January 2013

2013 is shaping up to be another big year for Internet and information technology policy books. Here’s a list of what’s coming out or already on the market.  As faithful readers know, I put together end-of-year lists of important info-tech policy books, and here are the lists for 2008, 2009, 2010, 2011 and the most recent one for 2012. And here’s my compendium of all the major tech policy books from the 2000s. So I’ll do my best to get through all these books and whatever else follows throughout the year. Consider this my public service to the Internet policy community: I read nerdy Internet policy books so that you don’t have to!

Let me know what else I may have missed and I will add it to the list.

Obama’s talked a big game about online privacy. He promised reform during the 2008 campaign. A year ago, the White House proposed a “Privacy Bill of Rights.” But so far, the Administration’s delivered little more than fine words. Worse, they’ve focused on the wrong problems.

Government has an important role to play in protecting consumer privacy, but its snooping and surveillance are far bigger problems—which have only grown worse. While Washington talks of a new commercial privacy “Bill of Rights,” the real Bill of Rights is in peril.

The American Revolution erupted, in large part, out of seething resentment at British privacy intrusions—without judicial supervision. Virginia adopted its own Bill of Rights shortly before the Declaration of Independence, including what later became Madison’s Fourth Amendment to the Constitution: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Law enforcement must generally obtain a warrant before conducting a search—which means convincing a judge that probable cause exists to believe a crime has been committed. Continue reading →

In an important essay this week entitled “Silicon Valley’s ‘Suicide Impulse’,” Wall Street Journal columnist L. Gordon Crovitz warns that “Silicon Valley has long prided itself on avoiding the lumbering relationship between big government and most industries, but somehow it has become one of the top lobbyists in Washington.” Crovitz is worried that Internet and technology companies are falling prey to what Milton Friedman labeled “The Business Community’s Suicidal Impulse”: the persistent propensity to persecute one’s competitors using regulation or the threat thereof. “Rather than lobby government to go after one another,” Crovitz argues, “Silicon Valley lobbyists should unite to go after overreaching government. Instead of the ‘suicide impulse’ of lobbying for more regulation, Silicon Valley should seek deregulation and a long-overdue freedom to return to its entrepreneurial roots.”

Crovitz’s essay touches upon a dangerous trend I have written about here and elsewhere in the past: the increasing politicization of the Internet and information technology sectors and the gradual rise of rent-seeking (i.e., favor-seeking) over time. I’ve written about this problem in essays like:

These essays have documented how tech companies are increasingly vying for the attention of legislators and regulators in Washington, statehouses, and international capitals across the globe.

Why should we care about the increasing politicization of the information technology sector? Continue reading →

A couple of folks have asked me why I’ve gone silent over the past few months and posted so little here on the TLF. Simply put, I over-committed myself to one law review after another. I had submitted a few working papers to law reviews late last year and then was simultaneously approached by a few others who were soliciting specific pieces. And I said ‘yes’ to everybody!  That’s meant zero time for casual blogging of any sort. I hope to get back on the beat soon, but I still am putting the wraps on two of these, so it may be awhile before I get back to blogging regularly. Anyway, to the extent anyone is interested in what I am working on, here are my next seven law review articles, plus a book chapter:

  1. Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” 14 Minnesota Journal of Law, Science & Technology, 309-386, (Winter 2013).
  2. The Perils of Classifying Social Media Platforms as Public Utilities,” forthcoming, The CommLaw Conspectus: Journal of Communications Law and Policy, (Spring 2013).
  3. Uncreative Destruction: The Misguided War on Vertical Integration in the Information Economy,” with Brent Skorup, 65 Federal Communications Law Journal, 157-201, (April 2013).
  4. The Pursuit of Privacy in a World Where Information Control Is Failing,” 35 Harvard Journal of Law & Public Policy, 409-455, (2013).
  5. A Framework for Benefit-Cost Analysis in Digital Privacy Debates,” 20 George Mason University Law Review, 1055-1105 (2013).
  6. A History of Cronyism & Capture in the Information Technology Sector,” with Brent Skorup, [Mercatus Working Paper, July 2013. Looking for a home for this one, possibly in a poly sci or history journal instead of a law review.]
  7. Internet Policy Paradigms: The First Half Century of Internet Governance Visions”  [Looking for a home for this one, too, but still far from done with it.]
  • [Book chapter] “A Framework for Responding to Online Safety Risks,” [forthcoming book chapter in: Youth And The Internet – Regulating Online Opportunities And Risks (Springer Press, 2013)]

James Grimmelmann

New York University law professor James Grimmelmann eulogizes Aaron Swartz, the open information and internet activist who recently committed suicide in the face of a computer trespass prosecution.

Grimmelmann describes Swartz’s journey from “wunderkind prodigy who came out of nowhere when he was 14″ to “classic activist-organizer,” paying special attention to the ideas that motivated his work. According to Grimmelmann, Swartz was primarily interested in power being held by the wrong people and how to overcome it through community organizing. Swartz was dedicated to his personal theory of change and believed that people who know how to use computers have a duty to undermine the closed-access system from within.

