Archive for the ‘Telecom, Internet & Information Policy’ Category
Dueling Earmark Op-Eds
With a key vote on earmarks slated for next Tuesday in the Senate Republican Conference, Republican leaders are having it out on whether their party should eschew earmarking or continue the practice. The debate centers on the division of power between Congress and the executive branch.
On NRO’s “The Corner” blog, Senator James Inhofe (R-Okla.) calls earmarks a “phony issue.” Doing away with earmarks doesn’t reduce spending. It simply transfers authority for spending decisions to the executive:
Earmarks have been part of the congressional process since the founding of our country. As James Madison, the father of the Constitution viewed it, appropriating funds is the job of the legislature. Writing in the Federalist, he noted that Congress holds the power of the purse for the very reason that it is closer to the people. The words of Madison and Article 1 Section 9 of the Constitution say that authorization and appropriations are exclusively the responsibility of the legislative branch. Congress should not cede this authority to the executive branch.
And he criticizes the anti-earmark movement as “pseudo” fiscal responsibility:
While anti-earmarkers bloviate about the billions spent through earmarks, many of them supported the trillions of dollars in extra spending for bailouts, stimulus, and foreign aid. Talk about specks versus planks! Over the course of the last several years, the overall number and dollar amount of earmarks has steadily decreased. During that same time, overall spending has ballooned by over $1.3 trillion. In reality, ballyhooing about earmarks has been used as a ruse by some to seem more fiscally responsible than they really are.
Taking the other side, Rep. Jeff Flake (R-AZ) writes in the Washington Post that earmarks are part and parcel of Congress’s abdication:
Those who view earmarking as an expression of the “congressional prerogative” sell Congress short of its preeminent role as the first branch of government. As the defenders of earmarking are fond of saying, earmarks represent less than 2 percent of all federal spending. Precisely! By focusing on a measly 2 percent of spending, we have given up effective oversight on the remaining 98 percent.
This lopsided exchange can be examined empirically. As the number of earmarks has risen significantly over the past two decades, the amount of oversight exercised by the House Appropriations Committee — as measured by the number of hearings held, witnesses called, etc. — has declined substantially. It is as if Congress has called a truce with the executive branch: Don’t hassle us about our 2 percent, and we’ll offer only token interference with your 98 percent.
Physician, Heal Thyself
The Wall Street Journal reports that the Commerce Department will soon come forth with a ”stepped-up approach to policing Internet privacy that calls for new laws and the creation of a new position to oversee the effort.”
Meanwhile, with nearly 22 months in office, President Obama has still not named a single candidate to the Privacy and Civil Liberties Oversight Board that Congress established to review the government’s actions in response to terrorism. Had he appointed a board, it would have issued three public reports by now, and we would be awaiting a fourth.
More Net Neutrality Violations That Aren’t
I see ACLU’s Jay Stanley has penned a reply to my post from a couple weeks back on the civil liberties group’s report arguing for the urgency of net neutrality regulation. The main thrust of my post was that many of the examples advanced to show there’s an imminent threat to the open Internet, requiring regulatory action on the double, don’t really show anything of the sort. Stanley allows that some of their examples are “not violations of Internet network neutrality in the strictest sense” but that they “speak to the motives, intent, and trustworthiness of major telecommunications firms in treating the speech of their customers fairly.” But I’m not sure they really show that either. In fact, if I can be forgiven a little digression, two more egregious corporate offenses against net neutrality that turn out not to be.
First, one I’d missed from the ACLU report: Vague terms of service agreements. Apparently, AT&T’s terms of service had a list of grounds for suspension of service that ended with the rather nebulous provision bolded below:
AT&T may immediately terminate or suspend all or a portion of your Service, any Member ID, electronic mail address, IP address, Universal Resource Locator or domain name used by you, without notice, for conduct that AT&T believes (a) violates the Acceptable Use Policy; (b) constitutes a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws) or a violation of these TOS, or any applicable policies or guidelines, or (c) tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.
