On numerous occasions here at the TLF over the past eight years, I’ve noted the profound influence that the late Ithiel de Sola Pool had on my thinking about the interaction of technology, information, and public policy. In fact, when I needed to pick a thematic title for my weekly Forbes column, it only took me a second to think of the perfect one: “Technologies of Freedom.” I borrowed that from the title of 1983 masterpiece, Technologies of Freedom: On Free Speech in an Electronic Age. As I noted in my short Amazon.com review, Pool’s technological tour de force is simply breathtaking in its polemical power and predictive capabilities. Reading this book three decades after it was published, one comes to believe that Pool must have possessed a crystal ball or had a Nostradamus-like ability to foresee the future.

I felt that same was this week when I was re-reading some chapters from his posthumous book, Technologies without Boundaries: On Telecommunications in a Global Age–a collection of his remaining essays nicely edited and tied together by Eli Noam after Pool’s death in 1984. Re-reading it again reminded me of Pool’s remarkable predictive powers. In particular, the closing chapter on “Technology and Capture” includes some of Pool’s thoughts on the future of copyright. As you read through that passage below, please try to remember he wrote these words back in the early 1980s, long before most people had even heard of the Internet and when home personal computing was only just beginning to take off. Yet, from what he already knew about networked computers and digital methods of transmitting information, Pool was able to paint a prescient portrait of the future copyright wars that we now find ourselves in the midst of. Here’s what he had to say almost 30 years ago about how things would play out:

Can a computer infringe copyright? The printed output of recorded copyright material is likely to be a statutory violation of the Copyright Act which vests the exclusive right “to print, reporting, publish, copy and vend the…work.”

In short, the process of computer communication entails processing of texts that are partly controlled by people and partly automatic. They are happening all through the system. Some of the text is never visible but is only stored electronically; some is flashed briefly on a terminal display; some is printed out in hard copy. What started as one text varies and changes by degrees to other things. The receivers may be individuals and clearly identified, or they may be passers­by with access but whose access is never recorded; the passer­by may only look, as a reader browsing through a book, or he may make an automatic copy; sometimes the program will record that, sometimes it will not.

To try to apply the concept of copyright to all these stages and actors would require a most elaborate set of regulations. It has none of the simplicity of checking what copies rolled off a printing press. Good intentions about what one would like can be defined. One would like to compensate an author if a computer terminal is used as a printing press to run off numerous copies of a valuable text. One would like not to impose any control as someone works at a terminal in the role of a reader and checks back and forth through various files. The boundary, however, is impossible to draw. In the new technology of interactive computing, the reader, the writer, the bookseller, and the printer have become one. In the old technology of printing one could have a right to free press for the reader and the writer but try to enforce copyright on the printer and the bookseller. That distinction will no longer work, any more than it would ever have worked in the past on conversation.

Those whose livelihood is at stake in copyright do not like that kind of comment. They contend that creative work must be compensated. Indeed it must. Publishers may point the finger in accusation and charge that one is taking bread out of the mouths of struggling writers. But the system must be practical to work. On highly charged subjects there is an impulse to insist that those who make a negative comment must have a panacea to offer instead. If one says prisons do not cure criminals, the rejoinder is apt to be, “Do you want to let them out to kill people?” One does not necessarily want that at all, but it may still be true the prisons do not cure criminals. Likewise, one can say that in an era of infinitely varied, automated text manipulation there is no reasonable way to count copies and charge royalties on them.

That is the situation now emerging. It may be very unfair to authors. It may have a profoundly negative effect on some aspects of culture, and in any case, whether positive or negative, it may change things considerably. If it becomes more difficult for authors and artists to be paid by a royalty scheme, more of them will seek salaried bases from which to work. Some may try to get paid by personal appearances or other auxiliaries to fame. Or the highly illustrated, well-bound book may acquire a special marketing significance if the mere words of the text are hard to protect. Or one may try to sell subscriptions to a continuing service, with the customer knowing that he will be a first recipient.

These are the kinds of considerations one must think about in speculating about the consequences for culture of a world where the royalty-carrying unit copy is no longer easy to protect in many of the domains where it has been dominant. While Congress tries to hold the fort, it is clear that with photocopiers and computers, copyright is an anachronism. Like many other unenforceable laws that we keep on the statute books from the past, this one may be with us for some time to come, but with less and less effect. (pp. 257-59)

Indeed, as I wrote in one of my recent Forbes column’s (The Twilight of Copyright?”), it appears that–whether some of us like it or not–”copyright is dying… [as it] is being undermined by the unrelenting realities of the information age: digitization, instantaneous copying, borderless transactions, user-generated content, and so on.” Of course, I’m basing that assertion on the facts on the ground around me circa 2012. By contrast, Ithiel de Sola Pool already had it figured out 30 years ago. Absolutely remarkable.

Rebecca MacKinnon’s new book, Consent of the Networked: The Worldwide Struggle for Internet Freedom, is well-researched exploration of the forces driving Internet developments and policy across the globe today. She serves up an outstanding history of recent global protest movements and social revolutions and explores the role that Internet technologies and digital networks played in those efforts. She also surveys some of the recent policy fights here and abroad over issues such as online privacy, Net neutrality regulation, free speech matters, and the copyright wars. The Consent of the Networked is certainly worth reading and will go down as one of the most important Internet policy books of 2012.

A Call to Action

Of course, it’s not just a history lesson. MacKinnon has also issued a call-to-arms here. As a well-known web activist, MacKinnon has emerged as a leading force in the broad-based, if loosely-defined, “Net freedom” movement. The term “Net freedom,” she notes, means very different things to different people. It’s “like a Rorschach inkblot test: different people look at the same ink splotch and see very different things.” (p. 188)  Nonetheless, on the global stage, the Internet freedom movement is fundamentally tied up with efforts to hold both governments and corporate actors more accountable for their actions toward the Netizens, digital networks, and online speech and expression.

MacKinnon has rightly won praise for her efforts to devise an institutional structure and accompanying set of social/moral pressures that can get private actors to understand “why it is good for their business in the long run to be both responsible and publicly accountable when it comes to protecting users’ and customers’ rights.” (p. 182)  She was instrumental in setting up the Global Network Initiative (GNI), an effort to devise a set of best practices and a sort of voluntary code of conduct for online operators doing business in repressive states. The GNI lays out a set of principles for online expression, privacy, corporate transparency, and multi-stakeholder interaction that members are expected to live up to. Thus far, however, the only major corporate signatories are Microsoft, Google, and Yahoo.

Consent of the Networked is MacKinnon’s effort to take the “Net freedom” movement to the next level; to formalize it and to put in place a set of governance principles that will help us hold the “sovereigns of cyberspace” more accountable.  Many of her proposals are quite sensible. But my primary problem with MacKinnon’s book lies in her use of the term “digital sovereigns” or “sovereigns  of cyberspace” and the loose definition of “sovereignty” that pervades the narrative. She too often blurs and equates private power and political power, and she sometimes leads us to believe that the problem of the dealing with the mythical nation-states of “Facebookistan” and “Googledom” is somehow on par with the problem of dealing with actual sovereign power—government power—over digital networks, online speech, and the world’s Netizenry.

Back to Political Philosophy 101: What a Sovereign Is, and Isn’t

MacKinnon suggests that we need to begin to think about our interactions with various private digital intermediaries in much the same way many political philosophers have traditionally thought about the relationship between citizens and the state. Building on social contract theory (a la Hobbes, Locke, Rousseau, etc.), she seeks to apply “consent of the governed” notions to the digital sphere such that we might achieve as sort of “consent of the networked.” “It is time for the new digital sovereigns to recognize that their own legitimacy — their social if not legal license to operate — depends on whether they too will sufficiently respect citizens’ rights,” she argues. (p. 165) “It is time to upgrade the social contract over the governance of our digital lives to a Lockean level, so that the management of our identities and our access to information can more genuinely and sincerely reflect the consent of the networked.” (p. 165)

It sounds great in theory. In practice, however, this notion is highly problematic.  Private companies are not “sovereigns,” nor should we move to formally classify them as such. Equally problematic is MacKinnon’s quip about their “legal license to operate,” which raises other concerns.

First, let’s drill down a bit on the sovereignty point.

Sovereignty is, at root, about power; supreme power over a group in a defined geographic territory. In a Hobbesian sense, sovereignty is the coercive power to rule absolutely over those people. For a more extensive discussion, see Bertrand Russell’s magisterial A History of Western Philosophy. (Touchstone, 1945, pp. 546-557.)  Or we might also reference Blackstone who noted that “For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.”

Of course, the uniquely American contribution to this discussion — flowing from the radicalism of the American Revolution — is that sovereignty lies in the people themselves and that only when they delegate some of that power to the state does the state come to have any legitimacy. Through “the consent of the governed” and the requisite constitutions or other contracting elements, “we the people” transfer power to governments to handle a variety of things that we deem better not left to private actors or actions. More on those powers in a sec.

But first, let’s be clear about the essential transfer of power that takes place here and why we shouldn’t take it lightly. At the heart of sovereignty lies the collectivization of force and coercion. In her essay “On the Source of the Authority of the State,” the British philosopher G.E.M. Anscombe’s pinpointed the “institutional violent coercive power” of the State as the crucial element of its sovereign authority over any group. “No political theory can be worth a jot, that does not acknowledge the violence of the state, or face the problem of distinguishing between states and syndicates,” Anscombe argued. This is just as true for the sort of sovereignty derived from the “consent of the governed” via the Lockean-American model as it is in the British tradition or any other system.

But there’s another essential element to sovereignty, properly understood: the impossibility of escaping the reach of that authority. Commenting on Anscombe’s framework, Jenny Teichman and Katherine C. Evans, authors of Philosophy: A Beginner’s Guide, note that “there surely must be some difference between a state and a voluntary association… The chief difference between a voluntary association and a state is that you can resign from a voluntary association, but it is never possible to resign from the state.” (p. 105).

The American Revolution gave us a new way of thinking about this, too. Because true sovereignty lies with the people, even after we transfer some of it to the state as an agent of power over us, we can later change our minds and take that power back. Of course, that’s much easier said than done, especially if we are talking about a full-blown revolution being required to accomplish the return of that power to the people such that we might contract with a new sovereign entity.

But the important point here is that, while the state does exist and retains the power we have delegated to it, it (a) possess unique coercive powers over us and (b) the possibility of escaping their rule is often quite limited, sometimes by geographic or economic realities, other times by efforts by the sovereign to restrict flight.

The same facts do not hold for corporate entities. That is the essential insight missing from MacKinnon’s narrative. “Facebookistan” and “Googledom” are cute labels, but let us not pretend for one moment that there is any legitimacy whatsoever to their “rule” over us.  They do not possess such coercive powers over us and we are able to escape their “territories” any time we want, or not even join them in the first place if we don’t want to.

Not to put too fine a point on it, but here are the three essential things that sovereign governments can do that “Facebookistan,” “Googledom” or any other corporations cannot: (1) Imprison you. (2) Tax you. (3) Confiscate your property.  But that’s not the end of the list. There are many other powers that are exclusive to governments. For example, they can: coin money, regulate various forms of commerce, form standing armies, form treaties with foreign sovereigns, declare war on those foreign sovereigns with those aforementioned standing armies, etc, etc). But those big three powers are the ones that matter most.

While, in theory, “we the people” could contract with Facebook, Google, or another private entity to hold these powers and literally become “sovereigns of cyberspace” ruling over us, the reality is that that has never happened and isn’t about to any time soon. In fact, no corporation holds these powers unless governments deputize them — whether willingly or reluctantly — to become henchmen of the State. That’s a crucial point, and one often misunderstood in debates about Internet freedom, online privacy, digital copyright, and online freedom of speech. Luckily, that distinction is not lost on MacKinnon. In fact, she nails what it so insidious about it. More on that point in a moment.

The Self-fulfilling Prophecy Problem

But first, there’s another major problem with MacKinnon’s suggestion that we think of certain private digital entities as “sovereigns.”  We might think of it as “the self-fulfilling prophecy problem”: If you declare certain digital operators to be “sovereigns” or even “essential social facilities” to use public utility parlance, then you should not be at all surprised when the very act of affixing that label (and concurrent obligations) on a particular platform or company tends to lock it in as the preferred or only choice in its sector.

If, for example, we had a formal “constitutional convention” for Facebookistan and its users (God only knows how such a thing would work), it could very well tip the market in favor of Facebook being the primary or preferred choice for social networking going forward.  This has been a long-standing problem in the field of communications where public utility regulation often shelters a “utility” from competition once it is enshrined as such. Or, by forcing standardization or a common platform, regulation can help lock it in for the long-haul and erect de jure or de facto barriers to entry that restrict beneficial innovation and disruption of market leaders.

