“Rent-Seeking Consultants, Inc.,” a subsidiary of the Strategies and Tactics to Annoy Neighbors (SATAN) Group, is pleased to announce its latest product for clients looking to exploit well-intentioned regulation to serve their own ends. Our new report, “Raising Rivals’ Costs Using the GDPR: A Strategic Guide to Thwarting Competition, Expanding Market Share & Enhancing Profits with Minimal Effort,” is available for immediate download for just $1,999 (discounted to just $999 for our loyal “Dante’s Ninth Circle” club members).

Over the last three decades, our experts at Rent-Seeking Consultants have dedicated themselves to the mission of advancing narrow interests at the expense of public welfare. We have done so by creatively exploiting laws and regulations that — while often implemented with the very best of intentions in mind — we recognized could be converted into a tool to advantage the few at the expense of the many.

Our motto: Where others see good intentions, we see good opportunities!

Our “Raising Rivals’ Costs Using the GDPR” report continues our latest line of new products, which aim to take Europe’s bold new privacy regulatory regime and convert it into a rent-seeker’s paradise. Our previous report outlined, “How to Pretend Compliance Costs Will Destroy Your Big Company, While Also Letting Your Shareholders Know It is Actually an Amazing Way to Crush the Competition.”

In our new report, we discuss how to weaponize the GDPR complaint process to your advantage. In this regard, some crowd-sourced efforts already exist, such as the “Ship Your Enemies GDPR” website. The site helps you take advantage of GDPR’s legal requirements by forcing rival firms to respond to as many frivolous claims as you can send their way. “We’ll help you send them a GDPR Data Access Request designed to waste as much of their time as possible,” the site notes.

More recently, angry gamers took to Reddit to devise a plan to use GDPR to harass gaming giant Blizzard. Fans were mad that Blizzard had kowtowed to the Chinese government by suspending a professional gamer who had voiced support for Hong Kong protestors. In essence, the Reddit protestors hope to use the GDPR to generate the equivalent of a DDOS attack on a company through massive, coordinated data requests. Brilliant!

We admire the spirit of these ingenious initiatives, but we aim to more fully capture the value associated with them for our clients using concerted manipulation of whatever political levers we can help you pull. How? Weaponizing complaint processes is a tactic that Rent-Seeking Consultants, Inc. has used effectively in the past. When a small handful of censorial-minded folks wanted to get the Federal Communications Commission to beef up fines and penalties for broadcast “indecency,” we helped them stuff the ballot box at the agency with form letters and fake complaints to make regulators believe the public was clamoring for greater censorship, when it reality it was just serving a very small group of people who wanted a heckler’s veto over broadcast programming. We tied those broadcasters up in courts for years with these tactics! Meanwhile, the new media operators we also represented were able to race ahead with whatever content they wanted to post on their platforms. Victory!

This led to the creation of our Scaring Consumers Really Effectively While Earning Money (SCREWEM) initiative, which eventually won the prestigious Lobbying Award for Manipulating Effectively (LAME) Award in the “Creating Needless Panic” category. Our latest report highlights how we can use that same SCREWEM system to whip up serious privacy-related troubles for your rivals using the GDPR complaint process — all while pretending that this is all in the public interest.

We hope you will consider ordering our new report, and please let us know what we can do to help our trusted clients take advantage of well-intentioned regulation to undermine the public good on an ongoing basis. Finally, with California set to impose costly new privacy mandates extraterritorially on the entire nation, you can count on us being in touch again soon about exciting new opportunities for raising rivals’ costs using the machinery of the State.

Sincerely,

I.M. Prehensile Director of Strategic Political Exploits for S.A.T.A.N.

[This has been an act of satire, but the unintended consequences of GDPR are quite real. For some hard facts about what GDPR has meant in practice, see: Alec Stapp, “ GDPR after One Year: Costs and Unintended Consequences ,” and Eline Chivot and Daniel Castro, “ What the Evidence Shows About the Impact of the GDPR After One Year .” More generally, see: “Tech Policy, Unintended Consequences & the Failure of Good Intentions.”]

We hear a lot today about the importance of “disruptive innovation,” “deep technologies,”  “moonshots,” and even “technological miracles.” What do these terms mean and how are they related? Are they just silly clichés used to hype techno-exuberant books, articles, and speeches? Or do these terms have real meaning and importance?