It was this ardent belief that led Swartz to surreptitiously download academic articles from JSTOR. Grimmelmann closely analyzes the case, providing a balanced view of both the prosecution’s and Swartz’s view of the issue. Grimmelmann additionally suggests possible policy reforms brought to light by Schwartz’s case.

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Matt Yglesias today responded with a post of his own to a NYT article about sports channels and cable pricing by Brian Stelter that Yglesias believed had “bad analysis.” I’m here to defend Stelter a little bit because I think Yglesias was too harsh and that Yglesias erred in his own post about the nature of cable bundling. Yglesias’ posts on cable bundling are good, and especially valuable because his Slate and ThinkProgress audiences are not the most receptive to economic justifications for perceived unfair corporate pricing schemes. In part due to him I suspect, you rarely hear econ and business bloggers calling for a la carte pricing of cable channels.

And Yglesias is certainly right that you can’t really complain about the price of your cable package, which includes the few channels you watch plus the sports channels you don’t watch, because you obviously value the channels more than the price you pay per month, even if the sports are a “waste.” He falters when he says

So since those channels are worth $60 to you, even if unbundling happens your cable provider is going to find a way to charge you approximately $60 for them. Because at the end of the day, you’re paying your cable provider for access to the channels you do watch—not for access to the channels you don’t watch. The channels you don’t watch are just there. If the channels you do watch are worth $60 to you, then $60 is what you’ll pay for them.

Continue reading →

posted an analysis of Netflix’s new Internet blocking strategy last week. I concluded that Netflix is attempting to leverage net neutrality regulations to gain an anticompetitive price advantage in the marketplace. In my view, this harm is an unintended consequence of the FCC’s decision to abandon its free market approach to the Internet and adopt net neutrality rules that enhance the market power of so-called “edge” companies. As Neil Stevens said in his Tech at Night column: “Told you so.”

Harold Feld apparently agrees that Netflix is threatening competition, and he has is own case of Cassandrafreude (“told you so,” but with a smile). In his view, however, the problem is that the FCC didn’t go far enough. He believes this situation could have been avoided if the FCC had applied common carrier regulation to the Internet (also known as Title II), which would regulate the Internet using statutes written for the old monopoly telephone network.

Though Harold Feld and I disagree on the appropriate level of Internet regulation (I would prefer less rather than more), it appears we do agree on several issues raised by Netflix’s decision to block access to its Super HD service. The unintended consequence of Netflix’s decision is that the ensuing debate has clarified some important Internet policy issues. Continue reading →

Attendees at the State of the ‘Net conference will be thrilled to know that Larry Downes will be making an encore performance Wednesday afternoon, January 23rd, in the Rayburn House Office Building. The noontime briefing is entitled “A Rational Response to the Privacy ‘Crisis’.” It’s appropriately named because he’ll be discussing ideas from his recent Cato policy analysis: “A Rational Response to the Privacy ‘Crisis’.”

Mixed Response to Comcast in Expanding Net Access.” That’s a headline in The New York Times today.

What an utterly disgraceful hit piece. According to the article, participants in Comcast’s broadband program for low income families, as well as school administrators and city officials, are happy with the program. So what’s this “mixed response”?

>But as the program gains popularity, the company has come under criticism, accused of overreaching in its interactions with local communities — handing out brochures with the company logo during parent-teacher nights at public schools, for instance, or enlisting teachers and pastors to spread the word to students and congregations.

That’s the sixth paragraph, and its passive voice foreshadows that we’re never told who is criticizing nor what exactly is the critique (besides, perhaps, the fact that Comcast is a for-profit business and that it is advertising its low-income program). The gall! How dare Comcast inform people about a product offering! And these teachers and pastors being “enlisted” by Comcast, do they really think the program might benefit their students and congregations?

Then there’s this:

>Broadband service is “a natural monopoly” controlled by a handful of private companies, said Mr. Karaganis, of the American Assembly, adding that Internet Essentials gave Comcast access to people in community settings where it could use the lure of low prices to tap into a new consumer base.

Now, I really appreciate and respect Joe Karaganis’s research on copyright, but he needs to look up the definition of “natural monopoly.” If Comcast is so powerful, it’s kind of odd that they need to use “the lure of low prices to tap into a new consumer base.” Oh, the lure! Kvorka! What this really shows is how price discrimination can serve to [benefit lower-income folks](http://truthonthemarket.com/2008/11/30/price-discrimination-is-good-part-i/) (as well as those who don’t value broadband very much).

No, Comcast isn’t doing anything “out of the goodness of their hearts,” but why should that matter when what they’re doing is benefitting everyone involved?

Eli Dourado said it best:

More information available here. Some details:

The Mercatus Center’s MA Fellowship program is targeted toward students with an interest in gaining advanced training in economics, but who do not anticipate a career in academia. Students who anticipate working in public policy are ideal candidates for this fellowship. The two-year program offers full tuition towards an MA in applied economics from George Mason University, a generous stipend, and experience publishing policy articles and papers with Mercatus Center senior scholars. For more information please email MAFellows@mercatus.org.

The application deadline for Fall 2013 is March 1, 2013.