After reading LM Sacasas’ recent piece on moral communities , I couldn’t help but wonder if the piece was written in the esoteric mode .

Let me explain by some meandering.

Now, I am surely going to butcher his argument, so take a read of it yourself, but there is a bit of an interesting call and response structure to the piece. He begins with commentary on “frequent deployment of the rhetorical we ,” in discussions over the morality of technology. Then, channeling Langdon Winner, he notes approvingly that “What matters here is that this lovely ‘we’ suggests the presence of a moral community that may not, in fact, exist at all, at least not in any coherent, self-conscious form.”

He is right, the use of the rhetorical we helps to construct a community, which he thens deploys later in the piece. To see this in action,   

…The idea that technical forms are merely neutral has proven hard to shake. For a very long time, it has been a cornerstone principle of our thinking about technology and society. Or, more to the point, we have taken it for granted and have consequently done very little thinking about technology with regards to society.

I’ll note in passing that the liberal democratic structures of modern political culture and the development of technology are deeply intertwined, and they have both depended upon the presumption of their ostensible neutrality. I tempted to think that our present crisis is a function of a growing realization that neither our political structures nor our technologies are, in fact, merely neutral instruments.

Before becoming a policy analyst, I went to graduate school at the University of Illinois at Chicago and studied communication, which at the time was transitioning away from the influence of former dean Stanley Fish and becoming a new media study program. The staff was and still is excellent, but at the time it was deeply heterodox, including both old school rhetoricians and literary scholars as well as communication historians, and communication sociologists.

All of this background is to say that Sacasas’ charge that “we have taken it for granted and have consequently done very little thinking about technology with regards to society,” depends a lot on the kind of community you call your own and how you understand community.

My former community, communication scholars, has a long history of exploring these questions. Indeed, one of my favorite classes was an introductory survey course on democracy and technology . But Sacasas all too well knows that community. I don’t think he was intending to suggest those kind of counterpublics when suggesting community. As he notes, “There is no moral community or public space in which technological issues are topics for deliberation, debate, and shared action.” Here, he means moral community as it comes to us from Durkheim. Just as a reminder, moral community in this tradition generally references “those beings that you need to think ‘but is this right’ before you do something that could affect them.” In other words, questions over the morality of technology are not attended by the kinds of questions that constitute a moral community. I want to come back to this point later.

Where does this leave us? He further explains,

We are, at present, stuck in an unhelpful tendency to imagine that our only options with regard to how we govern technology are, on the one hand, individual choices and, on the other, regulation by the state. What’s worse, we’ve also tended to oppose these to one another. But this way of conceptualizing our situation is both a symptom of the deepest consequences of modern technology and part of the reason why it is so difficult to make any progress.

Technology operates at different scales and effective mechanisms of governance need to correspond to the challenges that arise at each scale. Mechanism of governance that makes sense at one end of the spectrum will be ineffective at the other end and vice versa.

Our problem is basically this: technologies that operate at the macro-level cannot be effectively governed by micro-level mechanisms, which basically amount to individual choices. At the macro-level, however, governance is limited by the degree to which we can arrive at public consensus, and the available tools of governance at the macro-level cannot address all of the ways technologies impact individuals. What is required is a cocktail of strategies that address the consequences of technology as they manifest themselves across the spectrum of scale.

In other words, Sacasas sets up a governance gap problem . There are micro-level solutions and macro-level solutions, but nothing in the middle that might emanate from a moral community. But, again, the fundamental criticism of this entire argument hinges on accepting the rhetorical we and the notion of a community. Or, to say it another way, a community must first be constructed for a governance gap to exist. If we don’t agree to the rhetorical construction of community, if there is no we, then there is no gap to fill. This is no small feat. Even Durkheim’s original understanding of moral community was a subjective understanding of the ethics of an imagined community.

But even separate from the construction problem, it is not clear to me that there isn’t already “a cocktail of strategies that address the consequences of technology as they manifest themselves across the spectrum of scale.” For example, Facebook changed its policy on breastfeeding photos after a group of mothers organized and pushed the #FreeTheNipple campaign . I cannot help but wonder if that is the kind of community driven strategy that Sacasas would want to promote.

That notoriously nebulous concept of civil society is worth invoking here. Organizations like EFF and EPIC and FreePress sue platforms and local governments, and help enact change. And what about all of the reports from journalists in the last decade? They have impacted both Facebook and Google, forcing them to change. Same with Apple and AT&T and Verizon. All of this is to say, I’m not exactly convinced this vision of the world is the appropriate yardstick of critique.   

[Remarks p repared for Fifth Annual Conference on Governance of Emerging Technologies: Law, Policy & Ethics at Arizona State University, Phoenix, AZ, May 18, 2017.]

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What are we to make of this peculiar new term “permissionless innovation,” which has gained increasing currency in modern technology policy discussions? And how much relevance has this notion had—or should it have—on those conversations about the governance of emerging technologies? That’s what I’d like to discuss here today.

Uncertain Origins, Unclear Definitions

I should begin by noting that while I have written a book with the term in the title, I take no credit for coining the phrase “permissionless innovation,” nor have I been able to determine who the first person was to use the term. The phrase is sometimes attributed to Grace M. Hopper, a computer scientist who was a rear admiral in the United States Navy. She once famously noted that, “It’s easier to ask forgiveness than it is to get permission.”

“Hopper’s Law,” as it has come to be known in engineering circles, is probably the most concise articulation of the general notion of “permissionless innovation” that I’ve ever heard, but Hopper does not appear to have ever used the actual phrase anywhere. Moreover, Hopper was not necessarily applying this notion to the realm of technological governance, but was seemingly speaking more generically about the benefit of trying new things without asking for the blessing of any number of unnamed authorities or overseers—which could include businesses, bosses, teachers, or perhaps even government officials.

Today, however, we most often hear the “permissionless innovation” used in discussions about the governance of information technologies as well as a wide variety of emerging technologies. Unfortunately, scholars and advocates who have suggested that permissionless innovation should serve as the governing lodestar in these areas do not always precisely define what they mean by the term.

None of them seem to be suggesting, however, that permissionless innovation is synonymous with anarchy. To the contrary, many of them are quick to note that governments will continue to have a role to play. It is even rare to see advocates of permissionless innovation in these varied contexts calling for the abolition of any laws, programs, or agencies.

Instead, it seems to be the case that most of those defenders of permissionless innovation are using the term as a sort of shorthand when what they really mean to say is something like: “give innovators a bit more breathing room,” or, “don’t rush to regulate.”

This is consistent with my own articulation of the term, which goes as follows:

“Permissionless innovation refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if any develop, can be addressed later.”

Default Policy Positions

Framing the term in this fashion makes it clear that, as it pertains to technological governance, permissionless innovation is about setting our public policy defaults closer to green lights rather than red ones.

It switches the burden of proof to the opponents of ongoing technological change by asserting five things:

• First, technological innovation is the single most important determinant of long-term human well-being.
• Second, there is real value to learning through continued trial-and-error experimentation, resiliency, and ongoing adaptation to technological change.
• Third, constraints on new innovation should be the last resort, not the first. Innovation should be innocent until proven guilty.
• Fourth, as regulatory interventions are considered, policy should be based on evidence of concrete potential harm and not fear of worst-case hypotheticals.
• Fifth, and finally, where policy interventions are deemed needed, flexible, bottom-up solutions of an ex post (responsive) nature are almost always preferable to rigid, top-down controls of an ex ante (anticipatory) nature.

Shared Shortcomings of Both Visions

At least on the surface, that sort of governance vision stands in stark contrast to the “precautionary principle.” Defenders of the precautionary principle as the general default position in technology policy debates generally believe that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harm to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

That being said, I’d like to point out some of the shared shortcomings of both of these governance visions.

First, as with attempts to define the parameters of “permissionless innovation,” the precautionary principle is not always as rigid as its critics sometimes suggest. There are as many flavors of the precautionary principle as there are ice cream. Indeed, this is why many have criticized the precautionary principle not for what it says but rather for what it doesn’t say. It doesn’t tell us exactly how and when to apply precautionary measures, or how to evaluate the trade-offs associated with precaution.

This points the second and deeper underlying problem faced by advocates of both precautionary measures and permissionless innovation: Our collective inability to craft a widely-shared definition of what constitutes “technological harm” in various contexts. This is certainly not to suggest that no attempt has been made to do so. Rather, simply that we don’t seem to be any closer to concrete agreement about how or where to draw those lines.

Of course, let’s not kid ourselves into thinking that we can find bright-line answers to all these questions. After all, for many of these technological governance issues we are operating in the realm of “Level 3” or “Earth-level” systems, as Professors Allenby and Sarewitz refer to it in their book, The Techno-Human Condition. These are systems in which we deal with, as they say, “a context that is always shifting, and on meanings that are never fixed.”

That makes it even more challenging to define what we mean by “responsible innovation” or “socially desirable innovation” for purposes of determining optimal technology policy.

Risk Analysis through the Lens of Permissionless Innovation

For me, there are no easy ways out of this mess. But I do know two things for certain.

First, we must continue to refine and improve our risk analysis tools and techniques to make better determinations of when proposed interventions are sensible and cost-effective relative to the many trade-offs at work.

Again, I recognize the challenge of doing this when many of the issues and values in play are amorphous and metaphysical conflicts exist about how to even define some of these things. Most of the emerging technology policy issues I write about today, for example, involve some sort of privacy, safety, or security concern. In each case, however, very little consensus exists about what those terms even mean in varied contexts.

Nonetheless, the fact that benefit-cost analysis is hard should not serve as an excuse for failing to go through the exercise of attempting some sort of valuation of the many variables in play.

Soft Law Alternatives

The second thing I know for certain is that, due the combination of both definitional complexity regarding what constitutes technological harm, as well as the ever-accelerating pace of the so-called “pacing problem,” all roads lead back to soft law solutions instead of hard law remedies.

Last year, I had the pleasure of reading and reviewing Wendell Wallach’s new book and then having a nice conversation with him about it at Microsoft’s DC headquarters. The most interesting thing about our exchange was that, although we do not begin in the same place philosophically-speaking, we largely end up in the same place practically-speaking.

That is, there seemed to be some grudging acceptance on both our parts that “soft law” systems, multistakeholder processes, and various other informal governance mechanisms will need to fill the governance gap left by the gradual erosion of hard law.

Many other scholars, including many of you in this room, have discussed the growth of soft law mechanisms in specific contexts, but I believe we have probably failed to acknowledge the extent to which these informal governance models have already become the dominant form of technological governance, at least in the United States.

I’m currently co-authoring a very long study which documents how the Obama Administration came to rely quite heavily on multistakeholder processes, negotiated “best practices,” and industry codes of conduct as the primary governance mechanisms for a long list of emerging tech issues, including: driverless cars, commercial drones, big data, facial recognition, the Internet of Things and wearable technology, mobile medical applications, 3D printing, artificial intelligence, the Sharing Economy, and much more.

Most of these soft law processes were driven by the NTIA and FTC, but plenty of other agencies with an “N” or an “F” at the beginning of their name have undertaken some sort of soft law process, including NHTSA, the FDA, the FAA, and so on.

Now, I’m willing to bet that many of those involved in these processes who generally favor more anticipatory regulatory approaches would have preferred to start with hard law solutions to some of these issues. And I am equally certain that many of the innovators involved in those multistakeholder processes would have probably preferred not to have had to come to the table at all.

But at the end of the day, for the most part, all sides did come to the table and worked together in a good faith effort to find some rough consensus about what sort of informal guidelines would govern the future of innovation in these sectors.

The Worst of All Systems, Except All the Others

Plenty of questions remain about such soft law systems, and the irony is that defenders of both permissionless innovation and the precautionary principle will quite often be raising very similar concerns regarding the transparency, accountability, and enforceability of these systems.

But I’m inclined to believe that no matter where you sit on the permissionless vs. precautionary spectrum, and no matter what your reservations may be about it the new world of soft law governance that we find ourselves moving into, this is the future and the future is now.

Much as Churchill said of democracy being “the worst form of Government except for all those other forms that have been tried from time to time,” I think we are well on our way to a world in which soft law is the worst form of technological governance except for all those others that have been tried before.

Of course, the devil is always in the details and I suspect that we’ll have plenty of discuss and debate in that regard. Let’s get that conversation going.

Alice Marwick, assistant professor of communication and media studies at Fordham University, discusses her newly-released book, Status Update: Celebrity, Publicity, and Branding in the Social Media Age. Marwick reflects on her interviews with Silicon Valley entrepreneurs, technology journalists, and venture capitalists to show how social media affects social dynamics and digital culture. Marwick answers questions such as: Does “status conscious” take on a new meaning in the age of social media? Is the public using social media the way the platforms’ creators intended? How do you quantify the value of online social interactions? Are social media users becoming more self-censoring or more transparent about what they share? What’s the difference between self-branding and becoming a micro-celebrity? She also shares her advice for how to make Twitter, Tumblr, Instagram and other platforms more beneficial for you.

Download

Related Links

• Status Update: Celebrity, Publicity, and Branding in the Social Media Age, Marwick
• Engineered Performances Alice E. Marwick’s ‘Status Update’, The New York Times
• Biography, Marwick

Ronald J. Deibert is the director of The Citizen Lab at the University of Toronto’s Munk School of Global Affairs and the author of an important new book, Black Code: Inside the Battle for Cyberspace, an in-depth look at the growing insecurity of the Internet. Specifically, Deibert’s book is a meticulous examination of the “malicious threats that are growing from the inside out” and which “threaten to destroy the fragile ecosystem we have come to take for granted.” (p. 14) It is also a remarkably timely book in light of the recent revelations about NSA surveillance and how it is being facilitated with the assistance of various tech and telecom giants.

The clear and colloquial tone that Deibert employs in the text helps make arcane Internet security issues interesting and accessible. Indeed, some chapters of the book almost feel like they were pulled from the pages of techno-thriller, complete with villainous characters, unexpected plot twists, and shocking conclusions. “Cyber crime has become one of the world’s largest growth businesses,” Deibert notes (p. 144) and his chapters focus on many prominent recent examples, including cyber-crime syndicates like Koobface, government cyber-spying schemes like GhostNet, state-sanctioned sabotage like Stuxnet, and the vexing issue of zero-day exploit sales.

Deibert is uniquely qualified to narrate this tale not just because he is a gifted story-teller but also because he has had a front row seat in the unfolding play that we might refer to as “How Cyberspace Grew Less Secure.” Indeed, he and his colleagues at The Citizen Lab have occasionally been major players in this drama as they have researched and uncovered various online vulnerabilities affecting millions of people across the globe. (I have previously reviewed and showered praise on a couple important books that Deibert co-edited with scholars from The Citizen Lab and Harvard’s Berkman Center, including: Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace and Access Denied: The Practice and Policy of Global Internet Filtering. They are truly outstanding resources worthy of your attention.)

