Keeping politicians' hands off the Net & everything else related to technology
Articles by Jerry Brito
Jerry Brito is a senior fellow with the regulatory studies program at the Mercatus Center at George Mason University where he studies mostly tech-related issues such as telecom, privacy and intellectual property. Brito received his J.D. from George Mason University School of Law and his B.A. in Political Science from Florida International University in Miami. His articles have appeared in The Wall Street Journal, The Miami Herald, Regulation, The Los Angeles Daily Journal, and elsewhere. He is the creator of OpenRegs.com an easier-to-use alternative to the federal government's Regulations.gov portal. His personal web site is jerrybrito.com.
In the last issue of The New Republic, Lawrence Lessig published the unfortunately titled article “Against Transparency.” In it he criticizes what he calls the “naked transparency movement.”* The article has drawn several responses, with Ellen Miller and Michael Klein’s being the best and most direct. I’d like to offer a libertarian perspective.
Lessig’s thesis is that the revolution in government transparency that modern information technology makes possible is a double-edged sword because what it uncovers is simply the general corruptibility of government–and he speaks of Congress in particular. Tools like MAPLight.org show that there is a strong correlation between campaign contributions and legislative votes. Some of these may indeed be corrupt bargains, and some may not. But the fact is that “the contributions are corrupting the reputation of Congress, because they raise the question of whether the member acted to track good sense or campaign dollars.”
Because citizens are prone to rational ignorance (although Lessig insists on relabeling the concept “lack of attention-span”), they will not investigate individual votes or other actions very deeply, and they will unfairly ascribe a certain susceptibility to influence to all in Congress. As a result, the naked transparency movement won’t inspire reform, but instead “will simply push any faith in our political system over the cliff.” Lessig writes:
At this time the judgment that Washington is all about money is so wide and so deep that among all the possible reasons to explain something puzzling, money is the first, and most likely the last, explanation that will be given. It sets the default against which anything different must fight. And this default, this unexamined assumption of causality, will only be reinforced by the naked transparency movement and its correlations. What we believe will be confirmed, again and again.
His solution? “A system of publicly funded elections would make it impossible to suggest that the reason some member of Congress voted the way he voted was because of money.” Take the money out of politics, Lessig argues, and you also take away the cynicism that forestalls change.
Lessig’s solution reminds me of airline regulation in the 60s and 70s. Prices where set by government, so airlines were forced to compete on other margins. First came the elaborate meals, then the in-flight bar lounges and later piano bars, and then “the musicians, magicians, wine-tasters, and Playboy bunnies.”
Last month I wrote about the imminent release of raw stimulus spending data and said that the jury was still out on the Obama Administration’s transparency pledge. Well, we’re now pretty close to a verdict, and it’s not good.
On Thursday, Recovery.gov added reports from the recipients of stimulus dollars–contractors and grantees explaining what money they got, what they’re doing with it, and who they have subcontracted. At Stimulus Watch we immediately got into the data looking to build the next version of our service, but soon found it was almost hopeless.
Recipient reports are offered in CSV format, which is not the most elegant way to present the data. Worse, the Recovery.gov “Download Center” offers three files for each state–one for prime recipients awards, one for sub-awards, and one for vendor awards–which means you have to piece them all together to do nationwide analysis. First, as far as I can tell, all vendor awards files are empty. Second, what we immediately wanted to do was tie the sub-awards to the primary awards (i.e. tie the subcontractors to the main contractor), but found no unique ID that could bind them together. Even worse, many of the data fields are inscrutable, and no glossary was provided.
Finally, while the agency reports of the money they’re doling out includes both the address of the contractor and the address of the project itself, the recipient reports only include the contractor’s address. In order to let citizens know what recovery projects are in their neighborhoods, however, we need to know the place of performance, not simply the construction company’s address, for example.
Others have also panned the release on data quality and other issues. This is not the “unprecedented” level of transparency and accountability that we have been promised, and it’s certainly not what I expect from an $8 million website. Vice President Biden, in charge of ensuring recovery transparency, should take notice and take action.
There are many of us in the developer community who want to help make possible the thousands of “citizen IGs” that Recovery Accountability and Transparency Board Chair Earl Devaney has touted. In order to do that, though, we need the data, and this isn’t cutting it.
This month marks the 50th anniversary of Ronald Coase’s seminal article, The Federal Communications Commission. Coase’s critique of the political allocation of radio spectrum, and his arguments for achieving efficient allocation by allowing the government to sell rights to the spectrum, has had a profound effect on the course of communications policy.
While Coase’s ideas have been vindicated, and a market in radio property has developed, what impact have they had on the FCC? What is Coase’s legacy, and how salient are his ideas for the future of spectrum allocation? A distinguished set of speakers will address these questions at the event, “Ronald Coase’s The Federal Communications Commission at 50,” co-hosted by The Mercatus Center at George Mason University and The Progress & Freedom Foundation.
