Rosalind Williams discusses her experience challenging racial profiling in Europe and the implications of her landmark case. Open Society Justice Initiative experts on ethnic profiling will also speak.

Here’s a brief audio clip that PFF’s new press director Mike Wendy helped me put together in which I outline some of my reservations with the Federal Communications Commission’s (FCC) just-released National Broadband Plan. It’s just 4 minutes. Just click the play button below.

U.S. Joint Forces Command?s Joint Operating Environment (JOE) 2010 report, February 18, 2010 "The Joint Operating Environment is intended to...

Just FYI.. Tomorrow morning’s “Washington Journal” program on C-SPAN will be devoted to a discussion of the Federal Communications Commission’s new National Broadband Plan. I’ve been invited to appear on the show and I’ll be up against Art Brodsky of Public Knowledge.  The program starts around 8:30 am EST.

Also, here’s the link to the audio (click “Listen” in upper left hand corner of that page) from today’s Diane Rehm Show on NPR featuring a debate between me and Ben Scott of Free Press on the FCC’s plan. It featured call-ins and among the callers were Rep. Cliff Sterns and frequent TLF commenter Brett Glass. They both expressed some reservations about the FCC plan.

The Federal Communications Commission (FCC) shipped off to Congress a 376-page National Broadband Plan earlier today, and yet some of the most pointed commentary from the Commissioners at their meeting was about a part of the plan that was given relatively little emphasis.

It almost sounds silly to say there was too little discussion of a topic in a report that long and that comprehensive. Just looking at the table of contents, and all of the recommendations for moving the country ahead into the era in which high-speed Internet is the norm and not the exception. After all, this is a strategic outline for future actions, and there are lots of future actions in the report to contemplate on items big and small.

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Today the Federal Communications Commission (FCC) released its long-awaited National Broadband Plan. The plan aims to “stimulate economic growth, spur job creation, and boost capabilities in education, healthcare, homeland security and more.” The FCC has taken particular interest in the power of broadband to support and promote online learning. We applaud the FCC for working to make this a priority, especially in exploring how broadband can enable access to and participation in the open educational resources movement, empowering teachers, students, and self-learners.  In the plan, the FCC offers several recommendations in expanding digital educational content. A few of the recommendations are listed below:

Recommendation 11.1: The U.S Department of Education … should establish standards to be adopted by the federal government for locating, sharing and licensing digital educational content by March 2011.

While digital content is available currently, there are significant challenges to finding, buying and integrating it into lessons. Content is not catalogued and indexed in a way that makes it easy for users to search. It is also hard for teachers to find content that is most relevant and suitable for their students. Even if one finds the right content, accessing it in a format that can be used with other digital resources is often difficult or impossible. And if the desired content is for sale, the problem is even harder because online payment and licensing systems often do not permit content to be combined. These three problems—finding, sharing and license compatibility—are the major barriers to a more efficient and effective digital educational content marketplace. These barriers apply to organizations that want to assemble diverse digital content into materials for teachers to use, as well as to teachers who want to assemble digital content on their own. Digital content standards will make it possible for teachers, students and other users to locate the content they need, access it under the appropriate licensing terms and conditions, combine it with other content and publish it.

Recommendation 11.2: The federal government should increase the supply of digital educational content available online that is compatible with standards established by the U.S. Department of Education.

[ ... ] Whenever possible, federal investments in digital education content should be made available under licenses that permit free access and derivative commercial use and should be compatible with the standards defined in recommendation 11.1.

Recommendation 11.4: Congress should consider taking legislative action to encourage copyright holders to grant educational digital rights of use, without prejudicing their other rights.

In part due to a lack of clarity regarding what uses of copyrighted works are permissible, current doctrine may have the effect of limiting beneficial uses of copyrighted material for educational purposes, particularly with respect to digital content and online learning. In addition, it is often difficult to identify rights holders and obtain necessary permissions. As a result, new works and great works alike may be inaccessible to teachers and students … Increasing voluntary digital content contributions to education from all sectors can help advance online learning and provide new, more relevant information to students at virtually no cost to content providers … Congress should consider directing the Register of Copyrights to create additional copyright notices to allow copyright owners to authorize certain educational uses while reserving their other rights.