Black Code’s Many Meanings

So, what is “black code” and why should we be worried about it? Deibert uses the term as a metaphor for many closely related concerns. Most generally it includes “that which is hidden, obscured from the view of the average Internet user.” (p. 6) More concretely, it refers to “the criminal forces that are increasingly insinuating themselves into cyberspace, gradually subverting it from the inside out.” (p. 7) “Those who take advantage of the Internet’s vulnerabilities today are not just juvenile pranksters or frat house brats,” Deibert notes, “they are organized criminal groups, armed militants, and nation states.” (p. 7-8) Which leads to the final way Deibert uses the term “black code.” It also, he says, “refers to the growing influence of national security agencies, and the expanding network of contractors and companies with whom they work.” (p. 8)

Deibert is worried about the way these forces and factors are working together to undermine online stability and security, and even delegitimize liberal democracy itself. His thesis is probably most succinctly captured in this passage from Chapter 7:

We live in an era of unprecedented access to information, and many political parties campaign on platforms of transparency and openness. And yet, at the same time, we are gradually shifting the policing of cyberspace to a dark world largely free from public accountability and independent oversight. In entrusting more and more information to third parties, we are signing away legal protections that should be guaranteed by those who have our data. Perversely, in liberal democratic countries we are lowering the standards around basic rights to privacy just as the center of cyberspace gravity is shifting to less democratic parts of the world. (p. 130-1)

What Deibert is grappling with in this book is the same fundamental problem that has long plagued the Internet: How do you preserve the benefits associated with the most open and interconnected “network of networks” the world has ever known while also remedying the various vulnerabilities and pathologies created by that same openness and interconnectedness?  Deibert acknowledges this problem, noting:

Ever since the Internet emerged from the world of academia into the world of the rest of us, its growth trajectory has been shadowed by a grey economy that thrives on opportunities for enrichment made possible by an open, globally connected infrastructure. (p. 141)

The Paradox of the Net’s Open, Interconnected Nature

Again, paradoxically, this inherent instability and vulnerability is due precisely to the Net’s open and globally interconnected nature. And many governments are looking to exploit that fact. “These unfortunate by-products of an open, dynamic network are exacerbated by increasing assertions of state power,” Deibert notes. (p. 233)

More generally, this uncomfortable fact—that the Net’s open, interconnected nature leads to both enormous benefits as well as huge vulnerabilities—isn’t just true for criminal online activity or the cyber-espionage activities that various nation-states are pursuing today. It is equally true for everything online today. There is a sort of yin and the yang to the Net that is simply undeniable and completely unavoidable. For one issue after another we find that the Net’s greatest blessing—its open, interconnected nature—is also its greatest curse.

For example, as I noted here recently in my review of Abraham H. Foxman and Christopher Wolf ‘s new book, Viral Hate: Containing Its Spread on the Internet, the open and interconnected Internet gives us “the most widely accessible, unrestricted communications platform the world has ever known” but also  means we have to tolerate a great many imbeciles “who use it to spew insulting, vile, and hateful comments.” The same is true for other types of online speech and content: You have access to an abundance of informational riches, but there’s also no avoiding all the garbage out there now, too.

Similarly, as I noted in my essay, “Privacy as an Information Control Regime: The Challenges Ahead,” the open and interconnected Internet has given us historically unparalleled platforms for social interaction and commerce. But that same openness and interconnectedness has left us with a world of hyper-exposure and a variety of privacy and surveillance threats—not just from governments and large corporations, but also from each other.

And then there’s the never-ending story of digital copyright. On one hand, the open and globally interconnected network or networks has provided us with an amazing platform for sharing knowledge, art, and expression. On the other hand, as I noted in this essay on “The Twilight of Copyright,” creators of expressive works have less security than ever before in terms of how they can control and monetize their artistic and scientific inventions.

I could go on and on—as I did in my essays on “Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges” and “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed”—but the moral of the story is pretty clear: The Internet giveth and the Internet taketh away. Openness and interconnectedness offer us enormous benefits but also force us to confront major risks as the price of admission to this wonderful network.

Will the Whole System Collapse?

The uncomfortable question that Deibert’s book tees up for discussion is: When will this balance get completely out of whack in terms of online security? Or, has it already? In some portions of the text, he hints that may already be the case. Consider this passage in Chapter 11 in which Deibert discusses whether the Chicken Little-ism of digital security worry-warts like Eugene Kaspersky and Richard Clarke is warranted:

Eugene Kaspersky, Richard Clarke, and others may sound like broken records or self-serving fear mongers, but there is no denying the evolving cyberspace ecosystem around us: we are building a digital edifice for the entire planet, and it sits above us like a house of cards. We are wrapping ourselves in expanding layers of digital instructions, protocols, and authentication mechanisms, some them open scrutinized, and regulated, but many closed, amorphous, and poised for abuse, buried in the black arts of espionage, intelligence gathering, and cyber and military affairs. Is it only a matter of time before the whole system collapses? (p. 186)

That sounds horrific, but is it really the case that the entire system really about to collapse? And, if so, what are we going to do about it?

This raises a small problem with Deibert’s book. He does such a nice job itemizing and describing these security vulnerabilities that by the time the reader wades through 230 pages and nears the end of the book, they are left in a highly demoralized state, searching for some hope and a concrete set of practical solutions. Unfortunately, they won’t find an abundance of either in Deibert’s brief closing chapter, “Toward Distributed Security and Stewardship in Cyberspace.”

Don’t get me wrong; I agree with the general thrust of Deibert’s framework, which I describe below. The problem is that it is highly aspirational in nature and lacks specifics. Perhaps that is simply because there are no easy answers here. Digital security is damn hard and, as with most other online pathologies out there, no silver-bullet solutions exist.

Deibert notes that some government officials will seek to exploit those vulnerabilities—many of which they created themselves—to expand their authority over the Internet. “Faced with mounting problems and pressures to do something, too many policy-makers are tempted by extreme solutions,” he notes. (p. 234) He worries about “a movement towards clamp down” that would be “antithetical to the principles of liberal democratic government” by undermining checks and balances and accountability. (p. 235) In turn, this will undermine the “mixed common-pool resource” that is the current Internet.

Deibert’s alternative cyber security strategy to counter the push to “clamp down” is based on three interrelated notions or components:

1. Principles of restraint or “mutual restraint”: “Securing cyberspace requires a reinforcement, rather than a relaxation, of restraint on power, including checks and balances on governments, law enforcement, intelligence agencies, and on the private sector,” he argues. (p. 239)
2. “Distributed security”: “The Internet functions precisely because of the absence of centralized control, because of thousands of loosely coordinated monitoring mechanisms,” Deibert notes. “While these decentralized mechanisms are not perfect and can occasionally fail, they form the basis of a coherent distributed security strategy. Bottom-up, ‘grassroots’ solutions to the Internet’s security problems are consistent with principles of openness, avoid heavy-handedness, and provide checks and balances against the concentrations of power,” he observes. (p. 240)
3. “Stewardship” which Deibert defines as “an ethic of responsible behavior in regard to shared resources” and which, he argues, “would moderate the dangerously escalating exercise of state power in cyberspace by defining limits and setting thresholds of accountability and mutual restraint.” (p. 243)

Again, as an aspirational vision statement this all generally sounds fairly sensible, but the details are lacking. I think Deibert would have been wise to spend a bit more time developing this alternative “bottom-up” vision of how online security should work and bolstering it with case studies.

Digital Security without Top-Down Controls

Luckily, as my Mercatus Center colleague Eli Dourado noted in an important June 2012 white paper, distributed security and stewardship strategies are already working reasonably well today. Dourado’s paper, “Internet Security Without Law: How Service Providers Create Order Online,” documented the many informal institutions that enforce network security norms on the Internet and shows how cooperation among a remarkably varied set of actors improves online security without extensive regulation or punishing legal liability. “These informal institutions carry out the functions of a formal legal system—they establish and enforce rules for the prevention, punishment, and redress of cybersecurity-related harms,” Dourado noted.

For example, a diverse array of computer security incident response teams (CSIRTs) operates around the globe and share their research and coordinate their responses to viruses and other online attacks. Individual Internet service providers (ISPs), domain name registrars, and hosting companies, work with these CSIRTs and other individuals and organizations to address security vulnerabilities. A growing market for private security consultants and software providers also competes to offer increasingly sophisticated suites of security products for businesses, households, and governments.

A great deal of security knowledge is also “crowd-sourced” today via online discussion forums and security blogs that feature contributions from experts and average users alike. University-based computer science and cyberlaw centers (like Citizen Lab) and experts have also helped by creating projects like “Stop Badware,” which originated at Harvard University but then grew into a broader non-profit organization with diverse financial support.

Dourado continues on in his paper to show how these informal, bottom-up efforts to coordinate security responses offer several advantages over top-down government solutions, such as administrative regulation or punishing liability regimes.

Dourado’s description of the ideal approach to online security is entirely consistent with Deibert’s vision in Black Code. In fact, Deibert notes, “It is important to remind ourselves that in spite of the threats, cyberspace runs well and largely without persistent disruption. On a technical level, this efficiency is founded on open and distributed networks of local engineers who share information as peers,” he observes. (p. 240) That is exactly right, but I wish Deibert would have spent more time discussing how this system works in practice today and how it can be tweaked and improved to head off the heavy-handed and very costly top-down solutions that we both dread.

Toward Resiliency

But there’s one other thing I wish Deibert would have explored in the book: resiliency, or how we have adapted to various cyber-vulnerabilities over time.

For example, in another recent Mercatus Center study entitled “Beyond Cyber Doom: Cyber Attack Scenarios and the Evidence of History,” Sean Lawson, an assistant professor in the Department of Communication at the University of Utah, has stressed the importance of resiliency as it pertains to cybersecurity and concerns about “cyberwar.” “Research by historians of technology, military historians, and disaster sociologists has shown consistently that modern technological and social systems are more resilient than military and disaster planners often assume,” he writes. “Just as more resilient technological systems can better respond in the event of failure, so too are strong social systems better able to respond in the event of disaster of any type.”

More generally, as I noted in my recent law review article on “technopanics” and “threat inflation” in information technology policy debates:

while it is certainly true that “more could be done” to secure networks and critical systems, panic is unwarranted because much is already being done to harden systems and educate the public about risks. Various digital attacks will continue, but consumers, companies, and others organizations are learning to cope and become more resilient in the face of those threats.

What Professor Lawson and I are getting at in our respective articles is that the ability of organizations, institutions, and individuals to bounce back from adversity is a frequently unheralded feature of various systems and that it deserves more serious study. (See Andrew Zolli and Ann Marie Healy’s nice book, Resilience: Why Things Bounce Back, for more on this general topic). In the context of online security, what is most remarkable to me is not that the Internet suffers from vulnerabilities due to its open and interconnected nature; it’s that we don’t suffer far more damage as a result.

This gets us back to that very profound question that Deibert poses in Black Code: “Is it only a matter of time before the whole system collapses?” The better question, I think, is: why hasn’t the system already collapsed? Perhaps the answer is, because things haven’t gotten bad enough yet. But I believe that the more realistic answer is that: individuals and institutions often learn how to cope and become resilient in the face of adversity. This is partially the case online because of the stewardship and distributed, decentralized security we already see at work today that makes digital life tolerable.

But it has to be something more than that. After all, many of the security problems that Deibert describes in his book are quite serious and already affect millions of us today. How, then, are we getting by right now? Again, I think the answer has to be that adaptation and resiliency are at work on many different levels of online life.

Consider, for example, how we have learned to deal with spam, viruses, online porn, various online advertising and privacy concerns, and so on. Our adaptation to these threats and annoyances has not been perfectly smooth, of course. No doubt, some people would still like “something to be done” about these things. But isn’t it remarkable how we have, nonetheless, carried on with online commerce and interactive social life even as these problems have persisted?

Conclusion

Going forward, therefore, perhaps there are some reasons for hope. Perhaps the various generic strategies that Deibert outlines in his book, coupled with the remarkable ability of humans to roll with the punches and adapt, will help us come out of this just fine (or at least reasonably well).

Of course, it could also be the case that these security concerns just multiply and that the Internet then morphs into sometime quite different than the interconnected “network of networks” we know today. As I noted in my 2009 essay on “Internet Security Concerns, Online Anonymity, and Splinternets,” we might be moving toward a world with more separate dis­connected digital networks and online “gated communities.” This could take place spontaneously over time and be driven by corporations seeking to satisfy the demand of some consumers for safer and more secure online experiences. As I noted in my review of Jonathan Zittrain’s book, The Future of the Internet, I am actually fine with some of that. I think we can live in a hybrid world of “walled gardens” alongside of the “Wild West” open Internet, so long as this occurs in a spontaneous, organic, bottom-up fashion. [For a more extensive discussion, see my book chapter, “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters.”]

If, however, this “splintering” of the Net is done from the top-down through intentional (or even incidental) government action, then it is far more problematic. We already see signs, for example, that Russia is pushing even more strongly in that direction in the wake of the NSA leaks. (See “N.S.A. Leaks Revive Push in Russia to Control Net,” New York Times, July 14.) The Russians have been using amorphous security concerns to push for greater Internet control for some time now. Of course, China has been there for years. So have many Middle Eastern countries. Of course, there’s no guarantee that their respective “splinternets” are, or would be, any more secure than today’s Internet, but it sure would make those networks far more susceptible to state control and surveillance. If that’s our future, then it certainly is a dismal one.

Anyway, read Ron Deibert’s Black Code for an interesting exploration of these and other issues. It’s an excellent contribution to field of Internet policy studies and a book that I’ll be recommending to others for many years to come.

Additional resources:

• the official website for Black Code
• the Citizen Lab website at the University of Toronto
• follow Ronald Deibert and The Citizen Lab on Twitter
• video of Washington, D.C. book launch for Black Code (held at the National Endowment for Democracy on 6/24/13)

Other books you should read alongside “Black Code” (links are for my reviews of each book):

• Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace edited by Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain
• Consent of the Networked: The Worldwide Struggle for Internet Freedom , by Rebecca MacKinnon
• Cyber War: The Next Threat to National Security and What to Do About It, by Richard A. Clarke and Robert K. Knake
• Liars & Outliers: Enabling the Trust that Society Needs to Thrive, by Bruce Schneier
• Regulating Code: Good Governance and Better Regulation in the Information Age, by Ian Brown & Christopher T. Marsden
• Networks and States: The Global Politics of Internet Governance, by Milton Mueller
• Resilience: Why Things Bounce Back, by Andrew Zolli & Ann Marie Healy

Alexander Howard has put together this excellent compendium of comments on Mike Rosenwald’s new Washington Post editorial, “Will the Twitter Police make Twitter boring?” I was pleased to see that so many others had the same reaction to Rosenwald’s piece that I did.