The last thing we want to do is lock-in Facebook or Google as market leaders by declaring that we need special rules governing MacKinnon’s mythical sovereigns of “Facebookistan” and “Googledom.” Those countries do not exist, nor should the law declare that they do. [Note: I have a paper coming out next month on “The Perils of Classifying Social Media Platforms as Public Utilities” that will address these issues in more detail.]

The Velocity of “Tech Titan” Meltdowns also Undercuts “Sovereignty” Claims

Importantly, MacKinnon also fails to consider the rapid rise and fall of these supposed digital sovereigns. In my work attacking the Lessig-Zittrain-Wu school of thinking about cyberlaw and digital economics, I’ve argued that there’s a serious short-sightedness and a needlessly pessimistic outlook among many Internet academics today. [See my book chapter from The Next Digital Decade: “The Case for Internet Optimism, Part 2 – Saving the Net from Its Supporters.”]

Creative destruction and disruptive technologies continue to upend tech markets and displace supposedly “dominant” digital giants with increasingly regularity. Change and churn are the only constants in an economy built largely on the foundations of binary code. Absolutely nothing that was sitting on our desktops in 1995 remains there today (can you name another sector like that?), and most of the first generation of “tech titans” have already faded from the picture. If MacKinnon had written her book just a decade ago, would she have referred to AOL as a “sovereign of cyberspace”? If she had penned it five years ago, would she have fretted about “MySpace-istan”?

By contrast, the reign of most actual “sovereigns” is usually measured in decades, even centuries. That is far longer than the brief time in the sun that most digital providers and platforms enjoy today. Markets discipline and sometimes severely punish those that don’t satisfy the desires of users and customers.

Power Begets Power: The Dangers of Middleman Deputization

But let’s get back to the dangers of middleman deputization. It should be obvious that any move to treat digital operators more like “sovereigns” will likely end up ensuring that actual sovereigns rope them into a host of regulatory regimes. This is why I was dismayed by MacKinnon’s “legal license to operate” line, even though she never fully develops what she means by that. It seems to imply that these entities only exist by the good graces of the State and that they could be used to accomplish a variety of government goals.

I was relieved, therefore, to see what a nice job MacKinnon does documenting and critiquing the many ways that governments already enlist digital intermediaries into a variety of regulatory efforts, including: copyright enforcement, online child safety, online harassment / defamation, and national security / law enforcement matters. In one of the best portions of the book, she takes on policymakers and academics who increasingly call for increased intermediary deputization, which often diminishes users’ liberties in one fashion or another. “Internet companies around the world face mounting pressure from governments not just to block websites but to delete a wide range of content from the Internet completely, as well as track what their users are doing so they can be prosecuted or cut off if they do anything illegal,” she correctly notes. (p. 93)

MacKinnon also takes on Cass Sunstein and some of the other contributors to the troubling recent book The Offensive Internet. Several of the academics who penned essays for that collection call for expanded intermediary policing of the Net as well as new laws aimed at limiting online anonymity. These deputization mandates would open the door to excessive government control of speech and also raise serious privacy and security issues. MacKinnon wonders: “Can Sunstein and his coauthors be so naïve as to think that power holders in the twenty-first century United States are different from power holders in any other place or time?” (p. 89)  Excellent question!

MacKinnon notes that South Korea adopted a law demanding websites with more than 100,000 visitors per day to obtain the real names, addresses, and national ID numbers of all users upon account creation. The law followed concerns similar to those raised by American critics who are worried about online harassment. “But this legal solution pursued by a democratically elected parliament ended up being used by economically and politically powerful people in South Korea to stifle speech they happened to find threatening,” MacKinnon notes. She recalls the case of South Korean blogger Park Dae-sung, who was arrested and jailed under the law for “spreading false information to harm the public interest.” (p. 90) In reality, Park had done little more than blog critically about the country’s economic policies and found himself loathed by many inside the government as a result.

Regrettably, this was not an isolated case. Other Koreans were charged under the law before it was finally overturned in mid-2011, but not before much of the personal information collected by the government was stolen by Chinese hackers. “Herein lies the dangerous slippery slope in legislation to curb anonymity,” argues MacKinnon. “[T]he people of South Korea,” she notes, “learned a painful lesson about why excessive data retention and ID requirements can make citizens less rather than more secure.” (p. 91)

Here in the United States, we are lucky that 47 U.S.C. § 230, commonly known as “Section 230,” shields online operators from liability for information posted or published on their systems by users, ensuring that they cannot be deputized by governments to more aggressively police — even self-censor — their sites for various types of online content that public officials wanted curbed. I’ve argued that Sec. 230 is “the greatest Internet law” because it grants online intermediaries generous leeway to determine what content and commerce travels over their systems without the fear that they will be overwhelmed by lawsuits if other parties object to some of that content. Many of the online social media and e-commerce sites that we know and love today — Yelp, Twitter, eBay, etc. — might not exist without Sec. 230’s protections. Moreover, many users would find their online liberties and privacy in greater peril without Sec. 230’s protections.

Still, as MacKinnon correctly notes, many digital intermediaries are pressured (and sometimes required) to serve as the handmaidens of government. This is particularly problematic when it comes to the forcible surrender of personal information or technological capabilities to government officials. When government officials come knocking on a company’s door asking for user records, files, search histories, or whatever else, that’s obviously a huge problem.

But, as I noted in this debate with Lawrence Lessig a few years ago, this is a problem we should handle by putting more constraints on our government(s), not by imposing more regulations on code or coders. While, as a general principle, it is wise for companies to minimize the amount of data they collect about consumers or websurfers, we need not force that by law. And we should certainly hold companies to high standards when it comes to data security and breach. But, again, the best way to deal with many of the surveillance and data collection threats that MacKinnon worries about in her book is to tightly limit the powers of government to access private information through intermediaries in the first place. Most obviously, we could start by tightening up the Electronic Communications Privacy Act and other laws that limit government data access. And continuing to defend Section 230 against attacks is essential. If we’re going to be legislating about the Internet, we need more laws like that to create a high and tight firewall between government and our online communities.

MacKinnon’s Net Governance Ideas

I apologize for dwelling so long on the point about sovereignty, but I believe it’s essential we not start thinking of private operators as “sovereigns” for the reasons I’ve outlined.  Anyway, MacKinnon has many other ideas about Net governance in the book that are less controversial. In fact, I find myself largely in agreement with many of her recommendations.

For example, she wants to “expand the technical commons” by building and distributing more tools to help activists and make organizations more transparent and accountable. These would include circumvention and anonymization tools, software and programs that allow both greater data security and portability, and devices and network systems to expand the range of communication and participation, especially in more repressed countries.  All terrific ideas.

MacKinnon would also like to see neitzens “devise more systematic and effective strategies for organizing, lobbying, and collective bargaining with the companies whose service we depend upon — to minimize the chances that terms of service, design choices, technical decisions, or market entry strategies could put people at risk or result in infringement of their rights.” (p. 247)  This also makes sense as part of a broader push for improved corporate social responsibility. When people band together — as consumers, users, citizens, etc. — they can provide a powerful check on corporate behavior and encourage the evolution of new social and market norms. There are so many Internet advocacy organizations out there doing this now that I sometimes wonder if some of them would be better off merging to increase their collective bargaining power. But that’s a discussion for another day.

What Role for Law?

In terms of law, it’s not always clear what MacKinnon is after, even if it is obvious she’s open to more regulation, so long as it’s for what she regards as the right purpose. “There is a need for regulation and legislation based on solid data and research (as opposed to whatever gets handed to legislative staffers by lobbyists) as well as consultation with a genuinely broad cross-section of people and groups affected by the problem the legislation seeks to solve, along with those likely to be affected by the proposed solutions,” she says. (p. 172) While this implies an openness to political solutions to “net freedom” and privacy problems, MacKinnon never really makes it clear how we strike the right balance. Adding to the confusion is the very next line: “In many other situations, government regulation—especially when large numbers or people have good reason not to trust the motives of the regulators or legislators in question—can create as many problems as it solves.”

In other words, the standard for green-lighting government action seems to be this: When we can trust the motives of the regulators and legislators in question, then it’s fine to bring politics into the equation. Sorry, but that’s still a fairy subjective test.

It’s worth noting that, on balance, MacKinnon expresses serious reservations about the wisdom of many government solutions. And, as noted above with regards to deputization solutions, she certainly appreciates the many unintended consequences of regulation. She notes how regulation so often lags far behind innovation. “A broader and more intractable problem with regulating technology companies is that legislation appears much too late in corporate innovation and business cycles,” MacKinnon argues. (p. 174)  She notes that proposals like the Global Online Freedom Act (GOFA), which aimed to devise legal solutions and penalties for companies doing business in repressive regimes, ultimately won’t work.  Not only were the issues evolving too quickly for GOFA to be a solution, but its “one-size-fits-all legislative approach” didn’t make sense for the multiplicity of businesses, countries, cultures, and laws that are out there.

Despite these reservations, she seems entirely at ease with expanded government privacy mandates and Net neutrality regulation, among others. Yet, she grows more concerned when referencing efforts to legislate on copyright, child safety, defamation, and national security matters. And so we arrive back at a problem I have previously labeled the “selective morality problem” within modern cyberlaw debates: People hate Internet regulation… until they love it!  I’ve expanded on this notion at greater length in my essays, “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed,” And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars,” and more recently, “SOPA & Selective Memory about a Technologically Incompetent Congress.”

Like most other Internet policy scholars today, I don’t suspect MacKinnon will ever come around to embracing a more consistent, across-the-board approach to keeping government’s paws off the Net, but I would appreciate it if smart folks like her would at least acknowledge the inconsistency in their views as well as the danger of opening the door to government meddling for their pet concerns, since that will undoubtedly open it up wider and wider to all the other issues that people want handled politically. Eventually, this is how governments across the globe will wrap their tentacles tightly around every facet of online life and commerce. No one today mounts a consistent defense of cyber-liberty.

The problem is that MacKinnon, like so many other well-intentioned academics and activists today, seems to imagine that she’ll be able to dictate when the law gets used to do “the right thing” and then later we can just shut down the regulatory process and stop misguided legislative adventures. But you can’t have your cake and eat it too, even though that seems to be the operational assumption here. Again, we see that when she warns of the danger of regulatory capture and argues law should not be based on “whatever gets handed to legislative staffers by lobbyists.” Well, I hate to be such a cynic, but good luck with that!  If you want to know why I am such a cynic, take a look at my growing compendium, “Regulatory Capture: What the Experts Have Found.” It does not make for fun reading but the lesson is unambiguous: Increasing the scope of political meddling for some issues — even those you think worthwhile — will inevitably increases the grim reality of more Net regulation and more industry capture. It continues to be the #1 reason I prefer civil society-based and market-based solutions over governmental solutions, even when I sympathize with the concerns regulatory advocates raise.

Closing Thoughts

Despite the nitpicks I’ve raised here, there’s much to like in Rebecca MacKinnon’s Consent of the Networked. In particular, it offers a rich history of modern Net governance debates that is not to be missed. In particular, her coverage of China and the Net is second to none. More generally, she’s just a terrific all-around researcher and writer; her old journalism skills really paid off here. Other scholars in the field would do well to use her book as a model for how to communicate complex ideas in a clear and convincing fashion.

Cyberlaw and Internet policy scholars and students would be wise to read MacKinnon’s Consent of the Networked alongside Milton Mueller’s Networks and States: The Global Politics of Internet Governance [reviewed here], Evgeny Morozov’s The Net Delusion [reviewed here], and Access Contested: Security, Identity, and Resistance in Asian Cyberspace by Deibert, Palfrey, Rohozinski and Zittrain. Of course, the work of David G. Post and David R. Johnson is also mandatory reading on this topic. They were writing about Net governance before Net governance was cool. Post’s recent book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, [review here] is very much worth reading, as well as his much older 1998 essay, “The ‘Unsettled Paradox’: The Internet, the State, and the Consent of the Governed.” Also, David Johnson’s recent chapter in The Next Digital Decade closely tracks MacKinnon’s thinking on Net governance and is worth checking out. It’s entitled, “Democracy in Cyberspace: Self-Governing Netizens & a New, Global Form of Civic Virtue, Online.” There are many other important essays in that volume, too. I should also mention the massive collection of essays that Wayne Crews and I edited and bound together for Cato back in 2003. The volume was entitled Who Rules the Net? Internet Governance and Jurisdiction. There were some terrific essays in there on topics related to MacKinnon’s book.  Finally, for an international perspective on some of these issues, students should check out Chris Marsden’s recent book, Internet Co-Regulation: European Law, Regulatory Governance and Legitimacy in Cyberspace.

Down below you will find some additional links to explore Consent of the Networked and Rebecca MacKinnon’s other research and advocacy. Again, I recommend you add the book to your collection.

