Policy Wonkery

With today’s decision by the Supreme Court overturning California legislation that banned the sale of violent video games to minors (Brown v. Entertainment Merchants Association) it appears that government is losing its ability to regulate the morality of American entertainment.  Now case law will dictate that video games will roughly be treated equivalently to books, movies, and music.

While no legislation mandates that entertainment retailers check the age of their customers, many industries have standardized self-regulation. The MPAA-Motion Picture Association of America, the RIAA-Recording Industry Association of America, and now the ESRB-Entertainment Software Rating Board are the de-facto gatekeepers of American “morality.”  While these industry rating systems empower parents and businesses to make decisions on behalf of children, they can be more opaque and less democratic than federal agencies. The documentary “This Film is Not Yet Rated” explored how the MPAA is surprisingly secretive and demonstrates biased against both female sexuality and homosexuality in their ratings.

The real last frontier though is broadcast television.  Earlier this year, the FCC’s control on content (specifically profanity) was severely restricted by the Second Circuit.  However today the Supreme Court agreed to hear the Second Circuit case in a sign that the FCC’s authority may be upheld.  This contrasting push and pull of First Amendment freedoms reflects the technical distinctions of private purchases and public airwaves.  However, it’s unclear whether this distinction is either stable or relevant with the diminishing role of broadcast television in the American media landscape.

Things are about to get really exciting: I’m going to talk about e-filing tax returns, perhaps the most nerve-racking and boring subject ever.  However, there is good news. California has a program called ReadyReturn that fills out half the form for you with all the information the state has already collected.  For those of us who aren’t Californians there is still hope. Obama pledged on the campaign trail to direct the IRS to

[g]ive taxpayers the option of a pre-filled tax form to verify, sign and return to the IRS or online.  This will eliminate the need for Americans to hire expensive tax preparers and to gather information that the federal government already has on file. (Politifact)

Now what’s the bad news? Intuit, owner of Turbo Tax, is rightfully scared that if filing taxes becomes easy enough to do on your own, you won’t pay them to prepare your taxes.  So, they’ve invested over $1.25 million on lobbyists and $2.12 million on campaign donations in the state since 2005 (LA Times).  That’s a lot of money, and their only ask is to prevent this pilot program from going statewide.  Now in addition to the glowing tax payer response to the quality of the program,

it [also] costs California $2.59 to process a paper return, and only 34 cents to process a ReadyReturn, the state says. For the coming fiscal year, it expects that the program will save about three times as much money as it costs to operate, and that’s assuming that only 160,000 of the two million eligible taxpayers use it. (NYT 01/24/2010)

Sadly, Intuit — rather then focusing on improving services like Mint, a Web 2.0 financial planning software — is asserting its role as a legacy industry.  There is a reason the American people believe that government is innately less efficient then industry, but what many fail to realize is that industry often times actively  prevents better governance.  No where is this more clear then in the world of e-governance.

Loved this TED Talk by the well-known new media adviser Clay Shirky. He discusses the importance of Generative Technology and how it leads to both LOLCats and Ushahidi.



The new economics of user generated content requires an understanding of both economic and social incentives. I’m currently reading Yochai Benkler’s The Wealth of Networks, a text that underscores the huge implications these sorts of new incentives bear for tech policy.

There’s been a lot of discussion this past week on cybersecurity.  A lot of this relates to Richard Clark’s latest book Cyber War: The Next Threat to National Security and What to Do about It. While it is easy to come to the consensus that cyberwar is indeed a real threat, it is more difficult to identify what the solutions are.

There are two ways of achieving better security from a macro scale: different networks or more secure networks.  If for example, we build networks to operate our nuclear weapons, electricity, satellite navigation, etc. so that they are completely disconnected from the Internet, then we achieve security…unless foreign intelligence agencies have agents physically on the ground.  Alternatively, we could just build really secure systems. I imagine these would involve limiting user privileges and developing incredibly complex passwords.

There is obviously a trade-off between these systems, but it’s helpful to be able to conceive of cybersecurity in this mindset.  For example, while separating a system from the Internet is one way of being “different;” another is to simply use an alternate  operating system.  The reason that Mac computers get less viruses has a lot to do with their being different. This is also the reason behind a new, seperate opperating system called Kylin, developed by the Chinese governemnt. A report released by the US-China Economic and Security Review Commission claimed the intent of this OS was for security reasons (though there is little evidence to support this claim).