For the life of me, I cannot understand how anyone can equate counter-speech with “Twitter Police,” but that’s essentially what Rosenwald does in his essay. The examples he uses in his essay are exactly the sort of bone-headed and generally offensive comments that I would hope we would call out and challenge robustly in a deliberative democracy. But when average folks did exactly that, Rosenwald jumps to the preposterous conclusion that it somehow chilled speech. Stranger yet is his claim that “the Twitter Police are enforcing laws of their own making, with procedures they have authorized for themselves.” Say what? What laws are you talking about, Mike? This is just silly. These people are SPEAKING not enforcing any “laws.” They are expressing opinions about someone else’s (pretty crazy) opinions. This is what a healthy deliberative democracy is all about, bud!

Moreover, Rosenwald doesn’t really explain what a better world looks like. Is it one in which we all just turn a blind eye to what many regard as offensive or hair-brained commentary? I sure hope not!

I’m all for people vigorously expressing their opinions but I am just as strongly in favor of people pushing back with opinions of their own. You have no right to be free of social sanction if your speech offends large swaths of society. Speech has consequences and the more speech it prompts, the better.

In his new book, The Net Delusion: The Dark Side of Internet Freedom, Evgeny Morozov aims to prick the bubble of hyper-optimism that surrounds debates about the Internet’s role in advancing human freedom or civic causes.  Morozov, a native of Belarus, is a tremendously gifted young cyber-policy scholar affiliated with Stanford University and the New America Foundation.  He’s an expert on the interaction of digital technology and democracy and writes frequently on that topic for a variety of respected media outlets.

In Net Delusion, as with many of his previous columns and essays, Morozov positions himself the ultimate Net “realist,” aiming to bring a dose of realpolitik to discussions about how much of a difference the Net and digital technologies make to advancing democracy and freedom.  His depressing answer: Not much.  Indeed, Morozov’s book is one big wet blanket on the theory that “technologies of freedom” can help liberate humanity from the yoke of repressive government.

Morozov clearly relishes his skunk at the garden party role, missing few opportunities to belittle those who subscribe to such theories.  If you’re one of those who tinted your Twitter avatar green as an expression of solidarity with Iranian “Green Movement” dissidents, Morozov’s view is that, at best, you’re wasting your time and, at worst, you’re aiding and abetting tyrants by engaging in a form of “slacktivism” that has little hope of advancing real regime change.  The portrait he paints of technology and democracy is a dismal one in which cyber-utopian ideals of information as liberator are not just rejected but inverted.  He regards such “cyber-utopian” dreams as counter-productive, even dangerous, to the advance of democracy and human freedom.

Against Cyber-Utopianism

In the opening pages of The Net Delusion, Morozov explains it is his mission is to beat back “cyber-utopianism,” at least as it relates to international affairs and diplomacy.  He defines cyber-utopianism as “a naïve belief in the emancipatory nature of online communication that rests on a stubborn refusal to acknowledge its downside.” He blames “the starry-eyed digital fervor of the 1990s” and the “former hippies… [now] ensconced in some of the more prestigious universities in the world” for giving rise to the notion that “the Internet could deliver what the 1960’s couldn’t” in terms of building a better, more peaceful world. (p. xiii)  He also aims to counter what he has elsewhere referred to as “the public’s penchant for fetishizing the engineer as the ultimate savior.”

Much of the scorn he heaps on the cyber-utopians is well-deserved, although I think there are far fewer of them around than Morozov imagines. Nonetheless, there certainly is a bit too much Pollyanna-ish hyper-optimism at play in debates about the Net’s role in advancing liberation of those peoples who are being subjected to tyrannical rule across the planet.

But Morozov simply doesn’t know when to quit. His relentless and highly repetitive critique goes overboard when it veers into all-too familiar territory already plowed by other Internet pessimists and cultural critics beginning back in the 1980s with the late social critic Neil Postman.  Indeed, what Postman’s Amusing Ourselves to Death (1985) and Technopoly (1992) were to early discussions about information technology and culture, Morozov’s Net Delusion is to modern debates about the Net and political change.

Like Postman, Morozov wants us to believe that increased access to entertainment and communications technologies breeds societal indifference, and that increased consumerism breeds civic lethargy.  Morozov paints a portrait of world affairs in which the Internet inevitably pushes us into something akin to Idiocracy; it’s a world in which all these digital gadgets, communications devices, and entertainment options turn us all into unthinking, anti-intellectual, apolitical pawns who can be easily manipulated by the State.  “Where new media and the Internet truly excel is in suppressing boredom.  Previously, boredom was one of the few truly effective ways to politicize the population denied release values for channeling their discontent, but this is no longer the case.” (p. 80)  He continues on: “Those of us rooting for the further spread of democracy around the globe must stop dreaming and face reality: The Internet has provided so many cheap and easily available entertainment fixes to those living under authoritarianism that is has become considerably harder to get people to care about politics at all.” (p. 81)

Morozov thinks that the “ridiculously easy group-forming” that his leading nemesis Clay Shirky described in his recent book Cognitive Surplus is, in reality, leading largely to cognitive crap, at least as it pertains to civic action and political activism.  Indeed, at one point in Chapter 7 (the creatively-titled, “Why Kierkegaard Hates Slacktivism”), Morozov speaks of the development of what we might think of as a “tragedy of the civic commons” (my term, not his).  He argues that:

When everyone in the group performs the same mundane tasks, it’s impossible to evaluate individual contributions, and people inevitably begin slacking off… Increasing the number of participants diminishes the relative social pressure on each and often results in inferior outputs. (p 193)

It’s an interesting theory, as far as it goes, but Morozov doesn’t muster much more than a handful of anecdotes in support of it.  He notes, for example, that even back in the Berlin Wall era, young East German students were more likely to know intimate facts about popular American dramas like Dallas and Dynasty than current political affairs.  And, echoing the recent laments of Andrew Keen (Cult of the Amateur) and Lee Siegel (Against the Machine), Morozov worries about the “narcissism” and “attention seeking” of social networking denizens. “There’s nothing wrong with the self-promotion per se, but it seems quite unlikely that such narcissistic campaigners would be able to develop true feelings of empathy or be prepared to make sacrifices that political life, especially political life in authoritarian states, requires.” (p 187)

But this ignores many legitimate forms of social organization / protesting that have been facilitated by the Net and digital technologies.  Despite what Morozov suggests, we haven’t all become lethargic, asocial, apolitical cave-dwelling Baywatch­ rerun-watching junkies.  If all Netizens are just hooked on a cyber-sedative that saps their civic virtue, what are we to make of the millions of progressives who so successfully used the Net and digital technologies to organize and elect President Obama? (Believe me, I wish they wouldn’t have been so civic-minded and rushed to the polls in record numbers to elect that guy!)

Similarly, Morozov belittles some of the online communities that have formed to support various charitable or civic causes by arguing that if you divide the number of members of such online groups by the aggregate amount of money they raise, it comes out to mere pennies on the dollar per community member. But so what?  Do we know if those communities or causes would have come together at all or spent more money without digital communications and networking technologies?  It is certainly true that merely setting up a new cyber-cause and giving a few bucks to it isn’t the same as going on a mission to Africa to build homes and water systems, but does Morozov really want to us to believe that more of that sort of thing would happen in the absence of the Net and digital technology?  Were African relief charities better off in the days when Sally Struthers lectured us on late-night TV about giving more to such causes?  I find that very hard to believe.

Regardless, here’s where we can all agree: Technology is just one of many tools that can be harnessed to keep the power of the State in check or advance important civic / charitable causes.  I am entirely sympathetic to Morozov’s argument that other factors and forces play an even more important role in promoting democracy and, in particular, ending tyranny. (Personally, I think we’d do more to assist repressed dissidents by sneaking them copies of Guns and Ammo or Soldier of Fortune instead of Wired, but I digress.)  “The calculus of measuring quality of life demands a few more steps than simply adding all the efficiencies and subtracting all the inefficiencies,” he says, “it also requires a good understanding of what particular values are important in a particular context of human relations.” (p. 198) Who could disagree with such a statement?

Yet, in his zeal to counter those who have placed too great an emphasis on the role of information technology, Morozov himself has gone too far in the opposite extreme in The Net Delusion by suggesting that technology’s role in transforming States or politics is either mostly irrelevant or even, at times, counter-productive.  I’m just not buying it.  I think you’ll find a more nuanced and balanced set of conclusions in this new white paper, “Political Change in the Digital Age: The Fragility and Promise of Online Organizing,” by Bruce Etling, Robert Faris and John Palfrey.  In it, they conclude:

The Internet has an important role in increasing information sharing, access to alternative platforms, and allowing new voices to join political debates.  The Internet will continue to serve these functions, even with state pushback, as activists devise ways around state online restrictions.  Conditions that contribute to success are likely determined not by the given technological tool, but by human skill and facility in using the networks that are being mobilized.  …  It is less clear how far online organizing and digital communities will be allowed to push states toward drastic political change and greater democratization, especially in states where offline restrictions to civic and political organization are severe.  As scholars, we ought to focus our attention on the people involved and their competencies in using digitally-mediated tools to organize themselves and their fellow citizens, whether as flash mobs or through sustained social movements or organizations, rather than the flow of information as such.

In other words, we should view information as one of many means to the end and not the end in and of itself.  But we also shouldn’t discount its importance too lightly.

But What’s the Ultimate Goal Here?

There’s a more profound problem with Morozov’s thesis. If he is correct that the Net poses such risks, or undermines the cause of democracy-promotion, isn’t the logical recommendation that flows from it technology control or entertainment repression?  If, as Morozov implies, Netizens are spending too much time viewing Lolcats and not enough in the streets protesting or running down to the Peace Corps to sign up for a tour of duty, then what would he have us do about it?  Shall we restrict access to the growing abundance of technological / entertainment choices that he laments?

Amazingly, he never really clarifies his views on this important point. Like so many other cultural critics before him, Morozov finds it easy to use caustic wit to tear apart inflated arguments and egos on the other side while also conveniently ignoring the logical consequences of their critiques or bothering to set forth a constructive alternative.

About the closest he comes is to detailing his views is Chapter 9, which focuses on the danger of the Net and modern digital technology being used to spread extremist views.  Even though he refuses to get more specific about potential responses, what, exactly, are we to conclude when we hear Morozov speak of the need for “measures to mitigate the negative side effects of increased interconnectedness.” (p. 261) And what are we to make of his claim that “More and cheaper tools in the wrong hands can result in less, not more, democracy.” (p. 264)  Or, his argument that:

The danger is that the colorful banner of Internet freedom may further conceal the fact that the Internet is much more than a megaphone for democratic speech, that is other uses can be extremely antidemocratic in nature, and the without addressing those uses the very project of democracy promotion might be in great danger.”(p. 265-6)

Or, finally, his conclusion in that chapter that:

If the sad experience of the 1990s has taught us anything, it’s that successful (democratic) transitions require a strong state and a relatively orderly public life. The Internet, so far, has posed something of a threat to both. (p. 274)

Reading those passages — especially the words I’ve highlighted — it’s hard not to conclude that Morozov would like to put the information genie back in the bottle.  To be clear, he never says that directly since he simply refuses to be nailed down on specifics.  But, again, his tone seems to suggest that some form of technological control or information repression may be necessary.  I hope that in coming essays Evgeny will be willing to clarify his views on this issue since The Net Delusion leaves us scratching our heads and wondering just how far he would go to counter the supposed “danger” or “threat” posed by digital technology.

On the Voluntary Surrender of Privacy via Social Sharing Technologies

Morozov is on somewhat stronger footing in highlighting the paradoxical danger of voluntary information exposure in an age of ubiquitous digital connectivity and communications. “While it is tempting to encourage everyone to flock to social networking sites and blogs to avoid the control of the censors, it would play into the hands of those in charge of surveillance and propaganda. The more connection between activists it can identify, the better for government,” he notes. (p. 83) “[I]n too many contexts,” he argues, “it empowers the strong and disempowers the weak.” (p. xvii)  In another creatively-titled chapter, “Why the KGB Wants You to Join Facebook,” he goes so far as to argue that “membership in a [social] network is a double-edged sword: Its usefulness can easily backfire if some segment gets compromised and their relationships with other members become common knowledge.  Before the advent of social media, it took a lot of effort for repressive governments to learn about the people dissidents are associated with,” but “today, they simply need to get on Facebook,” Morozov argues. (p. 156)

This is a fair point, and one that is much harder to know how to deal with.  But let’s say it is true that social networking tools and other digital technologies which allow greater online personalization and socialization also potentially facilitate increased government surveillance by the State.  What are we to do about that?  Again, we’re right back at the specter of information / technology repression and, once again, Morozov largely dodges that discussion. (Instead of direct regulation, I would think the better answer would be to educate users about sensible use of those sites or technologies and then work to empower them with more tools to better manage their privacy and/or evade surveillance).

Moreover, Morozov once again overplays his hand here.  He spends so much time arguing that digital technologies have made our lives more transparent to the State that he underplays the myriad ways it has simultaneously made government activities more visible than at any point in history.  It is extraordinarily difficult for even the most repressive of States today to completely bottle up all its secrets and actions.  Morozov says modern China, Putin’s Russia and Hugo Chavez are embracing new digital technologies in an attempt to better control them or learn how to use them to better spy on their citizens, and he implies that this is just another way they will dupe the citizenry and seduce them into a slumber so they will avert their eyes and ears to the truth of the repression that surrounds them.  Sorry, but once again, I’m not buying it.  Repressive regimes really do face a tension when they embrace modern information and communications technologies. It does force them to make certain trade-offs as they look to modernize their economies.  Morozov thinks this so-called “dictator’s dilemma” hypothesis is largely bunk, but he seems to expect this process to unfold overnight once new technology moves in.  In reality, these things take more time. The general progression of things in most states is toward somewhat greater transparency and openness, even if it does not magically spawn regime change overnight.

Importantly, he never really offers a credible cost-benefit analysis of the life of citizens in those regimes today relative to the past. Are we seriously supposed to believe that information-deprived Chinese peasants of the Mao era were somehow better positioned to influence positive regime change than the more empowered modern Chinese citizen?  It’s a tough sell.  Are their downsides associated with those new technologies (especially the potential for citizen surveillance)?  Yes, of course.  But let’s not use that as an excuse for marching backwards, technologically-speaking.

