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. 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”

2009 was not as big of a year for Internet and information technology (“info-tech”) policy books as 2008 was, but there were still some notable titles released that offered interesting perspectives about the future of the Net and the impact the Digital Revolution is having on our lives, culture, and economy.  So, like last year, I figured I would throw together my list of the 10 most important info-tech policy books of the year.

First, let me repeat a few of the same caveats and disclaimers that I set forth last year.  What qualifies as an “important” info-tech policy book? Simply put, it’s a title that many people are currently discussing and that we will likely be referencing for many years to come.  However, I want to be clear that merely because a book appears on my list it does not necessarily mean I agree with everything said in it. In fact, as was the case in previous years, I found much with which to disagree in my picks for the most important books of 2009 and I find that the cyber-libertarianism I subscribe to has very few fans out there.

Another caveat: Narrowly-focused titles lose a few points on my list. For example, if a book deals mostly with privacy issues, copyright law, or antitrust policy, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues with a bearing on technology policy.

With those caveats in mind, here are my choices for the Most Important Info-Tech Policy Books of 2009.

(1) Chris Anderson – Free: The Future of a Radical Price

Chris Anderson’s 2006 book The Long Tail will be remembered as one of the most influential tech policy books of the decade.  It changed the way we talk about the digital marketplace and it instantly garnered a huge audience outside of the nerdy world of Internet policy.  While Free: The Future of a Radical Price will forever live in the shadow of The Long Tail, it too is an important book and in many ways it is a much better one.

In The Long Tail, Anderson tried too hard to invent the latest business theory du jour, and in doing so he went much too far in proclaiming that, as the subtitle of the book argued, “the future of the business is selling less of more.”  That’s just not true. While there’s certainly a lot more action in the long tail than ever before since it is so much more accessible, that does not mean the entire future of business lies in “selling less of more.”  To the contrary, the fat head of the tail is just as profitable as ever.

Free certainly contains some of the flamboyance on display in The Long Tail, but Anderson has matured as a writer and is now far more willing to point out the limitations of his theories in a business sense.  He does a splendid job in Free of creating a taxonomy of free-oriented business models to guide discussions about these issues.  And he explains how “free” can be part of many different business models and strategies. His historical treatment of the issues is outstanding and includes many entertaining examples of how these “free” strategies have been used over time to offer innovative new goods and services.

The reason his book is important for Internet policy discussions is obvious: “free” is increasingly viewed as a threat to many existing companies, industry sectors, and traditional media business models.  For example, battles about the future of journalism and search engine indexing of news sites are obviously tied up with battles over “free.”  And, it goes without saying that the traditional entertainment industry business models are increasingly challenged by “free” as many struggle to adapt to the new realities of the online world, in which “free” (primarily advertising-supported  and “freemium” models) seems to be the only model with any legs.

Much like my top pick for 2008 book of the year, Jonathan Zittrain’s The Future of the Net and How to Stop It, Chris Anderson’s Free is the most important information technology book of the year because it is the one we will still be talking about the most a decade from now.  However, unlike Zittrain’s book and thesis, which I think will be largely discredited in another ten years, Anderson’s book will likely be viewed as an important and lasting contribution to the field.

(2) Larry Downes – The Laws of Disruption: Chaos and Control in Your Virtual Future

The Laws of Disruption is the closest thing you will find to a genuine cyber-libertarian manifesto these days.  But Downes isn’t a rigid ideologue; his skepticism of government regulation of the high-tech economy is based more on practical considerations and the fundamental “law of disruption”: “technology changes exponentially, but social, economic, and legal systems change incrementally.” Downes says this law is “a simple but unavoidable principle of modern life” and that it will have profound implications for the way businesses, government, and culture evolve going forward. “As the gap between the old world and the new gets wider,” he argues, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.” In this sense, The Laws of Disruption reads like an addendum to one of Alvin Toffler’s old books on technology and futurism in that Downes is essentially walking us through the practical consequences of life in a “post-industrial society.”

In terms of what it all means for public policy, Downes doesn’t so much fear legal and regulatory over-reach the way many cyber-libertarians do. Rather, he thinks most regulatory schemes just won’t work. In essence, he is a technological fatalist or consequentialist: Progress happens whether we like it or not, so get used to it!  Thus, the “laws of disruption” he articulates serve primarily as “Just-Don’t-Bother” warnings to over-eager government meddlers. “The best way to regulate innovation is to leave it alone,” he counsels.

