Posts about ftc

First, do no harm, government

December 1, 2009 by Jeff Jarvis
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Relevant to today’s FTC workshops (read: hearings) on the “survival” (their word… I would have said “rebirth:) of journalism in the internet age, Geoffrey Cowan and David Westphal issue a good set of principles for government involvement (read: meddling or support):

First and foremost, do no harm. A cycle of powerful innovation is under way. To the extent possible, government should avoid retarding the emergence of new models of newsgathering.

Second, the government should help promote innovation, as it did when the Department of Defense funded the research that created the Internet or when NASA funded the creation of satellites that made cable television and direct TV possible.

Third, for commercial media, government-supported mechanisms that are content neutral — such as copyright protections, postal subsidies and taxes — are preferable to those that call upon the government to fund specific news outlets, publications or programs.

I disagree about their conclusion: that government has always supported media (with postal discounts, legal notices, tax breaks) and that should continue. I disagree on principle and as a practical matter. Postal discounts are in force for many – including junk mailers – and in any case they become less relevant when news isn’t printed. Legal notices, I believe, should go online in standard data forms and feeds, making them more available to more people, giving us a permanent record of them, and – critically – saving taxpayers money. There’s no reason for media to have tax breaks (except, as other industries receive them, for innovation).

Plug? Ad? Opinion? Life?

October 8, 2009 by Jeff Jarvis
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Is this a story or an ad? It matters.

I went to Radio Shack today to buy wires and plugs to hook up my iPhone because the damned car radio has no plug and the damned FM kluges don’t work. I bought the wrong wires, realized it immediately, and returned in minutes to exchange them. Radio Shack, as it its irritating habit, demanded my phone number, name, and address. I refused. It was a cash exchange. The guy hassled me and then, on the fourth attempt, finally told his computer that I’d refused, which he could have done in the first place. I cursed myself for not going to Best Buy, where they don’t take your blood type to make a transaction; one of the reasons I like Best Buy is its no-nonsense return policy. They care about satisfied and returning customers over irritating rules. I tweeted that here. Now I’m blogging about it.

OK, so I just said something nice about Best Buy and something critical about its competitor. Look on my disclosures page and you’ll see that I had a business relationship with Best Buy. A few weeks ago, because of my book, they paid for me to come speak to various groups over two days (which I quite enjoyed and which taught me a lot about retail, which I’ve been contemplating and want to write about).

So is what I just said about Best Buy an ad? An endorsement? A testimonial? Or just a story and my opinion? I leave that to you to decide and trust you with that decision. My integrity and relationship with you depends on what you decide. I disclose my relationship for that reason. I believe in transparency and recommend it – in my book – to companies, governments, and journalists. So is this story an ad for my book? That, too, is up to you to decide.

But now the Federal Trade Commission is getting in the middle of our relationship. It has issued vaguely worded rules – amazing that they’re still vague after 80 pages – that make we wonder and worry whether my disclosure is adequate – should ever tweet carry a caveat? – and whether Best Buy will make my observations accurate (what if they give a customer a hassle on a return and that customer complains I misled him?). Best Buy, in turn, might need to worry about what I say about them.

Note that if I were writing for The New York Times – if I were, say, David Pogue – the FTC would not regulate my speech in this manner. First Amendment, you know. The press. But as a blogger, I am now a second class citizen in my speech. The government casts its net over all citizens who now use the tools of the internet to publish – no, to speak. This is a corollary to the debate that’s going on right now over who should be covered under a federal shield law. Who should be under the FTC’s net?

On this blog, that’s my problem and I can handle it. But what about all the huge proportion of the population who are now using the tools of the internet to publish – or what publishers and governments would call publishing when most of them think they’re just using blogs or Twitter or Facebook or YouTube or what comes next so they can talk with their friends – what about them? Now they have to worry about missteps.

Some of you have argued that the FTC is going after deceptive bad guys and that’s good. But what are the unintended consequences? What if one of those unsuspecting “publishers” falls for PayPerPost as Pied Piper and becomes human spam but the FTC sees her as a flim-flam mom? Some of you are pointing to the FCC saying it won’t be mean and it can’t enforce all its regs anyway so we shouldn’t worry – yes, selective enforcement, that’s comforting. But another FTC guy said absurdly that people who review books should return their review copies or they could be in trouble. Which is it? You could be the one person who was fined huge amounts of money because your kid pirated music in your house; you could be the example. Don’t want to take chances? Figure you’re playing it safe?

Welcome to the chill. We all have our own FCC now. Broadcast is an exception to the First Amendment’s prohibition on regulating the press. Now bloggers are, too, because we’re not the press. But we are, aren’t we? See, there are bigger things at stake here than just a few fake Viagra ads. (Mind you, I’m not endorsing Viagra. It’s not working … yet. Now how’s that for disclosure?)

FTC regulates our speech

October 5, 2009 by Jeff Jarvis
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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.