhaps the why is obvious: as EMA’s brief points out, similar attacks have accompanied the rise in popularity of every new form of media to emerge throughout U.S. history.
The California statute … is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different.
The EFF/PFF brief goes farther, accusing California legislators of succumbing to “moral panic, as lawmakers have so often done when confronted with the media of a new generation.”
Examples as varied as Greek classics, the Bible, the Brothers Grimm and Star Wars all suggest, EMA points out, that extreme–even gruesome–violence has always been a favorite subject of literature, often aimed specifically at children. As federal appellate judge Richard A. Posner wrote in rejecting a similar Indiana law, “Self defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.”
But why now? The answer is, not surprisingly, Moore’s Law. Laws regulating the content or distribution of video games are a classic example of the conflict I described in The Laws of Disruption.
As technology has made video game graphics more realistic and lifelike, they have captured the attention—and here the nightmares—of regulators in the real world who equate what they see on the screen with behaviors that would clearly violate laws and norms of the real world. They don’t like what they see in games including Grand Theft Auto and Resident Evil, and their impulse is to find a way, somehow, to stop it, even if it’s only a simulation.
It was not that long ago—in my life time, in any case—that video games were still in their Neolithic Era. Consider Pong, the first home video game from Atari in 1975. It would take an imagination greater than mine to think of the batting of a block of monochrome pixels by a bar of pixels to be violent enough to corrupt youth; likewise the breaking of a wall of pixels one at a time in the follow-on game Breakout.
But a few years later, consider the commercial (courtesy of YouTube) for Activision’s ice hockey game.
The game promises to be one of the “roughest” video games ever, “battling for the puck” with “fierce body checking” and “ruthless tripping.” Just watching the players fight it out drives a meek-looking Phil Hartman into a frenzy; within a few seconds he seems ready to attack the clerk who teases him that he’s not yet ready for it.
But despite an ad that explicitly suggests a connection between playing (or even watching the game) and becoming violent, the actual graphical quality of the violence is so disconnected from visual reality that it never occurred to any state legislature to ban or otherwise restrict it.
Now fast-forward just a few short decades later to the imminent release of Xbox 360’s Kinetics and one of the games that takes advantage of it called Kinectimals.
Using Microsoft’s new sensor technology, realistically-rendered animals can be controlled simply by issuing voice commands or by mimicking the desired movements by standing in front of the images. It hardly seems possible that the same beings who invented Pong could have advanced to Kinectimals within the span of one human lifetime. But we did.
Coupled with new 3D technology and increasingly large, high-fidelity displays, video games have in the course of only a few decades and a few cycles of Moore’s Law, advanced to the point of challenging the cinematic qualities of movies. Indeed, games and films are converging, and now use much of the same technology to produce and to display. A new sub-genre of user-produced content involves taking the cinematic interludes within the games and using them to produce original films. After all, video game users today not only control game play but also lighting, camera angles, and point of view.
Why not? As Nicholas Negroponte would say, bits are bits.
So now that video games offer fidelity in imagery and movement that is comparable to film, the law has awakened to both their positive and negative impacts on those who interact with them. Since the First Amendment clearly doesn’t allow interference with the sale of violent content to adults, California focused on children. But it’s clear from the tone of the state’s brief that they just plain don’t like certain video games, just as they didn’t like certain movies and certain books in an early age of mass-market technologies. As before, they would like, if they could, to turn the clock back.
Of course that is always the response of the law to new technologies that challenge our conceptions of reality. The only difference between the comic book burnings of the 1950’s and the emotional responses of legislators today is the speed with which those new technologies are arriving. The killer apps come faster all the time. And with them, the counter-revolutionaries.
Frozen in Time, Lost in Relevance
Which is why the California statute suffers from another common and fatal flaw of laws attempting to hold back new technologies: early obsolescence. Even if the Supreme Court upholds the law, its effect will be minimal at best.
Why? Lost in the legal arguments (and reduced to a mere footnote in the EMA brief) is the impending anachronism of the California statute. It assumes a world, disappearing almost as quickly as it arrived, in which video games are imported into California as physical media in packages, and sold in retail stores.
Consider, for example, Section 1746.2:
Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.
But sales of video games in media form are rapidly declining as broadband connections make it possible for game developers and platform manufacturers to transport the software over the Internet. So even if the law is ruled constitutional, it will apply to an ever-shrinking portion of the video game market. There will soon be no “retail sale” and no “front face” of a “package” onto which to put a label in the first place.
These industry changes, of course, aren’t being made to evade laws like California’s. Digital distribution reduces costs and eliminates middlemen who add little or no value (the retailers, the packagers, the truckers). More to the point, they allow the companies to establish on-going relationships with their customers, which can be leveraged to selling add-on chapters and levels, on-line play, and the sale of related product and content, including films and movies.
The industry, in other words, is not only evolving in terms of sophistication and realism of the product. The same technologies are also scrambling its supply chain. And what is emerging as the new model for “games” is something in which California and other states have almost no regulatory interest.
So it seems an odd time to target legislation at a particular and disappearing version of the industry’s content and retail channels. Even if the Court upholds the California law, it will likely have little impact on the material at which it is aimed.
But that’s often the case with laws trying to manage the unpleasant social side effects of new technologies just as they become visible to the outside world. The pace of legal change can’t hope to keep up with the pace of technological change, making this law, like many others, out-of-date even before the ink is dry.
Which is not to say that the Supreme Court’s decision in this case won’t matter. Another feature of statutes like this, unfortunately, is a high likelihood of unintended consequences. The potential for the Court’s decision—pro or con–to do mischief in the future, however, to unrelated industries and dissimilar content, is legion.
For example? As the EFF/PFF brief points out, California and other states may try to extend the ban on sales to minors to online channels. But it isn’t so easy to determine the age of an online buyer as someone in your brick-and-mortar store. “Applying the law online would likely require mandatory age verification of all online gamers because the law prohibits any sale or rental to a minor,” EFF/PFF argues, “even if the vendor had no evidence that the buyer was a minor.”
That feature of an earlier federal effort to control pornography online was the undoing of the statute.
But in the Supreme Court, and the lower courts who interpret its decisions, anything can happen, and usually does.
