Marvin Ammori

Switzerland-based confectioner Nestlé launched a new publicity campaign in the United Kingdom involving the placement of GPS devices within six candy bars. Upon one of these bars being unwrapped and “activated,” Nestlé will seek out the lucky purchaser and award him or her with £10,000 (~$16,000). This is not the first campaign of its kind – a couple years ago, Unilever included similar devices in Omo laundry detergent containers, though that effort suffered from some privacy hiccups:

Omo might not have been as cool since it couldn’t be compared to Willie Wonka; but it might have been even more creepy on the privacy invasion scale since winners with GPS-enabled detergent boxes had their pictures as well as a map pinpointing their homes put up on the “Try Something New” website.

Nestlé’s “We Will Find You” endeavor is limited to the UK, but I wonder if we’ll soon see a similar effort  in the US (if one hasn’t happened already), and what the public reaction to it might be. Although I find the thought of a cash-toting Oompa Loompa getting the drop on me somewhat disconcerting, I doubt it would bother me enough that I’d turn down $16,000.

Barbara van Schewick has impeccable timing.

Her seminal book on network neutrality —Internet Architecture and Innovation (2010)–has just come out in paperback and Kindle in the midst of the D.C. Circuit litigation about the FCC’s Open Internet rules and the same exact week that the three most prominent network neutrality organizations–Free Press, New America Foundation, and Public Knowledge–announced they would file the first Open-Internet complaint against AT&T for its treatment of FaceTime for the iPhone 5.

I will probably have more to say about the FaceTime case. Let’s set aside for now whether AT&T’s behavior is violating the letter of the FCC’s Open Internet rules (as these organizations assert). You might want to understand more broadly whether AT&T’s behavior is harmful and what impact it may have on innovation in the Internet ecosystem.  You might have heard someone say “I don’t use FaceTime and Verizon and Sprint allowing FaceTime with their basic data plans, so where is the problem?” Van Schewick’s book answers all these questions. It explains why banning this kind of behavior is important, how users are harmed by it, and also why competition doesn’t solve the problem.

The book came out in hardcover back in July 2010, and so was also well-timed. It was six months before the FCC finally adopted their Open Internet rules, just in time for every tech policy wonk in the White House, FCC, and Congress to read the book or buy a copy, prominently display it on their desk, and pretend they had while debating the finer points of the forthcoming Open Internet rules. There was a several month stretch during which I saw her book on the shelves of a White House staffer, a Washington Post reporter, and the head of a think tank.

For those unfamiliar with Barbara van Schewick, she is a law professor at Stanford Law School. Her work was cited repeatedly in the FCC’s Open Internet order and has shaped how all of us think about network neutrality, whether we oppose or support it, whether we’re mere civilians or government officials. Her work hasn’t just influenced the American debate and American law; European regulators are intimately familiar with her work. She is a super thoughtful scholar, driven by analytical theory and evidence, looking at the issues from every angle. You have to grapple with her objections.

Here are all her fancy titles: Associate Professor of Law and Helen L. Crocker Faculty Scholar at Stanford Law School, an Associate Professor (by courtesy) of Electrical Engineering in Stanford University’s Department of Electrical Engineering, Director of Stanford Law School’s Center for Internet and Society.

I wrote a review of the book when the hardcover came out and Larry Lessig helped get the review on BoingBoing. Many of the top thinkers in Internet policy have recommended the book and explained how much it influenced them. (Here are several of them.)

I’ll include a section of my previous review.  I thought of her analysis today in fact–I saw the CEO of Uber speak in Washington, DC and he explained how he wasn’t trying to create a company. He just wanted to create a button for 100 of his friends to press and have a nice ride roll up. It became a business–the amazing Uber now in 17 cities–out of that happy accident.