In his book, Richard Clark takes a strong anti-Microsoft stance, focusing particularly on the issue of Pentagon technology acquisition. Not only does Microsoft not claim that their OS is incredibly secure, it’s also what almost everybody else has.  As hackers focus their attention on large scale operations, Microsoft (and particularly old Windows) computers are easy targets.

And yet, I don’t know if I can be an advocate for “different” systems.  Metcalfe’s Law suggests that the more systems we have interacting together, the more valuable the system is. Why wouldn’t this apply to the Internet? It’s certainly an issue that technologists and policy wonks should reflect on.

A new Internet power structure is being developed by some heavy hitters in the American telecom industry.  The creation of the Broadband Internet Technical Advisory Group (BITAG or TAG) was announced today by Adjunct Professor Dale Hatfield (see picture) of the University of Colorado at Boulder.  Professor Hatfield has been called on to facilitate TAG, which he described as “a neutral, expert technical forum [to] promote a greater consensus around technical practices within the Internet community.” As the former Chief of the Office of Engineering and Technology and before that Chief Technologist at the Federal Communications Commission, Professor Hatfield is well respected in the field.

What does this new group mean for the tech sector?  Before it becomes active, it’s difficult to know definitively what TAG’s roll will be, however we can already answer some important questions:

1. What kind of policies does Dale Hatfield endorse?
2. Who are the initial sponsors of TAG?
3. Who outside of the committee is endorsing TAG?

The answers to questions one and three are for another blogpost. Dale Hatfield’s bio didn’t provide any immediate insights for me into his policy leanings.  While Leslie Daigle of the Internet Society is quoted in the PRwire endorsing TAG, we’ll probably have to wait on other endorsements in the months ahead for a real answer to question one. For now, let’s focus on the second question: Who are the initial sponsors of TAG?

I want to look at the founding members of TAG to try and pose a conjecture about what type of policies they might endorse. From this, we can also infer how powerful is their collective voice.  The list of founding members — 10 in all — is full of big names: AT&T, Inc., Cisco Systems, Inc., Comcast Corporation, DISH Network, L.L.C., EchoStar Corporation, Google, Inc., Intel Corporation, Level 3 Communications, LLC, Microsoft Corporation, Time Warner Cable, and Verizon.

My first observation is that this list of players is seriously tilted towards “the tubes“  and away from content — no surprise considering this is a broadband group.



I just hope that we can resolve Net-Neutrality before this group starts having a larger voice.  While the above graph might be able to bring these players into lockstep on Net-Neutrality (as each would benefit from charging content creators for access) the committee is otherwise surprisingly diverse.  I consider Verizon to be a half-cable and half-telephone company — see my excel file here.

Bringing together companies from telephone, cable, and satellite seems promising because it’s important that these traditional competitors can find common standards and consensus.  Thankfully, while currently occupied by major players, the committee is committed to “diverse membership” and experts from other companies, non-profit groups, academics, and the Internet community will be invited to participate.

If Leslie Daigle hadn’t endorsed Professor Hatfield and TAG, I might be more concerned. As it stands, the Internet Society (ISOC) provides an open and diverse forum for discussing these issues amongst experts — essentially, they’ve been doing what TAG proposes to do, only ISOC’s been in the game for 18 years. Hopefully these two forums will help focus the discussion around broadband and provide consensus based solutions, rather than proving themselves redundant.

Today, Peter Orzag, head of the OMB, gave a critical speech that claimed that government agencies should make deep cuts across the board.  While I won’t conjecture about how realistic these plans are, I will say that I was very excited about the focus of his speech. Orzag firmly stated that “closing the IT gap is perhaps the single most important step we can take in creating a more efficient and responsive government.”  I could not agree more.

He then broke down how far behind government has fallen, stating,

Both the public and private sectors productivity growth were matched through 1987. But the private sector’s growth rose by 1.5 percent annually through 1995, while the public sector grew by only 0.4 percent per year. As the private sector’s productivity took off again after 1995, the public sector lagged behind.