This article explores those questions and argues that, while these terms are confronted with definitional challenges and occasional overuse, they retain real importance to human flourishing, economic growth, and societal progress.

Basic Concepts

Don Boudreaux defines moonshots as, “radical but feasible solutions to important problems” and Mike Cushing has referred to them as “innovation that achieves the previously unthinkable.” “Deep technology” is another buzzword being used to describe such revolutionary and important innovations. Swati Chaturvedi of investment firm Propel[x] says deep technologies are innovations that are “built on tangible scientific discoveries or engineering innovations” and “are trying to solve big issues that really affect the world around them.”

“Disruptive technology” or “game-changing innovations” are other terms that are often used in reference to technologies and inventions with major societal impacts. “Transformative technologies” is another increasingly popular term, albeit one focused mostly on health and wellness-related innovations.

However one defines them and whatever one calls them, it is clear, as a 2015 report from the World Economic Forum (WEF) argued, that, “the list of potentially disruptive technologies keeps getting longer.” “Inventions previously seen only in science fiction,” the WEF report said, “will enable us to connect and invent in ways we never have before.”

More concretely, when people use these terms in reference to existing technologies, or ones currently on the drawing board, they often mention innovations like:

• Artificial intelligence / machine learning / robotics
• 3D printing / additive manufacturing
• Self-repairing / self-building objects
• Driverless cars / flying cars (VTOL), supersonic transport
• Private space travel / lunar mining
• Clean power / alternative energy production
• Genetic editing & life extension technologies
• Implantable tech / human augmentation
• Hyper-connected devices / wearable fitness / sensor tech / IoT
• Precision medicine
• Neural networks
• Quantum computing
• Nanotechnology / synthetic biology
• Immersive technology (AT & VR)

This is just a partial list of the type of technologies that experts mention when discussing “moonshots,” deep tech,” and other “disruptive” or “transformative innovations.” What unifies them more than anything else is the potential for major improvements in human well-being. Significant advancements in these areas could lead to substantial jumps in human welfare, health, and longevity.

Definitional Limitations

These terms have some problems and limitations, however. For example,“moonshots” conjures up thoughts of large, expensive government programs that are centrally-directed in a top-down fashion. Writing in The New Atlantis last year, Mark P. Mills argued that the notion of “ technological miracles ” can be taken to unrealistic extremes and he specifically cautioned against getting caught up in “moonshot fallacies” as well as “Moore’s Law fallacy.”

The “moonshot fallacy” is commonly heard in policy discussions whenever a policymaker or pundit insists that, “If we can put a man on the moon, then we can…” fill in the blank with your prefered aspirational goal du jour . But as Mills points out, this sort of talk often represents highly unrealistic, wishful thinking. “It is true that engineers have achieved amazing feats when tasked with particular, practical goals. But not all goals are equally achievable,” he correctly argues.  

“Moore’s Law fallacy” refers to the fact that innovation in the physical world of atoms is usually much harder and more costly than innovation in the digital world of bits. “If energy technology had followed a Moore’s Law trajectory, today’s car engine would have shrunk to the size of an ant while producing a thousandfold more horsepower,” Mills observes. The time horizons for big change are almost always going to be significantly longer in the physical world even with the increasing digitization in society and “ software eating the world .”

“Disruptive technology” is also a problematic term because its common use is quite different from Clayton M. Christensen’s original explanation of the term in his widely-cited Harvard Business Review articles from 1995 and then 2015 . “The original notion of disruption aimed to describe why great firms can fail,” Josh Gans explained in his recent book, The Disruption Dilemma . “Today, use of the term has gotten out of control,” he says. “As a concept, disruption has become so persuasive this it is at risk of becoming useless.”

Gans makes a good point. Not everything can be disruptive. Moreover, some techno-evangelists get carried away with such rhetoric regarding the “disruptive,” “transformative,” and “miracle”-working” potential of various technologies.  

But Sometimes Dreams Come True

Despite these definitional controversies or rhetorical excesses from some overly-exuberant tech boosters, these terms retain real meaning and significance.  

It is easy to ridicule dreamers, but quite a bit of life-changing innovation begins as a dream of some sort. Without a doubt, a great many “moonshots” will never get off the ground, and many “deep” technologies will end up sinking into the ocean of irrelevant or failed technologies. But that’s OK! It is in the process of risk-taking, experimentation, and failure that wisdom is generated and meaningful improvements in social and economic well-being come about.