Many of these recommendations can help to enable the sharing and downstream reuse of Open Educational Resources (OER) via public licenses that grant broad permissions. And as we wrote last week, the Department of Education–through the National Education Technology Plan (PDF)–has already offered suggestions for how open licensing can aid teaching and learning by making content created by the federal government available for use or adaptation.

One recommendation, however, misses the mark – the suggestion that Congress direct the Copyright Office to create a new copyright notice to allow rightsholders to authorize specific education uses of their content while reserving all other rights. While the suggestion for this (e) mark is a good first step in recognizing the need for educational content to be shared widely, its utility will be limited and its implementation confusing. To begin with, it’s difficult to determine what will qualify as “educational” content and use. Creative Commons considered this 7 years ago and has revisited the question since, as an “education license” sounds very appealing. The reality is that allowing educational uses, or worse allowing only certain educational uses, adds to the growing problem of non-interoperable content silos whose contents cannot be intermingled without running afoul of copyright. These qualifiers are counter-productive in that they inhibit rather than incentivize use by teachers, learners, and others of the resources stored and isolated in the silos.  ”Education only” uses would dampen innovation by publishers and other content creators that otherwise would be enabled under an open license granting broad permissions.

Additionally, narrow permissions break the promise of a widely interoperable commons. Public licenses that grant broad permissions for the use and reuse of content provide the most clear path forward in solving the interoperability problem. Creative Commons supplies a standardized framework for such public lienses, and has been adopted by many in the education community. It is important that any future initiative intended to increase sharing of eudcational content–legislated or otherwise–consider interoperability with existing OER as a design requirement.

The FCC has recognized that robust broadband infrastructure is crucial for citizens to participate effectively in the 21st century digital environment. Open licensing is a piece of this critical infrastructure. Creative Commons hopes to continue to work closely with the FCC, the Department of Education, and the OER community in order to implement the infrastructure necessary to support and promote online learning.

The European Court of Human Rights held in the case Or?u? and Others v. Croatia that the segregation of Romani children into separate classes based on language is unlawful discrimination.

Today’s Broadband Plan has great things to say on the topic of video device compatibility—the idea that consumers should be able to access the video content they pay for on any device. It recommends that the Commission pursue a “gateway” approach: a lightweight model that allows for compatibility between consumer devices and networks such as cable, satellite, or FiOS TV. Late last year, Public Knowledge and others filed a petition with the FCC asking that it follow this exact approach—a petition cited heavily by the Plan.

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For Immediate Release:  March 16, 2010

The following statement is attributed to Gigi B. Sohn, president and co-founder of Public Knowledge:

“We were very pleased that the Commission in its National Broadband Plan showed discretion and restraint in its discussion of online copyright issues. By recognizing that ‘copyright protection efforts must not stifle innovation; overburden lawful uses of copyrighted works; or compromise consumers’ privacy rights,’ the FCC clearly recognized that copyright is a balance of interests.

“We hope the same philosophy carries over into the Net Neutrality proceeding, and that the FCC will similarly find that copyright law is not within its jurisdiction. As laudable a goal is cracking down on theft may be, that type of activity is not ‘reasonable network management’ under the Net Neutrality proposed rule as Big Media companies and their supporters would like the Commission to believe.”

Photo: CC Cupcake by Creative Commons / CC BY

The application deadline for the Summer 2010 internships is 11:59 p.m. PDT, Friday, March 26, 2010. Please submit your cover letter and resume (portfolio, as well, for design students) to apply soon!

We’ve heard fantastic feedback about our internships over the years. Here’s what a few students had to say about their San Franciscan summers in the CC office:

“I wanted to spend my summer doing something important and socially responsible, so interning at Creative Commons was an obvious choice for me. What wasn’t obvious until I started working was just how much I would learn about copyright law, software development, and how effective nonprofits operate. With just a handful of staff in the San Francisco office, all of them friendly and welcoming, I quickly felt like a valued member of the team. I was given ample opportunity to meet and chat with CC staff as well as with staff and interns at peer organizations such as the Electronic Frontiers Foundation and the Center for Democracy and Technology. The people that I met that summer continue to be great friends and valuable resources who generously offer their mentorship in my post-CC work.”
— Parker Phinney, Tech Intern 2009