On America’s “Contradictions,” and Morozov’s

Chapter 8 of the book focuses on what Morozov describes as the “Cultural Contradictions of Internet Freedom.” He again scores some points for rightly pointing to the hypocrisy at play in the United States today — by both government and corporations — when it comes to the promotion of Net freedom globally.  He correctly notes that “while American diplomats are preaching the virtues of a free and open Internet abroad, an Internet unburdened by police, court orders, and censorship, their counterparts in domestic law enforcement, security, and military agencies are preaching — and some are already pursing — policies informed by a completely different assessment of those virtues.”  (p. 218)  Similarly, Morozov castigates many of America’s leading high-tech companies — Facebook, Google, Microsoft, Apple, Twitter, etc. – for preaching the values of Net freedom but then all too willingly handed over information about dissidents to repressive State actors, or playing ball with foreign thugs in other ways.

Morozov is right; American leaders in both government and business need to better align their actions with their rhetoric when it comes to the interaction of government and technology.  Too often, both groups are guilty of talking a big game about the Internet and freedom, only to later take steps to undermine that cause.  As Morozov asks in a recent New York Post column, “Shouldn’t America’s fight for Internet freedom start at home for it to be taken seriously by the rest of the world?”  Yes, it should.

Morozov’s critique of these “cultural contradictions” continues on, however, and it leads him to a surprising conclusion that is contradictory in its own right.  He says that the real problem here is that we’re all being seduced by those silly libertarian types with their crazy ideas about keeping the Net largely unfettered.  He says, for example:

The way forward is to acknowledge that the public pressure to regulate the Web is growing and that not all of the ensuing regulation should be resisted because the Internet is the favorite sacred cow of most libertarians.  The only way to get it right is to avoid holding on to some abstract truths – e.g., that the internet is a revolutionary force that should be spared any regulation whatsoever — but rather to invest one’s energy into seeking broad public agreement on what acceptable, transparent, and just democratic procedures by which such regulation is to occur should look like. (p. 218)

Thus, on one hand, Morozov laments the fact that U.S. politicians and corporations are far too willing to cave to political pressure, which results in the undermining of online freedoms.  On the other, he says that we all need to just chill out and accept the increasing politicization of the Net.  He never identifies the potential contradiction in his own thinking here.

Will increased meddling will the Net really help advance his cause?  I can’t see how but, then again, I’m one of those cyber-libertarians that Morozov would dismiss as unrealistic or “utopian.”  Morozov apparently thinks there is some process out there that will help us determine the “acceptable, transparent, and just democratic procedures [for] regulation” yet, once again, he never lets us in on the details.  All we know from his book is that the way the past three U.S. presidential administrations have approached Internet policy is not to his liking.  And even though it would be hard to call any of them “libertarian” in their approach to Net policy, Morozov clearly thinks the days of “Hands Off the Net” are over and were overrated to begin with.

Conclusion

To summarize, Morozov is quite right about the excessive euphoria currently surrounding the relationship of the Net to politics and regime change, but I think he’s gone a bit overboard in The Net Delusion. I realize how much fun playing the role of cranky contrarian must be for him since he’s addressing a target-rich environment, full of irrational Internet exuberance.  But Morozov just lays it all on a bit too thick for my taste.  “[T]he important thing is to acknowledge that the debate about the Internet’s effects on democracy isn’t over and to avoid behaving as if the jury is already out,” he argues.  (p. 241)  Fair enough.  The problem is, based on the tone of The Net Delusion and some of its conclusions, it appears that Evgeny Morozov has already sent the jury home and rendered a guilty verdict against the Net.

Additional Reading / Links:

• Evgeny Morozov’s homepage, his blog, and some of his other writings
• The official book site for The Net Delusion.
• Jerry Brito’s podcast interview with Morozov about the book
• Morozov’s TED Talk on “How the Net Aids Dictatorships” (also embedded below)
• The London Review of Books review of the book + Kirkus Reviews.
• Milton Mueller’s review.
• Cory Doctorow’s review.
• … and follow Evgeny on Twitter here.

Proponents of Net neutrality regulation continue their full-court press to get the Federal Communications Commission (FCC) and its chairman, Julius Genachowski, to unilaterally push through a new industrial policy regime for the Internet. The latest word, according to Politico, is that the agency is pushing back its scheduled December open meeting from Dec. 15 to Dec. 21 to give the agency more time to plot its next move.  There’s no word yet what the agency’s regulatory blueprint will look like, so it’s impossible to critique the agency’s plan at this point.  I’ve made the case against Net neutrality regulation here before, however, and I’m sure those same concerns and critiques will apply to whatever the agency ends up adopting.

What’s most concerning about the way this process is playing out currently is just how anti-democratic it is.  I understand the zeal of the pro-regulatory forces on this issue, but there is simply no good excuse for advocating that 3 unelected officials at an independent regulatory agency rush through a vote to regulate a such a massive and important sector of the American economy.

It used to be the case that a broad and non-partisan coalition of academics and organizations supported the non-delegation principle, which, generally speaking, refers to the notion that only democratically elected officials should be in a position to pass laws and make the really important decisions about the future course of our polity and its economy.  Of course, when it comes to the economy, I’d prefer most of those decisions be left to marketplace experimentation.  However, to the extent regulation is deemed necessary and that regulation governs such a massively important portion of the American economy, that determination should definitely be made by elected leaders in Congress and not delegated to bureaucrats who would ram through regulations with 3 votes and sketchy plan for reordering that sector.

On this point, I strongly recommend the work of David Schoenbrod, a professor at New York Law School and the author of Power Without Responsibility: How Congress Abuses the People Through Delegation. Here’s a great overview of his work in which he addresses the arguments against the anti-delegation principle.  In sum, there really aren’t any good arguments against it.  “The genius of our Constitution was that the people would get to decide how much government they want,” Schoenbrod notes. If critics believe that “the people’s welfare would be advanced by giving up some of that decisional power, let the people so decide through the constitutional amendment process,” he argues.  “Instead, the insiders have done that for them” and that undercuts accountability, transparency, and true democracy.

That’s a principle that many people of different political persuasions have long supported.  Regrettably, however, when it comes to Net neutrality regulation, it’s increasingly clear that the ends justify the means for proponents.  To hell with democracy and accountability, they say. We want regulation and we want it now!  That’s obviously the rallying cry of radical pro-regulatory organizations like Free Press and Public Knowledge.  What’s more surprising, however, is how even more mainstream advocates of Net neutrality regulation seem willing go down that path.  That’s a real shame because I know some of them have fought against unaccountable exercises of power by the FCC in other contexts. Yet, in this case, it appears that they are turning a blind eye to the dangers of delegating so much authority to a regulatory agency that, quite frankly, has a fairly miserable history of (mis)managing its own affairs and the markets it oversees.

The recent elections had a impact on all this, obviously.  With presumably less of an appetite in Congress now for expansive regulation of the Internet economy, advocates of Net neutrality mandates want the FCC to do all the dirty work here.  Regardless of the merits of the arguments for or against such regulation, it’s simply not good for our democracy when we shift all those really important decisions to bureaucracies, which are less accountable to the people and where reforms take longer to push through when things go bad.

As mentioned last week, in a new series of essays, PFF scholars will be examining proposals that would have the government play a greater role in sustaining struggling media enterprises, “saving journalism,” or promoting more “public interest” content. With many traditional media operators struggling, and questions being raised about how journalism in particular will be supported in the future, Washington policymakers are currently considering what role government can and should play in helping media providers reinvent themselves in the face of tumultuous technological change wrought by the Digital Revolution. We will be releasing 6 or 7 essays on this topic leading up to our big filing in the FCC’s “Future of Media” proceeding (deadline is May 7^th).  And here’s a podcast Berin Szoka and I did providing an overview of the series.

In the first installment of the series, Berin and I critiqued an old idea that’s suddenly gained new currency: taxing media devices or distribution systems to fund media content. In the second installment, “The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Taxes to Subsidize Public Media,” I discuss proposals to impose a tax on broadcast spectrum licenses to funnel money to public media projects or other “public interest” content or objectives. Such a tax would be fundamentally unfair to broadcasters, who are struggling for their very survival in the midst of unprecedented marketplace turmoil.  Moreover, such a tax is unnecessary in light of the many other sources of “public interest” programming available today. Finally, even if the government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it.  Nor should government force such media choices upon the public. There’s no good reason for government to be socially-engineering media choices through taxes.

I’ve attached the entire essay down below.

The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Taxes to Subsidize Public Media

PFF Progress on Point 17.2 [PDF]

by Adam Thierer*

In an ongoing series of essays, we‘re discussing proposals to have the government play a greater role in the media sector in the name of sustaining struggling enterprises or “saving journalism.”  Washington policymakers are currently considering what, if any, role government can and should play in assisting media operators, supporting journalism, or expanding public media.  For example, the Federal Communications Commission (FCC) recently kicked off a new “Future of Media” effort with a workshop on “Serving the Public Interest in the Digital Era.” Likewise, the Federal Trade Commission (FTC) has hosted two workshops on “How Will Journalism Survive the Internet Age?”  Meanwhile, the Senate has already held hearings about “the future of journalism,” and Senator Benjamin L. Cardin (D-MD) recently introduced the “Newspaper Revitalization Act,” which would allow newspapers to become nonprofit organizations in an effort to help them stay afloat—but also curtail their political editorializing.

Part 1 of this series examined proposals to fund media content via a tax on consumer electronics, broadband service, or cell phone bills.^[1] Other essays will address proposals to tax private advertising revenues to support public media; directly subsidize out-of-work journalists; expand postal subsidies; and to prop up or bail out failing media entities.  A wrap-up essay will then focus on some potentially constructive policy reforms that could assist media enterprises without a massive infusion of state support or regulation of the press.

This essay will discuss proposals to impose a tax on broadcast spectrum licenses to funnel money to public media projects or other “public interest” content or objectives.^[2] Such a tax would be fundamentally unfair to broadcasters, who are struggling for their very survival in the midst of unprecedented marketplace turmoil.  Moreover, such a tax is unnecessary in light of the many other sources of “public interest” programming available today. Finally, even if the government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it.  Nor should government force such media choices upon the public. There’s no good reason for government to be socially-engineering media choices through taxes.

Why the “Public Interest” Regulatory Regime Can’t Continue

There’s always been a bit of mythology surrounding so-called “public interest” regulation of broadcasting in America.^[3] Those who advocate expansive regulatory obligations for licensed radio and television operators typically claim they’re directing the content or character of broadcasting toward a nobler end—a sort of noblesse oblige for the Information Age.  At times, their rhetoric takes on a fairy-tale quality as lawmakers and regulatory advocates speak of “the public interest” in reverential and fantastic terms, all the while deftly evading any attempt to define the term.  Indeed, while public interest regulation has been considered the cornerstone of communications and media policy since the 1930s, at no time during these seven decades has the term been adequately defined.[4]

Former FCC Commissioner Glen Robinson has argued that the public interest standard “is vague to the point of vacuousness, providing neither guidance nor constraint on the agency’s action.”^[5] And Nobel Prize-winning economist Ronald Coase argued 50 years ago that “The phrase… lacks any definite meaning.  Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.”^[6]

And that is still true today.  Simply put, the public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.[7] Nonetheless, the public interest regulatory regime remains with us and continues to apply to licensed broadcast radio and television operators.

Regardless of the rationale used to advance public interest regulation—public spectrum ownership, licensing, scarcity,^[8] pervasiveness,^[9] or “public enlightenment”—it is hard to explain why we have singled out broadcasters for unique regulatory obligations while operators of other media platforms have been given a free pass.  Such regulatory asymmetry is more difficult to justify today in light of rising competition for many new platforms and players.^[10] And it is difficult to believe that Congress or the FCC could concoct a constitutionally-defensible rationale for extending “public interest” regulation to new media platforms.^[11] Indeed, efforts to do so for both old (newspapers, print) and new (Internet, video games) media have failed when tested in the courts.  And, practically speaking, even if expansion of the old regime was desirable, it would be exceedingly difficult to do so in light of the sheer scale and volume of new media that would need to be covered.^[12]

Spending Money Instead of Imposing Mandates?

The combination of these factors has forced many traditional public interest regulatory advocates to reconsider the wisdom—or at least the practicality—of the old broadcasting regime.  One alternative that has received increasing attention in recent years would see broadcasters largely relieved of their public interest obligations and charged instead an annual fee for their use of the airwaves.  The proceeds from such a spectrum fee or tax would then be used to subsidize a variety of programs or content.  For example:

• Henry Geller, a former FCC general counsel, first advocated such a spectrum fee scheme as a method of financing more public broadcasting programming.^[13]
• Likewise, Charles Firestone, executive director of the Aspen Institute’s Communications and Society Program, has argued that the scheme could fund “educational programs for children, free political spots on an equal opportunities basis, public service announcements, or other programming that the Government wants.”[14]
• American Enterprise Institute scholar Norman Ornstein has advocated that the money be spent on a “Public Square” channel to “focus on local and national politics, policy issues, debates, campaigns, and other vital issues.”^[15]
• Elsewhere, along with Paul Taylor, Ornstein has said the money raised from such fees might be spent to ensure greater election coverage or to subsidize political advertising.^[16]
• Leonard Downie, Jr., Vice President at Large of The Washington Post, and Michael Schudson, a Professor at the Columbia University Graduate School of Journalism, have advocated the creation of a “Fund for Local News” that “would make grants for advances in local news reporting and innovative ways to support it.”^[17] The Fund would make grants to news organizations through “Local News Fund Councils” and would be financed by “fees paid by radio and television licensees, or proceeds from auctions of telecommunications spectrum, or new fees imposed on Internet service providers.”^[18]
• Most recently, Robert W. McChesney and John Nichols, authors of the new book The Death and Life of American Journalism, have proposed a 7% tax on broadcasters, which they estimate would generate $3-6 billion annually.  They would use it to fund some combination of all of the above items and far more, including welfare for journalists.^[19]

A Spectrum Tax as a Regulatory Reparations Policy

We might think of spectrum tax proposals as a sort of reparations policy for the regulatory sins of the past.  That is, broadcast spectrum fees are typically pitched as a way to “repay the public” for use of the spectrum that broadcasters obtained originally at no charge.  As Charles Firestone explains, in theory, the spectrum fee proposal:

provides a specific dollar value to the trade-off that has traditionally marked the public trusteeship theory of broadcast regulation. That is, for the initial grant and/or exclusive use of a valuable frequency, protected against interference or encroachment by governmental enforcement mechanisms, the broadcaster serves the needs and interests of the local audience service area.[20]

But like the “public interest” standard itself, spectrum taxes are also an idea whose time has passed.^[21] Broadcast spectrum fees make little sense today, even if the notion might have made some sense two or three decades ago as a method of monetizing public interest obligations.