It’s easy to talk about “trial-and-error” without thinking much about the “error” part of the process. It is only through constant experimentation and failure that we learn how to do things more efficiently and create or improve goods and services.

Perhaps the most straightforward definition of “technology” is Ian Barbour’s: “the application of organized knowledge to practical tasks by ordered systems of people and machines.” But organized knowledge requires lots of trials and lots of errors–by both people and machines–in order to find workable solutions to the tasks we hope to accomplish.

To the extent that we would like to see more technological improvements, we need more “dreamers” who hope to change the world. Entrepreneurs are the key to this process because, by their very nature, they refuse to settle for the status quo. They dream of a world that can work differently; one in which they can improve their own lot and (whether intentionally or not) improve the lot of humanity simultaneously. “What entrepreneurs do,” venture capitalist Vinod Khosla argues , “is they imagine what feels impossible to most people, and take it all the way from impossible, to improbable, to possible but unlikely, to plausible, to probable, to real!”  

That is why entrepreneurialism is so important , and it is also why shouldn’t roll our eyes when people dream about “moonshots” and the ways in which “deep technology” might “disrupt” and “transform” society for the better.  

While we should always keep both feet firmly rooted on the ground, there is nothing wrong with looking skyward and dreaming of a better future. Indeed, as a society, we should seek to foster a culture of innovation that rewards entrepreneurial dreaming and daring, because in seeking to make the world a better place, progress and prosperity become reality.  

Additional Reading

Donald J. Boudreaux, “What’s Your Moonshot?” Mercatus Center at George Mason University, Mercatus Original Video , November 16, 2017, https://www.mercatus.org/videos/whats-your-moonshot .

Joseph L. Bower & Clayton M. Christensen, “Disruptive Technologies: Catching the Wave,” Harvard Business Review , January-February 1995,   https://hbr.org/1995/01/disruptive-technologies-catching-the-wave .

Clayton M. Christensen, Michael E. Raynor & Rory McDonald, “What Is Disruptive Innovation?”  Harvard Business Review,December 2015, https://hbr.org/2015/12/what-is-disruptive-innovation.

Tyler Cowen, “Is Innovation Over? The Case against Pessimism,” Foreign Affairs , March/April 2016, https://www.foreignaffairs.com/reviews/review-essay/2016-02-15/innovation-over .

Swati Chaturvedi, “So What Exactly is ‘Deep Technology’?” LinkedIn , July 28, 2015, https://www.linkedin.com/pulse/so-what-exactly-deep-technology-swati-chaturvedi .

Mike Cushing, “Moonshot Projects – Innovation or Wishful Thinking?” Enterprise Innovation , http://www.enterpriseinnovation.com/articles/moonshot-projects-innovation-or-wishful-thinking .

Vinod Khosla, “We Need Large Innovations,” Medium , January 1, 2018, https://medium.com/@vkhosla/we-need-large-innovations-58e3eaaf8138 .

Josh Gans, The Disruption Dilemma (MIT Press, 2016), https://mitpress.mit.edu/books/disruption-dilemma .

Mark P. Mills, “Making Technological Miracles,” The New Atlantis , (Spring 2017): 37-55, http://www.thenewatlantis.com/publications/making-technological-miracles .

Albert H. Segars, “Seven Technologies Remaking the World,” MIT Sloan Management Review, March 9, 2018, https://sloanreview.mit.edu/projects/seven-technologies-remaking-the-world .  

Adam Thierer, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom , (Mercatus Center at George Mason University, 2016),   https://www.mercatus.org/publication/permissionless-innovation-continuing-case-comprehensive-technological-freedom

Adam Thierer and Trace Mitchell, “The Many Forms of Entrepreneurialism,” The Bridge , August 30, 2018, https://www.mercatus.org/bridge/commentary/many-forms-entrepreneurialism  

Adam Thierer, “Making the World Safe for More Moonshots,” The Bridge , February 5, 2018, https://www.mercatus.org/bridge/commentary/making-world-safe-more-moonshots

World Economic Forum , Deep Shift: Technology Tipping Points and Societal Impact (Geneva, Switzerland: September 2015), 3, http://www3.weforum.org/docs/WEF_GAC15_Technological_Tipping_Points_report_2015.pdf .

First, I attempt to show how the central fault line in almost all modern technology policy debates revolves around “the permission question,” which asks: Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions. Two conflicting attitudes are evident.

