Ryan Radia

Post image for Senators Seek to Censor Mobile App Stores, Disregarding Public Safety and the Constitution

In the latest example of big government run amok, several politicians think they ought to be in charge of which applications you should be able to install on your smartphone.

On March 22, four U.S. Senators sent a letter to Apple, Google, and Research in Motion urging the companies to disable access to mobile device applications that enable users to locate DUI checkpoints in real time. Unsurprisingly, in their zeal to score political points, the Senators — Harry Reid, Chuck Schumer, Frank Lautenberg, and Tom Udall — got it dead wrong.

Had the Senators done some basic fact-checking before firing off their missive, they would have realized that these apps actually enhance the effectiveness of DUI checkpoints while reducing their intrusiveness. And had the Senators glanced at the Constitution — you know, that document they swore an oath to support and defend — they would have seen that sobriety checkpoint apps are almost certainly protected by the First Amendment.

While Apple has stayed mum on the issue so far, Research in Motion quickly yanked the apps in question. This is understandable; perhaps RIM doesn’t wish to incur the wrath of powerful politicians who are notorious for making a public spectacle of going after companies that have the temerity to stand up for what is right.

Google has refused to pull the DUI checkpoint finder apps from the Android app store, reports Digital Trends. Google’s steadfastness on this matter reflects well on its stated commitment to free expression and openness. Not that Google’s track record is perfect on this front — like all firms, it’s made mistakes from time to time — but it’s certainly a cut above several of its competitors in the defending Internet freedom.

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The smartphone is arguably one of the most empowering and revolutionary technologies of the modern era. By putting the processing power of a personal computer and the speed of a broadband connection into a device that fits in a pocket, smartphones have revolutionized how we communicate, travel, learn, game, shop, and more.

Yet smartphones have an oft-overlooked downside: when they end up in the wrong hands, they offer overreaching agents of the state, thieves, hackers, and other wrongdoers an unparalleled avenue for uncovering and abusing the volumes of sensitive personal information we increasingly store on our mobile phones.

Over on Ars Technica, I have a long feature story that examines the constitutional and technical issues surrounding police searches of mobile phones:

Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

California’s opinion in Diaz is the latest of several recent court rulings upholding warrantless searches of mobile phones incident to arrest. While this precedent is troubling for civil liberties, it’s not a death knell for mobile phone privacy. If you follow a few basic guidelines, you can protect your mobile device from unreasonable search and seizure, even in the event of arrest. In this article, we will discuss the rationale for allowing police to conduct warrantless searches of arrestees, your right to remain silent during police interrogation, and the state of mobile phone security.

You can read the full essay on Ars Technica here. And while you’re at it, I highly recommend watching this informative YouTube video that explains why it’s not a good idea to talk to police:

Amazon made headlines last week when it abruptly cut off service to Wikileaks, allegedly on the grounds that the site had violated Amazon’s terms of acceptable use. However, Amazon’s decision to terminate Wikileaks came less than 24 hours after Amazon received a phone call from Senate Homeland Security Committee staff (at the behest of Sen. Joe Lieberman) inquiring about the firm’s relationship with Wikileaks. According to a report in The Guardian, Amazon’s decision to terminate service to Wikileaks was a “reaction to heavy political pressure.”

That’s not all. Glenn Greenwald reported last week on Salon.com that another Internet company, Tableau Software, also decided to disable service to Wikileaks because of pressure from Joe Lieberman. Unlike Amazon, Tableau admitted that its decision was directly prompted by pressure from Lieberman. From Tableau’s statement:

Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website.

It’s difficult to see Joe Lieberman’s “public request” as anything but a thinly-veiled threat. Case in point: In addition to his staffers’ phone calls, Lieberman went on MSNBC last week, stating bluntly, “we’ve got to put pressure on any companies … which provide access to the Internet to Wikileaks.”