[Reminder: All my tech policy book reviews can be found here.]

Additional Reading:

• Official site for Consent of the Networked
• MacKinnon’s blog, “RConversation”
• MacKinnon’s recent Washington Post oped, “Why doesn’t Washington understand the Internet?”
• Global Network Initiative (GNI)
• MacKinnon interviewed on “Democracy Now” with Amy Goodman
• MacKinnon’s TED talk, “Let’s Take Back the Net”

My latest Forbes column is entitled “Why Doesn’t Society Just Fall Apart?” and it’s a short review of Bruce Schneier’s latest book, Liars & Outliers: Enabling the Trust that Society Needs to Thrive.  It’s an interesting exploration of the societal pressures that combine to ensure that (most!) societies don’t go off the rails and end in anarchic violence. In particular, he identifies and discusses four “societal pressures” combine to help create and preserve trust within society. Those pressures include: (1) Moral pressures; (2) Reputational pressures; (3) Institutional pressures; and (4) Security systems. By “dialing in” these societal pressures in varying degrees, trust is generated over time within groups.

Of course, these societal pressures also fail on occasion, Schneier notes. He explores a host of scenarios — in organizations, corporations, and governments — when trust breaks down because defectors seek to evade the norms and rules the society lives by. These defectors are the “liars and outliers” in Schneier’s narrative and his book is an attempt to explain the complex array of incentives and trade-offs that are at work and which lead some humans to “game” systems or evade the norms and rules others follow.

The most essential lesson Schneier teaches us is that perfect security is an illusion. We can rely on those four societal pressures in varying mixes to mitigate problems like theft, terrorism, fraud, online harassment, and so on, but it would be foolish and dangerous to believe we can eradicate such problems completely. “There can be too much security,” Schneier explains, because, at some point, constantly expanding security systems and policies will result in rapidly diminishing returns. Trying to eradicate every social pathology would bankrupt us and, worse yet, “too much security system pressure lands you in a police state,” he correctly notes.

Schneier’s framework is particularly useful when addressing a variety of security dilemmas in the field of information policy. “Parasites are all over the Internet,” he notes, and “new technologies, new innovations, and new ideas increase the scope of defection in several dimensions.” Whether its spam, malware attacks, data theft, copyright piracy, or cybersecurity, the defectors have a first-mover advantage in that “they get to try the new attack first.” The Net and new digital networks and technologies have created a never-ending cat-and-mouse game: “It’s a race between the ability to deceive and the ability to detect deception,” Schneier notes. Again, there are no silver-bullet solutions because “this process never ends.” As he correctly concludes, we must accept the fact that “security is a process, not a product.”

I recommend Schneier’s book and encourage your to read my entire review over at Forbes.

In the wake of last week’s big SOPA showdown, a lot of people are talking about the expanded presence and power of the Internet, online operators, and digital Netizens in Washington policy debates. I certainly don’t mean to diminish the importance of this particular episode. It certainly is historic, regardless of how you feel about the specifics of SOPA. What does concern me, however, is the way this episode is prompting questions about how much more “engagement” Internet companies need to consider inside the Beltway. For example, today’s Wall Street Journal features an article on “The Web’s Growing Muscle” and notes:

The Internet industry has found a rare sweet spot in Washington. With Google in the lead, the companies have begun building a strong traditional lobbying force in Washington. And, to complement that inside game, websites’ millions of users have become a powerful outside weight on Congress. What’s more, in a rare Washington double play, the concerns of Internet companies have found a sympathetic ear both in the Democratic White House and among Republican presidential candidates who otherwise can’t agree with Barack Obama on anything.

The piece concludes with a quote from an anonymous media executive saying “People are looking at what Google spent on lobbying and wondering, ‘Can we match that?’ It has to be a big spend.”

I cannot possibly think of anything more demoralizing than that. The idea that web companies should spend more of their time in Washington showering politicians with cash instead of out there in the real world innovating and making consumers happy is extremely troubling. I wrote about this growing trend in my 2010 Cato essay on “The Sad State of Cyber-Politics.” I built that essay around an old manifesto by Cypress Semiconductor CEO T. J. Rodgers on “Why Silicon Valley Should Not Normalize Relations with Washington, D.C.“  Rodgers had argued that “The political scene in Washington is antithetical to the core values that drive our success in the international marketplace and risks converting entrepreneurs into statist businessmen,” and that “The collectivist notion that drives policymaking in Washington is the irrevocable enemy of high-technology capitalism and the wealth creation process.”

But no one was listening then and they certainly aren’t listening now. We find ourselves in the midst a mad rush to see who can open a bigger, fancier office in Washington and have glitzier parties to make the political class happy. As I noted in the Cato essay:

There’s enormous pressure on the high-tech sector to actually become more entrenched in coming years, at least to remain “competitive” with other companies who have planted a flag inside the Beltway. Recently, for example, Reid Hoffman, founder of LinkedIn, a social networking site for professionals, worried that policymakers tend to ignore high-tech startups. “We don’t have an entrepreneurship lobby,” he said, “because entrepreneurs are off doing it.” As if that was a bad thing! In particular, he fretted about startups not getting their share of recent stimulus funding and argued that “It’s much easier when you’re embedded in the political infrastructure to respond to immediate things” such as nabbing stimulus dollars, he said.

Am I being naive about all this? Don’t these new tech companies have to have armies of lobbyists pressing the flesh and greasing the palms here in DC in order to compete against other entrenched competitors who are doing to same thing?  Perhaps, but there’s always been self-fulfilling circularity to the argument that you have to be here in order to “be a player” or “have a seat at the table.” The end result of that thinking is always the same: more lobbying, more logrolling, more of “the big spend.” And then we end up with one giant cesspool of protected markets, protracted legal nightmares, bloated bureaucracies, and widespread regulatory capture. Welcome to the wonderful world of crony capitalism! And your tech sector superstars are now falling all over themselves to make sure they have that proverbial “seat at the table” so they can feast at this Big Government supper.

It makes me sick to my stomach to even think about it. So, I’ll continue right on being a naive dope and conclude this piece the same way I concluded my old Cato essay on the sad state of cyber-politics:

For that small remnant of believers in real Internet Freedom — freedom from incessant government techno-meddling — we will never stop hoping that disputes among high-tech companies might be settled in the marketplace instead of within regulatory agencies and congressional committee rooms. And we must continue our push to discourage high-tech companies from an excessive “normalization” of relations with the parasitic culture that dominates Washington by reminding them, as Rodgers noted in 2000, “that free minds and free markets are the moral foundation that has made our success possible. We must never allow those freedoms to be diminished for any reason.”

Just let me dream, people.

According to the BBC, the European Commission is apparently set to adopt formal rules guaranteeing a so-called “right to be forgotten” online.  As part of the Commission’s overhaul of the 1995 Data Protection Directive, this new regulation will mandate that, “people will be able to ask for data about them to be deleted and firms will have to comply unless there are ‘legitimate’ grounds to retain it,” the BBC reports.

I’ve written about “right to be forgotten” and “online eraser button” proposals before in my Forbes essay, “Erasing Our Past On The Internet,” a Mercatus white paper on “Kids, Privacy, Free Speech & the Internet: Finding the Right Balance.” and in this essay here on the TLF on “The Conflict Between a “Right to Be Forgotten” & Speech / Press Freedoms.” While I can appreciate the privacy and reputational concerns that lead to calls for such information controls, the reality is that a mandatory “right to be forgotten” is a recipe for massive Internet censorship.  As I noted in those earlier essays, such notions conflict violently with speech rights and press freedoms. Enshrining into law such expansive privacy norms places stricter limits on others’ rights to speak freely, or to collect and analyze information about others.

The ramifications for journalism are particularly troubling. Good reporting often requires being “nosy” while gathering facts. Journalists (and historians) might suddenly be subjected to restraints on their research and writing. The Brits have been struggling with this when trying to enforce gag orders and “super-injunctions” on media providers to protect privacy. It hasn’t turned out well, especially since new social media platforms and speakers easily evade these rules. (See my Forbes column, “With Freedom of Speech, The Technological Genie Is Out of the Bottle.”)

Thus, for a “right to be forgotten” to work, a more formal and robust information control regime will need to be devised to censor the Net and make it “forget”about the digital footprints we left online. Will the DMCA’s “notice and takedown” model be applied? Beyond the chilling effect associated with dragnet takedowns of online information, it’s unlikely that approach will really work. Keep in mind, this isn’t as simple as just telling large social media operators to delete information on demand. The reality is, as computer scientist Ben Adida notes in his essay “(Your) Information Wants to be Free,” the same forces and factors that complicate other forms of information control, such a copyright and speech restrictions, also complicate the protection of facts about you. “[I]nformation replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard,” Adida correctly notes.

The fact is, information is instantaneously replicated online many times over on many different platforms — sometimes manually, sometimes automatically. Regulation will need to grapple with how to put the genie back in the bottle when countless others have already forwarded or commented on the piece of information someone later wants “forgotten.” And how would automated online archiving / storage services be affected? Will such sites and services be expected to find and purge every possible mention / reference of the offending information? Will they be compensated for the countless requests they receive to delete countless pieces of digital information, or are they just expected to do that out of the goodness of their hearts?

I could go on, but instead I’d just ask that you read some of the essays I’ve already cited and then take a look at this outstanding essay on “9 Reasons Why a ‘Right to be Forgotten’ is Really Wrong,” by Joris van Hoboken, a PhD candidate at the Institute for Information Law (IViR) at the University of Amsterdam. It’s an outstanding critique of the notion.

Please keep in mind: Just because I raise questions like these it does not mean I’m opposed to the notion that online operators should be held to higher standards and be expected to properly safeguard our online information and perhaps even delete much of it upon request. But moving this process into the legal / regulatory arena opens up a huge Pandora’s Box of potential problems. Censoring the Net — even when it’s for a cause many favor — is very hard and will give rise to many unintended consequences.

[P.S. Here's a podcast conversation about these issues where Jerry Brito and I discuss the ramifications of such a regulatory regime.]

I thought Todd Zywicki, a senior scholar with the Mercatus Center at George Mason University, did a nice job on Judge Napolitano’s “Freedom Watch” show addressing the contentious question of whether government should be regulating food advertising in order to somehow make American kids healthier. Todd pointed out how the advertising guidelines currently being developed are anything but “voluntary” and noted that there are many causes of childhood obesity. Watch the clip here:

Importantly, Todd also notes that there are First Amendment issues in play here. Commercial free speech is not completely without constitutional protection, as I noted in my recent Charleston Law Review article on “Advertising, Commercial Speech & First Amendment Parity.”

Finally, as we always note here about regulation generally — especially restrictions on advertising — there is no free lunch (excuse the pun in this case!). Advertising has traditionally been the great subsidizer of media and information in America. It has also kept competitors on their toes and kept prices in check.  These benefits are lost when we regulate advertising. So, while some nanny state-ers would like to convince us that they simply have the best interests of our kids in mind, the reality is that the regulations they favor will likely drive up costs for families and limit their choices of both products and media platforms, both of which are subsidized by advertising.

As if my earlier essay on why “We Need More Attack Ads in Political Campaigns” wasn’t incendiary enough, allow me to heap praise on this outstanding new oped by Washington Post columnist Richard Cohen “In Defense of Big Money in Politics.”  Few things get me more steamed than when Democrats and Republicans decry “big money” in politics and claim we need to aggressively clamp down on it.  What’s even more insulting is when they say this is a smart way to encourage 3rd party political candidates and movements.

What’s really going on here is simple protectionism. The reason that today’s politicians want to regulate cash in campaigns is because the two parties already own the system. Believe me, as someone who has NEVER voted for a politician from either of the two leading parties, I would love for it to be the case that clamping down on campaign spending actually helped 3rd party candidates. Richard Cohen’s column explains why that certainly wasn’t the case with Eugene McCarthy’s historic 1968 challenge to Lyndon Johnson, which was fueled by “big money” contributions from a handful of major donors. Here’s how Cohen begins his piece:

Sheldon Adelson is supposedly a bad man. The gambling mogul gave $5 million to a Newt Gingrich-loving super PAC and this enabled Gingrich to maul Mitt Romney — a touch of opinion here — who had it coming anyway. Adelson is a good friend of Gingrich and a major player in Israeli politics. He owns a newspaper in Israel and supports politicians so far to the right I have to wonder if they are even Jewish. This is Sheldon Adelson, supposedly a bad man. But what about Howard Stein? The late chairman of the Dreyfus Corp. was a wealthy man but, unlike Adelson, a liberal Democrat. Stein joined with some other rich men — including Martin Peretz, the one-time publisher of the New Republic; Stewart Mott, a GM heir; and Arnold Hiatt of Stride Rite Shoes — to provide about $1.5 million for Eugene McCarthy’s 1968 challenge to Lyndon Johnson. Stein and his colleagues did not raise this money in itsy-bitsy donations but by chipping in large amounts themselves. Peretz told me he kicked in $30,000. That was a huge amount of money at the time.

