I recently read an article that prices are rising on click-through advertising. I also use an article in class on a small business who ran afoul of the Google advertising rules and Google took his business off of their search advertising.. The small business owner reported that losing Google as an ad source almost killed his business. These two unrelated and disparate data points brings to mind the world of media regulation, a world that Google is for the most part does not involve Google. But could it?
The FCC regulates most media. Many of the rules are obsolete, but each was crafted to solve a marketplace problem. These rules include mandatory access for certain speech and prohibitions against other speech. The FCC would regulate the marketplace to correct perceived imbalances. And the marketplace was three very powerful networks (ABC, CBS, NBC), a public outlet (PBS), an emerging network (FOX) and numerous independent stations (think WGN/WPIX/KWGN). So even with multiple outlets, the feds deemed the marketplace in need of regulation.
Google is THE dominant player in search and in search advertising. It has enormous power to help businesses. I now wonder if their search power and their pricing power is so absolute that the feds (either the FCC or the FTC) might decide to try to regulate them. Yes, there are plenty of obstacles to such regulation including the First Amendment.
Media law now has legs and wheels. Mobile devices create new challenges for media law. Can the content be re-purposed to the new media platform? The answer, by the way might be “no,” because it depends upon the rights that the distributor has. See NY Times v. Tasini for a case where the content distributor (NYT) should have gotten more rights for new technology distribution. What about services that pick up signals transmitted over-the-air and make them available on the Internet? What about making your own ringtones? Are those copyright infringement? How about books? Books used to be print items, but now e-books are taking over. All of these create new challenges for media lawyers and media entrepreneurs.
Should governments keep information secret? Yes, as with any relationship and in any situation where one knows others do not like them, some information must be secret. Not to be too brief, but relationships with other countries can be damaged, and some people might even be injured. The world is a big and dangerous place and there are all types of people with lots of different motivations.
So what about Wikileaks? Is it a service of transparency and honesty or something insidious that must be stopped? We in the US have a tradition of free speech. And further, this is not the first time such a thing has happened to us. There are many court cases on government leaks. From Veronica Plame to the Pentagon Papers to the numerous cases during the first two World Wars, release of government information has been problematic to the government and a subject of public debate. But the US is a strong country, and we learned lessons over the years. One lesson we learned is that much like a parent must take responsibility for their children, the government must take responsibility for the safety of its data. We have also learned that individuals have always been held accountable for the leaks. And that is as it should be. If the government loses its data, it is responsible. The person who commits the theft, is of course also responsible.
But so far, the US has not had a strong tradition of holding the publishing news organizations responsible for the dissemination of the data. The New York Times published the Pentagon Papers with the way being cleared by the US Supreme Court (New York Times v. US 403 US 713 (1971). And Wikileaks sought out the major news organizations such as the New York Times, the Guardian in the UK, etc. to assist with its publication of leaked material.
I bring up this thread as I think about privacy, about the government role in keeping itself and its population (including me) safe, and about the traditions of free speech. Should the government keep its data safe? Certainly. What happens when it loses its data? Who is held responsible? Is it OK to use a “prior restraint” to stop the publication (so far the USSC says “no”)? Does the leaked information ever enter a “public domain?” What is the balance between the journalistic concept of the public interest and national security? These issues have been debated for decades. Time to debate them again.
I just finished teaching my class on “Current Issues in Privacy.” Northwestern students are incredibly smart and it is always a joy to work with them. Of course one of the big issues is privacy on Facebook, but I will save that one for later. Instead, I would like to talk about a technology that one of our groups discussed in their final project – mobile face recognition. It seems there is an app for Android phones (Recognizr) that lets to snap a picture of someone and have it pair up that picture through facial recognition software with publicly available contact information. It will probably be available for iPhones soon.
So when you go to a bar, you do not have to ask the cute girl or handsome man for their contact information – just snap a picture with your smartphone and it will give their phone number, street address, email address, etc. to you. Nevermind that they did not want to give you their number. Or nevermind they thought you were a jerk and would have given you a fake number. Nevermind consent of any sort, they can just take the picture of you from a range that you never even see them doing it. It is one thing in classic privacy theory to expose yourself in public and it is another that anyone with common technology can use database aggregation (which is what these lookups are called) in new and possibly scary ways. It is one thing for the police to be able to pull you over and verify the picture on your driver’s license. It is another for anyone on the street to be able to get this type of information. So I guess we just need to get over the idea of privacy.
It has been a while since I posted, so time to catch up. One of the biggest things happeing in communications law is the recent decision of the US Court of Appeals for the DC Circuit in the case Comcast v. FCC. In this case, the court ruled that the FCC did not have jurisdiction over the Internet. While a surprise to the FCC and probably the Obama administration who tasked the FCC with Internet regulation, it is of little surprise to long-time scholars of media law.
The FCC was attempting to use its “ancillary” jurisdiction to regulated “net neutrality.” Ancillary jurisdiction has worked in the past – when cable television was a young, and at the time, inconsequential aid to a few people in rural areas who needed to receive over-the-air television. But in this case we have a mature, ubiquitous, and important media and the FCC tried to use its “ancillary” jurisdiction. The court said that the FCC exceeded its general regulatory authority when trying to apply plenary regulation to the Internet.
Congress gives authority to the FCC in the Communications Act of 1934. It is an interesting read of structural policy. For example, there is a chapter on “common carriers,” and one on “radio (and television),” and one on “cable television.” But nowhere do you find the chapter on “the Internet.” Not that the Internet needs its own chapter (but it should have one…), plenty of services are regulated under the big topics including cellphones (common carrier) and satellites (also common carrier). But even when looking for the provisions that apply to the Internet, there are few of them. So the FCC did see itself as having significant authority over the Internet, but the court saw the FCC has having what Congress has given it and not too much more.
And the importance of this case? First the FCC needs to think of another way to regulate things like net neutrality (and it is busy brainstorming right now) and second, perhaps this will encourage Congress to take up the topic of Internet regulation and jurisdiction (a new chapter in the communications act, anyone?). With clarity from Congress, the FCC could have its way with Internet regulation.
Back in 2001 I gave a presentation at a broadband conference where I made the then-bold assertion that each household would need a minimum of 100 MB of undiminishable (ie not shared) bandwidth. I remember at this same conference that another speaker who was attached to slow DSL speeds made fun of me saying essentially that there was no need for 100MB of bandwidth to every home – he asserted that DSL( then 1.5MB tops) was as fast as anyone would need. Well it feels good to be right and just about a decade ahead of my time. Google is now imagining ultra high speed networks to the home and the FCC is proposing its “100 squared initiative” – 100 million homes with 100 MB of service. In order to stay ahead of the curve, I can now foresee the need for 10GB of service to the home in the next 20 years. It takes a lot to do a hologram even with good compression….
This is a link to my original 2001 presentation. Towards the end you will see a couple of slides where I calculate what I think the then-foreseeable need for 100MB might be: https://medialawprofessor.files.wordpress.com/2010/02/broadband-presentation-morris1.ppt
And so the Super Bowl is over, and more importantly the commercials of the Super Bowl. What do people watch? Still television has the most impact. Yes, the ratings of the networks are going down. Yes there is increasing fractionalization of the audience. But if you want to launch or promote a product of general interest (car, hamburger/food, beer, stock brokerage), the best place to advertise is still in the mass media. That is not to say the social media is not important, it is, but it might take months for a million views of even the most popular shared viral video on You Tube, and NBC’s Olympics is reaching 10 million, American Idol reaches 19 million, and the Super Bowl reached more than 50 million.