Posts about eu

Privacy and speech

Two notable decisions in Europe reflect the tension between privacy and free speech.

The European Court of Human Rights came down on the side of press freedom — thus speech — when it ruled in favor of media reporting on public figures. And a Dutch German court ruled that journalists had a right to interview a Nazi murderer with hidden cameras.

This tension is addressed but only glancingly in the EU’s proposed rules on privacy, which create vague carve-outs for journalism, history, and scientific research.

What none of this acknowledges at a more fundamental level the right we have to talk about someone else (with carve-outs for libel and slander already in the law) — not just the press and not just public figures. If you tell me I must forget you and erase what I have said about you, then you affect my speech. If you reveal something to me and I interact with that information and then you claim the right to pull back your information, then we must debate about who has rights to the results of our interaction (whether that is a conversation or a transaction).

Privacy isn’t as simple as some of its advocates would lead us to believe. It is interweaved with other rights and interactions.

I’ve been studying the full proposed EU privacy regulations and now I’m going through ancillary documents. I’ll be writing more about this soon.

Public Parts on Reding’s four pillars

Since European Commission VP Viviane Reding’s proposal for internet regulation — under her four pillars — are the topic of discussion this week at DLD in Munich and in Europe, here is what I wrote about them in Public Parts:

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I fear the unintended consequences that may come from regulation. Take, for example, European Union Justice Commissioner Viviane Reding’s four pillars of data protection, which she proposed in 2011. I have no argument with one of them: transparency. Companies that collect data should be open about when that is done and how information will be used.

Another pillar sounds attractive: “the right to be forgotten.” But how far does that go? If I post something about you on my blog or write about you in a news story—a quote I heard, the fact that I saw you somewhere, the fact that you did something in the open—can I be forced to erase—to forget—that? What then of my freedom of speech?

Another pillar is rhetorically appealing: “privacy by default.” But is that how we wish society to operate—closing in by reflex when we have so many new ways to open up? Flickr became a success, as I said earlier, because it was set to public by default. On a service designed for ­sharing—Facebook—what does complete privacy mean? Isn’t completely closed communication just email?

Reding’s last pillar would require EU-level protection no matter where a service operates or where data are held. That sets a dangerous precedent. It could mean that we would all be ruled by the most stringent controls in place anywhere in the world—the high-water mark of control. Can we bear China claiming the same right as the EU? We see a related problem today with so-called libel tourism in the U.K. Because its libel laws are unfriendly to defendants, targets of published criticism go there to file suit against writers and publishers. In a global internet, the EU’s effort to become privacy’s sanctum could affect us all.

On the one hand, I argue against regulation. On the other hand, I argue that the government should enforce net neutrality, and that is a form of regulation. Am I hypocritical? At South by Southwest in 2011, Senator Al Franken delivered a ringing endorsement of net neutrality. He argued that proponents of net neutrality are not trying to change the internet but to keep corporations from changing it, from making the net less free than it has been since its birth. “This is a First Amendment issue,” he said. “The internet is small-d democratic. Everyone has the same say.”

Secretary of State Hillary Clinton, too, delivered a rousing defense of internet freedom in two speeches in 2010 and 2011. “In the last year, we’ve seen a spike in threats to the free flow of information. China, Tunisia, and Uzbekistan have stepped up their censorship of the internet,” she said in Washington just as the Tunisian revolt was brewing. “On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas…. The internet is a network that magnifies the power and potential of all others. And that’s why we believe it’s critical that its users are assured certain basic freedoms. Freedom of expression is first among them.”

The following year, in 2011, she delivered another speech extolling transparency and attacking censorship. But in the same speech, she also condemned WikiLeaks for its release of cables from her agency. “Let’s be clear,” she said, “this disclosure is not just an attack on America—it’s an attack on the international community.” The leaks “tear at the fabric” of government, she argued. Indeed, they soon tore at the fabric of Tunisia’s corrupt government.

Lock up the kids, here comes the EU

If you want a sign that Google is past its prime, you got it today: The EU is investigating it for antitrust.

Remember Microsoft: The EU took 11 years investigating it — during which time, the web was born — and by the time it finished in 2004 and brought its mighty hand down upon the mighty Microsoft, the market had already done the job, thank you. Microsoft was a has-been, a joke as a monoplist, a laggard legacy company left behind by new technology, a threat to no one but itself.

Now the EU is going after Google. No surprise. One thing that has surprised me lately is the anti-Googlism (read: anti-Americanism, anti-capitalism) I’ve seen reflected in the nasty rhetoric over Google’s Street View. In my trips to Germany and talks there, I regularly heard that Google is too big (can someone please send me to the statute that defines big and thus too big?) — not too big to fail but too big to live in Europe. I’ve also heard people say they don’t want Google making money on them (but it’s OK for the corner store or the local newspaper to?).

Now the crows come home to roost with this EU investigation. But as Danny Sullivan argues in a wonderfully smart-assed and logical post, the EU is going after this search engine for acting like a search engine. When he searches for cars, Google has the audacity not to point to other search engines. It points to car sites! Bad Google, Bad.

And what if Google does point to its own businesses: YouTube, shopping comparison, Gmail, whatever. That’s business. Yahoo points to Yahoo; I’ve sat in meeting with them back in the early days of the web when they bragged about how they could point their “firehose” at their own stuff. The New York Times points to The New York Times. Microsoft links to Microsoft. So?

Remember that it was Google that created the ethic of search results untainted by business. Its model before that was GoTo/Overture, which *sold* search position. Analysts thought they were nuts — Commies, maybe — when Google decided *not* to tell search position out of some strange sense of ethics.