Amusingly, Orzag followed this statement by noting that he can’t provide recent statistics because the Bureau of Labor Statistics stopped collecting these statistics due to budget cuts.  This seems to demonstrate the disconnect between budget cuts and efficiency. Thankfully, we’ve known for years that technology is responsible for increases in productivity.  But even more important than the gains from new technology is the productivity gained when lots of people know how to use it.

While Orzag emphasizes physical technology (i.e., old computers), I am equally concerned that federal workers have their hands tied by the usage of technology. The federal government is only very slowly beginning to use social networking to its full advantage. Concerns over privacy, messaging, and security are holding federal employees back. A great example of this stoppage lies with an intern at the EPA who posted on a private blog about the benefits of vegetarianism.  She was attacked by officials at the Department of Agriculture and those in the meat industry.  Speaking as a blogger and as a citizen, I think the real step toward “closing the IT gap” needs to include the creation of a political environment that both promotes government transparency and empowers government workers to use the web without fear.

Many of us twenty-somethings remember the early 1990s as a time when the collective political establishment seemed to be censoring music, television, video games, and the internet for the sake of “the children.”  While it was frustrating to experience this period as a kid, parents were empowered by it, and the fear-mongering really only went so far.

Thankfully in 2010, with the internet revolution in full pace and over a decade of evidence-based study, concerns for America’s children can be more rationally addressed. The Online Safety and Technology Working Group, created by congressional law, has been operating under the National Telecommunications and Information Administration (NTIA) for the past 15 months to release today its 148 page report titled “Youth Safety on a Living Internet.”

Not surprisingly, the type of large scale problems identified by the report are cyberbullying and sexting — problems that we’ve had with children for generations (i.e., bullying and sex).  That’s not to say that we shouldn’t try to address these issues.  Interestingly, the study mentions that concurrent with the rise in Internet bullying is a drop in physical bullying, down to 15% of students in 2008 from 22% in 2003.

Of course, the paper also discusses the continual problems of child pornography and adult predators.  These issues are put in perceptive: evidence suggests that sexual assault is still most likely caused by someone who knows the child targeted.  The report does a pretty good job establishing that how we interact online should be very similar to how we act in person:  So, parents have a role in educating their children about the danger signs, which are basically the same online as they are in the park.

Although I was concerned about the report’s emphasis on data retention — 1 of the 4 subcommittees established was dedicated to it — thankfully, OSTWG suggests that we assess the 2008 PROTECT Our Children Act before making data retention mandatory. The Working Group also made some promising strides with their suggestions for ongoing technological innovation, which give parents more control, and their recommended changes for how we teach net literacy.

While I’m a far way off from having children of my own, when I do I’ll probably fit into the camp that might not let their children watch television, but will let them have complete internet access.  Kids learn more through generative communication than mass broadcasting.

Today I attended a conference hosted by Public Knowledge titled, “Toward a Sustainable Spectrum Policy: Rethinking Federal Spectrum.”  There were two panels.  The first addressed a Public Knowledge white paper on developing a Federal Spectrum Secondary Market.  The Second discussed how to improve Federal Spectrum Management.

Since I should probably read the white paper before I provide my opinion, I’m going to address the second panel.  As tends to happen in this circle, the discussion shifted from the subject of spectrum management to the best way of liberating spectrum from government use. It should be no  surprise that this line of thought brings together the strange alliance of telco giants, like Verizon who are interested in their slice of the spectrum, and grizzled techies who see the opportunity to get more unlicensed spectrum.  Meanwhile, the National Telecommunications and Information Administration (NTIA), the government agency that allocates spectrum, is concerned that it doesn’t have the resources, political capital, know-how, or clearance to go toe-to-toe with DOD, FAA, or the NOAA and demand greater efficiency.

So the question becomes how do you empower NTIA so that its efficiently assigning federal spectrum? A number of market and non-market recommendations arose.

• Kathleen Ham from T-Mobile called for market mechanisms like a fee for use, which would result in agencies “valuing” their spectrum.
• Gregory Rose, an economic consultant, argued that market mechanisms undervalue public goods and that NTIA needs more authority.
• Marc MacCarthy, a Georgetown professor, explained that shadow pricing might be sufficient to wake up agencies to inefficiencies.
• Kathleen Ham came back to emphasize that inefficiency is partially based on equipment: if an agency uses an old analog system, they’re going to be inefficient. We need a fund for upgrading these systems.