One disposition is known as the “precautionary principle.” Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

The other vision can be labeled “permissionless innovation.” It 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 they develop at all, can be addressed later.

I argue that we are witnessing a grand clash of visions between these two mindsets today in almost all major technology policy discussions today.

The second major objective of the book, as is made clear by the title, is to make a forceful case in favor of the latter disposition of “permissionless innovation.” I argue that policymakers should unapologetically embrace and defend the permissionless innovation ethos — not just for the Internet but also for all new classes of networked technologies and platforms. Some of the specific case studies discussed in the book include: the “Internet of Things” and wearable technologies, smart cars and autonomous vehicles, commercial drones, 3D printing, and various other new technologies that are just now emerging.

I explain how precautionary principle thinking is increasingly creeping into policy discussions about these technologies. The urge to regulate preemptively in these sectors is driven by a variety of safety, security, and privacy concerns, which are discussed throughout the book. Many of these concerns are valid and deserve serious consideration. However, I argue that if precautionary-minded regulatory solutions are adopted in a preemptive attempt to head-off these concerns, the consequences will be profoundly deleterious.

Mye central thesis is this: Living in constant fear of hypothetical worst-case scenarios — and premising public policy upon them — means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning, it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.

Again, that doesn’t mean we should ignore the various problems created by these highly disruptive technologies. But how we address these concerns matters greatly. If and when problems develop, there are many less burdensome ways to address them than through preemptive technological controls. The best solutions to complex social problems are almost always organic and “bottom-up” in nature. Luckily, there exists a wide variety of constructive approaches that can be tapped to address or alleviate concerns associated with new innovations. These include:

• education and empowerment efforts (including media literacy, digital citizenship efforts);
• social pressure from activists, academics, and the press and the public more generally.
• voluntary self-regulation and adoption of best practices (including privacy and security “by design” efforts); and,
• increased transparency and awareness-building efforts to enhance consumer knowledge about how new technologies work.

Such solutions are almost always superior to top-down, command-and-control regulatory edits and bureaucratic schemes of a “Mother, May I?” (i.e., permissioned) nature. The problem with “top-down” traditional regulatory systems is that they often tend to be overly-rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things. It raises the cost of starting or running a business or non-business venture, and generally discourages activities that benefit society.

To the extent that other public policies are needed to guide technological developments, simple legal principles are greatly preferable to technology-specific, micro-managed regulatory regimes. Again, ex ante (preemptive and precautionary) regulation is often highly inefficient, even dangerous. To the extent that any corrective legal action is needed to address harms, ex post measures, especially via the common law (torts, class actions, etc.), are typically superior. And the Federal Trade Commission will, of course, continue to play a backstop here by utilizing the broad consumer protection powers it possesses under Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” In recent years, the FTC has already brought and settled many cases involving its Section 5 authority to address identity theft and data security matters. If still more is needed, enhanced disclosure and transparency requirements would certainly be superior to outright bans on new forms of experimentation or other forms of heavy-handed technological controls.

In the end, however, I argue that, to the maximum extent possible, our default position toward new forms of technological innovation must remain: “innovation allowed.” That is especially the case because, more often than not, citizens find ways to adapt to technological change by employing a variety of coping mechanisms, new norms, or other creative fixes. We should have a little more faith in the ability of humanity to adapt to the challenges new innovations create for our culture and economy. We have done it countless times before. We are creative, resilient creatures. That’s why I remain so optimistic about our collective ability to confront the challenges posed by these new technologies and prosper in the process.

If you’re interested in taking a look, you can find a free PDF of the book at the Mercatus Center website or you can find out how to order it from there as an eBook. Hardcopies are also available.

The Mercatus Center also recently hosted a book launch party for the release of the 2nd edition. The event was very well-attended and many of those present asked me to forward along specific slides or the entire deck. So, for those who asked, or others who may be interested in seeing the slides, here ya go!

And here’s the video from the event, which also incorporates these slides:

Also, back in September 2015, Sonal Chokshi was kind enough to invite me on the a16z podcast and we discussed, “Making the Case for Permissionless Innovation.” You can listen to that conversation here:

Finally, I put together a paper summarizing the major policy recommendations contained in the book. It’s entitled, “Permissionless Innovation and Public Policy: A 10-Point Blueprint.”  And then, along with Michael Wilt, I published condensed version of the paper as an essay over at  Medium. 