Based on the company’s explanation, it sounds like they intended this as a sort of catch-all for behavior that wasn’t covered by their policy or the law, but was sufficiently clearly abusive to damage the reputation of a provider who allowed it. But you can certainly understand why people read it as reserving the right to disconnect people who criticize the company, and in any event, it does seem way too vague: Who wants to risk losing their service based on such ill-defined criteria? Significantly, though, I don’t see anybody claiming that AT&T or Verizon (which had similar language) ever actually did suspend a user’s account for this reason. It appears to have been one more overbroad bit of legal boilerplate drafted by a lawyer paid to shield the company from liability in as many contingencies as possible, and promptly changed when users complained. More importantly, and at the risk of stating the obvious, this isn’t really a question of network architecture. Such a broad provision could surely be enforced in a way that was contrary to the spirit of the open Internet, but it’s ultimately a provision about how AT&T treats its customers, not about how routers treat packets. Many things might be wrong with it, but violating the end-to-end principle embodied in the TCP/IP protocol isn’t one of them. Indeed, there’s nothing really Internet specific about this at all: An offline business could attempt to refuse service to people who publicly criticize the company in the newspapers. Mercifully, such behavior seems rare, but if you’re worried about the potential for a certain class of abusive contracts aimed at squelching speech isn’t that where the remedy should aim?
Sunlight Before Signing Updated—With a Graph!
As a campaigner, President Obama promised that bills sent him by Congress would be posted online for five days before he would sign them. It’s a simple, measurable transparency promise that we have followed on this blog.
With attention beginning to turn to the 2012 presidential election (believe it or not!), President Obama’s fealty to campaign promises will become a focus. So here’s an update on his Sunlight Before Signing promise.
First, a brief summary table. Congress has presented President Obama 283 bills, 124 in 2009 and 159 in 2010. He posted six online for the requisite number of days in 2009, and 103 in 2010. (One emergency bill did not require posting. It’s non-posting is consistent with the president’s promise so we treat it as “compliant” in summary materials.)
| Number of Bills | Emergency Bills | Bills Posted Five Days | |
|---|---|---|---|
| 2009 | 124 | 0 | 6 |
| 2010 | 159 | 1 | 103 |
| Overall | 283 | 1 | 109 |
The graph below illustrates well that the administration has improved on the, frankly, lousy start it got with Sunlight Before Signing. In the month of May, every bill was posted on Whitehouse.gov for five days before the president signed it.
There remains a residuum of bills that don’t seem to get Sunlight Before Signing, and those may be the ones where political expedience takes precedence over the president’s campaign promise to his voters. But the White House is clearly positioned to fulfill this promise completely in the second half of the president’s term.
The chart below (that is, after the break) exhibits the same data—Sunlight Before Signing compliance by month—with percentages of non-compliance and compliance. After that, you’ll find a table of every bill the president has signed and its treatment in terms of sunlight.
There will be a short spate of bills during the lame duck session. The next report in late December will capture the entire first half of the president’s term, setting the stage for reporting on the White House’s 100% success rate in 2011 and 2012.
Full compliance will give the press and public a way to know exactly what hits the president’s desk, and an opportunity to make a habit of reviewing Congress’ work before bills become laws.
Should Legislatures, Commissions, and Such Figure Out Privacy Problems?
The recent European Commission proposal to create a radical and likely near impossible-to-implement “right to be forgotten” provides an opportunity to do some thinking about how privacy norms should be established.
In 1961, Italian liberal philosopher and lawyer Bruno Leoni published Freedom and the Law, an excellent, if dense, rumination on law and legislation, which, as he emphasized, are quite different things.
Legislation appears today to be a quick, rational, and far-reaching remedy against every kind of evil or inconvenience, as compared with, say, judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be efficacious, too unpredictably far-reaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in “better” statutes instead of in something altogether different from legislation. (page 7, 1991 Liberty Fund edition)
The new Commission proposal is an example. Apparently the EU’s 1995 Data Protection Directive didn’t do it.
Rather than some central authority, it is in vernacular practice that we should discover the appropriate “common” law, emphasizes Leoni.
“[A] legal system centered on legislation resembles . . . a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation. No solemn titles, no pompous ceremonies, no enthusiasm on the part of the applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned. (page 22-23, emphasis removed)
The proposed “right to be forgotten” is a soaring flight of fancy, produced by detached intellects who lack the knowledge to devise appropriate privacy norms. If it were to move forward as is, it would cripple Europe’s information economy while hamstringing international data flows. More importantly, it would deny European consumers the benefits of a modernizing economy by giving them more privacy than they probably want.
I say “probably” because I don’t know what European consumers want. I only know how to learn what they want—and that is not by observing the dictates of the people who occupy Europe’s many government bureaucracies.
Data Formats –> Public Oversight
Rep. Darrell Issa (R-CA) has a terrific op-ed piece on Internet-age government transparency in the Washington Examiner today:
If agencies used consistent data formats for their financial information, their financial reports could be electronically reconciled. It would be possible to trace funds from Congressional appropriations through agencies’ budgets to final use. The same data could flow automatically into USASpending.gov, without the errors and inconsistencies that make it unreliable today.