My Favorite Part

This is one of those rare books where every chapter is full of novel and important ideas. But I’ll tell you about my very favorite part. In the eighth chapter, beginning with “The Value of Many Innovators,” van Schewick presents the stories of how several major technologies were born: Google, Flickr, EBay, 37Signals, Twitter, and even the World Wide Web, email, and web-based email. I had always suspected that the “accidental” beginnings and unexpected successes of these technologies were a series flukes, one fluke after another. Rather, van Schewick explains, it’s a pattern. Her models actually predict the pattern accurately–unlike other academic models like the efficient market hypothesis and theories on valuing derivatives. These entrepreneurial stories (or case studies, to academics) are eye-opening; they’re also counter-intuitive unless you consider the management science and evolutionary economics van Schewick applies to analyze them. So if you wondered what the invention of Flickr, Google, Twitter, and the World Wide Web had in common, van Schewick answers the question.

FairSearch, an Internet-industry advocacy group whose members include Microsoft, Expedia, and Foundem, hosted an event at the Newseum Thursday morning called “Searching for Innovation and Competition Online.” With its two panels, FairSearch purportedly sought to address the competitive landscape of the Internet search market, and evaluate solutions to barriers to innovation in that market. What followed was more akin to mudslinging and name calling.

The first panel briefly began as a higher level exploration of market dynamics in the online search industry, but quickly descended into what can charitably be described as Google bashing. Former FTC Commissioner Pamela Jones Harbour, now a private attorney whose clients include Microsoft, railed at Google for its “pattern of questionable business practices.” Harbour and other panelists referenced the multiple investigations across the world into Google’s business practices, highlighting a case brought in Brazil (which Google incidentally just won this week); the Google StreetView/WiFi imbroglio, for which the FCC fined Google $25,000 for obstructing the investigation, but found the company did not break any laws; as well as cases brought and lost by Google competitors like TradeComet. Supposedly all of these incidents shed light on how Google’s potential antitrust violations, but we can’t really see how. Rather, it made for an altogether confusing presentation.

Some panelists also presented inaccurate or debatable statements as fact, further obscuring the discussion. Among them: everyone agrees Google is dominant and that there are clear market definitions (the Brazilian court referenced above found Google’s market share was not monopoly dominance, and in fact the company is facing steep competition from competitors like Amazon and Facebook), and that Google requires Android manufacturers to keep its search engine as the default (a claim Google denies, and one that is manifestly false, given Bing’s recent grab of the coveted default search engine position for Amazon Kindle Fires, which use the Android OS).

Together, these circumstances made the event seem less like a high level competition discussion and more like a rhetorical pin-the-tail-on-the-search-engine. One last note – the event’s moderator, FairSearch spokesman Mark Corallo, began the discussion by announcing the results of a FairSearch-commissioned poll. That poll, of 800 “likely” registered voters, focused on public sentiment towards the FTC’s antitrust investigation of Google, and found 78% percent favored the FTC’s investigation into Google.

A friend of mine, and employee of the National Taxpayers Union, attended the event and attempted to distribute results of another survey, commissioned by NTU of 2,000 respondents. NTU’s poll found 76% of Americans felt increased antitrust intervention into the Internet market would be worse for consumers, and that 87% percent felt they could easily switch search engines if they weren’t pleased with the one they were using. She was promptly escorted out of the event before she could finish distributing the surveys, only managing to cover a single row of attendees.

All is fair at a FairSearch event…except, of course, inconvenient polling data.

With all the “Back to School” ads, it feels like we too need a new look for the new year.  I like this new look–clean and simple like the last, but new and with a little more color.

The Tiger Leap Foundation in Estonia is helping public schools to teach their students coding and other computer lessons. The project is using Microsoft’s Kodu, a program kids can use to build PC and Xbox games. I recently published an article in the Atlantic arguing that the US federal government should fund such courses for American public schools.

On this blog, we usually write about tech policy, the First Amendment, and an open Internet.

But I was at the Democratic National Convention this week. Obviously, I was mainly going to events related to Internet policy and seeing the speeches.

After President Obama’s speech, I went to a party with some friends. There were also some celebrities at this party. All of us were star-struck by one group of celebrities–the Daily Show cast. We’re political news junkies, and the Daily Show aspires to have “the Best F#@king News Team Ever.” We were like kids running into star quarterbacks.