As Chairman of the Senate Homeland Security Committee, Lieberman is in a uniquely powerful position to push for legislation that might harm private firms like Amazon. He can also hold Congressional hearings, which frequently turn into public spectacles and garner massive media coverage. A company’s CEO enduring a congressional grilling on Capitol Hill can significantly impact that firm’s public image — and, in some cases, its stock price as well. While no individual Senator has the power to enact laws, promulgate rules, or enforce regulations, a single crusading politician can arguably cause cognizable harm to any U.S. company that pushes back against “requests” to suppress unfavorable content.

How does this implicate the First Amendment? As EFF’s Rainey Reitman and Marcia Hofmann pointed out on the DeepLinks blog, “The First Amendment to the Constitution guarantees freedom of expression against government encroachment — but that doesn’t help if the censorship doesn’t come from the government.”

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Today, the European Commission opened a formal antitrust investigation into Google to probe allegations that the firm rigged its search engine to discriminate against rivals. This intervention in the online search market, however, will distort the market’s evolution, discourage competitors from innovating, and ultimately hurt consumers.

Google isn’t a monopoly now, but the more it tries to become one, the better it will be for us all. When capitalist enterprises strive to earn a bigger market share, rival firms are forced to respond by trying to improve their offerings. Even if Google is delivering biased search results, it is only paving the way for competitors to break into the search market.

The European Commission is wrong to assume that Google possesses monopoly power. Google accounts for just 6 percent of all dollars spent on advertising in Europe. And even loyal Google users regularly find websites through competing search engines like Bing or through social websites like Facebook and Twitter.

Before resorting to tired old competition laws, European policy makers should remember that the Internet economy is hardly understood by anybody—including by regulators. We are in terra incognita; no one knows how information markets will evolve. But one thing is for sure: Online search technology cannot evolve properly if it is improperly regulated. Why make risky investments in hopes of revolutionizing Internet markets if marvelous success means regulation and confiscation?

The real threat to consumers is not from successful high-tech firms like Google, but from overreaching government interventions into competitive market processes. As economists have documented in scholarly journals, antitrust intervention is especially problematic in the information age, because it severely underestimates the critical role of innovation in dynamic high-tech markets.

In the information age, ingenuity—not market power—is the key to success. America’s high-tech sector is strewn with former market leaders who were no match for the relentless forces of creative destruction. Rapid, unpredictable change is the hallmark of the modern digital economy. Google may be on top in many high-tech markets today, but it won’t stay there for long unless it keeps innovating and delivering a superior search product.

This post was co-authored by Ryan Radia and Wayne Crews.

Over at the Technology Liberation Front, I discuss the “Combating Online Infringements and Counterfeits Act” (COICA), which the Senate Judiciary Committee unanimously approved last week. The bill would enable the U.S. Attorney General to obtain a court order disabling access to web domains that are “dedicated to infringing activities.”

These “rogue websites” are a real problem, as the website Fight Online Theft explains, so it’s a good thing that Congress is working to address them. However, some of COICA’s provisions raise profound constitutional concerns, and the bill lacks adequate safeguards to protect against the unwarranted suspension of Internet domain names, as the website Don’t Censor the Net argues. The bill also doesn’t provide a mechanism for website operators targeted by the Attorney General to defend their site in an adversary judicial proceeding. This week, a group of over 40 law professors submitted a letter to the U.S. Senate arguing that COICA, in its current form, suffers from “egregious Constitutional infirmities.”

To address these concerns, CEI is urging Congress to amend COICA to provide for more robust safeguards, including:

