• Dept of Justice moves to regulate Web through accessibility standards.
• FCC proposes to regulate Web access via broadband, claims it’s part of regulating telcos.
• Commerce Dept to set rules to protect Web trust: child protection, copyright, security, e-comm, and ICANN.
• The United Nations ITU (Telecom Treaties) seek to regulate the Web. WSJ calls this a threat to Net freedom.
• Florida claims worldwide jurisdiction on Web #defamation about Florida or its residents.
• Utah seeks to regulate the use of trademarks in domain names.
• And finally: NY Times calls for someone (anyone) to regulate Google’s search algorithm.

The set of government initiatives to control the web appears far more organized and comprehensive than the users and industry groups these regulations would effect.  In short, there’s a boom in government’s aspiration to run the Web.  And that boom feels like a power grab to claim turf that today mostly belongs to individuals.

By now you’ve probably heard about Eric Turkewitz, who wrote an April 1st post in his NY Personal Injury Law Blog announcing he was the new Whitehouse blogger. He recruited other legal bloggers to echo the post, so they could punk unsuspecting political bloggers who type first and check facts later.

The stunt captured a wider set of dupes than expected. In fact, none other than the New York Times ran with the story. Suddenly, the little geeky joke was everywhere. Here’s Turkewitz’s explanation of the stunt.

Why the hell would I go to all this trouble for an April Fools’ stunt?

I’m glad you asked: Lawyers often deal with misery. Peoples’ lives can be forever changed in a fraction of a second in an accident. Divorce. Child custody. Bankruptcy. Arrests. There is no real end to the chain of human misery that clients bring to the doors of practicing attorneys.

Eric’s explanation matches my own for blogging. Personal injury law is how people and families attempt to recover when they “become statistics” though no fault of their own. I hear about explosions, poisonings, fraud, catastrophic medical errors, and — toughest of all — kids whose lives will be forever framed by the careless act of another. I understand the need for a joke, and I try to provide some of that here. In my opinion, lawyers with character rock. I’m fortunate to know more than a few of them.

Can’t a Lawyer Make a Joke?
After the joke, the recriminations began. After all, reminded Jack Marshall of the EthicsAlarms blog, lawyer advertising is  highly regulated. Counselor Turkewitz misrepresented himself, and the codes of legal conduct are not suspended on April Fools’ Day.  This both put Turkewitz’s professional livelihood and reputation at risk and made Mr. Marshall the target of vitriol for being a complete April Fools’ Grinch.

What followed was a thoughtful exchange between the two men about the nature of legal advertising and the provision of free expression rights even to members of the bar.

I’ve often noted that trademark rights can’t be used to encumber efficient commercial and even competitive speech.  Yet bar regulation of lawyers’ commercial speech does just that, by restricting truthful, accurate, and constitutionally protected self expression. Hey, if corporations can have “speech rights” in this crazy democracy, then members of the bar should too.

Yes, Lawyers Can Blog a Joke or Make a Mistake and Live to Tell the Tale.
To his credit, Mr. Marshall re-examined both the facts and his own motives for teeing off on such a benign case. And, unlike the fake apologies of news retractions or cheating politicians/golfers, Jack Marshall did a man’s job with his.

It gave a far better introduction to his character. Take a look.

Blogs and social media in general often seem random, petty, self-aggrandizing, and downright anti-social.  But they also give us the chance to see people with insight and integrity more closely, and to discover there’s often lots more to like. I’m looking forward to reading more of Eric’s NY PI Blog and Jack’s EthicsAlarms blog to see where their legal insights turn next.

I hope you enjoy them as I have.

The suggestion is covered and advanced in a Time Magazine article that takes the familiar dystopic theme of the Net as the Wild West, requiring standards and regulations for safety, just like modern transportation systems. Governments run highways, so why not information super-highways?