As Cohen points out, while many campaign regulation fans today “pooh-pooh the argument that money is speech, they cannot deny that when McCarthy talked — when he had the cash for TV time or to set up storefront headquarters — that was political speech at the highest decibel.” Amen, brother. McCarthy changed history. His was easily the most important 3rd party run of the past half century, and one of the most important in American history.

If we want more serious 3rd party candidates, then we need more cash in politics. Lots more. Unlimited, direct to candidate contributions.  Let’s have Robert Redford and his Hollywood buddies open their checkbooks and fund a serious run by the Green Party, or let wealthy industrialists fund a Libertarian Party candidate. Or whatever else.

But won’t that be “corrupting,” the skeptics ask? We can handle that: Just demand transparency. Force them to tell us where the money is coming from. We already have laws that do that.

In the meantime, I would really appreciate it if all those politicians and academics who say they are just trying help out independents like me would just quit it. They are not helping us get more 3rd party voices into the American political system; they’re making it harder than ever for them to even exist.

My latest weekly Forbes column asks, “Why Do We Always Sell the Next Generation Short?” and it explores the dynamics that lead many parents and policymakers to perpetually write off younger generations.  As the late journalism professor Margaret A. Blanchard once observed: “[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.”

What explains this phenomenon? In my essay, I argue that it comes down to a combination of “juvenoia” and hyper-nostalgia. University of New Hampshire sociologist David Finkelhor defines juvenoia as “exaggerated anxiety about the influence of social change on children and youth.” Once you combine such panicky juvenoia about new media and youth culture with a nostalgic view of the past that says the “good ‘ol days” are behind us, you get the common generational claim that the current good-for-nothing generation and their new-fangled gadgets and culture are steering us straight into the moral abyss.

Instead of panic and hyper-pessimism,  I believe that the more sensible approach approach is patient parental engagement and mentoring. I argue that “quite often, the best approach to learning more about our children’s culture is to immerse ourselves in it. Should we worry about the content found in some games, music, or videos? Perhaps we should. Sitting down and consuming that content with our kids and talking to them about it might be the best way to better understand their culture and then mentor them accordingly.”

Anyway, read my entire essay over at Forbes. And, on a related note, I highly recommend this new piece by Perri Klass, M.D. in The New York Times: “Seeing Social Media as Adolescent Portal More Than Pitfall.”  It adopts a similar approach.

I enjoyed this new piece by Matt Welch over at Reason about the uses and abuses of the “if we can put a man on the moon” metaphor. “There’s no escaping the moonshot in contemporary political discourse,” Welch notes. Indeed, in the field of technology policy, we hear the old “if we can put a man on the moon, then we can [fill in the blank]… ” line with increasing regularity.

For example, just a few years ago, in the midst of the social networking “predator panic,” several state Attorneys General, led by Roy Cooper of North Carolina and Richard Blumenthal of Connecticut, pushed aggressively for a mandatory online age verification scheme.  At several points during the debate, Blumenthal, now a U.S. Senator, argued that “The technology is available. The solution is financially feasible, practically doable. If we can put a man on the moon, we can check ages of people on these Web sites,” he claimed. Of course, just saying so doesn’t make it true. As I noted in a big paper on the issue, online age verification is extremely complicated, likely even impossible, and history has shown that no technological control is foolproof. Moreover, attempts to impose authentication and identification schemes would have numerous trade-offs and unintended consequences, especially for online anonymity, privacy, and free speech. A subsequent report by the Harvard-based blue ribbon Internet Safety Technical Task Force (ISTTF) showed why that was the case.

We also increasingly hear “man on the moon” quips in the burgeoning field of cybersecurity, as we did last October when President Obama announced National Cybersecurity Awareness Month. We can expect plenty more of those in years to come.

The bottom line is that we shouldn’t be basing public policy on grand “if we can put a man on the moon…” pronouncements or predictions. Every government action has costs and consequences that must be taken into account, no matter how noble the goal. And, unlike the actual case of sending a man to the moon, where almost everyone thought it was a good idea, many of us do not believe the sort of “man on the moon” proposals bandied about in the cyberlaw arena these days are even worth pursuing.

[Of course, we all know the moon landings were faked, so I'm not sure why we're even debating this!]

Washington Post columnist Ezra Klein had a terrific column yesterday (Human Knowledge, Brought to You By…) on one of my favorite subjects: how advertising is the great subsidizer of the press, media, content, and online services.  Klein correctly notes that “our informational commons, or what we think of as our informational commons, is, for the most part, built atop a latticework of advertising platforms. In that way,” he continues, “it’s possible that no single industry — not newspapers nor search engines nor anything else — has done as much to advance the storehouse of accessible human knowledge in the 20th century as advertisers. They didn’t do it because they are philanthropists, and they didn’t do it because they love information. But they did it nevertheless.”

Quite right. As I noted in my recent Charleston Law Review article on “Advertising, Commercial Speech & First Amendment Parity,” media economists have found that advertising has traditionally provided about 70% to 80% of support for newspapers and magazines, and advertising / underwriting has entirely paid for broadcast TV and radio media. And it goes without saying that advertising has been an essential growth engine for online sites and services. How is it that we’re not required to pay per search, or pay for most online news services, or shell out $19.95 a month for LinkedIn, Facebook, or other social media services? The answer, of course, is advertising.  Thus, Klein notes, while “we see [] advertising as a distraction… without the advertising, the information wouldn’t exist. So the history of information, in the United States at least, is the history of platforms that could support advertising.”

And the sustaining power of advertising for new media continues to grow. As I noted in my law review article:

Advertising is proving increasingly to be the only media industry business model with any real staying power for many commercial media and information-producing sectors. Pay-per-view mechanisms, micropayments, and even subscription-based business models are all languishing.  Consequently, the overall health of modern media marketplace and the digital economy—and the aggregate amount of information and speech that can be produced or supported by those sectors—is fundamentally tied up with the question of whether policymakers allow the advertising marketplace to evolve in an efficient, dynamic fashion. In this sense, it is not hyperbole to say that an attack on advertising is tantamount to an attack on media itself.

In this sense, I would have liked to seen Klein connect the dots between recent privacy-related legislative and regulatory proposals and the long-term health of online communities and services. As several of us here at the TLF have noted too many times to mention, there is no free lunch. What powers the “free” Internet are data collection and advertising. In essence, the relationship between consumers and online content and service providers isn’t governed by any formal contract, but rather by an unwritten quid pro quo: tolerate some ads or we’ll be forced to charge you for service.  Most consumers gladly take that deal—even if many of them gripe about annoying or intrusive ads, at times.

If new privacy regulations break this quid pro quo, there will be consequences. Namely, there will likely be costs in the form of prices for sites and services that relied on more targeted forms of advertising. Of course, we can hope and pray that older, more “spammy” forms of advertising (think big banner ads and pop-ups) can fill the gap and continue to sustain the online ecosystem, but it’s a big gamble. Thus, I wish Klein would have pointed out that online advertising is currently under attack in both the legislative and regulatory arena and that, if new privacy mandates are put on the books, then (a) consumers should not be surprised if they have to pay more, and/or (b) we shouldn’t be surprised to get less of those media and communications platforms and services in the future.

Regardless, kudos to Ezra Klein for being willing to so eloquently defend advertising’s essential role as the great sustainer of media and information in America. Please do read his entire essay. Truly outstanding.

Additional Reading:

• Adam Thierer, “op-ed: “Privacy Regulation and the ‘Free’ Internet”
• Adam Thierer, Berin Szoka, and W. Kenneth Ferree, Comments of the Progress & Freedom Foundation in the Matter of the Federal Communications Commission’s Examination of the Future of Media and Information Needs of Communities In a Digital Age, The Progress & Freedom Foundation, May 5, 2010, 28-38.
• Adam Thierer, Public Interest Comment on Protecting Consumer Privacy in an Era of Rapid Change (Arlington, VA: Mercatus Center at George Mason University, February 18, 2011).
• Berin Szoka & Adam Thierer, Online Advertising & User Privacy: Principles to Guide the Debate, Progress & Freedom Foundation, Progress Snapshot 4.19, Sept. 2008.
• Berin Szoka & Adam Thierer, Targeted Online Advertising: What’s the Harm & Where Are We Heading? Progress & Freedom Foundation, Progress on Point 16.2, June 2009.

Charleston Law Review Essay on Advertising and the First Amendment [PDF]

A Politician Reacting to an Attack Ad

I’ve never understood why so many people whine about “negative attack ads” during political campaign season. To me, attack ads are just about the only interesting thing that comes out of the early campaign / caucus period. Attack ads are usually chock-full of useful information about candidates and their positions and they typically provoke or even demand a response from the politician being attacked. They also attract increased media scrutiny and broader societal deliberation about a candidate and his or her views.

More importantly, these attack ads and the responses they provoke are far, far more substantive than the typical campaign ad puffery we see and hear. Most campaign ads are packed with absurd banalities ensuring us that the candidate running the ad loves their spouse, children, country, and God.  Well, of course they do!  Enough of that silly crap. It’s meaningless drivel. Give us more attack ads, I say! They are a healthy part of deliberative democracy and our free speech tradition.

Anyway, political scientist John G. Geer has made a far more eloquent case for attack ads and documented their use and importance throughout American history in his book, In Defense of Negativity: Attack Ads in Presidential Campaigns. Here’s the link to a Cato event featuring him and an excerpt from the event is embedded below.

In an provocative oped in today’s New York Times, Vint Cerf, one of the pioneers of the Net who now holds the position “chief Internet evangelist” at Google, makes the argument for why “Internet Access Is Not a Human Right.” He argues:

technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things. For example, at one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I’m not sure where I would put it. The best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time. Indeed, even the United Nations report, which was widely hailed as declaring Internet access a human right, acknowledged that the Internet was valuable as a means to an end, not as an end in itself.

You won’t be surprised to hear that I generally agree. But there are two other issues Cerf fails to address. First, who or what pays the bill for classifying the Internet or broadband as a birthright entitlement?  Second, what are the potential downsides for competition and innovation from such a move? As I noted in a recent essay here (“What Does It Mean to Declare Broadband a “Human Right,” and What Are the Costs?”):

We live in a world of trade-offs and there is no free lunch. One doesn’t just mandate broadband for all and then expect there won’t be any costs — both direct and indirect. The direct cost is the cost to taxpayers or ratepayers in form of higher taxes or bills. The indirect costs usually arrive in the form of diminished competition, limited innovation, lackluster options, and the various problems associated with the regulatory capture that will ensue.

The first objection is self-evident and needs little elaboration since we are today witnessing the breakdown of welfare state entitlement systems and policies across the globe as one country after another is bankrupted by them. But the second point needs to be unpacked a bit more.

As I noted in my earlier essay, the best universal service policy is marketplace competition. When we get the basic framework right — low taxes, property rights, contractual enforcement, anti-fraud standards, etc. — competition generally takes care of the rest. But competition often doesn’t develop — or is sometimes prohibited outright — in sectors or for networks that are declared “essential” facilities or technological entitlements.  That’s not because they are natural monopolies, rather, it’s because the policies that lawmakers and regulators put in place to ensure universal service ultimately have the counter-productive impact of retarding new entry.  Worse yet, the entitlement mentality and corresponding universal service mandates typically produce less fertile ground for innovative breakthroughs. For greater ellaboration on both points, see my old 1994 essay:  “Unnatural Monopoly: Critical Moments in the Development of the Bell System Monopoly.”

So, while I appreciate and agree with Cerf’s humorous point that “Today, if I were granted a right to have a horse, I’m not sure where I would put it,” the more interesting question is this: If government would have decreed long ago that everyone had a right to a horse, would that have meant everyone actually got one? (Recall that despite a similar mandate for telephony and billions upon billions in spending / transfers, we never had more than 94% of the nation served with basic telephone service.) If everyone did actually get a horse via a hypothetical Horse Entitlement System, how efficient was that program and the resulting bureaucracy / regulatory apparatus? Who picked up the bill? Did it discourage entry by more efficient vendors? Did it discourage innovations that might have served the public better? Did the program outlive its usefulness and become a drag on innovation /productivity. Was the system gamed or captured? (I can only imagine the lobbying that would have ensued from the horse industry once trains, cars, and airplanes became a disruptive threat!)

