Category: Freedom of Speech

Fiore’s iPad Rejection Harbinger of Bigger Story

UPDATED

It’s been more than a week since I asked a number of news organizations, chiefly the New York Times, to answer a few questions about their relationships with Apple. Specifically, I asked the Times to discuss what has become at least the appearance of a conflict of interest: Apple’s incessant promotion of the newspaper in pictures of its new iPad and highlighting of the Times’ plans to make the iPad a key platform for the news organization’s journalism, combined with the paper’s relentlessly positive coverage of the device in news columns.

In addition, I asked the Times, the Wall Street Journal and USA Today — following up on a February posting when I asked why news organizations were running into the arms of a control-freakish company — to respond to a simple question: Can Apple unilaterally disable their iPad apps if Apple decides, for any reason, that it doesn’t like the content they’re distributing? Apple has done this with many other companies’ apps and holds absolute power over what appears and doesn’t appear via its app system.

Who responded? No one. Not even a “No comment.” This is disappointing if (sadly) usurprising, but in light of other news this week it’s downright wrong.

UPDATE: A Times PR person emailed, 11 days after I first contacted the company about this, that the paper is “not going to comment.” Still no word from the others or, more recently, the Washington Post.

Yesterday, Nieman Journalism Lab’s Laura McGann had a story that should give pause even to Apple’s biggest fanboys and girls inside the news industry. In a post entitled “Mark Fiore can win a Pulitzer Prize, but he can’t get his iPhone cartoon app past Apple’s satire police,” she wrote of the newly minted Pulitzer winner in the cartooning category:

In December, Apple rejected his iPhone app, NewsToons, because, as Apple put it, his satire ‘ridicules public figures,’ a violation of the iPhone Developer Program License Agreement, which bars any apps whose content in ‘Apple’s reasonable judgement may be found objectionable, for example, materials that may be considered obscene, pornographic, or defamatory.’

My disdain for Apple’s tactics grows with almost week — and I’ll be saying more about that in a separate posting — but Apple isn’t the issue here. This is about journalism integrity, and the absolute lack of transparency America’s top news organizations are demonstrating by blowing off a totally reasonable question that these news people refuse to raise in their own pages to any serious degree. (The Times’ refusal to discuss its wider relationship with Apple is even more discouraging, and I’m getting close to selling my small stock holding to demonstrate my disgust with an organization I once absolutely revered.)

I was glad to see Columbia Journalism Review’s Ryan Chittum pursue this yesterday when he wrote, “It’s Time for the Press to Push Back Against Apple.” Will anyone? The early signs aren’t encouraging.

In a Tweet today, Publish2‘s Scott Karp asked, “Do you think news orgs should refuse to create apps for iPad/iPhone?” It’s the right question.

The answer is a qualified no. While I won’t personally want to participate as a journalist in an ecosystem where one company controls content in this way, I can understand why others might — but any self-respecting journalist would want to have absolute, in-writing guarantees that Apple could not in any way interfere with the journalism.

I see no sign of this. And I’m disgusted with journalists who participate in this system or ignore its implications, or both.

Net Neutrality Has Always Been Up to Lawmakers: Will They Pay Attention Now?

Ars Technica: Court: FCC had no right to sanction Comcast for P2P blocking. The FCC’s decision to sanction Comcast for its 2007 P2P blocking was overruled today by the US Court of Appeals for the DC Circuit. The question before the court was whether the FCC had the legal authority to ‘regulate an Internet service provider’s network management practice.’ According to a three-judge panel, ‘the Commission has failed to make that showing’ and the FCC’s order against Comcast is tossed.

We’re in scary territory, but it’s not a big surprise that we are.

Comcast and the other carriers will be emboldened to continue what they’ve started: the subjugation of America’s broadband future to their interests and those of their entertainment industry partners and subsidiaries. Our second-class status in broadband will soon be even worse if they get what they want: turning the Internet to a television-on-steroids system where control is in the middle, where the edges of the networks — that is you and me — do what the center tells us we may do.

The cable and phone companies have built networks from the favored position of having been government-granted monopolies. They are an effective duopoly — wireless providers can’t provide the same bandwidth and they are trapped by the oligopoly (carrier owned, to a major extent) in the backbone networks — and they are going to use it for their benefit, not ours.