Time’s Barbara Kiviat suggests the Net needs a sheriff, and that licenses would do the trick. Licensing would authenticate identity, and give governments something to revoke, inspect, and otherwise use to claim standing in order to administer this stateless medium.  After all, a bunch of private machines connected by private networks aren’t architecturally under the control of the state. In a world of online risk, we need governance through governments.

I think we’ll hear more of this theme, and that it will be advanced on the need to prevent crime and protect  kids.  More surveillance and censorship will be positioned as bulwarks of child safety and perhaps national security.

Making the Case for Big Brother in the Americas
The many benefits of Big Brother’s watchfulness are neatly summed up by PredatorWatch.ca.

As someone who has done casework on finding ways to protect organizations from pedophiles, I’m all for raising offender inhibitions. But having police pretend to be sexually available kids is is misguided.  At best, it nails low-probability offenders; at worst it titillates and entraps a class of nasty, but perhaps otherwise benign, web users.

We’re Watching the Bad Guys; We’re Watching You

Internet filtering, censorship of Web content, and online surveillance are absolutely increasing in scale, scope, and sophistication in democratic countries as well as in authoritarian states. And to some degree, they support one another.

That’s the premise of Access Controlled, a book due out in April, edited by the dream team of Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain. I expect their research and perspective on this global trend will fuel a richer discussion on the costs and benefits of making online surveillance the new digital norm.

The Coulrophobia Epidemic of 2010: trademark owners’ fear of clowns may be rational.
When a competitor uses your mark and pretends to be your company, that’s infringement. But when a clown mocks you with your own mark, that’s parody. And it may well be protected speech. And in an age of Twitter and viral video, mocking can be more deleterious than infringement.

Consider this fake press conference, at which an impostor U.S. Chamber of  Commerce announced its (not real) change in policy to support combating global warming. When the real Chamber shows up, it turns into an episode of The Office, which the clowns play to the Chamber’s regret.

From the above escapade, the Chamber filed a claim of trademark infringement and used a take-down notice to force the pranksters’ ISP to discontinue a parody website that supported the hoax. Was there a “likelihood of confusion”? Absolutely. And it was also classic parody speech.

Similar trademark claims have been made against NYTimes.se, which mocked The New York Times and corporations like DeBeers. We recently noticed The South Butt, a clothing line which mocks The North Face. And, only a few days ago, environmental activist Brian DeSmet received a complaint for mocking Peabody Energy.

In a world where Ashton Kutcher is considered a brand, a fear of clowns may be a viable business survival strategy.

Regulation of digital marketing heats up. States try it too.
I suppose the fear of regulators is a variation of the fear of clowns.

In 2009, I noted with concern that the FCC began to use “public interest” language to describe its interest in regulating access to, and speech on, the internet. Our friends point out that the FCC has sometimes shown more concern for the demands of corporate lobbyists and “public decency” advocates than it has for individual civil liberties.

Consider the FCC’s efforts to protect Americans from “dirty words” in FCC v. Pacifica Foundation, or its much-criticized deregulation of the media industry, or its narrowly thwarted attempt to cripple video innovation with the Broadcast Flag.

The impulse to regulate (and tax) the Net extends to state and local levels. John Ottaviani guest-blogged on Eric Goldman’s Tech & Marketing Law Blog about Maine’s passage of a little COPPA Act banning the use of personal information about minors for marketing purposes (which the Maine Attorney General then refused to enforce) and Kentucky’s seizing of domain names. Add to these Massachusetts’ failed online privacy act and numerous states’ decisions to tax e-commerce. States, along with federal regulators, seem to be keen to mold the internet.

If there is a common theme between these issues, is that parody and regulation is that both claim to be in the public interest, and both hard to defend against. I expect to see marketers organize to participate in regulatory dialog, and I expect to see clowns rampant as ever on the web and in social media.

Now that the FTC has staked out a requirement for bloggers to prevent the false appearance of independence if they’re being paid, there’s just one catch. How do you start to enforce such a rule? My prediction: a show trial with a chaser of  strategic inaction.