These are the sort of questions rarely asked initially in discussions about proposals to convert technologies or networks into birthright entitlements. Eventually, however, they become inescapable problems that every entitlement system must grapple with.  When we discuss the wisdom of classifying the Internet or broadband as a birthright entitlement, we should require advocates to provide us with some answers to such questions. Kudos to Vint Cerf for helping us get that conversation going in a serious way.

As 2011 winds down, I thought I’d list a few year-end analytics for The Technology Liberation Front blog.  In 2011, we had just under 400,000 visits from 332,000 unique visitors. That’s up from 312,000 visits and 247,000 unique visitors in 2010.If you prefer a pageviews metric then we had 514,000 pageviews and 444,000 unique pageviews in 2011, up from 420,000 and 361,000 respectively in 2010.

As far as the top posts of the year go, anything Bitcoin related proved to be link-bait magic with 4 of the top 10 posts (all by Jerry Brito) being about Bitcoin. But it was Ryan Radia’s post on how to protect your privacy on Facebook and the Net more generally that commanded the most hits in 2011 with almost 35,000 views. Congrats Ryan! Anyway, the year’s Top 10 list follows below and many thanks to all those who took the time to visit the TLF over the past year.

• #1) Privacy Solutions: How to Block Facebook’s “Like” Button And Other Social Widgets (Ryan Radia, May 20) – 34,913 views
• #2) Bitcoin, Silk Road, and Lulzsec oh my! (Jerry Brito, June 12) – 8,312 views
• #3) Terrific Visualization of Digital Information Explosion (Adam Thierer, Feb 11) – 7,236 views
• #4) Revisiting the Bitcoin Bubble (Jerry Brito, April 25) – 4,874 views
• #5) Surveillance, San Francisco-Style (Jim Harper, April 6) – 4,555 views
• #6) Bitcoin, intermediaries, and information control (Jerry Brito, April 20) – 3,362 views
• #7) 3D Printing: The Future is Here (Adam Marcus, June 10) - 2,953 views
• #8) Bitcoin: Imagine a net without intermediaries (Jerry Brito, April 16) – 2,750 views
• #9) Book Review: The Net Delusion by Evgeny Morozov (Adam Thierer, Jan. 4) – 2,606 views
• #10) A Response to Andrew McLaughlin on Net Neutrality & “Freedom” (Adam Thierer, July 9) 2,298 views

Just last week I was discussing the terrifically interesting work of Michael Sacasas who pens The Frailest Thing, a poetic blog about technology and culture. [see: "Information Revolutions & Cultural / Economic Tradeoffs"] I highly recommend you follow his blog even if you struggle to keep up with his brilliance, as I often do.  He posted another great essay today entitled, “Nostalgia: The Third Wave,” in which he discusses the work of the late social critic Christopher Lasch and his work on memory and nostalgia. Go read the entire thing since I cannot possible do it justice here. Anyway, I posted a short comment over there that I thought I would just republish here in case others are interested. I find the issue of nostalgia to be quite interesting.

_______

Michael… I’m currently finishing up a paper looking at the causes of various “techno-panics” over time. I try to group together a variety of theories and possible explanations, one of which is labeled “Hyper-Nostalgia, Pessimistic Bias & Soft Ludditism.” I don’t go into anywhere near the detail you do here, but I did unearth a number of interesting things while conducting research.

Have you ever come across the book On Longing: Narratives of the Miniature, the Gigantic, the Souvenir, the Collection, by the poet Susan Stewart? She notes that what is ironic about nostalgia is that it is rooted in something typically unknown by the proponent.  Consequently, she argues that nostalgia represents “a sadness without an object, a sadness which creates a longing that of necessity is inauthentic because it does not take part in lived experience. Rather, it remains behind and before that experience.”  Too often, Stewart observes, “nostalgia wears a distinctly utopian face” and thus becomes a “social disease.”

That’s probably a bit extreme, but it does help explain why some intellectuals, social critics, and policymakers occasionally demonize new mediums, technologies, or forms of culture. If one if suffering from a rather extreme version of what Michael Shermer refers to this as “rosy retrospection bias,” (The Believing Brain, 2011) or “the tendency to remember past events as being more positive than they actually were,” then it would hardly be surprising that they would adopt attitudes and policies that disfavor the new and different.   

Indeed, many critics fear how technological evolution challenges the old order, traditional values, settled norms, traditional business models, and existing institutions. Stated differently, by its nature, technology disrupts settled matters and, therefore, “the shock of the new often brings out critics eager to warn us away,” notes Dennis Baron, author of A Better Pencil.  Occasionally, this marriage of distaste for the new and a longing for the past (often referred to as a “simpler time” or “the good old days”) yields the sort of a moral panics or technopanics I discuss in my paper. In particular, cultural critics and advocacy groups benefit from the use of nostalgia by playing into, or whipping up, fears that there was a better time we’ve lost and then suggesting “steps should be taken” to help us return to that time.

I regard that as dangerous because it implies someone knows how to set society back on that supposedly better course even though they haven’t likely taken into account the full costs of even attempting to do so. Those costs could be speech-related (censorship), social (unnecessary changes in how we educate children) or economic (disruption of new technologies or business methods). That would be the downside of hyper-nostalgia if given the effect of law.

I guess it all comes back to what the Scottish philosopher and economist David Hume observed in a 1777 essay: “The humour of blaming the present, and admiring the past, is strongly rooted in human nature, and has an influence even on persons endued with the profoundest judgment and extensive learning.” The problem is, when we act on those well-ingrained instincts, it has consequences and those consequences could be profound.  Thus, I would argue we should establish a fairly high bar when it comes to nostalgic assertions about “a better time” to which some would have us return. Because in my eyes, those “good ‘ol days” — whenever those were — were rarely as great as some claim.

Of course, others might claim that I am, once again, just being too much of a Pollyanna!

My thanks to both Maria H. Andersen and Michael Sacasas for their thoughtful responses to my recent Forbes essay on “10 Things Our Kids Will Never Worry About Thanks to the Information Revolution.” They both go point by point through my Top 10 list and offer an alternative way of looking at each of the trends I identify. What their responses share in common is a general unease with the hyper-optimism of my Forbes piece. That’s understandable. Typically in my work on technological “optimism” and “pessimism” — and yes, I admit those labels are overly simplistic — I always try to strike a sensible balance between pollyannism and hyper-pessimism as it pertains to the impact of technological change on our culture and economy. I have called this middle ground position “pragmatic optimism.” In my Forbes essay, however, I was in full-blown pollyanna mode. That doesn’t mean I don’t generally feel very positive about the changes I itemized in that essay, rather, I just didn’t have the space in a 1,000-word column to identify the tradeoffs inherent in each trend. Thus, Andersen and Sacasas are rightfully pushing back against my lack of balance.

But there is a problem with their slightly pessimistic pushback, too. To better explain my own position and respond to Andersen and Sacasas, let me return to the story we hear again and again in discussion about technological change: the well-known allegorical tale from Plato’s Phaedrus about the dangers of the written word. In the tale, the god Theuth comes to King Thamus and boasts of how Theuth’s invention of writing would improve the wisdom and memory of the masses relative to the oral tradition of learning.  King Thamus shot back, “the discoverer of an art is not the best judge of the good or harm which will accrue to those who practice it.”  King Thamus then passed judgment himself about the impact of writing on society, saying he feared that the people “will receive a quantity of information without proper instruction, and in consequence be thought very knowledgeable when they are for the most part quite ignorant.”

After recounting Plato’s allegory in my essay, “Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society,” I noted how this same tension has played out in every subsequent debate about the impact of a new technology on culture, values, morals, language, learning, and so on. It is a never-ending cycle. Now, here’s the interesting thing about that allegory that you will be surprised to hear an optimist like me admit: King Thamus was right! Well, at least partially right. There is little doubt that the invention of writing largely displaced the tradition of oral learning and instruction. Let’s face it, once people knew they could write something down or go back and read a passage from an important text, what was the use in memorizing it? Thus, there was a clear cost associated with the advent of writing and printing: A diminished interest in committing lessons or texts to memory. More profoundly, one might argue this also diminished our cognitive capabilities by requiring less of a mental workout for our brains. Thus, had Nick Carr been around to document the Theuth-Thamus debate, he might have penned a book entitled, “Is Writing Making Us Stupid?” (I’m assuming everyone is aware of Nick’s recent article asking “Is Google Making Us Stupid” and his subsequent book, The Shallows, which discussed “what the Internet is doing to our brains.”) Of course, it would have been a bit ironic for Nick to write it all down, so perhaps he would have just memorized it all and verbally passed his analysis along to descendants and followers!

Anyway, here’s what I am getting at by returning to Plato’s allegory: Technological change forces tradeoffs upon us. It forces sacrifices. There are definitely losses. But, in each case, we must ask two essential questions:

(1) Don’t the benefits of technological change generally outweigh the costs? I think they generally do, and that’s why I tend to side with the optimists more often than not. Sure, we can find plenty of reasons to be nostalgic about the decline of letter-writing, the disappearance of expensive encyclopedias, the end of typing classes, the elimination of phone booths on the corner, the loss of community video stores or record stores, or any of the other things I identified in my Forbes essay. But we should consider the many ways in which those changes have generally benefited society and opened the door to new innovations, new ways of learning and communicating, and new forms of culture and expression.

(2) Even if we are skeptical about the benefits of technological change, what are we going to do about it? Are we going to take steps to slow down technological change? What sort of steps are we talking about? Who makes that call or determines those responses? These are difficult but essential questions. Too many social critics get a free pass when it comes to answering them. This is what always drives me batty when reading the work of Net pessimists like Neil Postman, Lee Siegel, Andrew Keen, Jaron Lanier, etc. These guys excel at the art of the teardown. They can lambast the agents and elements of technological change with immense rhetorical power. At times, even I find their case convincing.  But these critics are horrible when it comes to proposing alternatives or constructive solutions. Often they have none. I believe it is the duty of a good social critic to offer constructive solutions to the problems they identify. One reason they probably don’t offer many is because they are simply afraid to admit that, if they could play God for a day, they probably would roll back the clock and slow or stop many forms of technological change.

The more constructive approach to these challenges comes back to education and empowerment. If we can be mature enough to (a) admit that pessimistic social critics have some valid concerns but that (b) the optimists are right about the benefits typically outweighing the costs, then the logical response is to take steps to educate people about technological change and empower them to deal with it. Other times, however, people simply have to learn how to adapt and be resilient through experimentation and coping strategies. It isn’t easy, of course. But education can help here, too. I’ve spent time trying to educate my father and other older relatives about how to use digital technologies they continue to be very uncomfortable with. I appreciate their concerns about privacy, security, and technological complexity. These are valid concerns or complaints. But these technologies are not going away and I have taken upon myself to help them assimilate the new tools and methods into their lives. I also mentor my children and guide their use of these new information technologies. They are surprisingly good at adapting to their new tools, but we must take to heart the lessons the social critics and pessimists offer about the downsides and dangers of some of those new tools.

As you can sense, my perspective here is very much shaped by the fact that I am, for the most part, a technological determinist. Not a rigid or “hard” tech determinist, but at least a “soft” one.  In a brilliant and highly provocative recently paper, “Hasta La Vista Privacy, or How Technology Terminated Privacy,” Konstantinos K. Stylianou of the University of Pennsylvania Law School discusses varieties of technological determinism as it pertains to information control and noted:

In-between the two extremes (technology as the defining factor of change and technology as a mere tangent of change) and in a multitude of combinations falls the so called soft determinism; that is, variations of the combined effect of technology on one hand and human choices and actions on the other. (p. 46)

Unfortunately, Stylianou notes, “The scope of soft determinism is unfortunately so broad that is loses all normative value. Encapsulated in the axiom ‘human beings do make their world, but they are also made by it,’ soft determinism is reduced to the self-evident.”  Nonetheless, he argues, “a compromise can be reached by mixing soft and hard determinism in a blend that reserves for technology the predominant role only in limited cases,” since he believes “there are indeed technologies so disruptive by their very nature they cause a certain change regardless of other factors.” (p. 46) He concludes his essay by noting:

it seems reasonable to infer that the thrust behind technological progress is so powerful that it is almost impossible for traditional legislation to catch up. While designing flexible rules may be of help, it also appears that technology has already advanced to the degree that is is able to bypass or manipulate legislation. As a result, the cat-and-mouse chase game between the law and technology will probably always tip in favor of technology. It may thus be a wise choice for the law to stop underestimating the dynamics of technology, and instead adapt to embrace it. (p. 54)

That pretty much sums up where I’m at on most information policy issues and explains why I sound so fatalistic at times. But my soft determinism also explains why I feel it is so important to devise coping strategies to help us through the changes that the information revolution has ushered in and forced upon us. There’s just no putting the digital genie back in the bottle. We can wax nostalgic all we want about those supposedly “good ‘ol days” but they ain’t never coming back. And they weren’t that great anyway!