In terms of structure, The Laws of Disruption resembles Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion by Abelson, Ledeen, and Lewis, (which I reviewed here last year and named to my 2008 list). Both books survey a vast swath of territory — privacy, copyright, security, etc — and each chapter offers unique perspectives on each debate. In that sense, the book is useful to readers if for no other reason than you get a taste for how a wide variety of issues are playing out. Downes also owes much to Clayton M. Christensen and his seminal 1997 book The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail. Like that book, The Laws of Disruption is a business book with a strong policy hook.  That is, both books focus on advice-dishing for companies and innovators looking to “stay ahead of the curve” in the midst of relentless, gut-wrenching technological change, but the books also include important lessons regarding the public policies that should govern high-tech sectors.

I highly recommended The Laws of Disruption and found it to be the most enjoyable of all the books I read this year.

(3) Dawn C. Nunziato – Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

Dawn Nunziato is the perfect foil for Larry Downes. Her book is a manifesto for cyber-collectivism and “media access theory.”  (For those unfamiliar with media access theory, see my old essay: “Your Soapbox is My Soapbox! Thoughts on the Media Access Movement in General and the Media & Democracy Coalition’s ‘Bill of Media Rights’ in Particular.”)  She attempts to bring media access theory up to date by taking the ideas made famous by Jerome Barron, Owen Fiss, Cass Sunstein, and others, and applying them to the Internet and digital technologies.  Like those earlier legal thinkers, she argues for “an affirmative conception” of the First Amendment that would allow government to use the First Amendment to “facilitate the conditions necessary for democratic self-government” (whatever that means). Net neutrality regulation becomes one of many ways she would put this theory into action. Importantly, she would not stop with ISPs. She makes the case for extending the entire regulatory regime to Google and search platforms. Welcome to the Brave New World of the the FCC as the Federal Search Commission or Federal Cloud Commission!

Her attempt to cast Net neutrality as the Internet’s First Amendment is a grotesque contortion of the real First Amendment, and a complete betrayal of the Founder’s original intentions.  As I made clear in my recent essay on “Net Neutrality Regulation & the First Amendment,” the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts the Federal Communications Commission in control of the Digital Economy. Her conception of the First Amendment would convert it from a shield against government control into a sword that the government could use as it wished. It would mean that “Congress shall make no law…” would suddenly be replaced by “Congress shall make whatever law it wants” so long as it serves some amorphous “public interest.” Can you say “tyranny of the majority”?

Regardless, event though I find her views to be morally repugnant and the antithesis of true digital freedom, Nunziato’s book is a concise articulation of that vision and it deserves everyone’s attention. It serves as a blueprint for where the Net neutrality wars are taking us.

(4) David Bollier – Viral Spiral: How the Commoners Built a Digital Republic of Their Own

David Bollier’s Viral Spiral is the first major history of the “digital commons” / “free culture” movement, and despite my many person disagreements with him and this movement, it is an excellent treatment of the topic. Bollier surveys this growing intellectual movement from its early open source days to the rise of the Creative Commons and on into the present.  The cast of characters in this drama will be well-known to anyone involved in modern tech policy debates: Richard Stallman, Lawrence Lessig, Jonathan Zittrain, Yochai Benkler, et al.

There is absolutely no doubt that this intellectual movement is winning the war of ideas in cyberlaw front today, as I noted in a recent debate with Lessig and Zittrain over at Cato Unbound.  As a cyber-libertarian, I find myself occasionally at odds with these guys and this movement on a variety of policy issues, but that didn’t stop me from enjoying David Bollier’s treatment of this movement and these issues.

(5) David Post – In Search of Jefferson’s Moose: Notes on the State of Cyberspace

David Post is one of the early intellectual giants in the field of cyberlaw. Back in the days when most of us were still just trying to get our 14.4 modems to work properly to get on Al Gore’s “Information Highway,” David Post was writing essays and law review articles that were a decade ahead of their time.  In particular, his work on Internet governance and jurisdictional matters was path-breaking, and much of it is updated and extended in Jefferson’s Moose.