I chatted with John Oliver–he was friendly and chatting with everyone. I told him I loved the song about Team Very Rich and Team Very Poor, and he tried to remember it and sang some of it for me. (That was cool.) I asked for a photo, and he handed the photo to his assistant, and they made some inside jokes to one another about whether this assistant was his “First Assistant” or his “Second Assistant.” They both found the joke funny.

Seeing this interaction with the assistant, and to mess with John Oliver, my friend Seth Bannon handed his own camera to John Oliver and said, “Hey, I’d love a picture with your assistant. Could you take it, John Oliver?” This photo would reflect the spirit of inclusion we heard about in Joe Biden’s speech. Seth is the CEO of Amicus, which is one of Silicon Valley’s most talked about new companies, a recent graduate of Y Combinator, and is very funny and sharp.

He poses for a photo with Oliver’s assistant, everyone’s laughing, the assistant loves the attention and points a cocked finger at the camera.  John Oliver snaps a photo in good cheer.

And then Oliver hands me the camera and dashes off before I can look at it. This is the picture he took.

Translation: You might be funny, but John Oliver is funnier. Don’t even try to mess with him.

This week, Luke and I filed an amicus brief with the U.S. Supreme Court on behalf of several clients that have an interest in investigative reporting, citizen journalism, and shining a light on government actions. These clients are the American Society of News Editors, the Center for Investigative Reporting, Ars Technica, Daily Kos, Techdirt, Grist, Automattic (the company behind WordPress.com), Tumblr, Matthew Lee of Inner City Press, and MuckRock.

You can read the amicus brief here.

We filed this brief in a case concerning state freedom of information (FOI) laws that discriminate against the citizens of other states.

Most of our readers are probably familiar with the federal equivalent of these state laws: the Freedom of Information Act, known more popularly as the FOIA, gives us the right to request and receive federal government records. These “records” range from emails to memos to calendar schedules for federal officials. Each state has passed FOI laws at the state level providing similar rights to access state government records. 

Government records often underlie good investigative journalism. Journalists may file requests, analyze (state and federal) records, track down sources, and write up breaking stories for their readers. Because of journalists using state FOI laws, the rest of us better understand why state governments take certain actions and their spending taxpayer money. Consider a few exaxmples. Ars Technica recently published a series of articles on the use of license plate readers by state and local law enforcement—and how that use impacts our privacy. The series makes use of information in government records—obtained from state and local law enforcement agencies all over the country. Another organization, Dronewatch, filed state FOI requests to learn about law enforcement use of unmanned aerial vehicles—known as “drones.”

But a handful of states deny out-of-state residents the same access to records that is enjoyed by their own in-state citizens. Take Virginia. It will provide records to its own citizens, but will not process the requests of non-citizens.  If you’re not from Virginia, and you file a request for information about the purchase of drone technology, Virginia might not furnish the information, even though it would provide that information to in-state residents. These restrictions of non-citizens harm the ability of investigative reporters and citizen journalists—as well as their readers—to understand their governments’ actions.

The parties to the brief all have an interest in having the Supreme Court review these state FOI laws and declare unconstitutional their discrimination against out-of-states.

The American Society of News Editors (ASNE) consists of deans of journalism schools and heads of news organizations. ASNE has an interest in ensuring that journalists in any state can access records in other states.

Popular online news organizations like Ars Technica, Techdirt, Grist, and the Center of Investigative Reporting (whose projects include the Bay Citizen) investigate national stories for national audiences. But for practical reasons, they don’t have employees in every state to satisfy the residency requirements in the half-dozen states that discriminate against out-of-staters.

Moreover, today, you don’t need to work for the local newspaper—or Ars Technica—to be an investigative reporter. You might have a WordPress.com blog or a Tumblr account. You might also have an account on Daily Kos and post stories there. Only Virginia’s law even has an exception for out-of-state media organizations—but that exception is unclear, and doesn’t seem to cover online reporters and citizen journalists with a WordPress.com blog or Tumblr account.

