Interoperability is a topic that has long been of interest to me. How networks, platforms, and devices work with each other–or sometimes fail to–is an important engineering, business, and policy issue. Back in 2012, I spilled out over 5,000 words on the topic when reviewing John Palfrey and Urs Gasser’s excellent book, Interop: The Promise and Perils of Highly Interconnected Systems.
I’ve always struggled with the interoperability issues, however, and often avoided them became of the sheer complexity of it all. Some interesting recent essays by sci-fi author and digital activist Cory Doctorow remind me that I need to get back on top of the issue. His latest essay is a call-to-arms in favor of what he calls “adversarial interoperability.” “[T]hat’s when you create a new product or service that plugs into the existing ones without the permission of the companies that make them,” he says. “Think of third-party printer ink, alternative app stores, or independent repair shops that use compatible parts from rival manufacturers to fix your car or your phone or your tractor.”
Doctorow is a vociferous defender of expanded digital access rights of many flavors and his latest essays on interoperability expand upon his previous advocacy for open access and a general freedom to tinker. He does much of this work with the Electronic Frontier Foundation (EFF), which shares his commitment to expanded digital access and interoperability rights in various contexts.
I’m in league with Doctorow and EFF on some of these things, but also find myself thinking they go much too far in other ways. At root, their work and advocacy raise a profound question: should there be any general right to exclude on digital platforms? Although he doesn’t always come right out and say it, Doctorow’s work often seems like an outright rejection of any sort of property rights in networks or platforms. Generally speaking, he does not want the law to recognize any right for tech platforms to exclude using digital fences of any sort. Continue reading →
The success of the Internet and the modern digital economy was due to its open, generative nature, driven by the ethos of “permissionless innovation.” A “light-touch” policy regime helped make this possible. Of particular legal importance was the immunization of online intermediaries from punishing forms of liability associated with the actions of third parties.
As “software eats the world” and the digital revolution extends its reach to the physical world, policymakers should extend similar legal protections to other “generative” tools and platforms, such as robotics, 3D printing, and virtual reality.
In other words, we need a Section 230 for the “maker” movement. Continue reading →
I’ve been thinking about the “right to try” movement a lot lately. It refers to the growing movement (especially at the state level here in the U.S.) to allow individuals to experiment with alternative medical treatments, therapies, and devices that are restricted or prohibited in some fashion (typically by the Food and Drug Administration). I think there are compelling ethical reasons for allowing citizens to determine their own course of treatment in terms of what they ingest into their bodies or what medical devices they use, especially when they are facing the possibility of death and have exhausted all other options.
But I also favor a more general “right to try” that allows citizens to make their own health decisions in other circumstances. Such a general freedom entails some risks, of course, but the better way to deal with those potential downsides is to educate citizens about the trade-offs associated with various treatments and devices, not to forbid them from seeking them out at all.
The Costs of Control
But this debate isn’t just about ethics. There’s also the question of the costs associated with regulatory control. Practically speaking, with each passing day it becomes harder and harder for governments to control unapproved medical devices, drugs, therapies, etc. Correspondingly, that significantly raises the costs of enforcement and makes one wonder exactly how far the FDA or other regulators will go to stop or slow the advent of new technologies.
I have written about this “cost of control” problem in various law review articles as well as my little Permissionless Innovation book and pointed out that, when enforcement challenges and costs reach a certain threshold, the case for preemptive control grows far weaker simply because of (1) the massive resources that regulators would have to pour into the task on crafting a workable enforcement regime; and/or (2) the massive loss of liberty it would entail for society more generally to devise such solutions. With the rise of the Internet of Things, wearable devices, mobile medical apps, and other networked health and fitness technologies, these issues are going to become increasingly ripe for academic and policy consideration. Continue reading →
This morning at 9:45, the Senate Committee on Commerce, Science, and Transportation is holding a full committee hearing entitled, “The Connected World: Examining the Internet of Things.” According to the Committee press release, the hearing “will focus on how devices — from home heating systems controlled by users online, to wearable devices that track health and activity with the help of Internet-based analytics — will be made smarter and more dynamic through Internet technologies. Government agencies like the Federal Trade Commission, however, are already considering possible changes to the law that could have the unintended consequence of slowing innovation.”