If this discussion interests you, you might want to read my book chapter from the book The Next Digital Decade, which was entitled, “The Case for Internet Optimism, Part 1: Saving the Net From Its Detractors.”   Oh, and if you don’t already have Michael Sacasas’s blog (The Frailest Thing) at the top of your RSS feed, add it now. Absolutely terrific reading, even when I don’t agree with (or even understand!) all of it.

Filings are due to the Federal Trade Commission (FTC) today as part of its review of the Children’s Online Privacy Protection Act (COPPA) and the COPPA rule that the FTC devised and enforces. I didn’t have time to pen as much as I wanted, but I did submit a short filing to the agency in the matter based on some of my previous work both with Berin Szoka and on my own.  Here’s the executive summary for my filing:

It goes without saying that the Children’s Online Privacy Protection Act (COPPA) is complicated law and rule. When considering the rule and proposals to amend it, it is easy to get lost in the weeds and ignore the bigger picture. That would be a mistake. There are broader, more important questions that need to be asked as part of the Federal Trade Commission’s effort to expand this regulatory regime. These questions involve not only the costs of increased regulation for online business interests, but the impact of expanded regulation on market structure, competition, and innovation. More importantly, these questions cut to the core of whether the public (including children) will be served with more and better digital innovations in the future. There is no free lunch. Regulation—even well-intentioned regulation like COPPA—is not a costless exercise. There are profound trade-offs for online content and culture that must always be considered.

Whatever one thinks about the effectiveness or sensibility of the COPPA regulatory model for the Web 1.0 world, it is clear that the regime is being strained by the unforeseen realities of the Web 2.0 world of hyper-ubiquitous connectivity and user-generated content creation and sharing. The digital genie cannot be put back in the bottle.  While COPPA may continue to have a marginal role to play in this rapidly evolving world, that role will likely be increasingly limited by the inherent realities of the information age.

Entire filing can be found on the Mercatus website, on SSRN, or via Scribd [Also embedded below in a Scribd reader.] [FILING] Comments of Adam Thierer – Mercatus Center – FTC COPPA 2011 Ammendments

Tis the season to be thankful for a great number of things — family, health, welfare, etc.  I certainly don’t mean to diminish the importance of those other things by suggesting that technological advances are on par with them, but I do think it is worth celebrating just how much better off we are because of the amazing innovations flowing from the information revolution and digital technology.  In my latest Forbes column, I cite ten such advances and couch them in an old fashion “kids-these-days” sort of rant.  My essay is entitled, “10 Things Our Kids Will Never Worry About Thanks to the Information Revolution,” and it itemizes some things that today’s digital generation will never experience or have to worry about thanks to the modern information revolution. They include: taking a typing class, buying an expensive set of encyclopedias, having to pay someone else to develop photographs, using a payphone or racking up a big “long-distance” bill, and six others.

Incidentally, this little piece has reminded me how Top 10 lists are the equivalent of oped magic and link bait heaven. People have a way of fixating on lists — Top 3, Top 5, Top 10, etc — unlike any other literary or rhetorical device. In fact, with roughly 80,000 views and over 900 retweets, I am quite certain that this is not only my most widely read Forbes column to date, but quite possibly the most widely read thing I have done in 20 years of policy writing.  Therefore, henceforth, every column I pen will be a “Top 10″ list!  No, no, just kidding. But make no doubt about it, that little gimmick works. In fact, 4 of the top 5 columns on Forbes currently are lists.

The FCC’s universal service tax is officially out of control. The agency announced yesterday that the “universal service contribution factor” for the 1st quarter of 2012 will go up to 17.9%.  This “contribution factor” is a tax imposed on telecom companies that is adjusted on a quarterly basis to accommodate universal service programs. The FCC doesn’t like people calling it a tax, but that’s exactly what it is. And it just keeps growing and growing. In fact, as the chart below reveals, it has been exploding in recent years. It was in single digits just a few years ago but is now heading toward 20%. And not only is this tax growing more burdensome, but it is completely unsustainable. As the taxable base (traditional interstate telephony) is eroded by new means of communicating, the tax rate will have to grow exponentially or the base will have to be broadened to cover new technologies and services. We should have junked the current carrier-delivered universal service subsidy system years ago and gone with a straight-forward voucher system. A means-tested voucher could have targeted assistance to those who needed it without creating an inefficient, unsustainable hidden tax like we have now. For all the ugly details, I recommend reading all of Jerry Ellig’s research on the issue.

Jim Adler, Chief Privacy Officer and General Manager of Data Systems at Intelius, always has interesting and thoughtful things to say about online privacy debates. I recommend following him on Twitter (@jim_adler). Today, he posted an interesting essay on his blog entitled “Creepy Is As Creepy Does, which begins by noting that “with increasing volume, ‘creepy’ has snuck its way in to the privacy lexicon and become a mainstay in conversations around online sharing and social networking. How is it possible that we use the same word to describe Frankenstein and Facebook?” Good question. Better question: Why is “creepiness” the standard by which we are judging privacy matters? I posted a comment to his blog post elaborating on that point that I thought I would also post here:

I think we’d be better served by moving privacy deliberations — at least the legal ones — away from “creepiness” and toward a serious discussion about what constitutes actual harm in these contexts.  While there will be plenty of subjective squabbles over the definition of “harm” as it relates to online privacy / reputation, I believe we can be more concrete about it than continuing these silly debates about “creepiness,” which could not possibly be any more open-ended and subjective.

Indeed, when harm is reduced to “creepiness” or even “annoyance,” credible cost-benefit analysis is virtually impossible since the debate becomes entirely about emotional appeals instead of anything empirical / verifiable.  Thus, we are stuck with “gut-level” debates that are not grounded in any substantive theory of rights or economic analysis. Such an amorphous standard for policy analysis or legal / regulatory action leaves much to the imagination and opens the door to creative theories of harm that (a) may not actually represent true harm at all, and (b) could be exploited by those who ignore the complex trade-offs at work when we attempt to regulation of information flows online.  When we get more serious about defining harms, we also think about the possibility that benefits may exist that must be considered alongside possible costs.

Viewed in this light, we don’t need to use the term “creepy” with reference to the actions of News of the World; that was flat-out illegal activity with clear harm coming to certain individuals. And there certainly weren’t any benefits associated with NotW’s actions. By contrast, subsequent analysis of the Carrier IQ situation has revealed no clear harm and actually plenty of benefits associated with the service that company provides. Yes, I agree more transparency about this and other data collection schemes can help alleviate whatever “creepiness” concerns are out there in the minds of some. But when actual harm to individuals is the standard of review, it doesn’t seem like there is anything actionable here or even all that much to worry about.

In sum, “creepiness” is crappy standard by which to judge privacy matters when we are discussion policy perspectives / regulatory solutions. Here’s another way to think about it: There are plenty of people we come in contact with in this world that we might describe as “creepy.” But would we also describe all of them as harmful? Unlikely. We’d draw a distinction between creepiness and the potentially harmful nature of various individuals and likely reserve judgment on the latter question until we had more evidence. That’s the same standard we should use for privacy matters when they are elevated to policy concerns.

It’s time again to look back at the major cyberlaw and information tech policy books of the year. I’ve decided to drop the top 10 list approach I’ve used in past years (see 2008, 2009, 2010) and just use a more thematic listing of major titles released in 2011.  This thematic approach gets me out of hot water since I have found that people take numeric lists very seriously, especially when they are the author of one of the books and their title isn’t #1 on the list! Nonetheless, at the end, I will name what I regard as the most important Net policy book of the year.

I hope I’ve included all the major titles released during the year, but I ask readers to please let me know what I have missed that belongs on this list. I want this to be a useful resource to future scholars and students in the field. [Reminder: Here's my compilation of major Internet policy books from the past decade.] Where relevant, I’ve added links to my reviews as well as discussions with the authors that Jerry Brito conducted as part of his “Surprisingly Free” podcast series. Finally, as always, I apologize to international readers for the somewhat U.S.-centric focus of this list.

Internet Freedom / General Net Regulation & Governance

Online freedom was a major theme in the field of information technology policy in 2011, especially with the continuing hullabaloo over Wikileaks as well as the various protest movements worldwide that tapped social media and mobile technologies to organize and protest. Increased government regulation and/or crackdowns often followed. Several books dealt with these issues. Morozov’s Net Delusion was one big wet blanket to the whole “Net-changes-everything” movement, but it went much too far as I noted in my lengthy review. Sifry’s book was a short manifesto making the opposite case.  Access Contested – the third edition in a series from the same authors — was another indispensable resource for Net researchers exploring censorship trends worldwide, with a particular focus on Asian countries in this latest edition. Finally, the Szoka & Marcus tome was an amazing collection of over 30 essays from a diverse group of scholars on a staggering array of topics. It was a great honor for me to contribute two chapters to the volume. I cannot recommend it highly enough—and it’s free!

• Evgeny Morozov – The Net Delusion: The Dark Side of Internet Freedom [my review] [podcast]
• Micah Sifry – WikiLeaks and the Age of Transparency [podcast]
• Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski and Jonathan Zittrain – Access Contested: Security, Identity, and Resistance in Asian Cyberspace
• Eddan Katz & Ramesh Subramanian (Eds.) -The Global Flow of Information: Legal, Social, and Cultural Perspectives
• Berin Szoka & Adam Marcus (eds.) – The Next Digital Decade: Essays on the Future of the Internet
• Becky Hogge – Barefoot into Cyberspace: Adventures in Search of Techno-Utopia
• Laura DeNardis – Opening Standards: The Global Politics of Interoperability
• Chris Marsden – Internet Co-Regulation: European Law, Regulatory Governance and Legitimacy in Cyberspace
• Philip Howard - The Digital Origins of Dictatorships and Democracy: Information Technology and Political Islam

Privacy, Security & Safety

Privacy policy and government surveillance issues have been the dominant cyberlaw policy issues of 2011, so it is unsurprising that we are starting to see more major publications in this arena. Jarvis’s book, in particular, generated intense debate and certainly represented one of the most important titles of the year. The Offensive Internet was a hugely important collection of essays since it represented the most forceful attack on the Net and freedom of speech to date. It was practically a jihad against Section 230 and online anonymity. I found it hugely troubling. The two primers on privacy listed below (by Solove & Schwartz and by Craig & Ludloff) were terrifically helpful, accessible booklets. I highly recommend students pick both of them up.

• Saul Levmore and Martha C. Nussbaum (eds.) - The Offensive Internet: Speech, Privacy & Reputation
• Jeff Jarvis – Public Parts [my review]
• Daniel Solove - Nothing to Hide: The False Tradeoff between Privacy and Security [podcast]
• Susan Landau - Surveillance or Security? The Risks Posed by New Wiretapping Technologies
• Daniel Solove & Paul M. Schwartz – Privacy Law Fundamentals
• Terence Craig and Mary Ludloff  - Privacy & Big Data
• Frederick Lane – Cybertraps for the Young

Net Pessimism / Google-phobia / Copyright

Sorry for the extremely broad grouping here, but what ties these last few titles together is a general gloominess about the Internet and what it is doing to culture, learning, dialog, or particular ways of doing business. It’s a common theme in Net policy book these days, as I have noted here before.  I found the Pariser and Vaidhyanathan books to be extremely problematic [read my reviews]. Levine’s Free Ride and Patry’s How to Fix Copyright were the major online copyright policy books this year. Levine’s book offered an outstanding history of the modern copyright wars, but I couldn’t agree with most of his recommendations. Cleland’s book was less notable for its Google-bashing than the fact it represented the beginning of an articulation of a philosophy of cyber-conservatism. Brockman’s compendium of short essays on the Net’s impact on us was a real hodge-podge of views, not all of which were pessimistic.

• Eli Pariser – The Filter Bubble: What the Internet is Hiding From You [my review]
• Siva Vaidhyanathan - The Googlization of Everything, and Why We Should Worry [my review] [podcast]
• John Brockman (ed.) –  Is the Internet Changing the Way You Think? The Net’s Impact on Our Minds and Future
• Sherry Turkle - Alone Together: Why We Expect More from Technology and Less from Each Other
• Scott Cleland – Search & Destroy: Why You Can’t Trust Google Inc.  [my review]
• Robert Levine – Free Ride: How the Internet is Destroying the Culture Business and How the Culture Business can Fight Back
• William Patry – How to Fix Copyright

Net Policy Book of the Year

So, what was the most important info-tech policy book of 2011? I’d say it was Evgeny Morozov’s Net Delusion. As I noted in previous end-of-year compendiums, I regard an “important” info-tech policy book as a title that many people are currently discussing and that we will likely be debating and referencing for many years to come.  In other words, it’s a book that creates a sustained buzz.  Net Delusion has certainly accomplished that in major way and Morozov’s relentless policy writing and Twitter ramblings kept him near the center of many Net policy debates in 2011.

