Category: Law & Policy

ISP privacy rules. What’s next is what matters.

Photo by onephoto

If we merely politicize the issue of privacy, we’ll never have any.

When my first kid was born, I didn’t even have an internet account yet.  But somehow, multiple advertisers knew that there was a new baby because we were inundated with direct mail offers for every infant-related product under the sun.  Within a couple of years, I joined millions of Americans who got online for the first time and was present in more than a few meetings with advertising wonks talking about how much more effectively they would be able to “target” consumers via the web. These discussions invariably included a lot of speculation about how much privacy consumers would be willing to give up for the sake of convenience or savings.

It turns out we were willing to pretty much abandon privacy, but not quite in the way it was being discussed in the early 90s.  Instead, Web 2.0 evolved differently from the way it was imagined in those days, and I think it’s fair to say that for many people, using the major online platforms is only barely optional.  Shop online without Amazon, have a social media presence without Facebook, or do any number of things without Google?  Not likely.

So, rather than make conscious choices to allow platforms to harvest and sell data about our online activities, I think we just passively accepted or ignored this reality for the sake of using platforms and apps.  Who really reads Terms of Service or pauses to seriously contemplate that opt-in moment when an app wants access to various data?  And with mobile apps, opt-in is typically not optional at all; it’s either integrated with some amount of personal data, or it just doesn’t work.

Of course, it’s no surprise that the internet lit up with headlines decrying the GOP’s overturning the ISP privacy rules that were put in place under Obama’s FCC Chairman Tom Wheeler.  And there’s no question this is an issue to watch, but I predict that nobody really will watch it as long as it remains politicized through an Obama/good v. Trump/bad lens.  Because let’s cut to the chase here. Under Obama, we did not really address online privacy in any meaningful way.  Under Trump, we may continue to drop this ball, but for the moment, let’s at least try to keep our eyes on the ball and watch where it goes.

Ultimately, if we hope to have any kind of substantive privacy regulation, then consumers need to be shielded from certain practices conducted by both ISPs and “edge providers,” meaning platforms like Google and Facebook.  During the Obama administration, NetNeutrality rules placed ISPs under the ambit of the FCC while the “edge providers” remained governed by the FTC.  Then in October 2016, Chairman Wheeler introduced the privacy rules — rules different from those governing edge providers — for ISPs, which were just overturned, resulting in much scorn and fear.

The headline issue for consumers is that the ISPs can now sell your data without permission.  This is true. But with or without this rule, Google and friends have been free to sell your data without permission for years—and they have certainly been doing so.  According to FCC Chairman Ajit Pai’s own testimony, the discrepancy between ISP rules and edge-provider rules were at the heart of his initial criticism of the rules proposed by Wheeler last October.  Pai has stated that he agrees with the goals of privacy regulation but that he was opposed to having two separate and inconsistent set of rules governed by two different agencies.  I noted this in a previous post citing Pai’s dissent over adoption of that proposal.

So, what now? 

It seems to me that if we actually care about privacy—and I’m not entirely convinced we do—that it’s what happens next that really matters.  Does the FCC, and the GOP leadership, stop here, merely eliminate the ISP rules and move on? Or does Chairman Pai live up to the promise inherent in his past criticism and seek to forge new and better protections that uniformly govern both ISPs and edge providers? It could certainly go either way, but my cynical prediction is that consumers will continue to read this story through the lens of politics and (frankly) a fairly lazy press, while both ISPs and edge providers do whatever the hell they want with our data.

I see a lot of comments stating that an important distinction to make is that we have a choice to use one platform or another but no choice other than to connect to the internet via a single ISP—often one ISP in a particular market.  This is true to an extent, but I have to say that it also seems like a self-soothing delusion to suggest that the world of edge providers is filled with choices.  Google dominates search and a massive share in mobile, and there is only one Facebook.  Are you planning to abandon either platform for the sake of privacy? And what happens in a market where a platform like Google becomes both ISP and edge provider?  Which rules govern privacy then?

Moreover, as Pai observes in his dissenting opinion, people connect via multiple ISPs throughout the day; but that doesn’t mean our online activities are not identifiable by edge providers no matter where we go.  Log into your Google account, Facebook, or Amazon, and it doesn’t really matter whose WiFi or mobile service you’re using in that moment—you’re visible as you; and all of these platforms are collecting and selling data about you.

As stated in other contexts, the web we have is not driven by altruistic principles like freedom, sharing, and speech; it’s driven by advertising and data mining.  That the ISPs want to share the market with the edge providers is not in itself unreasonable. But the entire ecosystem should be subject to uniform privacy protections for all consumers.  Chairman Pai may indeed fail to pursue his stated intent to achieve that goal, but it seems to me that’s the agenda to watch.  Certainly, we’re unlikely to achieve effective regulations by “debating” the issues through the fog of politics and scary headlines.