  • Providing a meaningful opportunity for Internet site operators to challenge before a federal court an Attorney General’s assertion that their site is “dedicated to infringing activities” prior to the suspension of their domain name;
  • Requiring that the Attorney General, upon commencing an in rem action against a domain name, make a reasonable and good faith effort to promptly notify the site’s actual operator of the action;
  • Clarifying the definition of an Internet site “dedicated to infringing activities” to ensure that websites with nontrivial lawful uses that facilitate infringing acts by third parties will not face domain name suspension if their operators:
    • Comply with legitimate takedown requests from rightsholders;
    • Do not receive a financial benefit directly attributable to infringing activities;
    • Do not design their site primarily for the purpose of facilitating infringing activities; and
    • Do not induce infringing activities.
  • Instructing the Department of Justice and federal prosecutors not to request that domain name registrars, registries, or service providers suspend domain names that have not been deemed to be “dedicated to infringing activities,” or otherwise unlawful, by a federal court; and
  • Requiring the Department of Justice to compensate domain name registrars, registries, and service providers for any reasonable costs they incur in the course of disabling access to infringing domain names.
  • Eliminating the provisions requiring the Department of Justice to publish a public listing of Internet Sites “alleged to be … dedicated to infringing activities” but that have not been the target of a successful in rem action by the Attorney General to disable access to their domain name.

Image credit: minkj’s flickr photostream.

The FCC proposed new rules today aimed at combating wireless “bill shock,” a term that describes mobile subscribers getting hit with overage charges they didn’t anticipate. The proposed rules would require wireless providers to create a system for alerting customers when they are about to incur extra usage charges for voice, text, data, or roaming.

I can certainly see why some consumers may be frustrated with wireless pricing practices. But this frustration hardly constitutes evidence that the mobile marketplace is actually failing. Yes, mobile carriers sometimes make mistakes, and they probably need to do more to ensure their customers understand how overage charges work.

Competitive forces, however, are far better equipped than federal regulators to punish providers that engage in genuinely harmful practices. And if the federal government must “do something” about bill shock, educating mobile subscribers about where to locate and track their usage information is a far better approach than prescriptive, burdensome federal regulation.

Hypocritically, even as the FCC tries to reign in bill shock, its own policies are harming consumers far more than any wireless industry practices. The FCC has again and again put off spectrum auctions that would enable mobile providers to offer better services at lower prices. As a result, consumers are suffering to the tune of billions of dollars each year. Economists Thomas Hazlett and Roberto Munoz published a study last year in which they concluded that U.S. wireless prices would decline by 8 percent if the FCC were to allocate an additional 60mhz of spectrum to mobile telephony.

If the FCC truly cares about wireless subscribers, rather than simply grandstanding against competitive (if imperfect) mobile carriers, the Commission’s top priority should be to aggressively free up the airwaves.

But analysts at the Competitive Enterprise Institute urged the FCC not to interfere with market disputes and to instead turn its focus to the real obstacle to the wireless marketplace – the FCC’s own anti-consumer approach to spectrum allocation.

“Educating mobile subscribers about where to locate their up-to-date usage information – which all major wireless providers make available – is a far better solution to ‘bill shock’ than prescriptive federal regulation,” argued Ryan Radia, CEI Associate Director of Technology Studies.

Radia pointed out that some consumers’ frustration with current wireless pricing practices is hardly evidence that the mobile marketplace is failing. “To be sure, mobile carriers make occasional mistakes, and they need to work harder to ensure their customers stay well-informed,” Radia said. “But competitive forces are far better equipped than federal regulators to punish providers that engage in genuinely harmful practices or fail to satisfy consumers’ evolving preferences.”

In its efforts to address wireless bill disputes, the FCC purports to represent consumers’ interests; yet, Radia argued, the agency is harming consumers by delaying action to free up radio spectrum — the lifeblood of wireless communications.

“Consumers are suffering to the tune of billions of dollars each year on account of the FCC’s failure to free up radio spectrum for mobile communications,” Radia said. “Economists Thomas Hazlett and Roberto Munoz recently published a study finding that U.S. wireless prices would decline by 8% if the FCC were to allocate an additional 60mhz of spectrum to mobile telephony.”

“If the FCC genuinely cares about wireless subscribers, it should focus on aggressively freeing up the airwaves instead of comparatively trivial issues like bill shock.”