The idea is simple, if not easy to implement. Put government data in uniform formats, accessible to the public, and let public oversight work its will. Whether you prioritize good government, small government, or both, expect improvement.
The Phantom Menaces in the ACLU’s Case for Net Neutrality
I’m accustomed to finding myself on the same page as the American Civil Liberties Union–and in particular with the razor sharp Jay Stanley, who heads their Technology & Liberty program. But their recent report urging the necessity of net neutrality regulation only makes me more skeptical. I’ve always pretty much shared the position of my colleague Tim Lee: The open, end-to-end nature of the Internet is an important driver of both innovation and free expression–important enough that if it were systematically threatened, there would be a decent case for regulatory intervention. But that end-to-end architecture is also pretty resilient, even if some ISPs might wish otherwise. And while it’s easy to think of deviations from neutrality that would be pernicious, it’s also not hard to imagine specific non-neutral practices that might benefit consumers without undermining that broader end-to-end structure. The real policy question ought to be how to get enough competition in broadband markets that consumer choice selects for the latter against the former. Since broadband isn’t all that competitive in many regions, the question is whether we can afford to wait and deal with problems as they arise in a narrowly tailored way, or whether there’s some urgent need for a broad architectural mandate.
The ACLU says there is, and cites ten terrifying “abuses” that supposedly show the need to legislate now. But as I read over the list, I found I couldn’t help but think of those old Saturday Night Life “Coffee Talk” sketches, where a farklempt Mike Meyers would throw out such food for thought as: “Grape Nuts contain neither grapes nor nuts, discuss.” Because ACLU’s list of abuses mostly consists of examples that either aren’t actually net neutrality violations, or for which there are obvious remedies that don’t require neutrality regulation. Let’s discuss:
- AT&T’s “jamming” of a Pearl Jam concert, in which singer Eddie Vedder’s remarks attacking then-president George Bush were bleeped out of a webcast. Obviously, it would be pretty troubling if your ISP were filtering your datastream to remove political content of which it disapproved. But that’s not what happened here at all. AT&T, via a deal with the Lollapalooza music festival, was streaming the Pearl Jam concert on its own content hub. Now, obviously, whoever was editing the stream and decided to treat criticism of Bush as equivalent to profanity made a highly dubious judgment call, but the point is that AT&T was acting as a content provider here, not a carrier: The filtering happened before the content hit the network, and no proposed neutrality rules I’m aware of would have prohibited this.
- BellSouth’s “censorship” of Myspace. According to BellSouth’s own account, a glitch in their system temporarily left their outraged users unable to access the popular social networking site. “Some suspected” that the company was actually testing some kind of tiered access system, and decided to do so by blocking a popular site without notice, antagonizing their paying customers. Some also suspect the moon landing was faked, but I wouldn’t make it the basis of legislation.
- Verizon briefly denied the abortion-rights group NARAL access to a program whereby users who texted a dedicated “short code” could sign up for SMS updates; the company almost immediately reversed its decision. This is, obviously, not a case involving Internet neutrality, and while it’s certainly a case involving the ability of a network owner to discriminate between users of its network services, the issues involved are pretty different. These “short code” services often permit users to either sign up for fee-based updates or donate money to causes via charge added directly to their monthly phone bill. As indicated by their prompt reversal, the rationale for denying NARAL here–desire to avoid partnering with causes on either side of a “controversial” issue–was probably ill considered, but this is clearly a case where the company is partnering with the provider in a way that goes beyond carriage, because they’re also effectively acting as a payment processor. That means they’ll have an interest in vetting partners in a way you wouldn’t expect a mere carrier to vet every content provider on the network. Even if you think this particular type of discrimination ought to be prohibited, this is really a distinct case raising issues separate from those involved in the Internet Neutrality debate, and ought to be considered separately.
- Proposed filtering for copyright infringement. This is indeed a terrible and, in practice, unimplementable idea–for one because there’s no easy way to distinguish illegal from legal copying (as when I stream music I’ve purchased from my desktop or server to a mobile device). There’s also a pretty good case that this would already be illegal under federal wiretap laws…which may be why the “proposals,” referenced in an article from January 2008, haven’t actually gotten anywhere.