So now the EU wants to take Google’s own standard and interpret it against Google? Where the hell does this?

Last night, someone said to me something I also hear a lot: that search is a utility and utilities need to be regulated. Europeans reflexively regulate.

But Google isn’t a utility. There are plenty of other, competitive search engines. The fact that Google has 90+% penetration in Europe is the choice of the market, nothing Google did through unfair advantage.

And — shades of the Microsoft case — Google is being challenged now by other means of discovery: namely us sharing links through social means. Google is no longer the all-powerful Oz of the internet. The EU’s timing is impecable.

Now there is one arena in which Google does have much power: advertising. It’s not as effective to market on Bing as it is on Google. And I’ve said before — just yesterday — that I think Google would be wise to establish a Constitution and Bill of Rights and channel of appeal of its decision on advertisers so it cannot be accused of manipulating things behind the scenes through its sole power.

In that sense, Google is not a utility. It is law. And laws require principles and means of appeal. That’s what I said yesterday and what I’ll argue again in this case. Google would be wise to be more transparent about its advertising rules and decisions (not its algorithms but its judgments) and open up that process to trusted outsiders. Google needs a court.

But now the EU is looking to take them to court. Oh, boy.

The open EU

I got email this morning from someone getting ready to present to the European Parliament on the changes in journalism from their perspective. He said: “Given the shift to hyper-local journalism, being a supra-national body seems to be a problem. It is a particular problem for the EP in that it strives for relevance and to make its voice heard.” What should their strategy be? Here was my answer:

Unsurprisingly, my response starts with transparency: all the actions and information of government must be online, searchable, linkable, in a form that can be shared and analyzed.

I argue for this not just because of a will to catch the bastards with no end of citizen watchdogs (not, perhaps, the best selling point from your side of the discussion now – though transparency is an important element in the new, post-institutional ecosystem of news). I argue that it is in government’s own enlightened self-interest to have everything out there because, thanks to the link, source material – whether from government or from companies or from witnesses to news – will become part of news coverage; we will link to information at its source and we will expect it to be there.

It is also in government’s interest to have Googlejuice (dare I bring up a large American brand to the EU?); it will want to be discovered when citizens search for information. Indeed, search will be the primary means of contact between citizens and government. That is the case when citizens initiate the contact.

When government wants to make contact – when it wants to disseminate information or, god help us, messages out to the people – it soon will no longer be able to rely on mass media and the press to do that. It will have to rely on the citizenry, on people spreading that word, but only if it’s worthy, only if they care to. Government can establish a Twitter account, yes, but its tweets won’t be retweeted unless fellow Twitterers care to, unless that message is relevant and useful to them. And in a transparent government, it may not be up to government to decide what messages are spread; it will be up to the citizen-users.

Having said that, it is still vital for government – its politicians and its agencies’ bureaucrats alike – to establish these connections using the social tools of online. The internet itself is a social tool; it is not a medium but a connection machine. So just as one wants Googlejuice for search, one wants relationships for the social web.

Here’s the hard part. I argue that in a post-industrial economy and society, when process overtakes the end-product, we customers, citizens, users expect to be included in the creation of products and decisions, which means we expect them to be opened up before they are done. This is why Google (there, I did it again) releases products as betas; it is necessarily an invitation to collaborate – as well as a statement of humility and humanity: ‘This thing is unfinished. It’s imperfect. Help us finish it.’

We need beta government. When I’ve spoken with government people, they confess a phobia of failure. Yet without the opportunity to fail, government – like industry and media – cannot experiment and thus innovate. We must give government the license to fail. That is difficult, especially because it is the citizenry that must grant that permission. I think government must begin to recast its relationship by opening up pilot procts to input and discussion, to smart ideas and improvements. I’m not suggesting for a second that every decision be turned into a vote, that law become a wiki. Government still exercises its responsibility. But it needs to use the new mechanisms of the web to hear those ideas. I would look for examples to Dell’s Ideastorm, Starbucks’ My Starbucks Idea, and Best Buy’s Idea Exchange.

Finally to your question about local v. national and extra-national: I wouldn’t worry greatly. In the U.S., we didn’t have national media until TV networks reached critical mass and we didn’t have a quality national news brand until satellites enabled The New York Times (not to mention USA Today) to transmit pages to remote printing plants. Most of the journalistic resource in the U.S. has been spent locally, most of it by the monopolies that are now dying. In Europe, local newspapers are in the same sinking ship and, as in the U.S, I believe there are opportunities in local (in our work on new business models for news at CUNY – at newsinnovation.com – we forecast a robust and sustainable local ecosystem for news).

But in Europe, unlike the U.S., each nation has long had and still has strong and competitive national news markets. I think that will continue. Indeed, where languages cross borders, there are new opportunities to grow internationally; look at the Guardian, which exploded online and gets two-thirds of its audience from outside the UK. I believe that strong national news brands – some of them new, perhaps – will be supported in Europe because the the public is so accustomed to having them and without production and distribution costs and the need to reproduce commodity information and content (‘do what you do best and link to the rest’) they can find new efficiency.

Still, as you say, that should not lull government into thinking it can continue, business as usual, working through those national brands, for many citizens will go around them – or rather, will go to them only when brought there by a link through search or aggregation or peers. As a college student famously told a researcher in The New York Times a year ago, “if the news is that important, it will find me.” Marissa Mayer and Eric Scmidt of Google (there I go again) is talking now not about hyperlocal but about “hyperpersonal news streams.” Now return to the start of this discussion: This is why government must have connections with people, so its information can insinuate itself into the web and their lives and – here, at last, is the real point – so government, especially such a supra-national body, is not remote from the needs and lives of its citizens but is, instead, in constant conversation with them.