The same article reports that the Commission is also “crafting its next move” to regulate online behavioral targeting by requiring users to “opt in.” The FTC’s northeast regional director, Leonard Gordon, explains this is because “studies show that most consumers don’t read privacy agreements.”

FTC Cynicism in the Public Interest
See the paradox? He uses consumers’ disinterest in reading agreements as the basis for requiring greater use of them.  This is a cynical recommendation. Its goal isn’t providing informed “opting in”. Quite the opposite, it is to make gathering behaviorial data and customization an Internet harder to undertake. And that may be the wrong choice.

Behavioral Targeting May Be Core to the Web’s Success Model
The reality of the “free Internet” is that much of its content is paid for by advertisers who do so with no contractual assurance of return. Competition creates the need for data to optimize these ads. Better tracking and targeting is what has kept the Internet growing while other channels are losing ad dollars.

The FTC is considering making an assertion that data privacy should be the U.S. Internet’s default value, and perhaps imposing “standard labeling” for privacy statements.

I’m thrilled to see privacy being valued. I’m concerned to see the FCC and FTC asserting jurisdiction over bloggers and the Net. And I’m astounded at the lack of industry representation by the many associations that promote our industry but are apparently disinterested in governmental affairs.

Privacy is something we should all promote; but there are competing values and individual choices that make this medium successful. The digital marketing industry seems absent from these deliberations, and that absences is a risk to the success of this medium.

It’s time for our associations to speak up for the practical need for behavioral targeting and the costs of eliminating tracking by making it “opt-in.” Privacy is a value — and so is the “free internet.” I’m surprised to say this, but like any virtue, even Privacy is best in moderation.

How Can Digital Content Pay for Itself?
The quest for “monetization” is still a major theme in digital publishing. Can long-tail marketing pay for itself? What about social media? How can the need for journalism get attached to new working business models?

Answer: Pay for Play, the “Oldest Profession” in Marketing
Pay for play is absolutely present in many non-digital business models. Gartner Consulting is being sued for this right now, for $1.4 billion.  IT consulting used to be rife with “sponsored authorship.” They wanted to avoid this kind of case.

I was part of this. First you’d pay Aberdeen to write nice but vague things about your firm, then after a few quarters of paying Garner they’d become aware of you, and you’d get mentions. There were only winks and nudges, perceived or real, exchanged with the subscriptions. Hell, the analysts that covered our space probably thought we all just had nervous ticks.

But firms, like the one in the video below, are explicit about “you pay, we get people to publish stuff for you.” Sounds a bit like the PR trade, but with less smoke and fewer mirrors, and more certainty of results.

The FTC would require that such relationships be made transparent to readers. And though this sounds reasonable, consider why political figures endorse and speak for one another. PR and lobbying are pretty similar: one pursues political favor, the other journalistic favor. Having a truth squad to enforce ethical behavior could be a medicine more deadly than the disease it seeks to solve. Regulation or not, your online BS detector is still the best defense.

Interactive marketers are aware of increased regulatory discussions, but since they’ve not yet been regulated, they’re easy to ignore.

Today, several speakers here at Ad:Tech recognized these threats, but assumed they’d go away. They believe that people like web customization, and that as they become more aware of cookie tracking they’ll be more comfortable with it. One speaker suggested that privacy is already gone anyway.

Apparently not in the EU, where regulation restricts customer profiling.  And as much as marketers claim that cookies don’t track such things, evidence shows that non-personal information can be pretty reliably connected to personal data.

Regulation May Be Closer Than You Think
I’ve worked in state government and have some understanding about how regulation gains momentum.  It is easy to see how the federal government may require that cookies default to the “off” position at the start of each session. Though I don’t believe the state can directly regulate browsers, it’s possible. After all, no legislation ever enabled the FCC to regulate the Internet, yet there they are in the middle of network neutrality.