Materials mentioned in this post related to Permissionless Innovation project:

• BOOK: Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom 
• SLIDES: ‘Permissionless Innovation’ & the Clash of Visions over Emerging Technologies
• VIDEO: Permissionless Innovation & the Clash of Visions over Emerging Technologies
• PAPER: “Permissionless Innovation and Public Policy: A 10-Point Blueprint.”
• SUMMARY ESSAY: “Permissionless Innovation: A 10-Part Policy Checklist“
• WEBSITE: PermissionlessInnovation.org

Related Essays:

• Embracing a Culture of Permissionless Innovation
• How Attitudes about Risk & Failure Affect Innovation on Either Side of the Atlantic
• Tech Policy Threat Matrix  [see image down below]
• The Innovator’s Defense Fund: What it is and why it’s needed
• Thinking about Innovation Policy Debates: 4 Related Paradigms
• Muddling Through: How We Learn to Cope with Technological Change
• A Section 230 for the “Makers” Movement
• FTC’s Ohlhausen on Innovation, Prosperity, “Rational Optimism” & Wise Tech Policy
• A Nonpartisan Policy Vision for the Internet of Things
• What Cory Booker Gets about Innovation Policy
• CFTC’s Giancarlo on Permissionless Innovation for the Blockchain
• Problems with Precautionary Principle-Minded Tech Regulation & a Federal Robotics Commission
• Global Innovation Arbitrage: Genetic Testing Edition
• UK Competition & Markets Authority on Online Platform Regulation
• What Should the FTC Do about State & Local Barriers to Sharing Economy Innovation?
• Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation
• On the Line between Technology Ethics vs. Technology Policy
• What Does It Mean to “Have a Conversation” about a New Technology?
• Defining “Technology”
• Don Boudreaux on What Fueled the “Orgy of Innovation”

Journal articles and book chapters:

• “US Medical Devices: Choices and Consequences,” (with Richard Williams and Robert Graboyes), October 21, 2015.
• “How the Internet, the Sharing Economy, and Reputational Feedback Mechanisms Solve the ‘Lemons Problem,’” (with Christopher Koopman, Anne Hobson, and Chris Kuiper), May 26, 2015.
• “The Sharing Economy and Consumer Protection Regulation: The Case for Policy Change,” (with Christopher Koopman and Matthew Mitchell), The Journal of Business, Entrepreneurship & the Law 8, no. 2 (2015).
• “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation,” Richmond Journal of Law and Technology 21, no. 6 (2015).
• “Removing Roadblocks to Intelligent Vehicles and Driverless Cars,” (with Ryan Hagemann), Wake Forest Journal of Law & Policy 5, no. 2 (2015): 339–91.
• “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” Minnesota Journal of Law, Science & Technology 14 (2013): 309–86.
• “Privacy Law’s Precautionary Principle Problem,” Maine Law Review 66, no. 2 (2014).
• “The Pursuit of Privacy in a World Where Information Control Is Failing,” Harvard Journal of Law & Public Policy 36 (2013): 409–55.
• “A Framework for Benefit-Cost Analysis in Digital Privacy Debates,” George Mason University Law Review 20, no. 4 (Summer 2013): 1055–105.
• “The Case for Internet Optimism, Part 1: Saving the Net from Its Detractors,” in The Next Digital Decade: Essays on the Future of the Internet, ed. Berin Szoka and Adam Marcus (Washington, DC: Tech Freedom, 2010), 57–87.

Writing last week in The Wall Street Journal, Matt Moffett noted how many European countries continue to struggle with chronic unemployment and general economic malaise.  (“New Entrepreneurs Find Pain in Spain“) It’s a dismal but highly instructive tale about how much policy incentives matter when it comes to innovation and job creation–especially the sort of entrepreneurial activity from small start-ups that is so essential for economic growth. Here’s the key takeaway:

Scarce capital, dense bureaucracy, a culture deeply averse to risk and a cratered consumer market all suppress startups in Europe. The Global Entrepreneurship Monitor, a survey of startup activity, found the percentage of the adult population involved in early stage entrepreneurial activity last year was just 5% in Germany, 4.6% in France and 3.4% in Italy. That compares with 12.7% in the U.S. Even once they are established, European businesses are, on average, smaller and slower growing than those in the U.S.  The problems of entrepreneurs are one reason Europe’s economy continues to struggle after six years of crisis. The European Union this month cut its growth forecasts for the region for this year and next, citing weaker than expected performance in the eurozone’s biggest economies, Germany, France and Italy. This week, the Organization for Economic Cooperation and Development delivered its own pessimistic appraisal, with chief economist Catherine Mann saying, “The eurozone is the locus of the weakness in the global economy.” […] Europe’s unemployment crisis may be eroding a deeply ingrained fear of failure that is a bigger impediment to entrepreneurship on the Continent than in other regions, according to academic surveys. “Fear of failure is less of an issue because the whole country is a failure, and most of us are out of business or have a hard time paying our bills,” said Nick Drandakis of Athens, who in 2011 founded Taxibeat, an app that provides passenger ratings on taxi drivers.