This isn’t just a free-speech issue at its core. It also raises some basic economic questions; America lags further and further behind the rest of the developed world in taking advantage of broadband’s potential, and the consequences of our inaction grow more serious every year.

While I’m skeptical of all of the specific network-neutrality fixes I’ve seen so far — unintended consequences worry me — I’m absolutely freaked out at the trend. We are turning over our fundamental rights to communicate and collaborate to companies that have not earned even a semblance of trust.

The FCC’s incoherent policy-making is only partly the issue here. More important is the refusal of Congress to do its job. If only that was surprising.

Network neutrality has always been the kind of issue requiring serious engagement from the lawmakers. As they do so often, they’ve ducked and dodged, leaving it to regulators to make vital policy decisions.

Will Congress wake up? And even if it does, given our pay-to-play lawmaking environment these days, will it do the right thing? My doubts keep growing, on both counts.

What Do You Own? ‘iSlate’ and Apple’s Direction

You may think you own the device you bought last week from a retailer. What you own, increasingly, is only the hardware; what you don’t own is the right to use it the way you want to use it, even for entirely legal purposes.

Jonathan Zittrain, a Harvard law professor and author of The Future of the Internet — and How to Stop It, has described a potential future in which the very qualities that have made personal computing and the Internet so valuable — namely their openness to add-on innovation — are in danger. We are on the verge of a major test of his predictions: the upcoming introduction of Apple’s tablet computer.

Where the personal computer and early Internet were a wide-open collection of technologies, on which anyone could build software and services, governments, the technology and media industries have increasingly wanted to clamp down on your freedoms. Apple has been increasingly clear that it intends to be one of the most insistent control freaks, and the “iSlate” or whatever it’s going to be called may well announce the company’s long-term vision — and not in a way we should want it to go.

The iPhone was Apple’s first statement along these lines, and it was a big switch from what had come before. With the Macintosh computer, Apple built an ecosystem for software developers. Anyone could write for the Mac, and still can, just as they can for Windows and Linux and other computer operating systems.

With the iPhone, Apple took its experience with the iTunes Music Store and created an iPhone applications software retailing system. But to reach iPhone users, developers had to get Apple’s permission to be listed in the store. Lots of them have, plainly, as the number of applications is said to be above 100,000; but there are well-documented horror stories featuring Apple’s refusal, on often mysterious or capricious grounds, to allow specific applications to be sold or even given away.

You can still create what you want on the Web, and iPhone users can still find it via the device’s Safari brower — sorry, no other browsers allowed — but if you want them to experience your work in any way that uses the hardware’s capabilities to their fullest, you need Apple’s permission. And if you get it and charge for your application, or for any services you provide via your application, Apple insists on taking a cut of the money.

I have an older iPhone. I used hackers’ software to jailbreak and unlock it, and used it on T-Mobile’s network. But when the “3G” iPhone came out, using AT&T’s network that’s incompatible with T-Mobile’s faster one, I moved to Android. I still prefer the iPhone experience in many ways, but the lack of compatibility and Apple’s constant breaking of the jailbreak software made it crazy to continue.

So here’s the question. I don’t doubt that Apple, an absolute master of user experience, is about to sell a superb multimedia tablet computer that could be as pathbreaking in its genre as the iPhone was in its space.

Many media companies are talking with Apple about selling their content through the Apple tablet. Will they — and software developers — need Apple’s permission to make the best use of the hardware?

In other words, will the Apple tablet software model be the iPhone-style, control-freak system, or will it be the open-to-all Mac platform on a more portable device? Or to put it still another way, is the “you bought it but we control it” mentality moving up into what had been a relatively protected, i.e. open, part of the communications foodchain?

If Apple does the former and gets away with it, you can be sure others in the consumer-electronics arena will move in the same direction. Not all, thank goodness, but some major ones will try to make your decisions for you.

One that already does is Amazon. The Kindle is the most popular e-reader by far. I own one (and I own some Amazon stock), but I am extremely unhappy at Amazon’s hard-nosed insistence that it can control your Kindle. The company was appropriately embarrassed (and had to pay out a court settlement) for remotely deleting several books by George Orwell — oh, the irony — from the Kindles of people who’s purchased the editions from what turned out to be a publisher that was unauthorized to sell them. While Amazon apologized, it didn’t say what would happen if some judge or government agency ordered it to remove books or other content from the devices in the future.