“Working at CC provided a complete immersion into how the organization operates, and made clear why CC has become such an important part of the online licensing landscape. In addition to specific projects and tasks, I had plenty of autonomy and opportunity to get involved in other projects or just chat about new ideas. The staff were accessible and encouraging. I’m grateful for the opportunity to participate in such a challenging and rewarding environment. In addition to legal research and project development, there were many opportunities to meet other organizations in the area, visit their offices, and interact with a range of students and professionals. I can’t think of a better way to spend the summer.”
— Joe Merante, Legal Intern 2009

“My internship with Creative Commons was probably the most fruitful and definitely the most enjoyable of my student career. I spent my time in a close-knit small-office environment, with a bunch of passionate people working on interesting real-world problems. At CC everyone is a little bit techie, a little bit law geek, a little bit free culture activist, and a whole lot of awesome. It’s an amazing place to be, and as internships go, I can’t recommend any other more highly.”
— Frank Tobia, Tech Intern 2008

Now that the broadband plan is out, and the FCC has its sights set on 500 MHz of broadcast spectrum, come listen to what it all means. In the latest episode of the Surprisingly Free Conversation podcast, Thomas Hazlett, Professor of Law & Economics and Director of the Information Economy Project at George Mason University School of Law, discusses the economics of spectrum. The discussion also turns to the history of spectrum regulation, ongoing inefficiencies in the current system, and suggestions for possible improvements.

Listen to other episodes and remember to subscribe to the podcast using RSS or iTunes.

Civil society organizations have for years been craving solid research on media ownership concentration, in order to inform calls for more transparent and independent media. A recent initiative could meet this need.

Brian Stelter of The New York Times reports today that “C-Span has uploaded virtually every minute of its video archives to the Internet”:

The archives, at C-SpanVideo.org, cover 23 years of history and five presidential administrations and are sure to provide new fodder for pundits and politicians alike. The network will formally announce the completion of the C-Span Video Library on Wednesday.

That’s just incredible. But, as I recently noted in my essay on, “C-SPAN, Civic-Minded Programming & Public Interest Regulation,” what’s more incredible it that this amazing, unprecedented civic resource has been provided to Americans at zero expense for the American taxpayer.  Many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions whatsoever. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million.

So, next time you hear someone whining about how the private sector fails to provide “public interest programming,” ask them why the government didn’t think of C-SPAN first.  And don’t let them forget how, when C-SPAN first got off the ground, many in Congress fought the idea of public access to the inner workings of government. Thank God some folks in the private sector kept the heat on for access, while also keeping the monetary support flowing for the massive investment necessary to keep this unprecedented public resource alive and growing.

Visit C-SPAN’s amazing — and easily searchable — video archive today: www.c-spanvideo.org/videoLibrary

CREW today paid homage to this year’s Sunshine Week by issuing an assessment of the Obama administration’s response to Freedom of Information Act (FOIA) requests. Our reaction is mixed. President Obama has made undoubtedly clear his commitment to open and transparent government through his January 2009 FOIA Directive and the December 2009 Open Government Directive.

Unfortunately, however, a culture of secrecy lives on in executive agencies despite obvious and pressing needs for disclosure. CREW’s report highlights:

• the Justice Department’s refusal to disclose the notes of former Vice President Dick Cheney’s interview on the Valerie Wilson leak with the FBI,

• the Health and Human Services Department’s refusal to provide documents regarding the monumental failure to send H1N1 vaccines to where they were needed most,

• and the Department of Veterans Affairs’ failure to turn over records regarding the under-diagnosis of PTSD as a cost-saving measure.

CREW’s Executive Director Melanie Sloan said today:

While the Obama administration has made some progress in increasing government transparency, CREW’s experience indicates there is still a long way to go. Sunshine Week is the perfect time for the administration to reassess and reinvigorate agencies’ efforts towards making the government more accountable to the American people.

Click here to read CREW’s report.

I’ve just read through the National Broadband Plan’s (NBP) section on online privacy (pp. 52-57). I share the FCC’s goal of increasing consumer control over their digital profiles, and applaud the FCC’s call for promoting the development of trusted identity providers and for increased education about identity theft.  But I’m disappointed to see that the FCC is focused on regulatory solutions instead of less restrictive alternatives like consumer education, technological empowerment, increased enforcement of existing laws, or limiting government access to data collected by the private sector.