That doesn’t mean I agree with everything in the book, or Evgeny’s style, for that matter. His Tweetstream, like many portions of his book, often drips with relentless, caustic snark-casm. I enjoy that in small doses — hell, I’ve used it myself on occasion here and on Twitter! — but it gets tiresome when dished out endlessly and with the volume turned up to 11. More generally, as I noted above, not only do I think he ultimately fails to prove his thesis but the book is riddled with contradictions regarding the proper disposition of governments and corporations toward the Net and online freedom. Morozov is great at tearing down the grandiose, cyber-utopian visions and visionaries, but he’s far less effective at suggesting a coherent alternative vision.

Nonetheless, the importance of Morozov’s work cannot be denied. He’s opened a new front in the intellectual battle over the role of the Net in various political movements and causes. He aims to spearhead what we might think of as the “realist” movement that counters the more “idealist” (he would say “utopian”) approach, which already has many adherents in global Net policy debates. Morozov has opened the door to more skeptical thinking in this regard. Many others are now likely to follow in his footsteps, and when they do, they will all cite back to The Net Delusion. Likewise, the idealists will now be forced to respond to Morozov in any future tracts. Thus, we’ll be discussing and debating the themes in The Net Delusion for many years to come. That’s why it is the most important Net policy book of 2011.

Earlier this year I read Scott Cleland’s new book, Search & Destroy: Why You Can’t Trust Google, Inc., after he was kind enough to send me an advance copy. I didn’t have time to review it at the time and just jotted down a few notes for use later. Because the year is winding down, I figured I should get my thoughts on it out now before I publish my end of year compendium of important tech policy books.

Cleland is President of Precursor LLC and a noted Beltway commentator on information policy issues, especially Net neutrality regulation, which he has vociferously railed against for many years. On a personal note, I’ve known Scott for many years and always enjoyed his analysis and wit, even when I disagree with the thrust of some of it.

And I’m sad to report that I disagree with most of it in Search & Destroy, a book that is nominally about Google but which is really a profoundly skeptical look at the modern information economy as we know it. Indeed, Cleland’s book might have been more appropriately titled, “Second Thoughts about Cyberspace.” In a sense, it represents an outline for an emerging “cyber-conservative” vision that aims to counter both “cyber-progressive” and “cyber-libertarian” schools of thinking.

After years of having Scott’s patented bullet-point mini-manifestos land in my mailbox, I think it’s only appropriate I write this review in the form of a bulleted list! So, here it goes..

The Central Irony of the Book

• The central irony of the book — and one that he never confronts — is that, in the name of dealing with what he regards as “Big Brother, Inc.,” Cleland thinks we must call in Big Government to deal with Google and the digital economy in general.
• Cleland has spent the last decade railing against the “cyber-collectivist” or “digital commons” movement (I’ll just call them “cyber-progressives”) and yet, ironically, in Search & Destroy, he has adopted their tone and tactics in vilifying Google, one of the great capitalist success stories of our time.
• In a sense, Cleland has unwittingly joined his cyber-conservatism with the cyber-progressivism he supposedly detests. His passionate belief in “security” and the Rule of Law quickly devolves into the Rule of Man (or regulators, that is) over a corporate entity that he fundamentally distrusts and loathes. But it also signals his acceptance of a much greater role for government in policing all of cyberspace.

On Privacy as Property & Privacy Regulation in General

• The book is loaded with over-the-top rhetoric and techno-panicky talk — not just about Google but about other issues, like online privacy more generally.
• Cleland has made the grave error of suggesting — again in line with the cyber-progressive movement he typically derides — that privacy should essentially be treated as property right and that extensive regulation is needed in the name of protecting privacy online.
• Importantly, in railing against various types of data collection or advertising practices, Cleland doesn’t seem to appreciate that his book is not just an indictment of Google but of the entire Information Economy as we know it. The data collection and online advertising practices he decries and believes should be regulated are the engines that run not just Google, but a large percentage of the business models for new and old companies alike. (I began wondering at points in the book how Cleland felt about analog era data collection companies like Experian, TransUnion, Equifax, etc.)
• Indeed, there are times while reading the book when I found Cleland’s views on privacy and information policy virtually indistinguishable from those of the radical Left, many of whom he cites favorably in the book! (ex: Frank Pasquale, Mark Rottenberg, GoogleWatch.)
• I know Cleland will cringe at the thought, but there are clear similarities between his book and Tim Wu’s book The Master Switch, with their common fears about “information empires” and “Big Brother, Inc.”  The difference is that Cleland singles out Google as the most problematic.
• Again, this is a dangerous game Cleland is playing since his indictment of Google could be applied to many other Digital Economy operators, just as Wu has done in The Master Switch by suggesting that action needs to be taken against not just Google but also Apple, AT&T, Verizon, Facebook, Amazon, and even Twitter who are all “information monopolists” in Wu’s view.

The False Link to Friedman & Hayek

• Cleland is wildly off-base in enlisting the words and Milton Friedman and F.A. Hayek in support of his indictment of Google.
• Cleland imagines that Google’s “central planning” efforts are roughly equivalent to government central planning. That is horribly misguided and to enlist Friedman and Hayek’s words in defense of this thesis is a travesty.
• Friedman and Hayek’s critique of central planning was squarely focused on the State, not corporations. While it may be the case that elements of their critique could be applied to large private entities that attempt audacious tasks like “organizing the all the world’s information,” it does not follow that the State must take action to counter those business objectives, no matter how quixotic. This is where marketplace trial and error — not anticipatory regulation — is the better way to determine what is efficient and what consumers desire.
• To use a Hayekian term, Cleland is guilty of the “pretense of knowledge” problem by imagining he (or the government) has a more sensible vision for how these digital markets should look or operate. Only ongoing experimentation can tell us that.

On Solutions

• We can all agree that more transparency about privacy/data collection practices (for Google and others) is generally a good idea, but it’s clear that is not enough for Cleland.
• He wants to bring in the wrecking ball of antitrust, thinking that this is the way to better organize the markets that Google serves.
• Again, the irony is that he sees no conflict between this prescription and his general distaste for Big Government in other contexts.  As I noted in my 2009 review of Gary Reback’s tedious screed Free the Market, there are some conservatives who subscribe to the illogical belief that antitrust law is not a form of economic regulation. Sadly, Cleland is one of them. Instead, in his view, antitrust is about “the Rule of Law.” Except that, at root, antitrust is really just as much about the Rule of Men as tradition administrative agency regulation. And those men can make many mistakes, especially when they imagine they can magically concoct a supposedly better plan for fast-moving, high-tech sectors.

Where Cyber-Conservatives & Cyber-Libertarians Part Ways

• Part of what Cleland has done in this book is to further develop a theory of “cyber-conservativism.”
• We are beginning to see a serious schism develop between cyber-conservatives (like Scott) and cyber-libertarians (like myself and many others here at the TLF).
• Over the past decade, cyber-conservatives and cyber-libertarians have been allies on many important economic policy battles (ex: Net neutrality and Net taxes are two good examples).
• But the cyber-conservative desire to make everything subservient to “security and stability,” and their tendency to sometimes extend property right concepts well beyond their natural or practical application, is what leads to a strong break with cyber-libertarians, who value liberty, experimentation, dynamism, and limited government above all else.
• This tension is going to grow more acute in coming years as information control efforts become increasingly onerous and costly (especially on the copyright, privacy, and cyber-security fronts).
• Cyber-conservatives will need to ask themselves just how far they want the State to go to achieve “security and stability,” or to preserve and / or extend property rights into the sphere of intangible information flows.
• Cleland’s book suggests he is willing to make that leap in a fairly aggressive way to take down a company that many cyber-libertarians believe has been a great innovator and prime example of cyber-capitalism at its finest.
• Like some other conservatives, Cleland has also strongly endorsed sweeping copyright regulation that would fundamentally alter the Internet’s architecture in the name of protecting copyright.  Most cyber-libertarians could never accept such “by-any-means-necessary” approaches to copyright protection.
• But the most interesting fight in the short-term will be over privacy controls. Cleland’s book signals the desire of some conservatives to have government take a more active role in the name protecting (or even “property-tizing” personal information). Some conservative policymakers, like Rep. Joe Barton (R-TX), have long been in that same boat. It will be interesting to see how many more conservatives join them and then make alliances with cyber-progressives, who are gung-ho about expanding the power of the State in this regard.
• One thing is certain to me after reading Scott’s book: Any alliances we cyber-libertarians make with cyber-conservatives will be fleeting and fickle affairs, just as they often are when we broker peace treaties with cyber-progressives. I suppose I was naïve to ever have thought we could bring more of either group fully into our liberty-loving camp.  But what concerns me even more is that those other two camps may increasingly (sometimes unwittingly, of course) be joining forces to expand the reach of Big Government’s tentacles until the entire digital economy is smothered in innovation-stifling bureaucracy and red tape.
• “The natural progress of things is for liberty to yield and government to gain ground,” Thomas Jefferson taught us long ago. With conservatives increasingly joining progressives in calling for greater State control of cyberspace, it is now clear to me just how lonely we libertarians will be in calling for government to keep its hands off the Net.

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Related Reading:

• Cyber-Libertarianism: The Case for Real Internet Freedom (with Berin Szoka)
• What Cablegate Tells Us about Cyber-Conservatism (by Jerry Brito)
• What Privacy Conservatives & Moral Conservatives Share in Common
• SOPA & Selective Memory about a Technologically Incompetent Congress
• When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed
• And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars

Yes, we pretty much have. That’s the inescapable conclusion following the U.S. Supreme Court’s historic First Amendment decision in Brown v. EMA back in June, which struck down a California law governing the sale of “violent video games” to minors.  By a 7-2 margin, the court held that video games have First Amendment protections on par with books, film, music and other forms of entertainment.

The folks over at ALEC asked me to explore what happens next and what steps state and local lawmakers can take in a post-Brown world if they wish to address concerns about video game content. My essay appears in the Nov/Dec Inside ALEC newsletter. You can read the entire thing here or via the Scribd embed I have placed down below the fold.

I argue that, going forward, this ruling will force state and local governments to change their approach to regulating all modern media content. Education and awareness-building efforts will be the more fruitful alternative since censorship has now been largely foreclosed.

Game Over for Video Game Censorship – Adam Thierer INSIDE ALEC [November 2011]

My latest weekly Forbes column (“The Twilight of Copyright?”) considers the future of copyright law and the controversy generated by “Stop Online Piracy Act” (SOPA). [See Ryan Radia's mega-post for all the details on the SOPA fight.]  After co-editing a big book on copyright law with Wayne Crews nine years ago (Copy Fights: The Future of Intellectural Property in the Information Age, Cato Institute, 2002), I decided to stop covering copyright policy altogether. Any attempt to try to find balance in this debate is pretty much futile, and I also got tired of losing friends over the issue. (Nothing starts a good catfight among libertarians like copyright policy.)

I don’t plan to jump back in the fight in a big way, but I felt compelled to say something about SOPA since it represents one of the most sweeping attempts at Internet regulation ever conceived. As much as I detest the culture of free-riding that exists online today, I think extreme solutions like SOPA are never justified. And I’m not even sure it would work in practice. In my Forbes essay, I wonder aloud about what’s left to try. I lay out three options: (1) Do nothing: Leave the shell of copyright law in place and hope for best; (2) Massive vertical integration: Let conduit guys buy out content owners and let them figure out how to pay content creators; (3) Blanket online compulsory license: Force everyone to pay an embedded fee on broadband or devices to cross-subsidize content.

In the end, I argue that all three solutions have serious drawbacks but, sadly, I don’t really have any fresh ideas to offer. Anyway, read the whole thing if you’re interested in the topic. I think I’m done with it for another decade.

Listening to this morning’s House Judiciary Committee hearing on H.R. 3261, the “Stop Online Piracy Act” (SOPA) was painful for many reasons, including the fact that the first hour of the Committee’s video stream was practically inaudible and unwatchable.  That led to a barrage of snarky jokes on Twitter about whether we should trust these same folks to regulate the Internet in the way SOPA envisions if they can’t even get their own tech act together.

The snark-casm went into overdrive, however, once the lawmakers starting discussing DNS issues and the underlying architectural concerns raised by SOPA’s sweeping solution to the problem of online piracy. At that point, the techno-ignorance of Congress was on full display. Member after member admitted that they really didn’t have any idea what impact SOPA’s regulatory provisions would have on the DNS, online security, or much of anything else. This led to some terrifically entertaining commentary from the Twittersphere, including the two below.