There are a handful of other cases that either may or definitely do count as potentially troubling neutrality violations–the most famous being Comcast’s throttling of BitTorrent traffic. At least two involve ISPs in Canada, which I wouldn’t have thought is the FCC’s problem. In some of these cases, I’d even agree that regulatory action is justified–but by the FTC, not the FCC. If you are advertising access to “the Internet,” then choking off access to whole classes of popular services or degrading throughput well below advertised speeds, well, that’s what we call a deceptive business practice. (In a more libertarian world, this might be handled by another mechanism; in the world we’ve got, it’s the FTC’s lookout.) Maybe there’s a case to be made for more specific transparency rules to establish when and how consumers have to be informed about non-neutral routing policies–certainly no ISP should be allowed to block access to a website and conceal the policy by making it look like a technical glitch–but I have no idea why you’d make the leap to a sweeping architectural mandate before trying something along those lines.
More generally, I’m a little puzzled about why the ACLU is weighing in on this at all. It’s true that ISP routing practices, like the practices of many private firms, could have implications for “free expression” broadly conceived. But not everything that might promote or hinder expression is part of the civil liberties portfolio, which has traditionally been limited to restraints on freedom imposed by government. To the extent federal policies inhibit broadband competition, one might say the government is in some sense complicit in whatever private policies restrict expression, but here again, the obvious remedy is to look for more pro-competitive policies. In any event, this is far enough outside their usual wheelhouse that you’d think it would make more sense for them to remain, well… neutral on this one.
Private Ownership of Public Law
Carl Malamud is a breakthrough thinker and doer on transparency and open government. In the brief video below, he makes the very interesting case that various regulatory codes are wrongly withheld from the public domain while citizens are expected to comply with them. It’s important, mind-opening stuff.
It seems a plain violation of due process that a person might be presumed to know laws that are not publicly available. I’m not aware of any cases finding that inability to access the law for want of money is a constitutional problem, but the situation analogizes fairly well to Harper v. Virginia, in which a poll tax that would exclude the indigent from voting was found to violate equal protection.
Regulatory codes that must be purchased at a high price will tend to cartelize trades by raising a barrier to entry against those who can’t pay for copies of the law. Private ownership of public law seems plainly inconsistent with due process, equal protection, and the rule of law. You’ll sense in the video that Malamud is no libertarian, but an enemy of an enemy of ordered liberty is a friend of liberty.
FCC and its Technological Advisory Council: Shut Them Down and Use the Money to Reduce Debt
The Federal Communications Commission has established a new advisory group called the “Technological Advisory Council.” Among other things, it will advise the agency on “how broadband communications can be part of the solution for the delivery and cost containment of health care, for energy and environmental conservation, for education innovation and in the creation of jobs.”
This is an agency that is radically overspilling its bounds. It has established goals that it has no proper role in fulfilling and that it has no idea how to fulfill. As we look for cost-cutting measures at the federal level, we could end the pretense that the communications industry should be regulated as a public utility. Shuttering the FCC would free up funds for better purposes such as lowering the national debt or reducing taxes.
National Research Council Takes Biometrics Down a Notch
Late last month, the National Research Council released a book entitled Biometric Recognition: Challenges and Opportunities that exposes the many difficulties with biometric identification systems. Popular culture has portrayed biometrics as nearly infallible, but it’s just not so, the report emphasizes. Especially at scale, biometrics will encounter a lot of challenges, from engineering problems to social and legal considerations.
“[N]o biometric characteristic, including DNA, is known to be capable of reliably correct individualization over the size of the world’s population,” the report says (page 30). As with analog, in-person identification, biometrics produces a probabilistic identification (or exclusion), but not a certain one. Many biometrics change with time. Due to injury, illness, and other causes, a significant number of people do not have biometric characteristics like fingerprints and irises, requiring special accommodation.
At the scale often imagined for biometric systems, even a small number of false positives or false negatives (referred to in the report as false matches and false nonmatches) will produce considerable difficulties. “[F]alse alarms may consume large amounts of resources in situations where very few impostors exist in the system’s target population.” (page 45)
Consider a system that produces a false negative, excluding someone from access to a building, one time in a thousand. If there aren’t impostors attempting to defeat the biometric system on a regular basis, the managers of the system will quickly come to assume that the system is always mistaken when it produces a “nonmatch” and they will habituate to overruling the biometric system, rendering it impotent.
Context is everything. Biometric systems have to be engineered for particular usages, keeping the interests of the users and operators in mind, then tested and reviewed thoroughly to see if they are serving the purpose for which they’re intended. The report debunks the “magic wand” capability that has been imputed to biometrics: “[S]tating that a system is a biometric system or uses ‘biometrics’ does not provide much information about what the system is for or how difficult it is to successfully implement.” (page 60)
“Biometric Recognition: Challenges and Opportunities” is a follow-on to the 2003 National Research Council report, “Who Goes There?: Authentication Through the Lens of Privacy.” That was one of few resources on identification processes and policy when I was researching my book, Identity Crisis: How Identification is Overused and Misunderstood. (Mine is quite a bit more accessible than this new book, so if you’re interested in the field, you might want to start there.)