First, using spectrum fees as a reparations policy today fails to “punish” those who originally got their spectrum free-of-charge.  The vast majority of broadcast spectrum licenses have traded hands in the secondary market for lucrative sums.  In many cases, those television and radio properties have traded hands numerous times.  Thus, the current spectrum-holders who would be taxed are generally not the beneficiaries of any “windfall,” but have instead paid competitive market prices for the spectrum they use that should be roughly commensurate with the economic value of that spectrum (at least for the limited range of uses allowed by the FCC).

Second, although broadcasting remains an important medium, its once-supreme relevance has eroded significantly over the past three decades.  Even Norm Ornstein, a defender of broadcast spectrum fees, has noted that “Over-the-air broadcasting is a dinosaur.  It’s not going to last very long.”^[22] Although that might be hyperbole, it’s certainly true that whatever weight the broadcast medium might have had in the past, that is now ancient history.

For most of the past century, broadcasting was a fairly stable industry that did not witness business model-shattering types of changes.  As its very name implies, broadcasting attracted broad audiences.  Consequently, returns were stable, even substantial at times.  Today, however, stability has given way to volatility.  The entire media marketplace is in a state of seemingly constant upheaval.  Long-standing industry players are shedding assets or even disappearing as underdogs rapidly enter the sector and become big dogs overnight.  This has become a textbook example of Schumpeterian “creative destruction” in action.^[23]

Consider what this has meant for broadcasters in terms of audience share and advertising revenues.  Start with broadcast television.  The television audience has grown increasingly fragmented since the 1950s.  The top shows on TV during that era ( e.g., “I Love Lucy”) garnered 40-50% of the viewing audience.  By the 1970s, the top broadcast TV shows (e.g., “All in the Family”) were pulling in roughly 30% of the audience.  Today, however, with so many other media options vying for our increasingly scarce attention, the top shows on television (e.g., “American Idol”) are lucky to break 15% and most shows rarely break single digits.

The “problem” is growing competition for eyeballs.  Broadcasters face a growing array of rivals: cable and satellite multi-channel distributors; DVDs and Netflix; VOD and online video; video game platforms; and much more.  According to Nielsen Media Research, the “Big 3” networks of the past (ABC, CBS, NBC), which held 90% of the primetime market in 1980, control only 30% share today.  In terms of total day shares, cable blew past broadcast television at the turn of the century and never looked back.  The advertising situation is equally bleak for television broadcasters.  According to McCann Erickson Worldwide, broadcast television’s overall share of media advertising revenues dipped below 20% back in 1990 and continues to fall steadily, standing at approximately 15% today.

Unsurprisingly, the financial outlook for the broadcast TV sector is bleak.  “Almost all the indicators for local TV are pointing down,” notes the Pew Project for Excellence in Journalism in its annual State of the News Media report.  It continues:

Revenue, too, was in a free fall.  Ad revenue is always lower in a year without federal elections or the Olympics, but the drop in 2009 was especially severe even with the unexpected bounty of political spending on health care legislation.  Revenues were estimated to have fallen by 22% from the year before.  The last two non-election years, by contrast, recorded much smaller declines: 5% in 2005 and 6% in 2007.  Looking ahead, most market analysts project revenues to grow only slightly, in the 3%-to-5% range in 2010, but that is hardly taken as good news given that it is a year that will include both the off-year elections and winter Olympic games.^[24]

In light of the recent turmoil, some major network television executives are now thinking about doing what was unthinkable just a decade ago: casting off their local broadcast affiliates and repurposing their content on alternative media platforms ( e.g., cable, satellite, Internet). For example, in early 2009, CBS Corp. President and CEO Les Moonves told an investor conference that moving all CBS network programming to cable and satellite platforms would be “a very interesting proposition.”^[25] If television networks start following their audience in the continuing mass exodus to alternative distribution platforms, how would local broadcast affiliates pay for a new federal spectrum fee? Even if that scenario does not develop, local television broadcasters face an uncertain future, and likely declining revenues for some time to come.

The situation for broadcast radio operators is even grimmer.  The competition for our ears has never been more intense with satellite radio, non-commercial radio, iPods and MP3 players, online radio, downloadable music, podcasting, etc. with terrestrial broadcasters for audience share.  As a result, radio operators have seen their audiences dwindle and their revenues nose-dive. According to Arbitron, time spent listening to radio has dropped for every age demographic they’ve measured for the past decade.  And BIA Financial Network notes that while the radio revenue growth rate ran between 7% and 14% during the late 1990s, the industry hasn’t seen growth above 3% since 2002 and in recent years growth has rarely broken 1%.  Furthermore, the Pew Project for Excellence in Journalism reports that:^[26]

• Total radio revenue was down 18% in 2009 from 2008, according to the Radio Advertising Bureau.
• Local and national radio advertising—the biggest sources of revenue for radio—were both down and projected to continue falling at least through 2011.  There was growth in online advertising, but not enough to make up for the loss of on-air advertising.
• National and local advertising fell by 20% and 19% respectively in 2009 compared to 2008.  Local advertising has always been radio’s lifeblood.
• Online advertising revenue saw a 13% increase in 2009, but represented only 3% of industry advertising revenue and was not enough to offset the losses in other categories.
• Off-air revenues, such as billboards and concert sponsorships, fell 9% in 2009 compared to 2008, to 1.3 billion.  While these revenues currently make up only a small part of radio revenue, the continued decline of national and local advertising may add to their importance.

Again, can struggling radio broadcasters absorb the added burden of a new national spectrum tax in light of their precarious situation? Indeed, it’s numbers like these that usually leads intervention-minded analysts to advocate subsidies, not taxes, for some struggling media entities!

Where Would the Money Go?

Questions also surround the pool of funds that would be amassed through the creation of a broadcast spectrum fee.  Given the declining fortunes of the broadcast industry, it seems unlikely the fee would generate as much revenue as some proponents might imagine. Let’s assume, however, that the spectrum levy netted respectable sums.  How would those funds be used?

America’s recent experience with spectrum auction proceeds suggests that Congress would first look to use a spectrum fee to pay for federal spending priorities or pay off past budget deficits instead of channeling those funds to new “public square” or “public interest” initiatives.  But, for the sake of argument, let’s assume Congress honored a pledge to use the broadcast fee only for its intended purpose.  What exactly counts as a “public square” or “public interest” initiative, and who would be in charge of it?

Some proponents of a spectrum fee seem to long for a world in which everything looks or sounds like a combination of National Public Radio, the Public Broadcasting Service, and cable “public access” channels.  But regardless of the quality of such networks or the programming on them, the viewing and listening public has shown a clear desire for programming of a very different nature.  While critics might lament what they regard as the “low-brow” entertainment or supposedly lower-quality news seen or heard on some commercial networks or stations, there is no denying that citizens tune in to commercial programs in very large numbers.  Whether regulatory advocates care to admit it, supply and demand are at work in America’s media marketplace and citizens vote with their eyes and ears all the time.  Media scholar Ben Compaine, co-author of Who Owns the Media?, focuses on the real issue here, choice:

If large segments of the public choose to watch, read, or listen to content from a relatively small number of media companies, that should not distract policy makers from the key word there: choose. … It may indeed be that at any given moment 80 percent of the audience is viewing or reading or listening to something from the 10 largest media players.  But that does not mean it is the same 80 percent all the time, or that it is cause for concern.^[27]

Commenting on efforts to make the modern media landscape look more like PBS or NPR, Compaine notes: “Content might well be different.  But it wouldn’t necessarily be better.… This might work only in a … world of enforced equality, where no democracy of content was allowed, where the voice of the audience was not heard.”^[28] He notes that PBS is instructive in this regard since, even in the days when it only had three primary rivals, it could rarely get the attention of more than 2% of the total TV audience.  And as television journalist Jeff Greenfield has noted, “[W]hen you no longer need the skills of a safecracker to find PBS in most markets, you have to realize that the reason people aren’t watching is that they don’t want to.”^[29]

Simply put, in a world of unlimited options and freedom of media choice, there’s just no way to force the audience to tune in.^[30] Absent truly repressive measures to limit choice or alter consumer media consumption patterns, it will be impossible for policymakers to force the masses to pay attention to what they want them to see or hear in an age of abundant media content and unrestricted choice.  “[R]egulation cannot, in a liberal democracy, force viewers to consume media products they do not think they want in the name of the public interest,” argues Ellen P. Goodman of the Rutgers-Camden School of Law.^[31]

Our Many “Public Squares”

More importantly, there seems to be little need for a new spectrum fee for “public interest” content or a “public square” channel in light of the explosion of civic-oriented and culturally enriching programming on both traditional and new media platforms.  In essence, we now have many “public square” channels.

For example, the growth of news channels and programs (CNN, Fox News, MSNBC, Current TV, many financial news networks, and more) and international news outlets (BBC America, CNN International, etc.) has been well-documented.  Most notable in this regard is the stunning success of the cable industry’s C-SPAN network and its sister properties.^[32] But these cable news channels and programs are also a growing force online as well.  “Like their television programs, the major cable news channels’ websites attracted record viewership in 2008, driven in a large part by the political and economic news of the year,” reports the Pew Project for Excellence in Journalism.^[33] Moreover, these cable news sites “have also evolved into true multimedia destinations.  All now feature video archives, RSS feeds and features for accessing the sites on mobile devices.  They all offer live streaming content.”^[34] Meanwhile, C-SPAN recently created the C-SPAN Video Library,[35] which archives 23 years worth (1987-on) of fully searchable (and free) video content, including: 161,000 overall hours of programming; 56,600 hours of House & Senate floor activity; and, 20,152 hours of House & Senate committee hearings.[36]

Americans have many other ways of finding important news and civic information online.  The 2008 presidential election serves as a dramatic illustration of how voters have become better informed and how candidates have exciting new ways to connect with them.  The Pew Internet & American Life Project found that “some 74% of Internet users—representing 55% of the entire adult population—went online in 2008 to get involved in the political process or to get news and information about the election.”^[37] And President Barack Obama’s unprecedented use of new media tools during 2008 is often credited with helping to propel him into the White House.  Millions of Americans made their views known about various issues on sites such as Obama’s Change.gov website.  Wired reported that “Obama’s online success dwarfed [Senator John McCain’s], and proved key to his winning the presidency.”^[38]

Volunteers used Obama’s website to organize a thousand phone-banking events in the last week of the race—and 150,000 other campaign-related events over the course of the campaign.  Supporters created more than 35,000 groups clumped by affinities like geographical proximity and shared pop-cultural interests.  By the end of the campaign, myBarackObama.com chalked up some 1.5 million accounts.  And Obama raised a record-breaking $600 million in contributions from more than three million people, many of whom donated through the web.^[39]

Four years earlier, Joe Trippi, former campaign manager of Howard Dean’s 2004 presidential campaign and the author of The Revolution Will Not Be Televised: Democracy, The Internet, and The Overthrow of Everything, had noted that the Dean campaign’s heavy use of new, interactive media and communications technologies was, “a sneak preview of coming attractions—the interplay between new technologies and old institutions.  The end result will be massive communities completely redefining our politics, our commerce, our government, and the entire public fabric our culture.”^[40] He concluded: “what we are seeing—at its core—is a political phenomenon, a democratic movement that proceeds from our civic lives and naturally spills over in the music we hear, the clothes we buy, the causes we support.”^[41] President Obama’s campaign certainly seems to have been proof of that.

Of course, all this comes in addition to the stunning proliferation of user-generation media such as blogs, discussion boards, listservs, social networking sites, Twitter, You Tube, and so on.  Dan Gillmor, author of We the Media: Grassroots Journalism By the People, For the People, notes just how profound the impact of new media and citizen journalism will be:

Tomorrow’s news reporting and production will be more of a conversation, or a seminar.  The lines will blur between produces and consumers, changing the role of both in ways we’re only beginning to grasp now.  The communications network itself will be a medium for everyone’s voice, not just the few who can afford to buy multimillion-dollar printing presses, launch satellites, or win the government’s permission to squat on the public’s airwaves.^[42]

Likewise, in its recent State of the News Media 2010 report, the Pew Project for Excellence in Journalism reported that “Citizen journalism at the local level is expanding rapidly and brimming with innovation.”^[43] The report also noted that:

highly promising citizen and alternative sites are emerging daily.  Imaginative news formats, partnerships, formats, technological capabilities and passionate supporters of journalism values offer significant reasons for optimism as journalism continues its mission to inform citizens, make their lives better and nurture democratic processes.^[44]

Conclusion

In light of these developments, it’s hard to take seriously the charge that “deliberative democracy” is somehow on the decline in America and that the imposition of a spectrum fee to create a government-controlled “public square channel” or more “public interest” content in general would actually change the constitution of news, culture, or civic engagement in any significant way.  And even if government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it.

Finally, regardless of how spectrum fee proceeds might be spent, the proposal raises fundamental fairness issues for broadcasters.  Indeed, it is doubly insulting for them.  Not only has public broadcasting and non-commercial media been siphoning off more and more market share in recent years, but this proposal would impose a new tax on private broadcasters to fund those competitors (or some other media outlets) at a time when broadcasters are struggling for their very existence.  If Congress imposed a spectrum fee on broadcasters, it would essentially be signing a death warrant for the medium.  It’s hard to see how that’s in “the public interest.”

Related PFF Publications

• The Wrong Way to Reinvent Media, Part 1: Taxes on Consumer Electronics, Mobile Phones & Broadband, Adam Thierer & Berin Szoka, PFF Progress on Point 17.1, March 2010.
• Testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, Adam Thierer, March 2010.
• Public Option for Press Should Get the Red Pen, Adam Thierer, The Daily Caller, Jan. 2010.
• Chairman Leibowitz’s Disconnect on Privacy Regulation & the Future of News, Adam Thierer & Berin Szoka, Progress Snapshot 6.1, Jan. 13, 2010.
• Socializing Media in Order to Save It, Adam Thierer, City Journal, March 2009.
• A Manifesto for Media Freedom, Adam Thierer & Brian Anderson, 2008.
• Media Ownership Proceedings, W. Kenneth Ferree, Testimony before the Federal Communications Commission, Nov. 3, 2009.
• Media Myths: Making Sense of the Debate over Media Ownership, Adam Thierer, June 2005.

[2] This essay is condensed from a chapter that appeared in a new book from Congressional Quarterly Press. See: Resolved, Broadcasters Should be Charged a Spectrum Fee to Finance Programming in the Public Interest, Pro: Norm Ornstein, Con: Adam Thierer, in Richard J. Ellis and Michael Nelson, Debating Reform: Conflicting Perspectives on How to Fix the American Political System (2010) at 53-69.

[3] See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Understanding the Debate over Media Ownership (2005) at 85-104, www.pff.org/issues-pubs/books/050610mediamyths.pdf.