Opening remarks will be given by Commissioner Robert M. McDowell of the Federal Communications Commission. The remarks will be followed by a panel discussion on the themes presenting in the landmark book. Participants will include:
Prof. Thomas W. Hazlett, George Mason University School of Law
Dr. Jeffrey A. Eisenach, Empiris LLC & George Mason University School of Law
Dr. Evan Kwerel, Federal Communications Commission
John Williams, Federal Communications Commission (invited)
“Ronald Coase’s The Federal Communications Commission at 50,” will be held Thursday, October 29th from 9:00am to 12:00pm in Hazel Hall, Room 121 (ground floor) at the George Mason University School of Law in Arlington. Please RSVP after the jump.
The new episode of Surprisingly Free Conversations is up and it features Michael S. Sawyer, a fellow at the Berkeley Center for Law and Technology, discussing the impact of the DMCA on user-generated content. The discussion also turns to the principle of fair use and competing solutions for dealing with copyright infringements on user-generated content sites. You can listen to the podcast on the site or subscribe in iTunes. While you’re at it, check out our last episode, featuring TLF alum Tim Lee discussing bottom-up processes, the innovators dilemma, the link economy, and the future of newspapers.
In his latest Slate column, Tim Wu endorses a modified Google Books Search settlement because he fears that without such a deal–through which a giant like Google gets a de facto monopoly–we will never see an online library that includes orphan works and out-of-print books. He writes:
Books in strong demand, whether old (Dracula) or contemporary (Never Let Me Go), are in print and available no matter what happens. … The Google Book Search settlement makes it easier to get books few people want, like the Windows 95 Quick Reference Guide, whose current Amazon sales rank is 7,811,396, or The Wired Nation, which in 1972 predicted a utopian age centered on cable television. These are titles of enormous value for research and that appeal to a certain type of obsessive. Yet they are also unlikely to be worth much money.
And this, I hope, makes clear my point. A delivery system for books that few people want is not a business one builds for financial reasons. Over history, such projects are usually built not by the market but by mad emperors. No bean counter would have approved the Library of Alexandria or the Taj Mahal.
I’m curious how Prof. Wu can square that with what he wrote in his Slate review of Chris Anderson’s The Long Tail in 2006:
The products in the Long Tail are less popular in a mass sense, but still popular in a niche sense. What that means is that some businesses, like Amazon and Google, can make money not just on big hits, but by eating the Long Tail. They can live like a blue whale, growing fat by eating millions of tiny shrimp. …
What are the Long Tail’s limits? As a business model, it matters most 1) where the price of carrying additional inventory approaches zero and 2) where consumers have strong and heterogeneous preferences. When these two conditions are satisfied, a company can radically enlarge its inventory and make money raking in the niche demand. This is the lifeblood of a handful of products and companies, Apple’s iTunes, Netflix, and Google among them, all of which are basically in the business of aggregating content. It doesn’t cost much to add another song to iTunes—having 10,000 songs available costs about the same as having 1 million. Moreover, people’s music preferences are intense—fans of Tchaikovsky aren’t usually into Lordi.
Scanning books is expensive, but not so expensive that we need the government or a regulated utility provider (as Wu suggests) to do it. If a fair use exemption or other workaround was available, I’m sure we’d see more than one competitor jump into the space. Like Prof. Wu understood in 2006, and as Google knows now, there is lots of money to be made in hyper-narrow niches.
Tomorrow, Friday, Oct. 2, the Information Economy Project at the George Mason University School of Law will hold a conference on Michael Heller’s new book The Gridlock Economy. Surprisingly Free will be streaming live video of the the conference kick-off debate between Heller and Richard Epstein at 8:30 a.m. (It will also be available for download later for folks allergic to early mornings.)
Called “Tragedies of the Gridlock Economy: How Mis-Configuring Property Rights Stymies Social Efficiency,” the conference will
explore a paradox that broadly affects the Information Economy. Property rights are essential to avoid a tragedy of the commons; defined properly, such institutions yield productive incentives for creation, conservation, discovery and cooperation. Applied improperly, however, such rights can produce confusion, wasteful rent-seeking, and a tragedy of the anti-commons.
This conference, building on Columbia University law professor Michael Heller’s book, The Gridlock Economy, tackles these themes through the lens of three distinct subjects: “patent thickets,” reallocation of the TV band, and the Google Books copyright litigation.
In the meantime, check out this video of Michael Heller at Google giving his elevator pitch.
This week Google unveiled Sidewiki, a tool that lets users annotate any page on the web and read other users’ notes about the page they are visiting. Professional Google watcher Jeff Jarvis quickly panned the service saying that it bifurcates the conversation at sites that already have commenting systems, and that it relieves the site owner of the ability to moderate. Others have pooh-poohed the service, too.
What strikes me about the uproar is that Sidewiki is a lot like the “electronic sidewalks” that Cass Sunstein proposed in his book Republic.com. The concept was first developed in detail in a law review article by Noah D. Zatz titled, Sidewalks in Cyberspace: Making Space for Public Forums in the Electronic Environment [PDF]. The idea is a fairness doctrine for the Internet that would require site owners to give equal time to opposing political views. Sunstein eventually abandoned the view, admitting that it was unworkable and probably unconstitutional. Now here comes Google, a corporation, not the government, and makes digital sidewalks real.