I’m a supporter of developing hybrid systems.  First, I think that Marc MacCarthy’s shadow pricing idea is great, although I think Gregory Rose is totally right that pricing estimates will undervalue the public good, , particularly if based on the market estimates. How do you value accurate weather data, or plane navigation data, etc.?  I think that market mechanisms are fine as long as government sets the price.  Fines should be based on the efficiency of spectrum use, not the amount of spectrum.  Fees could be allocated to government or agency specific accounts to raise money for upgrades.

Spectrum allocation is, thankfully, wonkey enough that these issues of market mechanisms and regulation aren’t politicized (yet?).  There are certainly lots of opportunities for bipartisan consensus and pulling together a number of good ideas.

(For a quick gander at the spectrum we’re talking about and who owns it see this nifty infographic. Note: the frequency allocations depicts the spectrum as of 2003.)

I just listened to an NPR interview with Kevin Bankston a senior staff attorney with the Electronic Freedom Foundation discussing ECPA, the Electronic Communications Privacy Act.  The short segment did a wonderful job identifying the  ridiculousness of existing government policy for accessing out online content.  ECPA, the principal law responsible for guiding government policy on electronic privacy was passed in 1986.  The Digital Due Process coalition (DDP), which includes in addition to EFF, Google, AOL, the ACLU and others.

• Type: Emails contents, online docs, private web 2.0 hosting.
• Presently: There’s a patchwork of laws that justify getting your content without a warrant
• Ideally: Search warrant issued based on probable cause.

Principal 2: Access to Mobile Location Data

• Type: Any mobile data
• Presently: Ambiguous legal framework, requiring either subpoena or a warrant
• Ideally: Search warrant  issued based on probable cause.

Principal 3:  Access to Transactional Data

• Type: Dialed number information, IP address, Internet port, email to and from,
• Presently: Court required to issue order if prosecutor says it is relevant to the case.
• Ideally: A judicial finding that law enforcement has offered specific and articulable facts demonstrating on  reasonable grounds that the information is relevant and material.

Principal 4: Access to Subscriber Identifying Data and Stored Transactional Information

• Type: Name, address, call or session records, length of service and type of service, and method of payment.
• Presently: Its relatively easy for law enforcement to get large data sets to “fish” for answers.
• Ideally: Identifiable information ie. phone number or IP address, subpoena sufficient unless the “government sought records about groups.

Principals 1 and 2, are those policies most in need of reform, as they’re concerned with the content of online communications and should be changes to clearly require a warrant.  Establishing the distinction between content, and identifiable or interaction data is important for developing a consistent policy.  This enables users to put more faith that their privacy is respected online, and provides the justice system with consistent reasonable policies to follow.

This blog will keep abreast of the DDP coalition, and hopefully legislation to reform the ECPA.

I read today on Read Write Web, that on May 25th 2010, the state of Louisiana passed a law increasing the jail time for a crime, if the crime was aided by “virtual, street level maps”.  While regular crimes like burglary will have an extra year of jail time added, crimes of terrorism will have an additional ten years added if “virtual maps” aided the crime.  These years will have to be served consecutively not concurrently with the “underlying offense”.  This bill apparently passed 89-0.

Internet, virtual, street-level map’ means any map or image that contains the picture or pictures of homes, buildings, or people that are taken and dispensed, electronically, over the Internet or by a computer network, where the picture can be accessed by entering the address of the home, building, or person.

While, I don’t want to make a claim about the need for more or less aggressive penal system, I think we should all agree that this bill is a joke.  This bill might as well be applied to cell phones, cameras, Microsoft word, or even a notepad, because all this bill does is punish criminals who prepare.  This is an excuse to increase the time that criminals serve that is entirely divorced from their actual crime.  Only because we live in a culture with a deep seated fear of the “Internets” does something like this pass.

I’d ask for Senator Adley who wrote the bill, to explain why using Google Street View, or Flickr is really deserving of an extra year of jail time.  We should be trying to get criminals to use these services.  If only criminals would check in on foursquare at the convenient stores they’re holding up.