Posts about regulation

Leave our net alone*

The internet’s not broken.

So then why are there so many attempts to regulate it? Under the guises of piracy, privacy, pornography, predators, indecency, and security, not to mention censorship, tyranny, and civilization, governments from the U.S. to France to Germany to China to Iran to Canada — as well as the European Union and the United Nations — are trying to exert control over the internet.

Why? Is it not working? Is it presenting some new danger to society? Is it fundamentally operating any differently today than it was five or ten years ago? No, no, and no.

So why are governments so eager to claim authority over it? Why would legacy corporations, industries, and institutions egg them on? Because the net is working better than ever. Because they finally recognize how powerful it is and how disruptive it is to their power.

And that is precisely why we must fight against their attempts to regulate it, to change it, to throttle it, to oversee it, to insert controls into it, to grant them sovereignty over it. We also must resist the temptation to compromise, to accept the lesser of evils. Last week, Federal Communications Commissioner Robert McDowell warned of the danger of the U.N. asserting governance over the net, but then he turned around and argued that “merely saying ‘no’ to any changes to the current structure of Internet governance is likely to be a losing proposition.”

Why? I repeat: It’s not broken. This is why I urged French President Nicolas Sarkozy to take a Hippocratic oath for the net. This is why I have come to side with Sen. Al Franken on at least this: Net neutrality is not regulation; it is protecting the net from companies trying to change it. This is why the Reddit community is writing the Free Internet Act.

This is why I argued in Public Parts that we must have a discussion of the principles of an open society and the tools of publicness that enable it. This is why I wrote Public Parts. And that is why I’m posting the last chapter of the book, which argues that governments and companies are not protectors of the net and that we must be.

It’s not broken. Don’t fix it. Leave our net alone.

*Sung to the tune of….

We don’t need no regulation.
We dont need no thought control
No dark sarcasm in the network
Government: Leave our net alone
Hey! Government! Leave our net alone!
All in all it’s just another brick in the wall.
All in all you’re just another brick in the wall.

Readers are our regulators

Here’s a post I put up on the Guardian’s Comment is Free (comment there).

Please resist the temptation to impose government regulation on journalism in the aftermath of phone-hacking. Oh, I know, it would be sweet justice for Murdoch pere et fils to be the cause of expanding government authority. But danger lies there. Regulation requires teeth and teeth carry power.

Let me begin by posing four questions:

What activities are to be regulated? Activities that are already criminal, like News Corp.’s, should be prosecuted as crimes. Then does speech itself become the target? In the United States, we grapple with this question in the one exception to our First Amendment, which is about to be tested in the Supreme Court. That loophole to the Bill of Rights gives the Federal Communications Commission authority to regulate and fine mere words on TV and radio. I have argued in the pages of the Guardian that “bullshit” is political speech but we are forbidden to speak it on our air — even about this regulation itself — under threat of a regulator’s chill and penalty. What we need today is more speech, not less.

What should a regulator do in the case of violations? Fine the offender into submission? Close the publication? Does that not give your government the same weapon used by dictators elsewhere against journalists? Doesn’t this return the UK to a regime of licensing the press? Remember that he who grants licenses may also not grant them or revoke them.

Who is the proper regulator? Clearly, it is not the industry. The Press Complaints Commission has proven to be nothing more than a diaphanous gown for the devil. But government? Is government the proper body to supervise the press, to set and oversee its standards? How could it be? The watched become the watchers’ watchers. Certainly government has shown itself to be incompetent and mightily conflicted in this case, as alleged overseers of the crimes at hand end up in high places and the police themselves are reported to be beneficiaries of corruption.

Finally, who is to be regulated? In other words, who is the press? That’s the key question raised here. Alan Rusbridger posed it in his forceful soliloquy on this amazing week: Is Huffington Post the press? Guido Fawkes? By extension, is any blogging citizen? Any YouTube commentator or Twitter witness-cum-reporter? Yes, we wrangle with this same question in the United States, but in the context of who should receive the rights and protections of the press — namely, shield laws — rather than who should be under the thumb of a government agency.

The goal must not be to further solidify the hegemony of the media-government complex but instead to bust it open. We have the tools at hand to do that: journalists, the public they serve, and their new tool of publicness, the internet.

As Rusbridger also said in that video, this was a week marked by the worst of journalism and the best of journalism. Reporting is wot did the bastards in. Nick Davies is the Woodward and Bernstein of the age though it’s a pity that his Nixon built his nearly absolute power — and nearly inevitable corruption — in our profession. The first and most important protection we will have against the likes of him is a business model for the Guardian to sustain Davies and support future generations like him. The second most important thing the Guardian can do is set an example for other journalists.