This is not just about your right to read and use media as you wish. It is also about the way you will be able to make available what you create in the future. If you believe in freedom of speech, you should be deeply alarmed by the trends we’re seeing.

And if media companies think the Apple tablet is their salvation, they should consider what they may be signing up for. Turning their futures over to Apple doesn’t strike me as a solution to anything.

Comcast-NBC: The Road Toward Control Over What We Create

So it’s official. Comcast has announced its intention to buy NBC Universal from GE. The danger of this cannot be overstated, but it could actually be the catalyst for a policy conversation the nation desperately needs to hold.

A Comcast-NBC combination is brazenly anti-competitve and anti-democratic. It would give one company far too much ownership over not just professionally produced media but also the ways media consumers can receive it.

Worse, if approved, it could mark the tipping point in Big Media’s push to take control over the Internet itself. That’s where we need to focus our attention.

We can come out of this the right way if the announced deal prompts Congress to stop ducking the key media consolidation issue of our time. If we can use data networks the way we choose, the traditional fears about media consolidation — the concentration of mass media in the hands of a few immensely powerful corporations — lessen over time. They’re still worth worrying about, but not as much.

No, the issue now is the truly scary media consolidation we face: the “broadband” duopoly’s increasing control over what we can do with our media. The cable and phone giants are determined to decide what bits get delivered in what order, at what speed and at what time — if they get delivered at all — to the people who want them.

It’s been obvious for years that a day like this was coming. From We the Media in 2004 (and I was hardly the first person to notice):

In a world where we may end up with one, two, or at most three broadband telecommunications providers in any given community, the end-to-end principle is in serious jeopardy. Should giant telecommunications companies—namely cable and local phone providers—have vertical control over everything from the data transport to the content itself? For example, as I was writing this book, Comcast, the cable monopoly in my area, was trying to buy Disney. The attempt failed. If this happened, Comcast could have decided to deliver Disney’s content online more quickly than someone else’s, discriminating on the basis of financial considerations. Such a regime would have been a disaster for the unimpeded flow of information. We should insist on a more horizontal system, in which the owner of the pipe is obliged to provide interconnections to competing ser­vices. Unfortunately, today’s regulatory and political power bro­kers lean in the wrong direction.

…

The cable and phone companies have shown again and again that they abuse their power. They are historical monopo­lies with control over vast territories given to them by govern­ments. But they used to be regulated monopolies. Increasingly, they are freeing themselves of regulation.

…

The threat is still more theoretical than real, at least in the United States. People in China, where the govern­ment censors Internet content, know firsthand the danger of centralized choke points.

So now it’s real. What can we do?

First, recognize how networked media work, or should. In the traditional mass media days, people who worked for big businesses created media and distributed it; they manufactured stuff and put it in trucks, or broadcast it over one-way, one-to-many distributions systems.

In an Inter-networked world we create stuff, and then we make it available, and other people come and get it. People at the edges of networks make the decisions that matter, not the people who provide the data pipes. That’s how it should work, at any rate.

Second, this suggests we shouldn’t obsess over what sound like huge issues but are actually peripheral. Specifically, I don’t care that much if Big Content ends up in just a few hands, as long as the rest of us can a) keep creating our own media and b) make it available on distributed networks without having to pay unjust toll charges.

Comcast has already started pushing its Internet users toward an entirely artificial pricing, putting usage caps on packet-switched data services, i.e. the Internet, for heavy users of data-rich applications, notably video. This has been a conflict of interest from the start, given that Comcast is primarily a video-delivery company for Big Content. Comcast’s data pipes could be used to provide much greater Internet bandwidth, but Comcast chooses to limit that kind of data, and not just for technical reasons.

Now that it would own one of the major Big Content companies, the conflicts of interest would expand in dramatic and obvious ways on the video side. I’m sure the other Big Content players can fend for themselves when it comes to keeping their cable channels; they have lots of financial and lobbying clout.

But the rest of us, especially the younger people who should be entering a data-networked world of nearly unlimited media choices, have less power. And we’re likely to be the ones, in the end, who lose the most.

Why? Because it will be in Comcast’s financial interest to clamp down as much as possible on Internet data use when it conflicts with its cable-TV business, which is to say on a constant basis.

Keep in mind that Comcast wouldn’t be the first company to have this kind of vertical content and distribution structure. Time Warner owns some cable franchises along with CNN and other media properties; Cablevision has its own content business. Phone companies have some projects under way, too.