The EFF is Full of It on Indie Register of Copyrights

Photo by GlobalIP

Okay.  I’m not remotely surprised that the EFF & Co. don’t like the bill H.R. 1695 to make the Register of Copyrights a presidential appointee rather than an employee of the Librarian of Congress.  And I’m way not surprised that they’ve written a post which only thinly veils this bill as a power grab by the Trump administration. This despite the fact that the proposal dates back, on paper, to at least 2014 and well before that in general discussion among copyright experts.

I won’t repeat the historic context I’ve already written to explain why this legislative move makes sense, but instead I have selected some choice pull-quotes from the EFF’s post because, well…I just can’t help myself.

EFF:  The Copyright Office is supposed to focus on a pretty mundane but important job: registering copyrightable works….In the past decade, however, the Copyright Office has played an increasingly central role in policymaking…

Bullshit.  Sorry there’s just no other way to respond to this.  Although the Copyright Office was created within the Library of Congress in 1897 in order to serve a largely clerical function, even the first Register, Thorvald Solberg, was a respected expert on copyright law and played a role in helping to craft the 1909 Act.  Every Register since has performed an advisory function to Congress, the courts, and the public; and the USCO has grown in size, scope, and dimension commensurate with the growth in complexity of copyright law and the wide range of media production and distribution capabilities.

The EFF acknowledges that the USCO does not make copyright policy, but instead suggests that making the Register an Executive appointee will only make the Office more vulnerable to special interests.  This, despite the fact that, the EFF has been party to smearing the USCO as already beholden to “special interests” under the current organizational regime.  As they repeat in this post …

EFF: – and it has not been a neutral advocate.

Here, the EFF is citing a “report” published by PublicKnowledge that provides no statistical data to support the conclusion that the USCO has fallen prey to “regulatory capture” by major rights holders.  Instead, the report cites anecdotal “evidence” composed more of opinions than substantive debate.  For instance, they repeat…

EFF:  For example, one former Register famously stated, “[c]opyright is for the author first and the nation second.” 

She did say that. And she was absolutely right. And only detractors like the EFF made the statement “famous.”  As explained in this post, the Register was on solid ground, both with regard to functional common sense (i.e. the public doesn’t get what the author doesn’t first create) and with regard to philosophical precedent for the IP clause in the Constitution.  This is just the anti-copyright crowd leveraging a general lack of historical knowledge to manufacture a conflict that doesn’t exist.

EFF:  In sum, we’ll have a Register, and a Copyright Office, that is accountable only to the President and the special interests that helped get them approved in the first place.

This may be my favorite because, as mentioned, it’s seeking to trade on current contempt for the Trump administration in order to rally protest against this bill.  What’s particularly amusing about this one is that the most common “villain” in the copyright battle is Hollywood; and in case anyone hasn’t noticed, Hollywood isn’t exactly BFFs with the new president.  At best, one might call the relationships between this White House and many industries, including Silicon Valley, “complicated.” So, let’s try to assess policy on the merits where we can, shall we? The rationale for making the Register of Copyrights an Executive appointee is solid, it’s the result of years of consideration, and it will remain sound policy no matter who occupies the White House.

House Introduces Bill Moving Toward USCO Modernization

Photo by maxkabakov

Against the drama of day-to-day Washington—and I’m already exhausted—Rep.  Goodlatte, Chairman of the House Judiciary Committee, introduced a bill that most people won’t notice except the copyright watchers. Unlike certain congressional action making the headlines this week, H.R. 1695 represents years of testimony, proposals, and discussion and can claim 29, bi-partisan cosponsors.

The bill proposes to make the Register of Copyrights an appointee of the Executive with the advice and consent of the Senate, a move that would place the Copyright Office into a more clearly and more appropriately defined context given the functions it actually performs—and has performed for more than a century. The bill enjoys broad support from many parties, perhaps because it is the manifestation of a multi-year discussion; and the Copyright Alliance has recommended that the Librarian of Congress pause in her search for a new Register while the legislative process moves forward.

As I’ve explained in previous posts, the organizational placement of the USCO under the ambit of the LOC is antiquated, and it would be just as antiquated no matter who occupies the White House or controls Congress. Regardless of what some critics have claimed, it really is a coincidence of history that the Register’s initially-clerical role evolved out of changes at the Library that began under President Lincoln. Because the USCO has long been the nation’s agency of authority on copyright law—which is estimated to support over $1 trillion of GDP—it simply makes sense that the Office function as a separate agency from the Library, and with the Register appointed in the same manner as the Librarian.

When Dr. Carla Hayden was first nominated to the position of Librarian, many copyright skeptics cheered, seeing her as an ideological ally.  If anything, this only emphasizes the need for this long-contemplated split between the two agencies. The LOC and the USCO have evolved to perform two distinct functions that require leaders with two distinct types of experience and expertise. This organizational change is simply common sense.  Moreover, in a time of so much stress-inducing upheaval in Washington, this is an important proposal that deserves bi-partisan and general public support.