I must admit, however, that I was hoping for a bit more from David in this book.  Beyond just being a first-rate intellectual in this space, he is also one of the few remaining defenders of “Internet exceptionalism,” and he has genuine cyber-libertarian leanings.  After waiting almost 10 years for David to wrap this thing up after he first told me about it back around 2000, I was thinking he might come up with the sort of cyber-libertarian manifesto I’ve always hoped he would write.  Although he fell a bit short in that regard, it doesn’t mean it’s not a good book. It is. You will enjoy it no matter what cyber-philosophy you subscribe to.

Read my entire review of Jefferson’s Moose here.

(6) Dennis Baron – A Better Pencil: Readers, Writers, and the Digital Revolution

Baron’s A Better Pencil is a splendid history of techno-pessimism and the endless battles about the impact of new technologies on life and learning, something I have written about here before in my essays on “Internet optimists vs. pessimists” (See: 1, 2, 3).   Baron notes that almost as soon as people learned to put chisel to stone and then quill to paper, a great debate began about the impact of new communications technology on culture and education. And that debate rages on today with a new generation of optimists and skeptics battling over the impact that computing, the Internet, and digital technologies have on our lives and on how we learn about the world.

Baron walks us through a litany of historical examples—the printing press, the telegraph, telephones, typewriters, pocket calculators, personal computers, word processors, webpages, blogs, social-networking sites, and more—and identifies the usual pattern: we greet each new technology with deep distrust and dire warnings, but in time we adapt to the new realities. Indeed, as a species, we have an unparalleled ability to learn new ways of doing things. We don’t always like technological change, and often we deeply resent or fear it, but in the end, we learn to live with it and eventually to embrace it.  With the rise of the Internet and digital technologies, we see this pattern unfolding once again. But Baron counsels patience and understanding instead of the sort f hysteria and backlash we see from the likes of Andrew Keen, Lee Siegel and others.  It’s a refreshing and uplifting perspective.

Highly recommended. See my complete review of Baron’s A Better Pencil over at the City Journal website.

(7) Mark Helprin – Digital Barbarism: A Writer’s Manifesto

No book has been more disappointing to me in recent memory than Mark Helprin’s Digital Barbarism. As someone who still finds a lot to defend in copyright law, I was excited when I learned that one of America’s most gifted authors–and the author of my favorite literary work of the late 20th century (A Soldier of the Great War)–was taking a crack defending copyright in a short manifesto.

Alas, as I argued in my review of the book for National Review, while Helprin occasionally rises to great heights in his defense of copyright, he too often sinks to lamentable lows–by resorting to the same unbecoming rhetorical tactics used by the “cyber-mob” he seeks to condemn. Indeed, his book is filled with gratuitous vitriol and neo-Luddite ramblings about the Internet and Information Age that severely detract from his defense of copyright. Channeling the ghost of the late social critic Neil Postman, Helprin’s critique of copyright skeptics quickly turns into an all-out assault on modern digital culture and cyberspace. He argues that we are witnessing “the decline of culture,” the “mechanization of the soul,” our “intellectual and spiritual destruction,” and the rise of a movement of “wacked-out muppets led by little professors in glasses” that “threatens in a decade or two to dissolve the accomplishments of millennia, reordering the ways in which we think, write, and communicate.” And it just gets worse from there. Much like recent rants by Andrew Keen and Lee Siegel, Helprin speaks repeatedly about the “surrender of human nature” to “the machine revolution” and the corresponding need to “control the machine.”

How a man who has penned some of the most beautiful prose in modern times could craft an off-the-rails screed of this magnitude remains incomprehensible  to me.  What’s worse is that he set back the cause of defending what’s best about copyright in the process. Luckily for Helprin, there’s plenty of hysteria on the other side, as the next book on my list makes clear.

(8) William Patry – Moral Panics and the Copyright Wars

Bill Patry is an angry man. He is the anti-Helprin. The vitriol that Helprin directs against the copyright-haters is reversed in this screed and turned against not just copyright holders and content creators, but against the entire capitalist system. Patry, who is the author of a multi-volume treatise on copyright law, has done the intellectual equivalent of “going postal” within his own intellectual community. He has turned his intellectual guns on anyone and everyone who has ever had a kind word to say about copyright. He cannot find one nice thing to say about copyright or anyone who defends copyright in this book. Not one.

