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 future of emerging technology policy will be influenced increasingly by the interplay of three interrelated trends: “innovation arbitrage,” “technological civil disobedience,” and “spontaneous private deregulation.” Those terms can be briefly defined as follows:
- “Innovation arbitrage” refers to the idea that innovators can, and will with increasingly regularity, move to those jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity. Just as capital now fluidly moves around the globe seeking out more friendly regulatory treatment, the same is increasingly true for innovations. And this will also play out domestically as innovators seek to play state and local governments off each other in search of some sort of competitive advantage.
- “Technological civil disobedience” represents the refusal of innovators (individuals, groups, or even corporations) or consumers to obey technology-specific laws or regulations because they find them offensive, confusing, time-consuming, expensive, or perhaps just annoying and irrelevant. New technological devices and platforms are making it easier than ever for the public to openly defy (or perhaps just ignore) rules that limit their freedom to create or use modern technologies.
- “Spontaneous private deregulation” can be thought of as de facto rather than the de jure elimination of traditional laws and regulations owing to a combination of rapid technological change as well the potential threat of innovation arbitrage and technological civil disobedience. In other words, many laws and regulations aren’t being formally removed from the books, but they are being made largely irrelevant by some combination of those factors. “Benign or otherwise, spontaneous deregulation is happening increasingly rapidly and in ever more industries,” noted Benjamin Edelman and Damien Geradin in a Harvard Business Review article on the phenomenon.[1]
I have previously documented examples of these trends in action for technology sectors as varied as drones, driverless cars, genetic testing, Bitcoin, and the sharing economy. (For example, on the theme of global innovation arbitrage, see all these various essays. And on the growth of technological civil disobedience, see, “DOT’s Driverless Cars Guidance: Will ‘Agency Threats’ Rule the Future?” and “Quick Thoughts on FAA’s Proposed Drone Registration System.” I also discuss some of these issues in the second edition of my Permissionless Innovation book.)
In this essay, I want to briefly highlight how, over the course of just the past month, a single company has offered us a powerful example of how both global innovation arbitrage and technological civil disobedience—
or at least the threat thereof—might become a more prevalent feature of discussions about the governance of emerging technologies. And, in the process, that could lead to at least the partial spontaneous deregulation of certain sectors or technologies. Finally, I will discuss how this might affect technological governance more generally and accelerate the movement toward so-called “soft law” governance mechanisms as an alternative to traditional regulatory approaches. Continue reading →
In June, The Guardian ran a groundbreaking story that divulged a top secret court order forcing Verizon to hand over to the National Security Agency (NSA) all of its subscribers’ telephony metadata—including the phone numbers of both parties to any call involving a person in the United States and the time and duration of each call—on a daily basis. Although media outlets have published several articles in recent years disclosing various aspects the NSA’s domestic surveillance, the leaked court order obtained by The Guardian revealed hard evidence that NSA snooping goes far beyond suspected terrorists and foreign intelligence agents—instead, the agency routinely and indiscriminately targets private information about all Americans who use a major U.S. phone company.
It was only a matter of time before the NSA’s surveillance program—which is purportedly authorized by Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)—faced a challenge in federal court. The Electronic Privacy Information Center fired the first salvo on July 8, when the group filed a petition urging the U.S. Supreme Court to issue a writ of mandamus nullifying the court orders authorizing the NSA to coerce customer data from phone companies. But as Tim Lee of The Washington Post
pointed out in a recent essay, the nation’s highest Court has never before reviewed a decision of the Foreign Intelligence Surveillance Act (FISA) court, which is responsible for issuing the top secret court order authorizing the NSA’s surveillance program.
Today, another crucial lawsuit challenging the NSA’s domestic surveillance program was brought by a diverse coalition of nineteen public interest groups, religious organizations, and other associations. The coalition, represented by the Electronic Frontier Foundation, includes TechFreedom, Human Rights Watch, Greenpeace, the Bill of Rights Defense Committee, among many other groups. The lawsuit, brought in the U.S. district court in northern California, argues that the NSA’s program—aptly described as the “Assocational Tracking Program” in the complaint—violates the First, Fourth, and Fifth Amendments to the Constitution, along with the Foreign Intelligence Surveillance Act.
Continue reading →
Tim Lee is right. The Electronic Frontier Foundation post announcing its decision to accept Bitcoin is strange.
“While we are accepting Bitcoin donations,” the post says, ”
EFF is not endorsing Bitcoin.” (emphasis in original)
They’ve been using dollars over there without anyone inferring that they endorse dollars. They’ve been using various payment systems with no hint of endorsement. And they use all kinds of protocols without disclaiming endorsement—because they don’t need to.