Draw Attention to This By Blogging and Linking About It
I’ve yet to hear a serious discussion about regulation at any of the dozen digital marketing conferences I’ve participated in this year.  A good start would be for more people to write about this issue, link to it, and tell the public policymakers why many of us find user tracking essential, and why this practice is ethical, legal, and in a purely private environment.

Law and health care practices are required to protect personally identifiable information (PII). However, in many cases they are encouraged to circulate so-called anonymous data. It turns out the distinction between the anonymous and the personally identifiable isn’t all that real.

Latanya Sweeney, a Carnegie Mellon University computer science professor, took anonymous data from medical records and used it to identify real patients.

She took what seemed like anonymous data from a health record: Mr. X lives in zip code 02138 and was born July 31, 1945. And by using publicly available databases, she found that only one one person in the US matched those attributes: former governor William Weld.

In a very real sense, “anonymized” or “merely demographic” information about people may be neither. Web sites that ask  “anonymous” users for seemingly trivial information (such a zip code or birth date) can use the same techniques to create a unique record and connect them back to extensive consumer databases.

If you are a marketer using “anonymous” web data, or matching web leads to demographic databases, then your data may be regulated in the next few years.

Over the next year, I believe we’ll see increasing regulatory interest from the FTC and other bodies.  When Sears paid users to download an application that tracked their site use, the FTC intervened. They are regulating what gifts bloggers can take, and what information ad networks can share for behavioral targeting.

Cyber-libertarians believe true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-too-convenient facade behind which unaccountable elites can impose their will on the rest of us.

I try to close the door to what they’d call “collectivism” by recalling the private underpinnings of this medium. I post files to a private computer, connected to a private network, which others access at their own choosing.  Where does public interest  enter this scenario of files on private machines?

Yes, some regulators would hold that any capability for mass communication, especially one so widely distributed, should be regulated for public good. But the Constitution’s Amendment for freedom of the press seems suited to protect just such communication from the helpful hand of state control.

Before we had state identification, mug shots were used to establish identity. They still fill that role, but now they also punish, entertain, deter, and transfix a growing, voyeuristic audience in print and online. The Christian Science Monitor points out the popularity of a crop of sensationalist pulp magazines with names like Busted, Cellmates, and Slammer.

At a time when dozens of US newspapers are searching for buyers and for cash, The Slammer’s newsstand profit margin is four times that of most local dailies, and its circulation has grown to 29,000 – up nearly 50 percent from 20,000 just last year. At more than 500 convenience stores across North Carolina, it’s selling at a buck a pop.

Individual police departments (Peoria focuses on prostitutes), local news organizations (the Tampa Bay Times has an impressively detailed site), and ad-driven online collections (The Smoking Gun) have a lot to cover.

More than 14 million Americans are arrested each year. Some are famous, some are innocent, some are unfortunate, but all are fair game to be added to these online rogues’ galleries.

Is the Presumption of Innocence a Buzz Kill?
Much like the Cops TV show, each site notes that those depicted are “presumed innocent.” But if there’s a deterrent value in such collections, then inclusion surely constitutes a penalty without due process. After all, mug shots confer a strong suggestion of guilt, which helps define those pictured as a class of “others,” who have stupidly or cruelly brought this misfortune on themselves. 

The presumption of guilt excuses the bruises and injuries sustained during the arrest, as well as our own fascination. The presumption of innocence holds these people momentarily as our peers. Let’s face it, its easier to accept that they’re guilty as all get out, and get on to the fun.  And that’s the second problem. As Reason Magazine observes:

While we’re gawking at the haunted eyes of a Midwestern meth freak or the haunted hair of Nick Nolte, cops across America are using virtual rogues’ galleries to normalize the idea that the government has the right to punish you without bothering to convict you of a crime. — As law enforcement agencies expand their powers of surveillance, as they encourage us to think of punishment without due process as standard operating procedure, we not only tolerate it, we click and click and ask for more.

At the end of the day, shame is not exclusive to the accused.