December 7, 2010

"Despite some good actors, self-regulation of privacy has not worked adequately", Jon Leibowitz declared as reported by Edward Wyatt and Tanzina Vega (*). Incredible. The FTC chairman has found wolves make bad shepherds. Right at least, if a bit late, but alas as clueless as ever.

The FTC now recommends "a simple and universal "do not track" mechanism that would give the consumers the type of control they gained over the marketers with the national "do not call" registry". We have already explained why this mouse won't roar. We sent our comments to the FTC three years ago (1). We might have well attempted to move a mountain. Not that the latter is sure to reach the term of a long and difficult pregnancy.

Relayed by Edward Wyatt (**), "Joan Gillman, an executive vice president at Time Warner Cable," wrote "do-not-track could hinder job creation within the advertising industry [...] as well as inhibit innovation". And "Representative Ed Whitfield [...] the leading Republican on the House Subcommittee on Commerce, Trade and Consumer Protection" "suggested that the collection of information about people who do not want to be followed online would itself create new privacy problems".

As Ed Whitfield hints correctly, a do-not-track register mimicks Gribouille's strategy of diving under water to escape from the rain, the critique I once addressed to New York Assemblyman Richard Brodsky for a similar scheme. For a solution, may I suggest he reads my modest proposals (1)(2)? If she really wants to promote innovation rather than protect vested interests, Joan Gillman should do the same. Not that I hold my breath.

Jon Leibowitz's task as a regulator is far from easy however. The challenge of rapid technical change combines with the religious wars fought in America over what should be the right size of the ideal government. To transcend ideology, better ask how to insure governments are light-footed.

In this respect one should pay attention to John Gapper's column on the by-subscription-only, "iPad-only publications" recently launched by Richard Branson and Rupert Murdoch (***). As a tethered device controlled by Apple, the iPad is indeed a God sent for content publishers wanting to hide behind pay walls. No doubt either about the fact such "companies are balkanising the web to gain economic leverage".

Is then Tim Berners-Lee entitled to "complain [...] about Facebook's private accumulation of data, and of print publishers' "disturbing" wish to create closed worlds"? Shouldn't a well managed government intervene to keep the Internet "open"?

Splitting Tim Berners-Lee's opinion in its two halves, John Gapper conveniently fails to address the first, a matter of consumers' rights to their own data to focus instead on the second, which deals with companies' rights to their own business model. For him such ventures promise to rekindle the kind of in-depth writing and reading which for more than one hundred years leading print titles have made both possible and economical.

Old print lover that I am, I wish John Gapper to be right. I find realist to bet with him future Internet news will be read by skimming and immersion, depending on tastes and circonstances. But I digress. At issue is whether the business model of walled newspapers is to be encouraged or feared.

For John Gapper, Tim Berners-Lee invoques "a moral force". As such, this position has no standing, I agree. Unlike business models based on plunder, paid subscriptions do not violate the bounds of either property or propriety. Let the market participants free to decide by themselves.

But ideology has turned reliance on markets into some kind of a soft security blanket. Anglo-Saxon fundamentalists even go as far as to state good government must steer clear of markets lest it smother their inherent efficiency. Actually markets are fragile mechanisms in need of constant care from the state to guard them from racketeering by their own operators, meddling by capitalists and being crushed under mob stampedes.

John Gapper can only rebut Tim Berners-Lee's second worry because "[Branson and Murdoch] have [no] iron grip over digital distribution", a most obviously correct assertion today. But the faster the pace of innovation, the faster the government must hold to its capital role of market overseer.

Indeed the future is not cloudless. Set aside the market for recommending news somewhat limps for balance today (3) as mainstream newspapers of record are neither objective nor pluralistic as much as they claim to be. There remains a real, if small, risk Apple will succeed in unseating Google as the de facto monopolist to become the next diabolo of digital distribution. If so, beware Steve Jobs' closed world dictats.

Closed worlds per se are not the issue. But see what happens with cable and mobile groups. "Level 3, which delivers the Netflix streams of movies, said Comcast had erected a tollbooth that "threatens the open Internet"", Brian Stelter reports (****). No closed world can participate in an oligopoly, let alone assume monopoly power, without conflicts of interest which light-footed governments have a duty to prevent.

Unfortunately, when "the separation between the most important businesses and government officials runs from blurry to non-existent", governments act flat, not light-footed. Instead of Russia, C. J. Chivers might have well have written (*****) about our Western pronaocracies. US "Democrats and Republicans have been reminded of the campaign cash that they get from [cable and mobile groups]", Lawrence Lessig warns us (******).

In these conditions who can blame Jon Leibowitz for taking political cover behind ineffectual proposals? Too bad for the bad reputation bad rules give to regulation. Especially when good regulation is per force highly invasive. Should public inspectors be kept from food processing plants? Can Europe clear Google from "charges of "search bias"" without monitoring its secret recommendation engine from the inside (*******)?

Meanwhile the FTC is blind to the next privacy nightmare. Today we are spied upon as we browse the web or skim online news outlets like the Financial Times. Tomorrow we will be spied upon by tethered device operators as we read our tablets and immerse ourselves in their newspapers. If Facebook captures our social life, expect Amazon and Apple to map our inner minds. Tim Berners-Lee is quite right to worry about that.

So Sir Tim, focus your moral outrage, go climb the mountain and speak out, as only you can, about our descent into the servitude of data hilotes.

Philippe Coueignoux

• (*) .............. F.T.C. Plan Backs Option to Limit Tracking Online, by Edward Wyatt and Tanzina Vega (New York Times) - December 2, 2010
• (**) ............ Legislators Support Internet Privacy, but Question How to Do It, by Edward Wyatt (New York Times) - December 3, 2010
• (***) .......... Why the iPad should rival the web, by John Gapper (Financial Times) - December 2, 2010
• (****) ....... Comcast Ignites Fight Over Videos On Internet, by Brian Stelter (New York Times) - November 30, 2010
• (*****) ..... Below Surface, U.S. Harbors Dim View of Putin and Russia, by C. J. Chivers (New York Times) - December 2, 2010
• (******) ... Q&A with Lawrence Lessig (Technology Review) - November/December, 2010
• (*******) . Brussels lifts lid on Google's labyrinth, by FT reporters (Financial Times) - December 1, 2010
• (1) look up my plain language Comments to the FTC, November 2007
• (2) tackle the painstaking prose of my Patent Application Number 20090076914 at the US Patent and Trademark Office
• (3) hence the term lamestream media, coined by well attuned populists