[4] Adam Thierer, The Progress & Freedom Foundation, Why Expansion of the FCC’s Public Interest Regulatory Regime is Unwise, Unneeded, Unconstitutional, and Unenforceable, Testimony Before the Federal Communications Commission Hearing on “Serving the Public Interest in the Digital Era,” March 4, 2010, www.pff.org/issues-pubs/testimony/2010/2010-03-04-Thierer_Remarks_at_FCC_Hearing.pdf.

[5] Glen O. Robinson, The Federal Communications Act: An Essay on Origins and Regulatory Purpose, in A Legislative History of the Communications Act of 1934 3, 14 (Max D. Paglin ed., 1989). Likewise, Lawrence J. White has noted that, “The ‘public interest’ is a vague, ill-defined concept. Under the ‘public interest’ banner the Congress and the FCC have established far too many protectionist, anticompetitive, anti-innovative, inflexible, output-limiting regulatory regimes and have unnecessarily infringed on the First Amendment rights of broadcasters.” See Lawrence J. White, Spectrum for Sale, The Milken Institute Review (June 2001) at 38. See also William T. Mayton, The Illegitimacy of the Public Interest Standard at the FCC, 38 Emory Law Journal 715, 716 (1989).

[6] Ronald H. Coase, The Federal Communications Commission, 2 J. L. & Econ. 1, 8–9 (1959). Even supporters of broadcast regulation such as Paul Taylor and Norman Ornstein admit that, “neither in the 1927 [Radio] Act nor in the 1934 [Communications] Act, nor subsequently, did Congress define clearly what actions by broadcasters would represent managing their stations in the public interest.” Paul Taylor & Norman Ornstein, New America Foundation, A Broadcast Spectrum Fee for Campaign Finance Reform, Spectrum Series Working Paper No. 4, (2002) at 6.

[7] See Adam Thierer, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 85-104; www.pff.org/issues-pubs/books/050610mediamyths.pdf; Adam Thierer, Is the Public Served by the Public Interest Standard? The Freeman, Vol. 46, No. 9, Sept. 1996, at 618-20, www.thefreemanonline.org/featured/is-the-public-served-by-the-public-interest-standard; William T. Mayton, The Illegitimacy of the Public Interest Standard at the FCC, 38 Emory Law Journal, 1989, at 715-69.

[8] See John W. Berresford, Federal Communications Commission, The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed, FCC Media Bureau, Staff Research Paper No. 2005-2, (March 2005) www.fcc.gov/ownership/materials/already-released/scarcity030005.pdf. Berresford refers to the scarcity rationale as “outmoded,” “based on fundamental misunderstandings of physics and economics,” and “no longer valid.”

[9] Adam Thierer, Why Regulate Broadcasting : Toward a Consistent First Amendment Standard for the Information Age, 15 CommLaw Conspectus (Summer 2007) at 431-482; http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf.

[10] See Adam Thierer & Grant Eskelsen, The Progress & Freedom Foundation, Media Metrics: The True State of the Modern Media Marketplace, Summer 2008, www.pff.org/mediametrics.

[11] Thierer, supra note 4.

[12] Id. at 7-12.

[13] “By taking some modest fee from commercial broadcasters for their use of the public spectrum in lieu of the public trustee obligation, noncommercial television could be adequately funded to deliver high-quality public service programming.” Henry Geller, Geller to FCC: Scrap the Rules, Try a Spectrum Fee, Current.org, Oct. 30, 2000, www.current.org/why/why0020geller.shtml. Also see Henry Geller, Promoting the Public Interest in the Digital Era, Federal Communications Law Journal, Vol. 55, No. 3, 2003, www.law.indiana.edu/fclj/pubs/v55/no3/Geller.pdf.

[14] Charles M. Firestone, The Aspen Institute, The Spectrum Check Off Alternative to Public Interest Regulation of Broadcasters, www.aspeninstitute.org/policy-work/communications-society/papers-interest/-spectrum-check-alternative-public-interest-regul

[15] See Ornstein supra 2 at 61. Also see Remarks of Norman Ornstein at George Mason University event, The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight, Oct. 3, 2008, www.iep.gmu.edu/documents/Ornstein.doc.

[16] Paul Taylor and Norman Ornstein, New America Foundation, A Broadcast Spectrum Fee for Campaign Finance Reform, Spectrum Series Working Paper #4, June 2002, www.newamerica.net/files/IssueBrief5.FreeAirTime.TaylorOrnstein.pdf.

[17] Leonard Downie, Jr. & Michael Schudson, The Reconstruction of American Journalism, Columbia Journalism Review, Oct. 20, 2009, at 92, available at www.scribd.com/doc/21268382/Reconstruction-of-Journalism.

[18] Id.

[19] See Robert W. McChesney & John Nichols, The Death and Life of American Journalism (2010) at 209-10.

[20] Firestone, supra note 14.

[21] Adam Thierer and Wayne Crews, Cato Institute, Just Don’t Do It: The Digital Opportunities Investment Trust (DO IT) Fund, Cato TechKnowledge, No. 35, May 6, 2002, www.cato.org/tech/tk/020506-tk.html

[22] Quoted in Neil Hickey, TV’s Big Stick: Why the Broadcast Industry Gets What it Wants in Washington, Columbia Journalism Review, September/October 2002, p. 53.

[23] See Thierer & Eskelsen, supra note 7.

[24] Pew Project For Excellence in Journalism, Local TV, The State of the News Media 2010, March 2010, www.stateofthemedia.org/2010/local_tv_summary_essay.php.

[25] Michael Grotticelli, Local TV Stations Face Uncertain Future, Broadcast Engineering, Feb. 23, 2009, http://broadcastengineering.com/news/local-stations-face-uncertain-future-0223.

[26] Pew Project for Excellence in Journalism, Audio – Traditional Broadcast and Broadcast Online, The State of the News Media 2010, March 2010, www.stateofthemedia.org/2010/audio_traditional_broadcast.php.

[27] Ben Compaine, Domination Fantasies, Reason, Jan. 2004, at 33, http://reason.com/archives/2004/01/01/domination-fantasies

[28] Id.

[29] Quoted in Thomas G. Krattenmaker and Lucas A. Powe, Jr., Regulating Broadcast Programming (1994) at 314.

[30] Ellen P. Goodman of the Rutgers-Camden School of Law argues: “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” Ellen P. Goodman, “Proactive Media Policy in an Age of Content Abundance,” in Philip M. Napoli, ed., Media Diversity and Localism: Meaning and Metrics (2007) at 370, 374.  And there is no reason to believe this situation has ever been different or will ever change. Writing in 1922, famed journalist Walter Lippmann noted that, “it is possible to make a rough estimate only of the amount of attention people give each day to informing themselves about public affairs,” but “the time each day is small when any of us is directly exposed to information from our unseen environment.” Walter Lippmann, Public Opinion (1922), p. 53, 57.

[31] Id. at 374.

[32] Importantly, many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million. See Adam Thierer, The Progress & Freedom Foundation, C-SPAN, Civic-Minded Programming & Public Interest Regulation, PFF Blog, March 2, 2010, http://blog.pff.org/archives/2010/03/c-span_civic-minded_programming_public_interest_re.html

[33] Cable TV, in State of the News Media 2009, www.stateofthemedia.org/2009/narrative_cabletv_digitaltrends.php?media=7&cat=6/#key6

[34] Id.

[35] www.c-spanvideo.org/videoLibrary

[36] See Thierer, supra note 28. See also Brian Stelter, C-Span Puts Full Archives on the Web, New York Times, March 15, 2010,  www.nytimes.com/2010/03/16/arts/television/16cspan.html

[37] Aaron Smith, The Internet’s Role in Campaign 2008, The Pew Internet & American Life, April 15, 2009, www.pewinternet.org/Reports/2009/6–The-Internets-Role-in-Campaign-2008.aspx

[38] Sarah Lai Stirland, Propelled by Internet, Barack Obama Wins Presidency, Wired.com, Nov. 4, 2008,  www.wired.com/threatlevel/2008/11/propelled-by-in

[39] Id.

[40] Joe Trippi, The Revolution Will Not Be Televised: Democracy, The Internet, and The Overthrow of Everything (2004), at 203. [emphasis original].

[41] Id.

[42] Dan Gillmor, We the Media: Grassroots Journalism By the People, For the People (2004), at xiii.

[43] Pew Project For Excellence in Journalism, Introduction, State of the News Media 2010, March 2010,   www.stateofthemedia.org/2010/overview_intro.php

[44] Pew Project For Excellence in Journalism, Community Journalism, State of the News Media 2010, March 2010,  www.stateofthemedia.org/2010/specialreports_community_journalism.php

Wrong Way to Reinvent Media Part 2 – Broadcast Spectrum Taxes [Thierer- PFF] http://d1.scribdassets.com/ScribdViewer.swf

C-SPAN is really quite incredible when you think about it.  When I was growing up in the 70s, there was nothing like it. Like most other Americans, my informational inputs about national news and politics were limited to what a couple of old white dudes in bad suits delivered each night around 6:30 on the three VHF channels I had access to. And no national newspapers were delivered to my small town in rural Illinois, so I had to rely on crummy local papers to fill the void via whatever national reporting they offered, which wasn’t much.

And then came C-SPAN.  C-SPAN alone covers more political and civic-minded activity in the course of a week than most of us probably came into contact with in our entire lives just 30 years ago. Consider these data points, which Peter Kiley, Vice President of C-SPAN Networks was kind enough to help me aggregate. In the 2009 calendar year, C-SPAN provided the following amount of first run programming across their three channels:

• 8,438 overall hours of programming;
• 2,709 hours of House & Senate floor activity; and,
• 1,222 hours of House & Senate committee hearings.

Moreover, C-SPAN recently created the C-SPAN Video Library, which archives 23 years worth (1987-on) of fully searchable (and free) video content, including:

• 161,000 overall hours of programming;
• 56,600 hours of House & Senate floor activity; and,
• 20,152 of House & Senate committee hearings.

That’s incredible. But here’s what’s more impressive: Many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million. That’s what brings you this amazing, unprecedented civic resource.

OK, let me step back and explain why I started thinking about C-SPAN.  I’ve been invited to testify at a Federal Communications Commission hearing this Thursday on “Serving the Public Interest in the Digital Era.” I suspect that one of the laments we’ll hear from some of the participants is the old “deliberative democracy is dead” line. Debates about public interest regulation often take on a mythical tone as regulatory advocates wax nostalgic about some supposedly Golden Era of Civic Engagement when we were all better informed and publicly active. It’s pure rubbish, as I showed in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership. (See chapter 4, “Democracy, Civic Discourse, and the ‘Public Interest.'”)

Nonetheless, the myth persists and often leads to calls for aggressive regulation of media markets in the name of serving “the public interest.” Regulatory advocates typically claim that government must intervene and layer on regulatory mandates if citizens are to have access to the requisite amount of political programming or civic-minded content necessary for deliberative democracy to survive.

But is there really any shortage political programming or civic-minded content from which to choose today? C-SPAN’s existence alone seems to prove the contrary, but it’s hardly the only platform through which such content is available. Let’s not forget about what the Internet has made available to us. It has given us unprecedented access to public affairs information—local, state, national, and international.

But here’s the thing that a lot of “public interest” advocates always seem to ignore: Regardless of how much beneficial civic content is out there, you can’t make people watch, listen, or read it if they don’t want to. “Today, the scarce resource is attention, not programming,” notes Ellen P. Goodman of the Rutgers-Camden School of Law. “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” [Ellen P. Goodman, “Proactive Media Policy in an Age of Content Abundance,” in Philip M. Napoli, ed., Media Diversity and Localism: Meaning and Metrics (2007) at 370, 374.]

And there is no reason to believe this situation has ever been different or will ever change. Writing in 1922, famed journalist Walter Lippmann noted that, “it is possible to make a rough estimate only of the amount of attention people give each day to informing themselves about public affairs,” but “the time each day is small when any of us is directly exposed to information from our unseen environment.” [Walter Lippmann, Public Opinion (1922), p. 53, 57.]  Of course, in Lippmann’s day, one could have reasonable argued that was because such content simply wasn’t available to the masses. Today, by contrast, the content is available, it’s just that we have a lot of other informational and entertainment outputs vying for our attention.

Absent truly repressive measures to limit choices or forcibly alter consumer media consumption patterns, it will be impossible for policymakers to force the masses to pay attention to what they want them to see or hear in an age of abundant media content and unrestricted choice. “[R]egulation cannot, in a liberal democracy, force viewers to consumer media products they do not think they want in the name of the public interest,” argues Goodman.

Luckily, public officials need not resort to such repressive steps. Even if we only access C-SPAN on rare occasions, or browse political information on the Net at random intervals in the days leading up to an election, that’s more information than we ever had at our disposal in those mythical “good ‘ol days.” We should be celebrating this fact, but I suspect a lot of people at the FCC’s hearing on Thursday will be bemoaning it instead.

I very much enjoyed Dennis Baron’s new book, A Better Pencil: Readers, Writers, and the Digital Revolution, and highly recommend you pick it up. Baron does a wonderful job exploring the 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).

I have a complete review of Baron’s A Better Pencil now up on the City Journal‘s website here.  I’ve also pasted it down below.

Plato Wrote it Down by Adam Thierer

a review of A Better Pencil: Readers, Writers, and the Digital Revolution, by Dennis Baron (Oxford University Press, 280 pp., $24.95)

In the beginning, Dennis Baron reminds us in his new book, A Better Pencil, there was the word—the spoken word, that is. Oral tradition, the passing of knowledge through stories and lectures, was the primary method of instruction and learning throughout early human civilization. But then a few innovative souls decided to start writing everything down on stones and clay. Almost as soon as they did, a great debate began on the impact of new communications technology on culture and education. And it 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, a professor of English and linguistics at the University of Illinois, begins his splendid history of these debates with the well-known tale from Plato’s Phaedrus about the dangers of the written word. The Egyptian god Theuth boasts to King Thamus about how his invention of writing will improve the wisdom and memory of the masses. Thamus shoots back, “The discoverer of an art is not the best judge of the good or harm which will accrue to those who practice it.” Thamus then passes judgment on writing’s impact on society, saying he fears 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.”

Of course, as Baron points out, we remember this warning only “because Plato wrote it down.” It’s one of the recurrent ironies in the history of techno-skepticism that while “the shock of the new often brings out critics eager to warn us away,” those critics often embrace—or, at the very least, benefit from—the very tools that they want the rest of us to shun. Whether it’s Luddites On-Line winning Yahoo’s “Cool Site of the Day” award, or the Writing Instrument Manufacturers Association promoting National Handwriting Day via the Internet, or Ted Kaczynski’s Unabomber Manifesto attracting unprecedented readership thanks to its availability on the Web, those who have a “common tendency to romanticize the good old ways” of doing things often fail to appreciate how new technology can benefit society—including themselves.