It is my pleasure to have been invited to testify at this hearing. I’ve long had an interest in the policy issues surrounding the Internet of Things. All my relevant research products can be found online here, including my latest law review article, “The Internet of Things and Wearable Technology Addressing Privacy and Security Concerns without Derailing Innovation.“
My testimony, which can be found on the Mercatus Center website here, begins by highlighting the three general conclusions of my work:
- First, the Internet of Things offers compelling benefits to consumers, companies, and our country’s national competitiveness that will only be achieved by adopting a flexible policy regime for this fast-moving space.
- Second, while there are formidable privacy and security challenges associated with the Internet of Things, top-down or one-size-fits-all regulation will limit innovative opportunities.
- Third, with those first two points in mind, we should seek alternative and less costly approaches to protecting privacy and security that rely on education, empowerment, and targeted enforcement of existing legal mechanisms. Long-term privacy and security protection requires a multifaceted approach incorporating many flexible solutions.
Continue reading →
Yesterday, the Federal Trade Commission (FTC) released its long-awaited report on “The Internet of Things: Privacy and Security in a Connected World.” The 55-page report is the result of a lengthy staff exploration of the issue, which kicked off with an FTC workshop on the issue that was held on November 19, 2013.
I’m still digesting all the details in the report, but I thought I’d offer a few quick thoughts on some of the major findings and recommendations from it. As I’ve noted here before, I’ve made the Internet of Things my top priority over the past year and have penned several essays about it here, as well as in a big new white paper (“The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation”) that will be published in the Richmond Journal of Law & Technology shortly. (Also, here’s a compendium of most of what I’ve done on the issue thus far.)
I’ll begin with a few general thoughts on the FTC’s report and its overall approach to the Internet of Things and then discuss a few specific issues that I believe deserve attention. Continue reading →
Seems like everywhere I turn someone is gushing about their new Droid phone, including my TLF colleagues Berin Szoka, Braden Cox, and Ryan Radia, who all had great fun rubbing their new toys in my nose over the past couple of days. And why not, it’s a very cool little device. It makes my HTC Touch seems positively archaic in some ways, and it’s only a year old. Apparently, 100,000 people already picked up a Droid in just its first weekend on the market.
But here’s the first thing that pops in my mind every time I see someone showing off their new Droid: How can a device like this even exist when America’s leading cyberlaw experts have been telling us that the whole digital world is increasingly going to hell because of “closed” devices, proprietary code, and managed networks? I’m speaking, of course, about the lamentations of Harvard professors Lawrence Lessig, Jonathan Zittrain, and their many disciples. As faithful readers will recall, I have relentlessly hammered this crew for their unwarranted cyber-Chicken Little-ism and hyper techno-pessimism. (See my many battles with Zittrain [1, 2, 3, 4, 5, 6 + video] and my 2-part debate with Lessig earlier this year).
“Left to itself,” Lessig warned in Code, “cyberspace will become a perfect tool of control.” He went on to forecast a dystopian future in which nefarious corporate schemers would quash our digital liberties unless benevolent public philosopher kings stepped in to save our poor souls. Code was the Old Testament of cyber-collectivism. The New Testament arrived last year with Zittrain’s
The Future of the Internet and How to Stop It. In it, we hear the grim prediction that “sterile and tethered” digital technologies and networks will triumph over the more “open and generative” devices and systems of the past. The iPhone and TiVo are cast as villains in Zittrain’s drama since they apparently represent the latest manifestations of Lessig’s “perfect control” paranoia.
Apple’s “Angel of Death”
How completely out-of-control has this thinking gotten? Well, here’s David Weinberger — another Harvard Berkman Center worrywart — talking about that supposed satanic font of all evil, the Apple AppStore: Continue reading →
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