I’m highly sympathetic to such concerns, but here’s my question: Where the heck were all these people when we were debating Net neutrality regulation, new privacy mandates, cybersecurity restrictions, Net gambling, and more? It strikes me that there’s a selective memory (or selective morality?) problem at work in these cyberlaw debates: When critics hate a particular bill, they’ll go out of their way to point out how technologically incompetent Congress is and why we should be skeptical of whatever it is they are up to.  But if the critics are sympathetic to the regulatory cause du jour, well then, we should just trust that those crusty Congress critters will get it right!

I wrote about this selective morality problem at greater length in my essays,”When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed,”and “And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars.“  Put simply, people hate Internet regulation… until they love it.

For example, the conservatives rush out and breathlessly denounce each and every effort to impose Net neutrality regulation because of the danger of empowering an already over-zealous bunch of bumbling bureaucrats at the FCC. (And I agree with them.) Yet, with their next breath many conservatives praise SOPA even though it also empowers government to muck with the inner workings of the Internet. Some of those conservatives are also turning a blind eye to the growing appetite of the defense/security community to meddle with the Net’s architecture in the name of avoiding any number of non-catastrophes.

Meanwhile, the liberals decry SOPA and want it stopped at all costs. There’s never been a copyright protection measure they liked, of course, but each time one pops up we hear them claim that our analog era Congress is not well-positioned to be designing industrial policy schemes for the Internet. (And I generally agree with them.) But most liberals do a complete 180 whenever online privacy or Net neutrality regulations are the subject of congressional inquiry. Suddenly, the cyber-oafs in Congress are considered veritable technocratic philosopher kings who we should trust to guard our cyber-freedoms to lead us to the digital promised land.

Oh, the hypocrisy of it all!  Is there no one who stands for real Internet freedom? I guess not. But I hope all these people lambasting congressional and bureaucratic techno-incompetence today will have that same script handy at the next Internet policy hearing. Because if they aren’t willing to use it consistently, I will.

On Friday, both Josh Wright and I spoke on a panel at the Michigan State University’s conference on “Governance of Social Media.” Our particular panel focused on emerging competition policy issues affecting social media and social networking sites. Also joining us on the panel were Nicolas Economides of NYU and Michael Altschul of the CTIA. The video of the panel can be found here and I have also embedded it down below. [My remarks begin around the 23-min mark of the video.]

At the event, I presented my forthcoming paper on “The Perils of Classifying Social Media Platforms as Public Utilities,” which is currently out for peer review. I outlined the rising calls for treating social media or social networking sites as public utilities, essential facilities, or natural monopolies. Next, I briefly discussed some basic law and economics of public utility / essential facilities regulation. Third, I detailed six specific problems with efforts to classify these services as such. Finally, I briefly discussed regulatory proposals set forth by Professors Jonathan Zittrain and Tim Wu to apply traditional antitrust or public utility remedies to social media or information platforms. Specifically, I address Zittrain’s call for “API neutrality” (which would apply net neutrality-like principles at the applications and device layer) and Wu’s call for a “Separations Principle” (which would forcibly segregate information providers into three buckets: creators, distributors, and hardware makers). Watch the video for more details and see this for more critiques of the Zittrain and Wu proposals.

It was my pleasure this week to host a terrific panel discussion about the future of broadband policy and FCC reform featuring Raymond Gifford, a Partner at the law firm of Wilkinson Barker Knauer, LLP,  Jeffrey Eisenach, a Managing Director and Principal at Navigant Economics and an Adjunct Professor at George Mason University Law School, and Howard Shelanski, Professor of Law at Georgetown Law School who previously served as Chief Economist for the Federal Communications Commission and as a Senior Economist for the President’s Council of Economic Advisers at the White House. We discussed two new papers by Gifford and Eisenach on these issues.

Gifford discussed his new Mercatus Center Working Paper on “The Continuing Case for Serious Communications Law Reform.” Gifford’s paper outlines what substantive FCC reform would entail and considers what antitrust agencies and enforcement can teach us about the way the FCC should work going forward.  Eisenach discussed his important new paper on “Theories of Broadband Competition,” which similarly considers how competition oversight of broadband markets could be modeled after modern antitrust principles.  Shelanski offered his thoughts on both papers. It was an interesting discussion and I encourage you to watch the entire thing.

During the discussion period, we debated the likelihood that serious communications policy / FCC reform could occur in the current political environment.  I argued that the stars just don’t line up at this time to achieve such reforms. However, keep in mind that many deregulatory experiments in the past sometimes started slowly and then something sparked sudden action.  Scholars have noted (see McCraw’s “Prophets of Regulation”) sometimes just a couple of key players (such as Alfred Kahn in the airline context) were able to change the underlying dynamics of deregulation very rapidly to push through long-lasting reforms.

The key difference between then and now, of course, is that, back then, liberal Democrats in Congress and the Carter Admin came to understand how regulation was having a deleterious impact on marketplace competition and consumer welfare.  I simply cannot find a single Democrat who makes that same case today for the communications or media sectors.  And if telecom / media reform remains a highly politically charged, partisan issue, then the hopes for reform remain quite slim. But I haven’t given up all hope just yet!

Anyway, watch the event video for more discussion on this matter.

This week I will again be attending the Family Online Safety Institute’s excellent annual summit. The 2-day affair brings together some of the world’s leading experts on online safety and privacy issues. It’s a great chance to learn about major developments in the field. As I was preparing for the session I am moderating on Thursday, I thought back to the first FOSI annual conference, which took place back in 2007. What is remarkable about that period compared to now is that there was a flurry of legislative and regulatory activity related to online child safety then that we simply do not see today.

In fact, just 3 1/2 years ago, John Morris of the Center for Democracy and Technology and I compile a legislative index [summary here] that cataloged the more than 30 legislative proposals that had been introduced in the the 110th session of Congress. There was also a great deal of interest in these issues within the regulatory community. Finally, countless state and local measures related to online safety and speech issues had been floated. Today, by contrast, it is hard for me to find any legislative measures focused on online safety regulation at the federal level, and I don’t see much activity at the agency level either. I haven’t surveyed state and local activity, but it seems like it has also died down.

Generally speaking, I think this is a good development since I am opposed to most proposals to regulate online speech, expression, or conduct. But let’s ignore the particular wisdom of such measures and ask a simple question: What explains the decline in Internet safety legislation and online content regulation? I believe there are three possible explanations:

1) The effectiveness of education and awareness-building strategies

I would like to believe that all the efforts made by various groups and individuals (including myself) to encourage policymakers to adopt  “Educate & Empower” approaches over “Legislative & Regulate” approaches are finally bearing fruit. The first instinct for many policymakers is to legislate immediately and then worry about the consequences later (if at all). But such approaches, no matter how well-intentioned, often backfire and have myriad unintended consequences (including the problem addressed next). So, perhaps it is the case that lawmakers and regulators are finally coming to realize that education and awareness approaches — married to empowerment-based efforts – are actually the more sensible approach compared to a flurry of legislative measures that ultimately accomplish very little.

2) The deterrent effect of inevitable and lengthy constitutional challenges

Here are two things I know for certain: First, almost every Internet-related measure faces a constitutional challenge, typically on First Amendment grounds (but sometimes also on Sec. 230 grounds). Second, most of those challenges succeed. I don’t have hard stats to back up this assertion, but I’d bet that there are few areas of modern law that have witnessed a higher percentage of successful constitutional challenges in recent years than the field of cyberlaw.  Taking that as a given, one must assume that at some point it becomes a deterrent to additional state action in this field.  Why waste years legislating and regulating if it is all enjoined and then overturned a short time later?

3) Resurgence of privacy as major policy issue and the emergence of cybersecurity as a policy issue

It could also be that case that privacy policy crowds out congressional interest in online safety legislation. In fact, it seems like these issues often move in opposing waves. When a wave of online safety legislative and regulatory activity is cresting, interest in privacy policy seems to fall. That certainly seemed to be the case between roughly 2005 and 2008 when online safety dominated congressional debates and privacy was hardly on the radar.  Today the reverse is true. Privacy has been the dominant Internet policy issue of the past year or so. It is sucking all the oxygen out of the room — whether that room is a congressional hearing room, a regulatory agency event, or even academic conferences.

Importantly, cybersecurity has rapidly emerged as a major new fault line in Internet policy debates. It, too, is eating up a lot of the “attention bandwidth” available among policymakers today.  And intellectual property matters always seem to be percolating out there.

It is my belief that because some of these Net policy issues are so complicated, policymakers are sometimes discouraged from doing a “deep dive” on them. To the extent they do, it seems unlikely that lawmakers are willing to invest serious time in more than a couple of these arcane matters at one time. Also, don’t forget how busy the relevant committees (Commerce and Judiciary) are with other, not tech policy-related matters. On any given legislative day, they could be handling a wide range of other policy issues that crowd out the amount of attention they can devote to Net policy matters, which are often far down the list of legislative priorities. Again, I’m generally pretty happy about that fact! I’d rather lawmakers go slow on these issues, whether the slow pace of the action is intentional or not.

So, what do you think? Are there other possible explanations for why we’ve seen less activity on the online safety / Internet content regulation front in recent years?

On Wednesday, November 9th, the Mercatus Center will be hosting an event on “A New Framework for Broadband and the FCC.” It will take place at the Reserve Officers Association from 10:00am – 11:30am. At the event, telecom experts Raymond Gifford, Jeffrey Eisenach, and Howard Shelanski that will examine if a new framework might be needed for broadband policy and the possibility of reforming the Federal Communications Commission. Both Eisenach and Gifford will be presenting new papers at the event and Shelanski will be offering commentary. RSVP here to hold a seat.  Complete event summary follows.

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Broadband policy continues to be a contentious subject of debate with many policymakers and advocates suggesting that a new framework might be needed to foster increased competition, innovation, higher speeds, greater coverage, and lower prices. Meanwhile, there’s talk in Washington once again of reforming the Federal Communications Commission (FCC) to bring the agency into the information age.

These issues are explored in new studies by Raymond Gifford, a Partner at the law firm of Wilkinson Barker Knauer, LLP, and by Jeffrey Eisenach, a Managing Director and Principal at Navigant Economics and an Adjunct Professor at George Mason University Law School. In a new Mercatus Center working paper, Gifford outlines what substantive FCC reform would entail and considers what antitrust agencies and enforcement can teach us about the way the FCC should work going forward.  In a similar vein, Eisenach’s new study considers how competition oversight of broadband markets could be modeled after modern antitrust principles.

Gifford and Eisenach will outline these alternative approaches to broadband policy and FCC reform in a Mercatus Center event on Wednesday, November 9^th at 10:00am at the Reserve Officers Association. Also joining us for the discussion will be Howard Shelanski, Professor of Law at Georgetown Law School who previously served as Chief Economist for the Federal Communications Commission and as a Senior Economist for the President’s Council of Economic Advisers at the White House. Register for the event here.

I highly recommend this important new study on “Why Parents Help Their Children Lie to Facebook about Age: Unintended Consequences of the Children’s Online Privacy Protection Act” by danah boyd of New York University, Eszter Hargittai from Northwestern University, Jason Schultz from University of California, Berkeley, and John Palfrey from Harvard University. COPPA is a complicated and somewhat open-ended law and regulatory regime. COPPA requires that commercial operators of websites and services obtain “verifiable parental consent” before collecting, disclosing, or using “personal information” (name, contact inform­ation) of children under the age of 13 if either their website or service (or “portion thereof”) is “directed at children” or they have actual knowledge that they are collecting personal information from a child.

The new study, which surveyed over 1,000 parents of children between the ages of 10 and 14, reveals that, despite the best of intentions, COPPA is having many unintended costs and consequences:

Although many sites restrict access to children, our data show that many parents knowingly allow their children to lie about their age — in fact, often help them to do so — in order to gain access to age–restricted sites in violation of those sites’ ToS. This is especially true for general–audience social media sites and communication services such as Facebook, Gmail, and Skype, which allow children to connect with peers, classmates, and family members for educational, social, or familial reasons.

The authors conclude that “COPPA inadvertently undermines parents’ ability to make choices and protect their children’s data” and that their results “have significant implications for policy–makers, particularly in light of ongoing discussions surrounding COPPA and other age–based privacy laws.” Indeed, this paper could really shake up the debate over online kids’ privacy regulation. I will have more analysis of the paper in my weekly Forbes column this weekend.

Additional reading for COPPA background and current controversies: Berin Szoka & Adam Thierer, “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” (May 21, 2009); and Adam Thierer, “Kids, Privacy, Free Speech & the Internet: Finding the Right Balance,” (August 12, 2011).

Web Pro News invited me on the show this week to chat about the ongoing Internet sales tax debate. Video embedded below. Here’s the new Mercatus paper that Veronique de Rugy and I wrote on the issue, which is referenced during the discussion.

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