Last week, I had the pleasure of discussing net neutrality with James Boyle, a Duke Law Professor and the co-founder of the Center for the Study of the Public Domain, and Paul Jones, the director of ibiblio, on WUNC’s The State of Things radio program. Our hour-long discussion touched on a number of important tech policy topics, and I highly recommend giving the show a listen (download the MP3 here) if you’re interested in hearing the insights of two very thoughtful scholars and critics of cyber-libertarianism.

I’m a big admirer of Boyle and Jones, who’ve both done a lot of excellent work studying copyright and public domain in the information age. While I don’t share their views on the merits of net neutrality regulation — or, perhaps, of government regulation in general — there’s much common ground between us on many issues, including intellectual property, free speech, and government surveillance.

For folks who don’t want to spend an hour listening to our discussion, I’ve typed up a brief summary of the questions we attempted to tackle in our discussion and the various arguments we raised. My apologies if I’ve mischaracterized any arguments or statements — if you want to know what was actually said, go listen to the whole interview!

  • What role should government play in regulating the Internet? I argue its proper role is to enforce voluntary arrangements (Terms of Service) and, when appropriate, enforce civil judgments against firms that have broken their promises. Boyle, on the other hand, argues that government should enforce not only contracts but also net neutrality rules because last-mile Internet service is a natural monopoly and consumers often don’t understand what they’re getting, which means that socially desirable contracts aren’t likely to emerge. I respond by citing Thomas DiLorenzo’s critique of the natural monopoly hypothesis and pointing out that government has obstructed ISP competition by allocating spectrum inefficiently and imposing excessive costs on wireline ISPs through burdensome rights-of-way and franchising rules.
  • Why did Google retreat on its commitment to net neutrality in joining with Verizon to exempt wireless services from neutrality? Boyle argues it’s because Google realized the future of communications is mobile and believed it needed to compromise with Verizon (America’s biggest wireless carrier). Jones points out that the Google-Verizon proposal isn’t a business agreement, but a compromise designed to address the conflicting interests of various stakeholders. I argue that Google recognized that government discrimination among competing business models and platforms is a greater danger to consumers than provider discrimination, and that innovation truly occurs when ‘walled gardens’ such as the iPhone co-evolve with open platforms like Android — the “Yin and Yang” of innovation, as Bret Swanson puts it). Boyle argues that proprietary platforms and exclusionary deals between content and service providers preclude disruptive innovation and digital generativity. He cites the financial crisis as an example of inadequate regulation resulting in poor outcomes that might have not have occurred had there been greater oversight.
  • Does collusion among large, powerful Internet corporations help or harm consumers and innovation? Jones cites Adam Smith’s The Wealth of Nations in arguing that, without government regulation, mega-corporations will collude and carve up the marketplace, hindering innovation and progress. I argue that leaving companies free to try to “carve up markets” actually spurs beneficial competitive responses and promotes destructive market entry, even if the process isn’t always pretty. I argue that the forces arrayed against today’s major companies–competitors, consumers, suppliers, downstream partners–make it impossible for any entity or group of entities to engage in any truly abusive practices without suffering harsh punishment.
  • Will entrepreneurs and innovators even be able to get off the ground if corporations have unlimited control over Internet applications and content? I argue that government policies, such as the DMCA’s anti-circumvention provisions, are a major part of the problem because they distort natural market outcomes and prop up bad business models. Boyle agrees that these provisions are seriously problematic, calling DMCA a “lawyers’ full employment act.” He points out that many of the most important innovations of the last couple of decades — Google, Facebook, Twitter, and so forth — came about precisely because of the Internet’s openness and dynamism. I argue that the openness that characterizes the Internet is indeed desirable in many ways, but that voluntary institutions can offer open platforms without being forced to do so by government. I point out that network operators who hinder the value of the content that traverses their pipes do so at their own peril, and that infrastructure and content companies actually have a symbiotic relationship, rather than an adversarial one. Jones argues that because many ISPs are also content companies, they have an incentive to privilege their own content at the expense of competing offerings. I point out that consumer demand for Internet video outlets (i.e. YouTube and Hulu) deters providers from slowing down Internet-delivered content. Boyle argues that the continued existence of the open Internet is crucial in ensuring that the ‘walls’ that enclose walled gardens don’t grow too tall.
  • Shouldn’t we treat the Internet like a public utility — a road on which all can travel? I argue that treating the Internet like a public utility, like we already treat roads, raises the dilemma of the tragedy of the commons. I point out that many private roads already exist today without the ‘tollbooths’ that neutrality advocates fear. Jones points out that the real tragedy is one of unregulated commons which lack adequate rules. Boyle argues that the economics of physical property (scarce goods) cannot readily be mapped to networks and calls the Internet a “comedy of the commons” (borrowing from Carol Rose). I argue that government-run commons have a poor track record, from highways to the wi-fi band, and that the success of network industries requires smart investment and innovation that government isn’t well-equipped to deliver. Boyle argues that not all resources must be owned if they’re to be efficiently utilized, citing the emergence of free trade with India and China in the 1700s and the subsequent collapse of state-chartered trading monopolies. Boyle argues that tomorrow’s “next great thing” may never emerge if the openness of today’s Internet isn’t enshrined in regulation.