Given the nature of bureaucracies and the FCC’s sweeping assertions of its own authority in recent years, I suppose we shouldn’t be surprised that the FCC’s primary suggestion is that it should be given a key role in crafting privacy regulations for online services.  But the FCC clearly lacks any statutory authority over the “computing cloud” and Congress has not asked the agency for suggestions on expanding its jurisdiction.

The FCC deserves credit for recognizing something I’ve stressed: the manifold benefits of online data collection and use, especially that targeted advertising can significantly increase funding for “free” ad-supported content and services:

These data are giving rise to something akin to a “digital identity,” which is a major source of potential innovation and opens up many possibilities for better customization of services and increased opportunities for monetization. The value of a targeted advertisement based on personal data can be several times higher than the value of an advertisement aimed at a broad audience. For example, the going rate for some targeted advertising products can be several times the rate for a generic one because consumers can be six times more likely to “click through” a targeted banner advertisement than a non-targeted one. This differential will likely increase as targeting becomes more refined and more capable of predicting preferences, intentions and behaviors.

Firms’ ability to collect, aggregate, analyze and monetize personal data has already spurred new business models, products and services, and many of these have benefited consumers. For example, many online content providers monetize their audience through targeted advertising. Whole new categories of Internet applications and services, including search, social networks, blogs and user-generated content sites, have emerged and continue to operate in part because of the potential value of targeted online advertising.

Unfortunately, the FCC doesn’t acknowledge that these benefits are a critical part of the trade-off inherent in increased regulation of how online service providers collect and use data. The Plan cites the economic value of “digital profiles” not as a reason for policymakers to tread cautiously in tinkering with the economic engine of the Internet, but as a justification for leveling the playing field among competitors through increased regulation. I’m all in favor of increased data portability and applaud efforts like Google’s cheeky Data Liberation Front, but it’s funny how even the benefits of data use become reasons for further regulation!

None of this is what Congress had in mind when it asked the FCC to propose ways of increasing the affordability and utilization of broadband as part of last year’s economic recovery legislation. I stressed that point in my comments back in January on the FCC’s NBP privacy inquiry (which was actually written by outside regulatory advocates and simply adopted by the FCC wholesale).  In essence, the FCC seems to have done what TV talk show guests do: Ignore the question asked and provide the answers you want.  When it comes to online privacy, the FCC’s answers mostly involve increased FCC regulation of the Internet.

The U.S. Joint Forces Command has updated its assessment of emerging geopolitical and technological trends and estimated their potential impact on future military operations in the new Joint Operating Environment (JOE) 2010 report (pdf).

“We will find ourselves caught off guard by changes in the political, economic, technological, strategic, and operational environments,” the report states. “We will find ourselves surprised by the creativity and capability of our adversaries. Our goal is not to eliminate surprise – that is impossible. Our goal is, by a careful consideration of the future, to suggest the attributes of a joint force capable of adjusting with minimum difficulty when the surprise inevitably comes.”

The JOE 2010 report is not overly sophisticated.  It is full of clumsily formulated truisms.  (“Modern wars are fought in more than simply the physical elements of the battlefield.”)  It recycles tired maxims from Sun Tzu.  It misspells Hitler’s first name.

But it also presents a number of stimulating assertions and provocative observations.  For example:

Growing financial deficits “will likely mean far fewer dollars available to spend on defense… Indeed, the Department of Defense may shrink to less than ten percent of the total Federal budget…. If the U.S. enters a financial regime in which defense is to be cut by a third or more, Joint Force planners must carefully explore new areas of risk as force posture and procurement budgets shrink.”

“Future Joint Force commanders will find conflict over water endemic to their world, whether as the spark or the underlying cause of conflicts among various racial, tribal, or political groups, …with armed groups controlling or warring over remaining water, while the specter of disease resulting from unsanitary conditions would hover in the background.”

“The challenges that Chinese leadership confronts at present are enormous, and an unsuccessful China is perhaps more worrisome than a prosperous one. China is confronting major internal problems that could have an impact on its strategic course. The country will face increasing demographic pressures as its population ages. Due to its ‘one child’ policy, China may grow old before it grows rich. Furthermore, a cultural preference for male heirs will create a surplus male population nearing 30 million by 2020.”