I was talking with Craig Newmark, founder of craigslist, just yesterday about his cause and favorite obsession: fact-checking. There are scattered organizations that endeavor to check politicians’ and journalists mistakes and lies. But no organization can do it all. How do we scale fact-checking? My thought is that we should see every news organization place a box next to all its reports inviting fact-checking: readers flagging dubious assertions and journalists and readers picking up the challenge to investigate. The Washington Post and the Torrington (Connecticut) Register Citizen have them.

That small addition raises the standards and expectations for journalists’ work and, more importantly, opens the process of journalism to the public, inviting them to act as both watchers and collaborators.

I also think we must increase our diligence to all but eliminate the scourge of the anonymous source. Note that I left an opening for whistleblowers and victims and the too-rare true investigators like Davies. But if we had as an expectation that the News of the World should have told us where and how it learned what it learned about its 4,000 victims, it would have been less able to perpetrate its crimes of hacking and bribery.

The Guardian is making openness its hallmark and this is what it must mean: Rather than closing down journalism to some legislative definition of who may practice the craft, we must open its functions to all. Rather than enabling government and media to become even more entwined, we must explode their bonds and open up the business of both for all to see. Regulators, bureaucrats, politicians, and titans of a dying industry are not the ones to do that.

In researching my next book, Public Parts, I dared to read Jürgen Habermas and his theory of the public sphere. Habermas says the public sphere first emerged as a counterweight to the power of government in the rational, critical debate of the coffeehouses and salons of the 18th century. But almost as soon as this public sphere formed, Habermas laments, it was corrupted and overtaken by mass media. Now, at last, is our opportunity to reverse that flow and to recapture our public sphere.

There’s where this tale’s sweet irony lies: It’s Murdoch & Co. who set the charges to blow apart the very institutional power and cozy relationships they built.

: LATER: I’m disturbed by a fundamentally undemocratic theme I see in the comments here and at the Guardian: Some blame the public for the excesses of Murdoch, Inc. That’s essentially cynical and condescending toward the public. Some don’t trust the public to regulate media. If you distrust the public that much, then you might as well throw in the towel on democracy and freemarkets, not to mention journalism and education (why inform the public if they’re a mass of boobs?). But these folks — just like institutional media — better get used to the public having a greater voice and regulating their behavior, for that’s where we’re headed: back to the coffee house.

FTC regulates our speech

The Federal Trade Commission just released rules to regulate product endorsements not just in advertisements but also on blogs. (PDF here; the regs don’t start until page 55.)

It is a monument to unintended consequence, hidden dangers, and dangerous assumptions.

Mind you, I hate one of its apparent targets: Pay Per Post and its ilk, which attempt to co-opt the voice of bloggers. But I hate government regulation of speech more.

And mind you, I am all in favor of transparency; I disclose to a comic fault here. I think that openness is the best fix for questions of trust and advise companies and politicians and certainly governments to become transparent by default as enlightened self-interest. But mandating this for anyone who dares speak online? Foolish.

There are so many bad assumptions inherent in the FTC’s rules.

First, Pay Per Post et al, as I realized late to the game, are not aimed at fooling consumers. Who would read the boring, sycophantic drivel its people write? No, they are aimed at fooling Google and its algorithms. It’s human spam. And it’s Google’s job to regulate that.

Second, the FTC assumes – as media people do – that the internet is a medium. It’s not. It’s a place where people talk. Most people who blog, as Pew found in a survey a few years ago, don’t think they are doing anything remotely connected to journalism. I imagine that virtually no one on Facebook thinks they’re making media. They’re connecting. They’re talking. So for the FTC to go after bloggers and social media – as they explicitly do – is the same as sending a government goon into Denny’s to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you just endorsed.

Insanity and inanity. And danger.

The regulations raise no end of questions. For example: How much do I have disclose? Before I say anything nice about anyone, do I need to list every advertiser I’ve ever had? Every possible business relationship? You think my disclosures are comical now, just wait.

And what about automated ads, such as those from Google? I have been writing nice things about my treatment at Sloan Kettering. This has caused ads to come up on my blog, via Google, from the hospital. Presuming someone clicked on them, I’ve made money from the hospital. Does that taint what I say or me if I don’t disclose the payment? That’s the level of absurdity this can reach.

The regulations are not aimed just as bloggers, of course, but at endorsements of all sorts, including from celebrities and experts. The FTC requires advertisers to continually reconfirm that endorsers are bona fide users of the endorsed product. Do we really believe that Tiger Woods drives a Buick? How will that be policed?

The FTC also concedes that it treats critics at publications differently – less stringently – than bloggers. Don’t they realize that people on travel and gadget and food publications get freebies all the time. I’ve long believed that ethics alone should compel them to disclose. But the FTC doesn’t.