Earlier this week, The Daily Show’s Jon Stewart summed up the debate over net neutrality by stating, “On one side [are] those who want the marketplace to remain a wide open market of ideas, and on the other side [is] a larger group who have no idea what net neutrality means.”

Stewart may have been joking, but he was right about one thing – many folks are confused about what net neutrality actually is and what it would mean for Internet users.

That’s why I decided to enter the America’s Got Net video contest, sponsored by the Open Internet Coalition, a pro-net neutrality trade association. In a short video entitled, “The Open Internet and Lessons from the Ma Bell Era,” I explain how mandating net neutrality would endanger the networks of tomorrow and insulate entrenched firms from competition. Enjoy!

Recent revelations about Microsoft’s internal debate over Internet Explorer’s handling of tracking cookies, as chronicled by The Wall Street Journal earlier this month, have prompted harsh criticism from self-described privacy groups, who’ve called on Congress to investigate Microsoft’s actions. But as Jim Harper pointed out in an excellent WSJ essay, Web users stand to lose a great deal if online tracking is squelched by the hand of government. Data gathering on the Internet is largely harmless, and individually targeted advertising coexists with robust privacy safeguards.

Over on AOLNews.com, my colleague Carolyn Homer discusses these privacy tradeoffs, arguing that Microsoft and other Internet firms have a strong incentive to set privacy defaults that align with their users’ preferences. She points out that most consumers are, in practice, quite willing to live with allegedly “pervasive” tracking in exchange for the enormous benefits that targeted advertising makes possible. While many surveys and polls indicate consumers are very worried about their privacy, the actual decisions that consumers make every day tell a very different story (as documented extensively by Berin Szoka). From Carolyn’s piece:

A body of research reveals a sizable disparity between how much people say they value privacy and how willing they are to actually protect it. In a 2003 Duke Law Journal article, Michael Staten and Fred Cate found that fewer than 10 percent of users exercise their right to opt out and share less. Conversely, if given the opposite choice, fewer than 10 percent of users elect to opt in and share more. The vast middle is apparently indifferent.

If consumers were required to affirmatively opt in before sharing data, the Internet’s prevailing advertising-based business model would be decimated. The effectiveness of online advertising in Europe, for example, fell 65 percent after the European Union in 2002 required a blanket opt-in system. For more than a decade, the Internet has thrived on the assumption that most people believe it is a fair trade to receive free content in exchange for viewing ads. Mere advertisements shouldn’t be equated with gross privacy violations.

She goes on to discuss how privacy settings are evolving as consumer preferences adapt to new technologies and firms experiment with new ways to use and collect data. You can read the rest over at the AOL News website.

The Technology Liberation Front group blog started five years ago today, offering free minds, free markets, free speech perspectives from technology policy experts at top think tanks. Tonight, they’re hosting an event at Rocket Bar in downtown DC to celebrate (7th and G st in Chinatown).