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. “According to the latest generation of critics and naysayers,” Baron notes, “today it is computers that are producing texts whose value and credibility we question; computers that are giving too many people control over the creation and publication of text; computers that are wreaking havoc with our handwriting.” Contemporary critics also fret over “information overload.”

The backlash against computers and digitization began while the Internet was still in its cradle, with the 1992 publication of Neil Postman’s anti-technology screed, Technopoly: The Surrender of Culture to Technology. Postman’s intellectual descendants include Internet critics such as Lee Siegel, Andrew Keen, and Mark Helprin, whose works drip with disdain for all things digital. They warn of a coming dystopia where truth and authority vanish, culture crumbles, and political polarization breeds closed-mindedness and even the death of deliberative democracy.

These overly pessimistic critics turn a blind eye to both the wonders of the digital age and humanity’s ability to adapt. As Baron persuasively argues, “English survives, conversation thrives online as well as off, and on balance, digital communications seems to be enhancing human interaction, not detracting from it.” In fact, we live in a world of unprecedented media abundance that previous generations would have found unimaginable. As Baron puts it: “The Internet is a true electronic frontier where everyone is on his or her own: all manuscripts are accepted for publication, they remain in virtual print forever, and no one can tell writers what to do.” Such human empowerment is worth celebrating, even if it does have the occasional downside. Abundance is better than a world of scarce choices and few voices.

Baron’s retelling of the history of techno-skepticism is edifying, but it leaves one with the nagging feeling that these debates will never cease. Each generation will witness a technological watershed that brings out a fresh crop of both pollyannas and pessimists. Like Plato, however, most of us will embrace whatever’s next and move forward.

I’ve spent a lot of time here deconstructing and criticizing the proposals set forth by the Free Press, the radical media “reformista” group founded by the prolific Marxist media theorist Robert McChesney.  I have been trying to shine more light on their proposals and activities because I believe they are antithetical to freedom of speech and a free society.  That’s because, as media scholar Ben Compaine has noted, “What the hard core reformistas really want, it seems, is not diversity or an open debate but a media that promotes their own vision of society and the world.”  That’s exactly right and, more specifically, as I argued in my 2005 Media Myths book, the media reformistas want to impose this control by taking the fantasy that “the public owns the [broadcast] airwaves” and extending it to ALL media platforms and outlets.  In other words, McChesney and the Free Press want an UnFree Press.  To cast things in neo-Marxist terms that they could appreciate, they want to take control of the information means of production.  And it begins, McChesney argues, by all of us having to give up this “sort of religious attachment to the idea of a ‘free-press'” from which we all suffer.

Some people accuse me of “red-baiting” or “McCarthyite” tactics when I use the “M-word” (Marxism) or the “S-Word” (socialism) to describe McChesney, the Free Press, and the movement they have spawned.  But these are labels with real meaning and ones that McChesney himself embraces in his work. In his 1999 book Rich Media, Poor Media, he says that “Media reform cannot win without widespread support and such support needs to be organized as part of a broad anti-corporate, pro-democracy movement.” He casts everything in “social justice” terms and speaks of the need “to rip the veil off [corporate] power, and to work so that social decision making and power may be made as enlightened and as egalitarian as possible.”  What exactly would all that mean in practice for media? In his 2002 book Our Media, Not Theirs: The Democratic Struggle against Corporate Media with John Nichols of The Nation, McChesney argues that media reform efforts must begin with “the need to promote an understanding of the urgency to assert public control over the media.” They go on to state that, “Our claim is simply that the media system produces vastly less of quality than it would if corporate and commercial pressures were lessened.”

If you want additional proof of his intentions, then I encourage you to read this lengthy interview with McChesney that appears in the new edition of The Bullet, an online newsletter produced by the Canada-based “Socialist Project.”  (If you ask me, there’s something strangely appropriate about a socialist newsletter named “The Bullet” in light of the millions of people who died while living under socialist tyranny!)  Anyway, let’s ignore that and focus on what neo-Marxist media reform entails according to McChesney.  Because never before has he laid his cards on the table as clearly as he does in this interview.

The “Struggle” for “Media Democracy”

In the interview, as in all his work, McChesney speaks repeatedly about the Marxist concept of “struggles,” which  usually refers to class struggles and worker struggles. But McChesney’s work focuses on “media democracy struggles” as part of an overall struggle for “social justice.”  He says:

Instead of waiting for the revolution to happen, we learned that unless you make significant changes in the media, it will be vastly more difficult to have a revolution. While the media is not the single most important issue in the world, it is one of the core issues that any successful Left project needs to integrate into its strategic program.

In other words, media reform is part of The Big Struggle. The Big Struggle is the effort to overthrow free-market capitalism. And the struggle for “media democracy” is crucial to that, you see, because we are all just pawns whose minds are being manipulated by some far-off corporate puppet-masters in New York and L.A., who are, of course, just feeding us nothing but pro-capitalist propaganda 24/7.  Thus, we have to burn the village to save it, McChesney says:

Many say that corporate journalism, based on profit maximization, best serves a free and democratic society. The position is incorrect. The connection of capitalism to journalism, which has always been fraught with problems, has always been unstable. The relationship between capitalism, journalism, and democracy has never been a sure thing. In the U.S, the notion that capitalism is the natural steward of journalism and should be left alone to provide for a free and self-governing society refers to a period that began during the 19th century. This period ended when owners realized they could make a lot of money by turning journalism into big business. Corporations are not in a position to generate and pay for quality journalism. The news is not a commercial product. It is a public good, necessary for a self-governing society.

In other words, down with private media!  McChesney basically declares that the entire history of private media in America to be one gigantic case of market failure and must be abandoned.

Subsidies to “Save Journalism”

But what’s going to replace private media once McChesney and his media reformistas have moved the regulatory wrecking ball in?  In a nutshell, he wants massive state subsidization of the media:

Once we accept this [the supposed “public goods” nature of all media], we can talk about the kind of media policies and subsidies we want. What are the best ones? How should they be implemented? We are now trying to answer those questions and organize around them.

Herein lies one of the great ironies of McChesney’s work: He spends a great deal of time arguing that the entire history of American media has basically been one big government-created construct (monopolies, entry barriers, subsidies, etc), only to turn around and advocate massive state intervention and subsidies as a solution!  McChesney plays revisionist historian and even tries to paint Jefferson and Madison as media socialists because postal rates from the founding period on down have been reduced for print media mailings. Somehow, McChesney reads this to mean that “the U.S. state has always played a direct and indirect role in facilitating and legitimizing the corporate media system.”  Which is rubbish. The idea that postal subsidies have created “the corporate media system” is preposterous. McChesney is on stronger ground in arguing the state has occasionally helped foster and then protect monopolies, but that is a function of the very “public utility” regulatory regime that McChesney favors! [More on this point down below.]

Meanwhile, in true Rahm Emanual-ian “you-never-want-a-crisis-to-go-to-waste” fashion, the Free Press has started a new project to “Save the News” and move America “Toward a National Journalism Strategy” by endorsing a lot of the same regulations, subsidies, and tax credits that McChesney and John Nichols recently advocated in their Nation magazine essay, “The Death and Life of Great American Newspapers.” As I noted in my City Journal response to that essay back in March, you can file this all under “socializing media in order to save it,” complete with Soviet-style 5-year plans dictated by some faceless elite inside a Beltway bureaucracy. Oh, and there’s the little matter of $60 billion price tag that taxpayers will be left footing.  (But hey, what’s another $60 billion these days?)  Even Free Press favorite Dan Rather is on board with his plan to have President Obama give us “The News America Needs” by “form[ing] a commission to address the perilous state of America’s news media.”  Perhaps once the car commission folks get done driving the U.S. auto industry into the ground they can shift gears, so to speak, and see what they can do to steer journalism onto a supposedly better path.

Down with Advertising

If McChesney and Free Press don’t succeed in destroying private media with their regulatory plans, there’s always Plan B… bleed free market media operators and Internet companies dry by taking away their mother’s milk, advertising.  McChesney argues that “the Internet is increasingly hyper-commercialized” and it is “open[ing] our entire lives to 24/7 injections of advertising messages.”  Thus, wouldn’t you know it, yet another “struggle” is in order!

We need to organize against hyper-commercialism. This is an easy-sell for the Left. We understand that advertising is not something done by all people equally, but rather, done by a very small group of people working on behalf of multinational corporations. Advertising is commercial propaganda…  Advertising is the voice of capital. We need to do whatever we can to limit capitalist propaganda, regulate it, minimize it, and perhaps even eliminate it. The fight against hyper-commercialism becomes especially pronounced in the era of digital communications.  […] There is a fundamental crisis when you are in a world that is entirely commercial, in terms of the integrity of speech and thought. We are at the tipping point and we need to struggle directly against it.

Struggle, struggle, struggle!

Of course, McChesney will have plenty of allies in this particular struggle as Washington continues to wage a war against advertising of all sorts. Of course, there really is no free lunch in this world and something will have to pay for serious news-gathering (and entertainment, for that matter). Of course, McChesney and his Free Press allies will, no doubt, respond that still more subsidies are in order!  There is, apparently, always someone else in their world to whom the buck can be passed.  [But I wonder: Who would be left to pay all the taxes needed to support public media if McChesney’s “struggle” to overthrow The Man succeeds??]

Net neutrality & Infrastructure Nationalization

And don’t for one minute think that McChesney and Free Press are only out for the old media operators.  They’re out for private broadband and Internet players as well.

When speaking about the centrality of Net neutrality regulation to this “struggle” and coming “revolution,” McChesney does a nice job reminding some of us why we have been so concerned about politicizing a debate over network engineering when he says: “What we want to have in the U.S. and in every society is an Internet that is not private property, but a public utility.”  Ah yes, because public utilities have been soooo efficient and innovative in other contexts!  Please.

In advocating increased regulation or state-ownership of communications networks or broadband companies and connections, McChesney seems utterly oblivious to the fact that the very state power he advocates on one hand is the same state power that private parties can corrupt on the other.  He says, for example, that “Our struggle to make the Internet into a public utility conflicts with the interests of telephone and cable firms,” because “Their power rests upon their ability to successfully buy off politicians.”  How does he not see the contradiction?  He’s certainly right to fear that public officials can be co-opted by private interests. (Read up on your public choice theory, buddy!)  But I suppose McChesney believes that his perfect socialist state will be immune to these pressures because it will be run by enlightened, public-minded philosopher kings… you know… like himself.  But that’s nonsense.  See my old essay on the fantasy of “Building a Better Bureaucrat” or Tim Lee’s old essay on “Real Regulators” for more details on why it never works out that way in practice. Or, better yet, since I know he would never read anything I penned on the subject, I encourage McChesney to take a hard look at the definitive 2-volume Economics of Regulation by a far more experienced progressive Democrat, Professor Alfred E. Kahn. In Kahn’s masterwork, you will find the following words of wisdom (and caution) from someone who spent a lifetime studying these issues:

When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition. […] Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.

McChesney makes one final point about Net neutrality that is worth highlighting. When asked whether he had any reservations about making short-term alliances with new media companies or Internet operators such as Google, eBay, Amazon, and Microsoft in the push for Net neutrality regulations, McChesney says: “Absolutely.. But I’ve learned, by participating in over a decade of specific media struggles, that when you are in the short-term and you are fighting to win, sometimes you make tactical alliances.” Nonetheless, he notes, ” the ultimate goal is to get rid of the media capitalists in the phone and cable companies and to divest them from control.” And, so, the ends justify the means in terms of striking short-term alliances with those evil, blood-sucking capitalists.  I hope the folks at Google, eBay, Amazon, and Microsoft are reading McChesney’s radical thinking on communications policy and realize that he and his Free Press reformistas will eventually turn their sights on them just as soon as they are finished socializing the infrastructure layer of the Internet.

Conclusion: Against Media Tyranny

In a very strange sense, I admire Robert McChesney.  He is a man of principle.  And he isn’t ashamed to advocate his principles publicly (whereas some of his Free Press disciples do a very nice job disguising their true intentions).

That being said, McChesney’s principles are dangerous ones. Very dangerous.  They are antithetical to a free society, freedom of speech, and technological progress.  At its core, as I noted in my old essay, “Your Soapbox is My Soapbox,” the repugnant morality behind this “media access” movement is that nothing is truly yours.  “Media democracy” means everything is up for grabs.  Here’s how I put it in that old “soapbox” essay:

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox. That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

Indeed, McChesney has taken this old “media access” movement that Jerome Barron, Owen Fiss, Cass Sunstein and others pioneered long ago, and advanced it to a whole new level, and to its logical conclusion.  The aim is not just to co-opt someone else’s soapbox; it is to smash their soapbox into pieces. It is to tear the very fabric of the First Amendment into shreds and rebuild “media democracy” around the principles not of true freedom, but of state servitude.  You only have as much freedom to engage in speech, reporting, or entertaining as your media overlords will allow.  And God help you if any of it proves popular because then they will really want to crush you like an ant!

I’ll close this rant the same way I concluded my earlier “soapbox” rant:

This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant. Freedom doesn’t begin by fettering the press with more chains, it begins by removing those that already exist and then erecting a firm wall between State and Press. The media access crowd has succeeded in breaching that wall with seven decades of misguided and unjust regulation of the press. The movement back toward a truly free press begins by understanding the error in their thinking, rejecting that reasoning, and then embracing, once again, the original vision of the First Amendment as a bulwark against government control of speech and the press.

I’ve got a new essay up over at the City Journal about John Nichols and Robert McChesney’s proposal to have the government heavily subsidize failing media enterprises to “save journalism.” It follows below:

“Socializing Media in Order to Save It“ by Adam D. Thierer

City Journal March 27, 2009

With proposals to nationalize or heavily subsidize various segments of our economy more in vogue than ever, it was probably only a matter of time before someone suggested that America’s media marketplace should be brought into the government fold. John Nichols of The Nation and the prolific neo-Marxist media theorist Robert W. McChesney have now provided the road map for media’s march to serfdom. The cost to the American taxpayer would be at least $60 billion, but the cost for the First Amendment and our democracy would be incalculable.

Nichols and McChesney have coauthored several books and essays about media policy that view the world through the prism of class struggle, “manufactured consent” (á la Noam Chomsky), and the rest of the typical Marxoid tripe about history and economics. In their view, private, for-profit media cannot be trusted. As they stated in their 2003 call to arms, Our Media, Not Theirs: The Democratic Struggle Against Corporate Media, media-reform efforts must begin with “the need to promote an understanding of the urgency to assert public control over the media.” “Our claim,” they continue, “is simply that the media system produces vastly less of quality than it would if corporate and commercial pressures were lessened.”