The very existence of Sidewiki, along with the fact that anyone can start a blog for free in a matter of minutes, explodes the need for a web fairness doctrine. But since we’re not talking about government forcing site owners to host opposing views, I wonder if we’re better off with such infrastructure. As some have noted, Google is not the first to try to enable web annotation, and the rest have largely failed, but Google is certainly the biggest to make the attempt. As a site owner I might be worse off with Sidewiki content next to my site that I can’t control. But as a consumer of information I can certainly see the appeal of having ready access to opposing views about what I’m reading. What costs am I overlooking? That Google owns the Sidewiki-sidewalk?
One of the projects I run is OpenRegs.com, an alternative interface to the federal government’s official Regulations.gov site. With the help of Peter Snyder, we recently developed an iPhone app that would put the Federal Register in your pocket. We duly submitted it to Apple over a week ago, and just received a message letting us know that the app has been rejected.
The reason? Our app “uses a standard Action button for an action which is not its intended purpose.” The action button looks like the icon to the right.
According to Apple’s Human Interface Guidelines, its purpose is to “open an action sheet that allows users to take an application-specific action.” We used it to bring up a view from which a user could email a particular federal regulation. Instead, we should have used an envelope icon or something similar. Sounds like an incredibly fastidious reason to reject an application, right? It is, and I’m glad they can do so. Continue reading →
TLF friends, I have an announcement: Today the Mercatus Center at George Mason University is launching a new Technology Policy Program, which I will be directing. Perhaps more exciting for TLF readers, though, is that we’re also launching a new blog and podcast.
The new site is called Surprisingly Free, and it will focus on the intersection of technology, policy, and economics. We’ll feature commentary from Mercatus and GMU scholars, guest bloggers, and aggregated posts from other academics around the country.
The podcast is imaginatively called Surprisingly Free Conversations and it’s modeled after Russ Robert’s excellent Econtalk. The format is a weekly in-depth one-on-one conversation with a thinker or entrepreneur in the tech field. The first episode is up and features TLF veteran Tim Lee on bottom-up processes, innovation, and the future of news. Check it out, and please subscribe in iTunes.
We’re looking forward to engaging the tech policy discussion online from a law and econ academic perspective, and we hope you’ll join us for the ride. I look forward to your feedback!
The FCC announced today that it will consider adopting net neutrality rules. The announcement comes in a speech by Chairman Julies Genachowski, which you can read here and watch here. Genachowski says,
To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. … The principles were initially articulated by Chairman Michael Powell in 2004 as the “Four Freedoms,” and later endorsed in a unanimous 2005 policy statement[.] … Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness.
By suggesting that they must be codified, Genachowski is implicitly (if not explicitly) conceding that the FCC’s Internet principles are a mere policy statement and not a binding and enforceable rule. I’ve explained why this is the case previously. So, someone should call the D.C. Circuit, considering the Comcast case, and let them know their job just got a lot easier.
Second, Genachowski gives “limited competition” as a reason to consider regulation. However, the best available data from the FCC show that 98% of zip codes have 2 or more broadband providers, 88% of zip codes have 4 or more broadband providers, and 77% of zip codes have 5 or more broadband providers. That said, some have questioned whether the FCC’s data are accurate, and the FCC’s next broadband report is supposed to have data gathered at the census tract level for a more detailed set of speed categories. So, the FCC is proposing a regulation before it has completed an ongoing study to discover whether there is a real problem. It’s almost as if Kevin Martin is still running the place.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
Jerry Brito is a senior fellow with the regulatory studies program at the Mercatus Center at George Mason University where he studies mostly tech-related issues such as telecom, privacy and intellectual property. Brito received his J.D. from George Mason University School of Law and his B.A. in Political Science from Florida International University in Miami. His articles have appeared in The Wall Street Journal, The Miami Herald, Regulation, The Los Angeles Daily Journal, and elsewhere. He is the creator of 
In the last issue of The New Republic, Lawrence Lessig published the unfortunately titled article “Against Transparency.” In it he criticizes what he calls the “naked transparency movement.”* The article has drawn several responses, with Ellen Miller and Michael Klein’s being the best and most direct. I’d like to offer a libertarian perspective.
Comments 
Posted in: E-Government & Transparency 
The new episode of Surprisingly Free Conversations is up and it features Michael S. Sawyer, a fellow at the Berkeley Center for Law and Technology, discussing the impact of the DMCA on user-generated content. The discussion also turns to the principle of fair use and competing solutions for dealing with copyright infringements on user-generated content sites. You can listen to the podcast on 
In his 
This week Google unveiled 
The reason? Our app “uses a standard Action button for an action which is not its intended purpose.” The action button looks like the icon to the right. 
TLF friends, I have an announcement: Today the Mercatus Center at George Mason University is launching a new Technology Policy Program, which I will be directing. Perhaps more exciting for TLF readers, though, is that we’re also launching a new blog and podcast.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