I found Moffett’s article interesting because I write a lot about entrepreneurialism, innovation, long-term economic growth, and the public policies that facilitate all these things. This has also been the subject of an excellent Cato Institute online forum about “Reviving Economic Growth,” which asked leading economists and policy experts to answer the following question: “If you could wave a magic wand and make one or two policy or institutional changes to brighten the U.S. economy’s long-term growth prospects, what would you change and why?”

Many of the entries in that forum dealt with the importance of removing barriers to new start-ups so that entrepreneurs can help spark new innovations and spur economic growth. My entry, which was entitled, “Embracing a Culture of Permissionless Innovation,” kicked off with a quote from the great Joel Mokyr: “Why does economic growth… occur in some societies and not in others?” I noted that “debate has raged among generations of economists, historians, and business theorists about that question and the specific forces and policies that prompt long-term growth.” Generally speaking, however, there actually exists a great deal of consensus about the importance of small business entrepreneurship and the need for openness to change if an economy is going to grow. (See the studies from Ian Hathaway and Robert E. Litan that I cite in my essay among many others.)

Which brings us back to the situation in Europe. It seems clear that strong cultural and legal impediments to change exist in many European countries and that they discourage risk-taking and prevent the formation of new ventures. Many of us here in the United States worry about similar impediments and their impact on entrepreneurialism, but as those statistics in Moffett’s article make clear, the situation in Europe is far more grim. While some European policymakers seem willing to acknowledge that the deck has been stacked against innovators across the continent, few seem willing to embrace a comprehensive liberalization agenda to begin clearing away the legal and regulatory impediments that are negatively affecting startups and creating economic stagnation there. The primary reason for that goes back to the values and attitudes problem that Moffett highlighted in his article: When a country or continent’s culture is so deeply averse to risk and the possibility of disruptions or failures, then the exact sort of risk-taking that is so essential to economic growth will become increasingly difficult.

This was the focus of my Cato essay and it is what I meant by embracing a culture of permissionless innovation. As I noted in my essay, “many scholars and policymakers [often] speak of innovation policy as if it is simply a Goldilocks-like formula that entails tweaking various policy dials to get innovation just right,” which leads them to propose an endless litany of programs and policies to jump-start innovation and economic growth. But this puts the cart before the horse. Getting values right first is what really matters. Here is how I put it in my essay:

For innovation and growth to blossom, entrepreneurs need a clear green light from policymakers that signals a general acceptance of risk-taking—especially risk-taking that challenges existing business models and traditional ways of doing things. We can think of this disposition as permissionless innovation and if there was one thing every policymaker could do to help advance long-term growth, it is to first commit themselves to advancing this ethic and making it the lodestar for all their future policy pronouncements and decisions.

While there are limits to how much policymakers can influence these attitudes and values, any serious effort to foster the positive factors that give rise to expanded entrepreneurial opportunities must begin with an appreciation of how growth-oriented innovation policy begins with the proper policy disposition toward risk-taking and the possibility of significant economic and cultural disruption. As I put it in my recent book on the importance  Permissionless Innovation as a vision for innovation and growth, “living in constant fear of worst-case scenarios—and premising public policy upon them—means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning, it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.”

But let’s be clear about what the “permissionless innovation” vision is all about, because it is not the same as anarchy. As I noted in the Cato essay:

Permissionless innovation is not an absolutist position that rejects any role for government. Rather, it is an aspirational goal that stresses the benefit of “innovation allowed” as the default position to begin policy debates. It switches the burden of proof to those who favor preemptive regulation and asks them to explain why ongoing trial-and-error experimentation with new technologies or business models should be disallowed.