Someone at EFF really doesn’t like Bitcoin. But, oh, how wealthy EFF would be as an institution if they had held on to the Bitcoin they were originally given. I argued at the time it refused Bitcoin that it was making a mistake, not because of the effect on its bottom line, but because it showed timidity in the face of threats to liberty.
Well, just in time for the Bitcoin 2013 conference in San Jose (CA) this weekend, EFF is getting on board. That’s good news, but it’s not as good as the news would have been if EFF had been a stalwart on Bitcoin the entire time. I have high expectations of EFF because it’s one of the great organizations working in the area of digital liberties.
The US Patent and Trademark office is starting to recognize that it has a software patent problem and is soliciting suggestions for how to improve software patent quality. A number of parties such as Google and EFF have filed comments.
I am on record against the idea patenting software at all. I think it is too difficult for programmers, as they are writing code, to constantly check to see if they are violating existing software patents, which are not, after all, easy to identify. Furthermore, any complex piece of software is likely to violate hundreds of patents owned by competitors, which makes license negotiation costly and not straightforward.
However, given that the abolition of software patents seems unlikely in the medium term, there are some good suggestions in the Google and EFF briefs. They both note that the software patents granted to date have been overbroad, equivalent to patenting headache medicine in general rather than patenting a particular molecule for use as a headache drug.
This argument highlights one significant problem with patent systems generally, that they depend on extremely high-quality review of patent applications to function effectively. If we’re going to have patents for software, or anything else, we need to take the review process seriously. Consequently, I would favor whatever increase in patent application fees is necessary to ensure that the quality of review is rock solid. Give USPTO the resources it needs to comply with existing patent law, which seems to preclude such overbroad patents. Simply applying patent law consistently would reduce some of the problems with software patents.
Higher fees would also function as a Pigovian tax on patenting, disincentivizing patent protection for minor innovations. This is desirable because the licensing cost of these minor innovations is likely to exceed the social benefits the patents generate, if any.
While it remains preferable to undertake major patent reform, many of the steps proposed by Google and EFF are good marginal policy improvements. I hope the USPTO considers these proposals carefully.
Here’s a thought experiment. Let’s say you believe the Internet economy needs more regulation to guard against potential privacy violations or what you regard as excessive data aggregation. Further, you believe that no amount of self-regulation, social norms, market pressure, education, empowerment, or anything else could possibly substitute for regulation. I know there are a lot of people out there today who feel this way. Regardless of the merits of such claims, here’s my question for you: Do the ends (enhanced privacy protections) justify any means (regulation at any and every level of government)? For example, what would you think about having all 50 states creating their own Privacy Offices or Data Protection Bureaus that issued regulations or recommendations about Internet best practices?
What got me thinking about this was this new blog post by Parker Higgins of EFF, “California Attorney General Releases Mobile Privacy Recommendations.” In the essay, Higgins showers praise on California Attorney General Kamala D. Harris, who just released a document (“Privacy on the Go“) that lays out a long set of privacy “best practices” for mobile app developers. Higgins writes:
EFF applauds this important step forward, and congratulates the California Attorney General on a thorough and clearly written explanation of the importance of mobile privacy and how developers can deliver. It’s true that as technology changes, the specific needs and guidelines for companies will need to adapt. We could well see a time when these principles do not adequately protect the rights and needs of consumers. However, right now these principles represent a huge step forward — going beyond existing law in a way that improves transparency, accountability, and choice for users of mobile devices.
Regardless of the merits of the principles and recommendations contained in that report — and I agree that many of them are quite sensible best practices that industry should be following — I can’t help but wonder whether it is wise for EFF to be cheering on state-based Internet meddling so openly. Continue reading →
The Supreme Court wasn’t playing games with the First Amendment today. With its 7-2 decision in Brown v. EMA, the Court has protected video game creators and players from unconstitutional restrictions on what we can produce and play.
Today’s decision ensures that video games have First Amendment protection on par with books, film, music and other forms of entertainment and will help block other regulatory efforts that are justified by blindly alluding to the rationale that “it’s for the children.” The decision fits nicely alongside an impressive and growing string of recent First Amendment cases from the Court that significantly raise the bar against legislative efforts to regulate freedom of speech and expression.