The greater threat is where this deal would lead. It would set off a rush of other buyouts, moving more Big Content under the wings of the rest of the telecom companies. They’ll have the same incentives to restrict data usage, and unless they’re told not to do this by people who can make it stick, that’s exactly what they’ll do.

Understand this: The telecom companies are trying to remake the Internet into a form of cable television. It’s not because they’re evil, though they often behave in evil ways, but because it would be good business — for them, and the hell with the rest of us.

So where does Congress come into the picture? Everywhere, obviously, but I wish I had confidence in lawmakers’ willingness to address this.

Keep in mind how people are elected today: for the most part, despite progress in Internet organizing and fundraising, via television advertising. Will Congress take on companies that control the biggest media? Have the lawmakers ever done this, at least in recent times? Nope.

Please be clear on what’s at stake: We are heading toward a level of media control that, if the telecom companies succeed in achieving it, will threaten every bit of the work I and many others have been doing for the past decade.

I’ll say it again: This is the media-consolidation issue of the early 21st Century. If you care, call and/or write your member of Congress, before it’s too late.

Scrubbing the Past

NY Times: Two German Killers Demanding Anonymity Sue Wikipedia’s Parent. Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.

The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.

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Old laws are inadequate to new eras and technologies, and political boundaries have limited meaning in a networked world.

The German law balanced the rights of those who’d served their time against public knowledge, and came down, by any American First Amendment standard, absurdly far on the wrong side. But it is well-meaning, and was written in a time when it was possible to control what media did within a political jurisdiction, at least for widespread public attention, not in a time when anyone can publish for a global audience.

The networked-world element of the case is a reminder of an ongoing problem in the Digital Age. It’s bad enough that the Germans have such a law, but it’s their country. What’s clearly over the top is trying to pull this information from the English version. The Wikimedia Foundation has rightly refused. (This reminds me to make a donation to the project.)

I worry that the German lawyers — and authorities — will escalate. Even though Wikimedia has no assets in Germany, I’d be unsurprised if the case finds its way into American courts, for no other purpose than forcing the foundation to spend money defending itself. That’s a punishment in its own right.

And suppose the German lawyers persuade courts there to order the arrest of Wikimedia Foundation employees should they visit the country. This isn’t probable, no doubt, but if I were on the board I’d keep a close eye on the risks of stopping in Germany even to change planes.

The broader lessons are part of the changing nature of communications — and of changing norms. The Electronic Frontier Foundation’s Jennifer Grannick addresses the former, in context of this case, in this way:

At stake is the integrity of history itself. If all publications have to abide by the censorship laws of any and every jurisdiction just because they are accessible over the global internet, then we will not be able to believe what we read, whether about Falun Gong (censored by China), the Thai king (censored under lèse majesté) or German murders.

We’ll be fighting these fights for decades to come. People who would control what others can read (listen to, view, etc.) — in order to control what they think and, ultimately, do — will not stop trying to have such powers. (Reminder to self: Send EFF a donation, too.)

But the deeper, harder issue is changing norms, because we have to ask ourselves if we truly want permanent records of everything we’ve ever done — and if there’s no choice in that matter whether we want people only to know us for the worst of our actions, not the sum of ourselves.

The German murders, Werlé and Lauber, don’t get much sympathy in this regard. Nor should they: Murder strikes me as the central act of these men’s lives, though we should also note that they have paid the debt to their society that entitles them to re-enter that society with some respect from others, difficult as that may be. Do they really expect, however, that even a ban on publishing their names will expunge their deeds from people’s knowledge? Yet the motive behind the German law is a sound one: to help those who’ve transgressed restore their membership in society.

As the Wall Street Journal reported this week, job seekers are trying to get minor criminal offenses fully expunged from court records and online databases, especially ones where plea agreements promised such nullifying of the record. We are apparently so unforgiving as a society that even an arrest at some point in your life can be a job disqualification, even if you were totally innocent or if the charge was absurdly petty.

Here’s the problem. Databases will keep this stuff around, and on a Web where duplication is the nature of the system, there will ultimately be no way to fully get rid of anything — or at least we won’t be able to rely on its disappearance, whether through the obscurity of printed records in dusty courthouse basements or actual destruction of records as promised.

Which comes back to changing norms. Until we start weighing old acts against the totality of someone’s experiences and deeds, we’ll hold a sword over each others’ head. Is this really the way we want to live?