If you don’t have the time, know-how, or resources to file requests for state records, you can turn to the online tool MuckRock for assistance.

While this case arises out of the Virginia law, the impact of this case extends to several other state laws and would benefit both traditional and online journalists.

We filed this brief at the “cert” stage: we are asking the Supreme Court to take the case, called McBurney v Young. The Fourth Circuit, the appellate court that covers Virginia, upheld the Virginia restriction. We believe that decision was wrong and are asking the Supreme Court to take the case to consider reversing the lower court’s decision. The main parties to the case have Deepak Gupta as counsel. There were two other amici briefs filed on our side, one by the transparency community (including the Sunlight Foundation) and one by the Big Data industry.

We are all asking the Court to take the case not only because of the impact on journalism (and data innovation and open government), but also because of confusion about the current state of the law. Generally, the Supreme Court is more likely to take a case when there is a “circuit split,” meaning disagreement among different circuit courts. The Fourth Circuit court, in upholding the Virginia restriction, disagreed with another court, the Third Circuit in Philadelphia. The Third Circuit had struck down a very similar provision in Delaware’s FOI law in a case called Lee v. Minner. We want the Supreme Court to eventually agree with the Third Circuit case. The Lee in Lee v. Minner is Matthew Lee, another of the parties to our amicus brief and the editor of Inner City Press.

The organizations behind this brief recognize the crucial role for access to government records in a democratic nation with a free and independent press. We believe that reversing this case will benefit journalists and all citizens. We hope the Supreme Court agrees to take the case.

This isn’t  exactly a new trend, as demonstrated by the deal reached in April between the Associated Press and a Swedish live streaming start-up.

But this NY Times story about a shooting incident over the weekend is further evidence of the development. Police chased a knife-wielding man near Times Square Saturday afternoon after approaching him under the impression he was smoking marijuana; upon the man allegedly lunging towards officers with the weapon, the police fatally shot him.

Amid the altercation, bystanders realized what was going on in front of them and readied their cell phones to record the affair:

 The man pulled out a knife, and the officers pulled out their guns.

“And that’s when I started taking photos,” Mr. Rocha said.

Other visitors and New York residents joined in, including Jeffrey Gibson, 39, of Richville, N.Y., whose video captured the pursuit, along with a frighteningly prescient warning shouted by another bystander: “They’re going to shoot you, boy.”

Recordings of this nature can do a lot of good for law enforcement, for potential criminal defendants, and the legal system more generally.  These recordings also add depth to news coverage and promote a better understanding of how law enforcement policies play out in local communities.

But it can be difficult for video to reach the Internet when police stop people from recording or attempt to seize the video or photographs, as was the case here:

Julian Miller, 22, who was visiting New York from Boston, said the police confiscated his phone after he recorded video of the confrontation. He said in an interview that he followed the pursuit from Times Square to 37th Street and Seventh Avenue, his phone recording as he ran to keep up. He said a police detective pulled him aside after the shooting and asked to see his phone and the video.

“His eyes got big when he saw the video,” Mr. Miller said, adding that he had captured the shooting on video. “He went to go show his boss, and then they took my phone away.” He said the officer told him not to speak with the news media.

Timothy B. Lee at Ars Technica recently wrote about one city in which that interference should be subsiding – Washington DC:

In a new legal directive first noticed by DCist, Washington DC Police Chief Cathy Lanier explains the constitutional rights of DC citizens and gives her officers detailed instructions for respecting them. She addresses a number of scenarios that have led to controversy in recent years.

Importantly, the directive states that “in areas open to the public, members shall allow bystanders the same access for photography as is given to members of the news media.” The directive also provides that officers shall not order individuals to stop recording or demand identification of them.

The ubiquity of smart mobile devices enables average citizens to play a crucial role in keeping the public informed and holding the public officials accountable. Other cities should follow Washington DC’s example and provide their law enforcement personnel with clear guidelines on not interfering with wholly legal activities.