Quick background: In May 2010, the Supreme Court announced that it would review a California law regulating the sale of violently-themed video games to minors. The case was Schwarzenegger v. Entertainment Merchants Association, but the name of the case changed to after Jerry Brown became governor of California. The Ninth Circuit Court of Appeals had struck down a California law which prohibited the sale or rental of “violent video games” to minors, but California appealed and the SCOTUS took up the issue. [Note: When we were still with the Progress & Freedom Foundation, Berin Szoka and I filed a big amicus brief with the Court in the case along with some folks at the Electronic Frontier Foundation.] By a 7-2 vote, the Supreme Court backed the Ninth Circuit and overturned the California law. Justice Scalia wrote for the majority. Justices Thomas and Breyer dissented.
The crucial holdings in the decision are as follows: Continue reading →
My expectations of the Electronic Frontier Foundation are high. It’s an organization that does a tremendous amount of good, advocating for rights to freely use new technologies. Alas, a blog post about how good EFF is would be as interesting as a newspaper story about the lack of house fires in Springfield. So I’ll share how I feel EFF has gone wobbly on Bitcoin.
Bitcoin, the very interesting distributed digital currency that is inflation-, surveillance-, and confiscation-resistant, has been getting a lot of attention. EFF announced yesterday, though, that it would reverse course and stop accepting donations denominated in Bitcoin.
Its justifications, laid out in a blessedly brief and well-organized blog post, were three: Continue reading →
It seems peculiar to me that some of the same individuals and groups who so vociferously opposed a “broadcast flag” technological mandate in past years are now in a mad rush to have federal policymakers mandate a “Do Not Track” regulatory regime for privacy purposes. The broadcast flag debate, you will recall, centered around the wisdom of mandating a technological fix to the copyright arms race before digitized high-definition broadcast signals were effectively “Napster-ized.” At least that was the fear six or seven years ago. TV broadcasters and some content companies wanted the Federal Communications Commission (FCC) to recognize and enforce a string of code that would have been embedded in digital broadcast program signals such that mass redistribution of video programming could have been prevented.
Flash forward to the present debate about mandating a “Do Not Track” scheme to help protect privacy online. As I noted in my filing last week to the Federal Trade Commission, at root, Do Not Track is just another “information control regime.” Much like the broadcast flag proposal, it’s an attempt to use a technological quick-fix to solve a complex problem. When it comes to such information control efforts, however, there aren’t many good examples of simple fixes or silver-bullet solutions that have worked, at least not for very long. The debates over Wikileaks, online porn, Internet hate speech, and Spam all demonstrate how challenging it can be to put information back into the bottle once it is released into the digital wild.
To be clear, I am not opposed to technological solutions like broadcast flag or Do Not Track,
but I am opposed to forcing them upon the Internet and digital markets in a top-down, centrally-planned fashion. While I am skeptical that either scheme would work well in practice (whether voluntary or mandated), my concern in these debates is that forcing such solutions by law will have many unintended consequences, not the least of which will be the gradual growth of invasive cyberspace controls in these or other contexts. After all, if we can have “broadcast flags” and “Do Not Track” schemes, why not “flag” mandates for objectionable speech or “Do Not Porn” browser mandates? Continue reading →
A headline in the USA Today earlier this week screamed, “Hello, Big Brother: Digital Sensors Are Watching Us.” It opens with an all too typical techno-panic tone, replete with tales of impending doom:
Odds are you will be monitored today — many times over. Surveillance cameras at airports, subways, banks and other public venues are not the only devices tracking you. Inexpensive, ever-watchful digital sensors are now ubiquitous.
They are in laptop webcams, video-game motion sensors, smartphone cameras, utility meters, passports and employee ID cards. Step out your front door and you could be captured in a high-resolution photograph taken from the air or street by Google or Microsoft, as they update their respective mapping services. Drive down a city thoroughfare, cross a toll bridge, or park at certain shopping malls and your license plate will be recorded and time-stamped.
Several developments have converged to push the monitoring of human activity far beyond what George Orwell imagined. Low-cost digital cameras, motion sensors and biometric readers are proliferating just as the cost of storing digital data is decreasing. The result: the explosion of sensor data collection and storage.
Oh my God! Dust off you copies of the
Unabomber Manifesto and run for your shack in the hills!
No, wait, don’t. Let’s instead step back, take a deep breath and think about this. As the article goes on to note, there will certainly be many benefits to our increasing “sensor society.” Advertising and retail activity will become more personalized and offer consumers more customized good and services. I wrote about that here at greater length in my essay on “Smart-Sign Technology: Retail Marketing Gets Sophisticated, But Will Regulation Kill It First?” More importantly, ubiquitous digital sensors and data collection/storage will also increase our knowledge of the world around us exponentially and do wonders for scientific, environmental, and medical research.
But that won’t soothe the fears of those who fear the loss of their privacy and the rise of a surveillance society in which our every move is watched or tracked. So, let’s talk about what those of you who feel that way want to do about it.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.