What’s most ironic about the book is that Patry seems utterly oblivious to the fact that in the process of critiquing the inflammatory rhetoric and “misuse of language” occasionally emanating from some copyright defenders, he goes completely over the top himself and engages in even more egregious rhetorical flourishes. Choice gems from the book include: “digital guillotines,” copyright as “cancer,” “copyright dwarves,” Maoism, the “sins” of copyright, “socialism for the wealthy,” and a comparison of the DMCA to “Mussolini’s Fascist Italy.”  Apparently when it comes to the “misuse of language,” Patry believes that two wrongs make a right.

And then there is his mind-boggling conclusion that: “I cannot think of a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries.”  Apparently, every great book, every great movie, every great video game, and ever great musical composition of the past century was done solely for the love of it all. Copyright had apparently had absolutely nothing to do with it according to Patry’s logic. That is just an astonishingly naive notion, in my opinion. Apparently this man’s hatred for copyright-related industries is so intense that it has blinded him to any potentially positive effects of copyright law. If nothing else, it would have been nice to see Mr. Patry address how it is that America is the world’s leading creator and exporter of creative arts.  Certainly copyright law must have had something to do with that!

Chapter 5 of his book makes it clear that Patry’s critique of copyright is actually rooted in a much deeper suspicion about capitalism itself.  He speaks of “the myth of economic freedom” and claims that “free market fundamentalism… destroyed much of the world’s economies.”  He then launches into a neo-Marxist critique of property rights more generally, treating property as a zero-sum game of winners and losers.  At times it all begins to sound like a rant from an old Herbert Marcuse book with questions like: “why are the interests of one social group favored over another?” and “What social objective is being furthered by the decision to privilege one group over another?”  And there’s all sorts of talk about “regulation in the public interest,” which I have critique as a meaningless non-standard here many times before.

In the end, Patry’s book will–along with Helprin’s–long be remember as marking the nadir in the “copyright wars;” a moment when grown men of great intelligence decided to trade in their integrity for the opportunity to engage in below-the-belt rhetorical cheap shots that would typically be reserved for college student debating politics over beers and shots at two in the morning.  They should both be ashamed of themselves.

(9) Gary Reback – Free the Market!  Why Only Government Can Keep the Marketplace Competitive

Gary Reback’s over-the-top ode to antitrust as the great savior of capitalism reads like an extended love letter. As I noted in my lengthy critique of his book, his fairy tale narrative of antitrust as the savior of capitalism is hopelessly one-sided, and his recommendations to expand antitrust enforcement wouldn’t “Free the Market” as he argues in his book’s shameful title, but would instead wrap it in regulatory chains.

He repeatedly insults the intelligence of the reader by claiming antitrust is supposedly not a form of economic regulation and that is can only have beneficial effects. He wants antitrust officials to intervene early and often in high-tech markets to guide markets to a supposedly better place. Reback considers just about everything “the Chicago School” taught us to be antitrust apostasy and he would like to erase four decades worth of economic literature and evidence that suggests antitrust law is a form of economic regulation and does have unintended consequences that often hurt consumer welfare.  Even if you are not an inherent antitrust skeptic like me, I think most people would hope for a better treatment of the other side of this story.

Read my lengthy review of Reback’s Strangle Free the Market here.

(10) tie – Tyler Cowen – Create Your Own Economy: The Path to Prosperity in a Disordered World and John Freeman – The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox

OK, so I just couldn’t figure out which of these two to cut from the list so I took the easy way out by having them tie for the last slot!  In this case, however, there’s another reason it makes sense for both of them to round out the list: Both Freeman and Cowen explore how humans are coping with information overload–albeit from two very different perspectives.

As I noted in my lengthy essay on the topic earlier this year, Cowen is an unrepentant optimist. He believes humans have the ability to adapt to new technological realities and a world of information abundance. In fact, Cowen argues, new tools and information gathering and processing technologies actually “lengthens our attention spans in another way, namely by allowing greater specialization of knowledge.”

John Freeman, by contrast, wants us all to take a high-tech time out. Like other Internet skeptics, he is worried that cyberspace and digital technologies are reshaping humanity–and not for the better. “If we are to step off this hurtling machine, we must reassert principles that have been lost in the blur,” he argues. “It is time to launch a manifesto for a slow communication movement, a push back against the machines and the forces that encourage us to remain connected to them.”