In a new Nation essay, “The Death and Life of Great American Newspapers,” the authors bring their earlier work to its logical conclusion. Saving journalism, they argue, essentially requires that media become an appendage of the state. Journalism, they claim, is a “public good,” which—like education and defense—requires constant government oversight and support: “A moment has arrived at which we must recognize the need to invest tax dollars to create and maintain news gathering, reporting and writing with the purpose of informing all our citizens.” They propose that government devote $60 billion to “subscription subsidies, postal reforms, youth media and investment in public broadcasting.” Think of it as a “free press ‘infrastructure project,’” they say. “It would keep the press system alive. And it has the added benefit of providing an economic stimulus.” (Isn’t it amazing how everything stimulates the economy these days?)

Perhaps most audaciously, they argue that policymakers must respond to the crisis in journalism “with the same urgency with which they would approach the threat of terrorism, pandemic, financial collapse or climate change.” And they proclaim that their subsidy proposals are entirely consistent with what the nation’s Founders would have wanted:

We have to open the door to enlightened public policies and subsidies. . . . We need an organized citizenry demanding the institutions that make self-government possible. Only then can we, like our founders, build a free press. The technologies and the economic challenges are, of course, more complex than in the 1790s, but the answer is the same: the democratic state, the government, must create the conditions for sustaining the journalism that can provide the people with the information they need to be their own governors.

The Founders cared about a free press, of course, but they didn’t call for massive public subsidies to achieve it. They did put in place one rather important provision—the First Amendment—suggesting what they believed constituted a truly free press: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

Nichols and McChesney seem utterly naive, however, about the dangers to the First Amendment of putting government in control of media’s purse strings. “We must have a system that prohibits state censorship and that minimizes commercial control over journalistic values and pursuits,” they maintain. Well, good luck with that. If eight decades of Federal Communications Commission meddling in media markets have taught us anything, it’s that if you give bureaucrats the power to regulate the size and the shape of a soapbox, they will inevitably use their authority to regulate the speech delivered on that soapbox—indecency regulation, educational-television mandates, public-access rules, and the Fairness Doctrine are only a few examples. If the FCC received grant-making authority to dole out subsidies to media operators as Nichols and McChesney desire, it’s hard to imagine how journalists won’t be expected to surrender something in exchange. (Consider in this light the bill that Senator Benjamin L. Cardin (D-MD) introduced this week that would allow newspapers to become nonprofit organizations in an effort to help them stay afloat, but would also disallow political endorsements on their editorial pages.)

Nichols and McChesney in fact do envision strings being attached to public financing. They call, for example, for an annual tax credit for the first $200 each American spends on daily newspapers. To be eligible for this indirect subsidy, though, the reader must purchase media that meet criteria set by . . . Nichols and McChesney: “Newspapers would have to publish at least five times per week and maintain a substantial ‘news hole,’ say at least twenty-four broad pages each day, with less than 50 percent advertising.” Missing, moreover, is any mention of who defines what constitutes “news.” It wouldn’t take long for such a process to become a politicized nightmare.

Nichols and McChesney would also require that recipients of this “stimulus subsidy” make at least 90 percent of their content immediately available, free of charge, online. That’s an underhanded way of converting journalism into a giant, government-sponsored commons. (Incidentally, I can’t help but notice how many of Nichols’s essays are locked down on the Nation website, available only to subscribers.)

Nichols’s and McChesney’s argument shouldn’t simply be dismissed as radical, pie-in-the-sky theorizing. The authors have successfully spearheaded an increasingly influential media-reform movement through Free Press, the activist group they cofounded in 2002. The organization’s boisterous band of reformistas work tirelessly to mobilize troops whenever the slightest whiff of media liberalization is in the air. Nichols’s and McChesney’s new article gives us a taste of what we might expect their reform allies in Congress to propose next.

Nichols and McChesney are right about one thing: America’s media operators are struggling in the face of unprecedented competition and unexpected technological change. But the medicine they prescribe is far worse than the disease—for both the profession of journalism and for democracy itself.

President-elect Barack Obama will soon be naming Cass Sunstein, an old friend of his from their University of Chicago Law School days together, the new head the White House Office of Information and Regulatory Affairs (OIRA). OIRA oversees regulation throughout the U.S. government. Basically, Sunstein’s position is the equivalent of the federal regulatory czar.

Sunstein certainly possess excellent qualifications for the job. During his time at the University of Chicago and Harvard Law School, Sunstein has established himself as a leading liberal thinker in the field of law and economics. And, as I have joked in writing about him before, he is so insanely prolific that it seems every time I finish reading one of his new books a new title by him lands on my desk. I am quite convinced that both he and Richard Posner are actually cyborgs. I just don’t understand how two humans can compose words so rapidly!

Anyway, Professor Sunstein’s new position as head of OIRA gives him the ability influence federal regulatory decisions in both a procedural and substantive way. In terms of substance, it gives him an important platform to subtly “nudge” the regulatory philosophy and direction of the Obama Administration on many matters, including Internet policy. So, what has Professor Sunstein had to say about Internet policy in his recent work? Sunstein has developed his thinking about these issues primarily in his two recent books: Republic.com (2000) and Infotopia: How Many Minds Produce Knowledge (2006). But he’s also had a few relevant things to say about Internet issues in his recent book with Richard Thaler, Nudge: Improving Decisions About Health, Wealth, and Happiness (2008).

There are 3 Internet policy-related things from his work that I’d like to focus on here because I find them all quite troubling.

(1) Is the Net Creating Anti-Democratic Man?

The first is Sunstein’s general outlook about the Internet and what it is doing to society. In Republic.com , Sunstein argued that the Internet is destroying opportunities for a mingling of the masses and shared social experiences. The hyper-customization that specialized websites and online filtering technologies (blogs, portals, listservs, political websites, etc.) offer Americans is allowing citizens to create the equivalent of a highly personalized news retrieval service that Sunstein contemptuously refers to as “The Daily Me.”

Actually, the phrase “The Daily Me” was coined by Nicholas Negroponte in his brilliant 1995 book Being Digital to describe what he argued would be a liberating break from traditional, force-fed media. But what irks Sunstein about “The Daily Me” is not the amazing new array of choices that the Internet offers Americans, it’s that the Internet and all these new technologies allow citizens to filter information and tailor their viewing or listening choices to their own needs or desires. While Negroponte welcomed that filtering and specialization function, Sunstein seems to live in fear of it, believing that it creates extreme social isolation and alienation. He argues that unrestrained individual choice is dangerous and must be checked or countered in the interests of “citizenship” and “democracy.” In his own words: “A system of limitless individual choices, with respect to communications, is not necessarily in the interest of citizenship and self-government. Democratic efforts to reduce the resulting problems ought not be rejected in freedom’s name.”  In other words, as I noted in my review of his book in Regulation magazine back in 2000, Sunstein is essentially saying that the Internet is breeding a dangerous new creature: Anti-Democratic Man. And government should not hesitate to act to counter it.

Sunstein’s argument is highly elitist. To Sunstein, the Internet is apparently guilty of the unspeakable crime of offering citizens and consumers too much of exactly what they want! But, according to his logic, the masses just don’t know what’s good for them so they must be aggressively encouraged (and potentially forced) to listen to things that others — namely, Sunstein — want them to hear. As Thomas Krattenmaker and Lucas Powe, authors of Regulating Broadcast Programming, argue: “Sunstein has dressed an older argument in more modern garb, but at bottom it is the persistent belief of some elites that if only they could gain power, they would use it to impose their views of the good on those who are less enlightened.” It’s what my favorite political scientist Thomas Sowell refers to as “The Vision of the Anointed.”

And a look at the world around us shows that Sunstein’s view that the Net is leading to close-mindedness, homogenization, and the death of deliberative democracy is generally overblown. (Although Lee Siegel and Andrew Keen would agree with him). Indeed, I think quite the opposite is the case. While it’s true that citizens do face an overwhelming number of media and informational choices today, that isn’t really such a lamentable development. The very fact there are so many distinct media and informational options available to citizens is better for a healthy democracy than a limited range of media options, even if some people flock to sites they find more agreeable.

Finally, it is simply impossible for me to believe the argument that citizens are somehow exposed to fewer viewpoints today than in the past. Such a suggestion is simply revisionist history. Never before have we humans been exposed to such a cornucopia of informational inputs of all flavors.

(2) A Fairness Doctrine for the Internet

Sunstein’s views about the Internet and what it is doing to society are troubling enough. Far more problematic, however, is what Sunstein has suggested we should do to deal with this supposed problem. After Sunstein worked himself up to a boil about all this in Republic.com, he tossed out what I believe is the single most dangerous public policy idea for the Internet suggested in the past 10 years: mandatory “electronic sidewalks” for cyberspace.

Sunstein called for popular or partisan websites to be forced to carry links to opposing viewpoints. Think of it as a combination of must carry mandates and the Fairness Doctrine for the Internet. Thus, the National Rifle Association (NRA) would be forced to run links or editorials by anti-gun groups, and abortion rights groups would be forced to contend with links and editorials from pro-life organizations. Apparently in Sunstein’s world, people have many rights, but one of them, it seems, is not the right to be left alone or seek out the opinions one desires.

Problems abound with such a philosophical paradigm. It is impossible to know how or where to draw regulatory lines under such a regime. For example, under Sunstein’s model, how many links to opposing viewpoints should citizens be subjected to on the Net before he believes they are fully assimilated into democratic society? If the NRA only offered one or two links to anti-gun groups, would that be enough? Moreover, it remains unclear who in government is really in the a position to dictate or referee all of this and how they will go about enforcing it. Whether any of this will pass constitutional muster is another question not explored by Sunstein.

Importantly, in his 2006 book Infotopia, Sunstein seemed to pull back from these views and proposals somewhat, although he still bemoaned the supposed dangers of “The Daily Me.”  But in this November 2007 interview with Salon, Sunstein seemed to completely abandon his old proposal:

I have thought over the years of whether it makes sense for the government to have a regulatory role [for the Internet]. But the Internet is too difficult to regulate in a way that would respond to these concerns. The first book [“Republic.com”] had suggestions that government should consider fairness-doctrine-type mandates on Web sites. It suggested that it’s reasonable for government to think about creating the equivalent of linking obligations and pop-ups, so that you’d be on one site — say, a conservative site — and there’d be a pop-up from a liberal site. I now the believe that the government should not consider that — that it’s a stupid and almost certainly an unconstitutional suggestion.

Salon then asked him: “What changed your thinking?” Sunstein responded:

Hearing counter-arguments and seeing the nature of the Internet as it unfolded over time. “Republic.com” made a mistake of applying to the Internet some ideas that were developed in a world of three or four television networks. … But the kinds of regulation that would respond to my concerns [about deliberative democracy], they’re not really feasible and they probably wouldn’t help. Most problems are best solved privately, not through government. There’s a problem of discourtesy in the world, which is best handled through social norms, which are indispensable. But you wouldn’t want the government to be mandating courtesy.

Thus, I have to give Prof. Sunstein credit for recognizing the complexities and dangers associated with his old ideas.

(3) A Cooling Off Period Before Posting on Blogs

In Nudge, a book about how small proposals or policies can have major social influences, Sunstein and his co-author Richard Thaler describe as their “favorite proposal,” a so-called “Civility Check” for online speech and interactions. Here’s what they say:

The modern world suffers from insufficient civility. Every hour of every day, people send angry emails they soon regret, cursing people they barely know (or even worse, their friends and loved ones). A few of us have learned a simple rule: don’t send an angry email in the heat of the moment. File it, and wait a day before you send it. (In fact, the next day you may have calmed down so much that you forget even to look at it. So much the better.) But many people either haven’t learned the rule or don’t always follow it. Technology could easily help. In fact, we have no doubt that technologically savvy types could design a helpful program by next month. We propose a Civility Check that can accurately tell whether the email you’re about to send is angry and caution you, “warning: this appears to be an uncivil email. do you really and trulywant to send it?” (Software already exists to detect foul language. What we are proposing is more subtle, because it is easy to send a really awful email message that does not contain any four-letter words.) A stronger version, which people could choose or which might be the default, would say, “warning: this appears to be an uncivil email. this will not be sent unless you ask to resend in twenty-fourhours.” With the stronger version, you might be able to bypass the delay with some work (by inputting, say, your Social Security number and your grandfather’s birth date, or maybe by solving some irritating math problem!).

When I first responded to Sunstein and Thaler’s “Civility Check” notion, I went a little hard on them calling that idea “absurd and horrendously elitist.” What I should have made clear is that there is a difference between suggesting this sort of thing as an industry “best practice” as opposed to mandating it by force of law.

Indeed, in October of last year, Google launched a new Gmail feature called “Mail Goggles” that, according to the launch message on Google’s Gmail Blog, will help users “stop sending mail you (will) later regret.” The feature — perhaps better labeled a “Drunk Check” — “will check that you’re really sure you want to send that late night Friday email” by asking you to “solve a few simple math problems after you click send to verify you’re in the right state of mind.” It’s not identical to what Sunstein and Thaler have in mind, but it’s close. And I’m fine with Google adding such a feature to their Gmail service, especially since you don’t have to use it if you don’t want to.

Sunstein and Thaler aren’t really clear about how far they would go in forcing their Civility Check on Internet operators, however. For example, would they alter Section 230 immunity standards to hold the threat of liability over the necks of website operators who refused to play ball? They just don’t say. But with rising concerns about online cyberbullying, harassment, and defamation, the really interesting question going forward becomes just how far the law should go to encourage or demand that site operators better police their sites for poor “Netiquette.”

The danger here is that, if the liability equation was to tip in the other direction, it would have a profoundly chilling effect on online free speech and expression. While Sunstein and Thaler obviously hope that chilling effect associated with such a Civility Check would only be freezing caustic, offensive, or potentially libelous forms of speech, much more speech would likely be affected.

Conclusion

Will Sunstein continue to push any of these views in his new position as Obama’s regulatory czar at OIRA? If so, how much impact will Sunstein’s views have on others in the Obama Administration, especially at the FCC? Or, have his views changed enough that we really shouldn’t worry?

Who knows. It may be that Sunstein will be too busy trying to mediate fights between agencies and other “czars” in the Administration — of which there seems to be no shortage these days! If, however, Sunstein’s views on the supposed dangers of the Internet and his proposals about how to address them do come to hold sway with others in the Obama Administration, we may be looking at even more insidious Internet regulation than I expected from this new crew. Sunstein’s thinking and proposals would have a profound impact on online freedom and the First Amendment rights of all online sites and speakers.