There is nothing inherently wrong with biometrics. They will have their place, and they will make their way into use. But the dream of a security silver bullet in biometrics is not to be. Identity-based security—using the knowledge of who people are for protection—is valuable and useful in day-to-day life, but it does not scale. National or world ID systems would not secure, but they would carry large costs denominated in both dollars and privacy.
Advocates of Regulation Are to Charlie Brown as Washington, D.C., Is to Lucy
This morning on WNYC in New York City, I debated Josh Silver of the pro-Internet-regulation group Free Press. It was a healthy exchange of views, except for a few barbs and innuendos thrown by Silver, who is obviously frustrated by his group’s lack of progress in seeking a “government takeover of the Internet.” (He wanted to debate in simple, ideological terms like that, so I indulge here.)
What was most interesting to me was how unsophisticated Silver is with respect to government and regulation. Take a look at his plea:
What we’re asking for—what we need are regulatory agencies that are not captured by industry and that actually act on behalf of the American public. And that’s what they were created to do. The FCC—1934, with the advent of radio—was created to make sure that the public interest was protected. And what we’ve seen is industry capture of regulatory agencies has made those agencies fail again and again and again.
And the only thing that’s gonna work is if the Obama administration and the FCC stand up and say, “No more business as usual. We are going to protect net neutrality. We’re going to protect competition, and make sure there’s choices for consumers. And we’re going to end the status quo in Washington that has really broken our entire political system.”
The Obama administration and the FCC did stand up and say “no more business as usual,” but that’s what politicians do to seduce voters. Then, once in power, they go about business as usual. Lucy always yanks away the football, Charlie Brown.
Silver is not alone in having these sweet, sad “good government” sentiments. Many of my interlocutors, with whom I often share outcome goals, believe strongly in achieving those goals by remaking governmental and political systems so that they finally “work.” They believe so strongly in this approach that they seem to think it’s just around the corner—if only we prohibit some speech here, some petitioning of the government there. Y’know, “take the money out of politics.”
Hopefully this fantasy will never come true, because it requires reversing fundamental rights such as free speech in all its instantiations—a handover of power from people to the government and elites that run it.
In the absence of that perfected, all-powerful government—thank heavens—we must organize the society’s resources using the best machine we’ve got for discovering consumers’ interests and delivering on them: an unhampered marketplace, now energized and enhanced by the Internet.
Earmarkers Work to Penalize Earmark Opponents
Political gamesmanship has never seen a clearer illustration than in this CQ Politics article, “Locals Split on DeMint’s Earmark War.”
South Carolina Republican senator Jim DeMint opposes earmarks. Fellow South Carolina Republican Lindsey Graham supports earmarks and regularly requests them. (See a list of all 136 of his earmark requests for FY 2010 here.)
Senator Graham’s request for a $400,000 earmark for the Port of Charleston hasn’t been awarded—perhaps because of DeMint’s opposition to earmarks.
Refusing to go along has a price. And in the article it’s a Republican operative who sinks the first shiv, suggesting that DeMint’s failure to earmark hurts South Carolina.
“What you’re hearing [in the state] is: the ideology of the tea party and catering to that movement will come at the expense of jobs in South Carolina,” said Chris Drummond, a South Carolina GOP strategist who formerly worked for Gov. Mark Sanford.
(Think a Republican wouldn’t criticize another Republican? Think again.)
The tax money used for earmarking is paid into the federal kitty by South Carolinians, of course. Getting some of the taxes they pay returned to the state is not the benefit it appears. If their money were left with them in the first place, they would spend it as they see fit, benefitting South Carolinians and their state much more than politically directed spending.
Next, Senate appropriation subcommittee chairman Byron Dorgan (D-ND) exploits the tension among members of his opposite party, clinical analysis masking his glee: ”‘In cases where you have a state where one asks for an earmark, the other opposes all earmarks, that makes it a more difficult project to fund,’ he said.”
Then comes payback time. Senator Robert Bennett (R-UT) was ousted during the primary by a Tea Party/DeMint-favored candidate, so:
The office of subcommittee ranking member Robert F. Bennett (R-Utah) also told the Greenville News that the port was denied funding in part because “there was no request at all from Sen. DeMint.”
The article recites a number of other viewpoints on earmarking and earmarks in South Carolina, but the highlight is the parade of assailants on DeMint. Politics ain’t patty-cake, and earmark politics are no exception.
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