Unlike most other Internet pessimists, however, Freeman’s tone is more measured and his recommendations more reasonable.  Of course, it helps that he is magical wordsmith. Even if you find yourself disagreeing with many of his ultimate conclusions–as I did–you should read The Tyranny of E-Mail for a lesson in how to construct an argument and to appreciate the gift of fine writing. It’s easily the best tract by any Net skeptic since Nick Carr’s The Big Switch, and a much better one in many ways. It will force you to ask tough questions about the impact of the Information Age on you and the world around you.  Nonetheless, I remain an unrepentant techno-optimist (albeit a pragmatic one)!

Honorable Mentions: Here are a couple of other books that I couldn’t fit on my list but that you might want to also consider adding to your bookshelf:

• Manuel Castells – Communication Power
• James Boyle – The Public Domain: Enclosing the Commons of the Mind
• Randall Stross – Planet Google: One Company’s Audacious Plan to Organize Everything We Know [my review]
• Ken Auletta – Googled: The End of the World As We Know It [my review]
• Scott Rosenberg- Say Everything: How Blogging Began, What It’s Becoming, and Why It Matters
• John W. Dozier Jr. and Sue Scheff – Google Bomb

Please let me know what titles might be missing from this list and which books you think are the best of the year.

And speaking of bookshelves, here’s my Shelfari digital bookshelf in case anyone is interested. If you hadn’t figured it out yet, I am a bit of book nerd!  My life is spent swimming through oceans of paper.  My friends often ask me, “How can you spend so much time reading?” My question back to them is: “How can you not?”

I’ve been hammering Jonathan Zittrain pretty hard here over the past year for the thesis he sets forth in The Future of the Internet and How to Stop It that digital “generativity” is at risk today. The reason I have been doing so is because all signs point in the exact opposite direction, and more so with each passing day. Contrary to Jonathan’s fear that the Internet and digital technologies are growing more closed, tethered, and sterile, I have argued that the facts on the ground show us how the world is actually becoming far more open, untethered, and innovative.  And that’s true even for the technology that Jonathan singles out in the book for special scorn — the iPhone.

Consider David Pogue’s post today on the New York Times‘ technology blog today entitled “So Many iPhone Apps, So Little Time.” Pogue reports that:

there are now 15,000 programs available on the App Store, and so many more are flooding in that Apple’s army of screeners can’t even keep up. I keep meaning to write a thoughtful, thorough roundup of the very best of these amazing programs, but every day that I don’t do it, the job becomes more daunting. […] Apple, which runs the store, keeps 30 percent of each sale. Even so, Ocarina [an application Pogue discusses in his essay] demonstrates that a programmer can make a staggering amount of money from the iPhone store. It’s a crazy new software model that I don’t remember seeing anywhere else. It’s not a boxed software program for $600, or even a shareware program you download for $25. It’s a buck a copy. The beauty here is that at these prices, there’s very little risk in trying something out. How many software programs have you bought for your Mac or PC? Two? Four? Well, the average iPhone owner may wind up installing 10, 20 or 30 programs. In all, according to Apple, iPhone owners have downloaded 500 million copies of these programs. Half a billion–since last July. There’s a lot of gloom in the tech industry (and every industry, for that matter). But even when the economy is crashing down around us, there’s still amazing power in a single good idea. And the one on display here–pricing software so low that millions of people buy it without batting an eye–is turning a few clever programmers into millionaires.

I ask you: Does this sound like a world that is growing less generative, as Zittrain argues? Because it sure doesn’t sound like it to me.  Moreover, if you still don’t think the iPhone is open enough, then there’s always a simple solution to that: just buy another phone!

You wouldn’t think that a book called In Search of Jefferson’s Moose could be about the Internet, but it is.

In his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, Temple University Law Professor David Post draws remarkable and entertaining parallels between the Internet and the natural and intellectual landscape that Thomas Jefferson explored, documented, and shaped.

Post will be at the Cato Institute for a lunch-hour book forum on Wednesday, February 4th. Clive Crook and Jeffrey Rosen will comment.

Register here to see just how nicely Thomas Jefferson, cyberspace, and a rather large moose fit between the covers of Post’s new book.