Again, it’s about getting attitudes and incentives right. Specifically, it’s about being willing to embrace risk-taking and even failure, because that is the only way you get growth. As the old adage goes, “Nothing ventured, nothing gained.”  And our recent experience with the Internet and the Information Revolution offers the perfect case study of why getting values right and embracing a culture of permissionless innovation matters so much. As I noted in my Cato essay,

permissionless innovation powered the explosive growth of the Internet and America’s information technology sectors (computing, software, Internet services, etc.) over the past two decades. Those sectors have ushered in a generation of innovations and innovators that are now the envy of the world. This happened because the default position for the digital economy was permissionless innovation. No one had to ask anyone for the right to develop these new technologies and platforms.

The U.S. got policy right by getting our values right first. Thanks to a series of very smart pronouncements and decisions in the early and mid-1990s (all detailed in my essay and this Medium essay), digital age entrepreneurs were given a clear green light to take risks without fear of a political backlash.

Unfortunately for European innovators, a different message was sent from the start, with layers of “data directives” and other red tape encumbering new ventures. As a result, it’s hard today to name many innovators in this arena which originated in Europe. Instead, Europe’s household Internet names are mostly American companies. Europe is hoping to reverse that with the rise of the Internet of Things, since many European companies appear poised to become global leaders on that front. For that happen, however, the continent’s attitudes toward risk-taking will have to evolve to accommodate these highly disruptive technologies.

In particular, the Internet of Things will raise a variety of privacy and security-related concern (see my new 93-page paper on this), as well as economic-related fears associated with automation and job disruption. These are serious issues that deserve serious consideration and constructive solutions. But if Europe decides to put the Internet of Things revolution on hold in an attempt to preemptively plan for every theoretical downside, then they will miss the boat again and potentially lose many of the amazing benefits that will accompany these new innovations. Again, if you live in fear of the future, then an innovative future won’t happen. And looking backwards and holding onto the past is no way to grow an economy or achieve long-term prosperity.

I am pleased to announce the release of my latest book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.” It’s a short manifesto (just under 100 pages) that condenses — and attempts to make more accessible — arguments that I have developed in various law review articles, working papers, and blog posts over the past few years. I have two goals with this book.

First, I attempt to show how the central fault line in almost all modern technology policy debates revolves around “the permission question,” which asks: Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions. Two conflicting attitudes are evident.

One disposition is known as the “precautionary principle.” Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

The other vision can be labeled “permissionless innovation.” It 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 they develop at all, can be addressed later.

I argue that we are witnessing a grand clash of visions between these two mindsets today in almost all major technology policy discussions today.

The second major objective of the book, as is made clear by the title, is to make a forceful case in favor of the latter disposition of “permissionless innovation.” I argue that policymakers should unapologetically embrace and defend the permissionless innovation ethos — not just for the Internet but also for all new classes of networked technologies and platforms. Some of the specific case studies discussed in the book include: the “Internet of Things” and wearable technologies, smart cars and autonomous vehicles, commercial drones, 3D printing, and various other new technologies that are just now emerging.

I explain how precautionary principle thinking is increasingly creeping into policy discussions about these technologies. The urge to regulate preemptively in these sectors is driven by a variety of safety, security, and privacy concerns, which are discussed throughout the book. Many of these concerns are valid and deserve serious consideration. However, I argue that if precautionary-minded regulatory solutions are adopted in a preemptive attempt to head-off these concerns, the consequences will be profoundly deleterious.

The central lesson of the booklet is this: Living in constant fear of hypothetical worst-case scenarios — and premising public policy upon them — means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning, it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.

Again, that doesn’t mean we should ignore the various problems created by these highly disruptive technologies. But how we address these concerns matters greatly. If and when problems develop, there are many less burdensome ways to address them than through preemptive technological controls. The best solutions to complex social problems are almost always organic and “bottom-up” in nature. Luckily, there exists a wide variety of constructive approaches that can be tapped to address or alleviate concerns associated with new innovations. These include:

• education and empowerment efforts (including media literacy, digital citizenship efforts);
• social pressure from activists, academics, and the press and the public more generally.
• voluntary self-regulation and adoption of best practices (including privacy and security “by design” efforts); and,
• increased transparency and awareness-building efforts to enhance consumer knowledge about how new technologies work.

Such solutions are almost always superior to top-down, command-and-control regulatory edits and bureaucratic schemes of a “Mother, May I?” (i.e., permissioned) nature. The problem with “top-down” traditional regulatory systems is that they often tend to be overly-rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things. It raises the cost of starting or running a business or non-business venture, and generally discourages activities that benefit society.