“The open and free flow of information favored by the West will allow adversaries an unprecedented ability to gather intelligence. Other nations without the legal and cultural restraints found in the U.S. may excel at capturing, assessing, or even manipulating this information for military purposes as an aid to waging the ‘Battle of Narratives.’ Indeed, adversaries have already taken advantage of computer networks and the power of information technology not only to plan and execute savage acts of terrorism, but also to influence directly the perceptions and will of the U.S. Government and the American population.”

“It is by no means certain that the United States and its allies will maintain their overall lead in technological development over the next 25 years. America’s secondary educational system is declining in a relative sense when compared to leading technological competitors, e.g., India and China.”

The previous edition (pdf) of the JOE report in 2008 generated unwanted controversy when it explicitly identified North Korea and Israel as nuclear weapons states, and warned of a threat to the stability of Mexico from criminal gangs and drug cartels.  Regrettably, perhaps, most of those rough edges have been smoothed out in the latest report.

Nearly two dozen reports from the JASON defense advisory panel have just been added to the archive of JASON reports on the Federation of American Scientists website.

New additions (all pdf) include a 2004 report on “DNA Barcodes and Watermarks,” a 2001 report on “Moletronics” or molecular electronics, and a 1998 report on “Insonification for Area Denial” (where “insonification” means the projection of focused sound waves).  Scanned copies of older JASON reports have been OCR’d to render them word searchable.

A partial, chronological list of unclassified JASON titles from 1963 to 2009 (pdf) was prepared by Allen Thomson, who also helped gather the latest additions to the online collection.

The JASON panel is regularly tasked to investigate challenging, complex issues that are on the horizon if not the forefront of defense science.  But many of the panel’s reports are sufficiently well written that they are at least partially intelligible to non-specialists.  No new JASON reports have been approved for public release since October 2009.

Yesterday, Citizens for Responsibility and Ethics in Washington (CREW) was honored as the co-winner of the American Library Association’s James Madison Award. The award recognized the work by CREW and the National Security Archive (NSA) in the missing White House emails case.

The ALA bestowed the award jointly to CREW and Meredith Fuchs, General Counsel for the National Security Archive (NSA). The James Madison Award is given annually to those who make a great impact on strengthening government transparency.

Last December, CREW, the NSA and the White House announced a settlement in the long-running lawsuit challenging the failure of the Bush White House and the National Archives and Records Administration (NARA) to recover and properly archive millions of emails. These emails had disappeared from White House servers over a two-and-a-half-year period.

The settlement directs the Executive Office of the President to restore a total of 94 days of missing emails, which will then be sent to NARA for preservation and, eventually, opened to public access.

CREW's chief counsel, Anne Weismann, accepted the award and gave this speech.

CREW is deeply honored by this award and very proud of the tireless work put in by Ms. Weismann and the entire CREW legal team to ensure these critical records of our nation’s history are preserved.

This is Sunshine Week, a time when activists, journalists and organizations such as CREW make a special effort to remind Americans why the principles of transparency in government are so important to our democracy. A recent poll of Americans by the Scripps Survey Research Center revealed their views on secrecy in government. Here are some highlights:

* When asked if there is "more secrecy, less secrecy or about the same amount of secrecy in the Obama administration as in the previous administration," 38 percent said the amount of secrecy is about the same, 34 percent said the government has become less secret under Obama and 22 percent said it has become even more secretive.

* Only 32 percent were familiar with President Obama's order instructing all federal agencies to adopt a "presumption in favor of disclosure" when handling requests under the federal Freedom of Information Act.

* The public believes that state and local governments are more "open and transparent” in their operations than the federal government. Forty-eight percent of those surveyed said their state governments were very or somewhat secretive. And only 36 percent rated their local governments as very or somewhat secretive.

The Post article on the Fed's monthly industrial production report told readers that "February's numbers gave economists other signs that manufacturing would continue to recover this spring, as the capacity utilization -- portion of plants used for production -- climbed to 72.7 percent from 72.5 percent."

Umm no, that's not quite right. Overall industrial production did rise, but that was due to increases in mining and utility output. Manufacturing output actually fell by 0.1 percent in February from a level that was revised down by 0.1 percent from its previously reported level. Capacity utilization in manufacturing fell from 69.1 percent in January (previously reported as 69.2 percent) to 69.0 percent. This decline was undoubtedly in part attributable to bad weather, but the Fed's data certainly is not pointing towards an uptick in manufacturing.

--Dean Baker