I love this one: The FTC now forbids media advertisers from changing a critic’s opinion in a blurb. Ha! That happened to me constantly when I was a critic. (“Colossal piece of crap” became “Colossal! – Jeff Jarvis, People”.) I even wrote a column in People complaining about an “NBC pinhead” doing this. A few weeks later, my colleague on the launch of Entertainment Weekly, went to Burbank for a business meeting with the network with an exec who identified himself as that pinhead.

Note, by the way, that when I did cover entertainment in Time Inc., conflict came not only from advertisers (Hallmark pulled all its advertising after I dared give Hall of Fame
treacle the reviews it deserved) but also from within the company (the head of HBO wanted me fired and the editors of Time Inc. tried to change my opinions). How the hell could that be regulated? Only by my fighting back, it turned out.

And there is the greatest myth embedded within the FTC’s rules: that the government can and should sanitize the internet for our protection. The internet is the world and the world is messy and I don’t want anyone – not the government, not a newspaper editor – to clean it up for me, for I fear what will go out in the garbage: namely, my rights.

What I now truly dread is that the FTC is holding hearings about journalism on Dec. 1 and 2. As Star-Ledger editor Jim Willse (full disclosure: he hired me a few times) said in my Guardian podcast last month (full disclosure: I work for the Guardian): the words, “we’re from the government, we’re here to help,” should be met with trepidation.

: See also Reason’s take. More comments from others coming soon.

Dan Gillmor sees full employment for First Amendment attorneys.

Steve Garfield’s disclosure is longer than his post. Fit that in Twitter.

Andrew Keen says the regs should include “bent reviewers on Amazon.” Damn, Keen and I are agreeing too much these days.

FTC guy tells blogger to return books after a review. These people have no clue as to reality. Publishers don’t want them back.

Here’s Fortune on the story.

Here‘s the Guardian’s Bobbie Johnson, unsure about the regs. And here‘s Daniel Tunkelang, also debating with himself.

Techdirt points out more absurdities.

Jack Shafer calls the rules the FTC’s mad power grab.

Pity the big, bad wolf

A post written for Comment is Free on the Microsoft fine; crossposted here. Interesting comments already underway over there.)

I have a theory about the regulation of companies that get too big and too powerful: by the time government notices they really are so powerful, they are usually already in decline, having grown too big.

The EU today levied a record €899m (£680m) fine – adding up to a total of €1.7bn in the past four years – against Microsoft for charging “unreasonable” prices for access to its code.

The EU competition commissioner, Neelie Kroes, wanted to pile on even more: another €600m for good measure. Take that, big, bad Microsoft!

Except, in my mind, Microsoft is turning into a bit of a laughing stock these days for trying to buy Yahoo, which itself is a company in rapid decline.

The reason Microsoft is desperate to do this is that, even after all these years, it still does not have a successful internet strategy. So it is trying to buy one.

But I say it is buying the wrong one, a strategy based on an old-media worldview in which we are all masses that can be bought and sold. Microsoft – like too many advertisers and media companies – thinks we think of the internet as just another TV. It believes it can own content and technology when, in truth, we own it now.

Microsoft just yesterday released some of its code under a new “open source interoperability initiative” that offers open interfaces, support for standards, data portability and cooperation with third parties.

Of course, a cynic might say that doing this only a day before its record fine was Microsoft’s way to suck up to the teacher and avoid punishment; the cynic would have a fair point.

But it’s also true that Microsoft needs to open up to play in the internet or it will continue to be left behind by the open and free movements that are taking over operating systems, browsers and – with Google’s goosing – office software.

One could also see the move as a mark of desperation. Poor Microsoft.

In the US, regulators and activists continue to rail at media companies that they say have grown too big. But these media conglomerates, too, are pathetic shells of their former powerful selves, shrinking in audience and advertising at ever faster rates. The internet is killing their mass models, and they don’t know what to do about it.

Their response, like Microsoft’s, has been to buy up competitors, to grow bigger. But that strategy is not working: witness the collapse of the radio giant Clear Channel into a private company and the tragic gobbling up of the newspaper chain Knight Ridder and the cross-media synergy giant Tribune Company.

It might make more sense for the conglomerates to invest, like Microsoft, in new companies, or even in their own innovation. But they have lost the touch. Poor conglomerates.

Looking back, I could even argue that the breaking up of telecoms companies that grew too big only presaged the inevitable opening up of communications that led to the decline of the split-up telcos and their desire now to reconsolidate.

This should be a children’s story, in which, at the end, we discover that the big, bad, scary monster is actually a pussycat inside, and a sad and lonely one at that. Paint these giants as dinosaurs with tears in their eyes.

And their regulatory conquerors? Are they knights in shining armour or are they the real bullies?

Either way, I’m not scared of Microsoft any more.