To the extent that other public policies are needed to guide technological developments, simple legal principles are greatly preferable to technology-specific, micro-managed regulatory regimes. Again, ex ante (preemptive and precautionary) regulation is often highly inefficient, even dangerous. To the extent that any corrective legal action is needed to address harms, ex post measures, especially via the common law (torts, class actions, etc.), are typically superior. And the Federal Trade Commission will, of course, continue to play a backstop here by utilizing the broad consumer protection powers it possesses under Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” In recent years, the FTC has already brought and settled many cases involving its Section 5 authority to address identity theft and data security matters. If still more is needed, enhanced disclosure and transparency requirements would certainly be superior to outright bans on new forms of experimentation or other forms of heavy-handed technological controls.

In the end, however, I argue that, to the maximum extent possible, our default position toward new forms of technological innovation must remain: “innovation allowed.” That is especially the case because, more often than not, citizens find ways to adapt to technological change by employing a variety of coping mechanisms, new norms, or other creative fixes. We should have a little more faith in the ability of humanity to adapt to the challenges new innovations create for our culture and economy. We have done it countless times before. We are creative, resilient creatures. That’s why I remain so optimistic about our collective ability to confront the challenges posed by these new technologies and prosper in the process.

If you’re interested in taking a look, you can find a free PDF of the book at the Mercatus Center website or you can find out how to order it from there as an eBook. Hardcopies are also available. I’ll be doing more blogging about the book in coming weeks and months. The debate between the “permissionless innovation” and “precautionary principle” worldviews is just getting started and it promises to touch every tech policy debate going forward.

Related Essays :

• “The Growing Conflict of Visions over the Internet of Things & Privacy,” Technology Liberation Front, January 14, 2014.
• “CES 2014 Report: The Internet of Things Arrives, but Will Washington Welcome It?” Technology Liberation Front, January 8, 2014.
• “Who Really Believes in ‘Permissionless Innovation’?” Technology Liberation Front, March 4, 2013.
• “What Does It Mean to ‘Have a Conversation’ about a New Technology?” Technology Liberation Front, May 23, 2013.
• “On the Line between Technology Ethics vs. Technology Policy,” Technology Liberation Front, August 1, 2013.
• “Planning for Hypothetical Horribles in Tech Policy Debates,” Technology Liberation Front, August 6, 2013.
• “Edith Ramirez’s ‘Big Data’ Speech: Privacy Concerns Prompt Precautionary Principle Thinking,” Technology Liberation Front, August 29, 2013.
• “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed,” Technology Liberation Front, April 29, 2011.
• “Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges,” Technology Liberation Front, April 10, 2012.
• “Can We Adapt to the Internet of Things?” IAPP Privacy Perspectives, June 19, 2013.
• “Why Do We Always Sell the Next Generation Short?” Forbes, January 8, 2012.
• “The Six Things That Drive ‘Technopanics,’” Forbes, March 4, 2012.

What works well as an ethical directive might not work equally well as a policy prescription. Stated differently, what one ought to do it certain situations should not always be synonymous with what they must do by force of law.

I’m going to relate this lesson to tech policy debates in a moment, but let’s first think of an example of how this lesson applies more generally. Consider the Ten Commandments. Some of them make excellent ethical guidelines (especially the stuff about not coveting neighbor’s house, wife, or possessions). But most of us would agree that, in a free and tolerant society, only two of the Ten Commandments make good law: Thou shalt not kill and Thou shalt not steal.

In other words, not every sin should be a crime. Perhaps some should be; but most should not. Taking this out of the realm of religion and into the world of moral philosophy, we can apply the lesson more generally as: Not every wise ethical principle makes for wise public policy.

Before I get accused of being accused of being some sort of nihilist, I want to be clear that I am absolutely not saying that ethics should never have a bearing on policy. Obviously, all political theory is, at some level, reducible to ethical precepts. My own political philosophy is strongly rooted in the Millian harm principle (“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”) Not everyone will agree will Mill’s principle, but I would hope most of us could agree that, if we hope to preserve a free and open society, we simply cannot convert every ethical directive into a legal directive or else the scope of human freedom will need to shrink precipitously.

Can We Plan for Every “Bad Butterfly-Effect”?

Anyway, what got me thinking about all this and it its applicability to technology policy was an interesting Wired essay by Patrick Lin entitled, “The Ethics of Saving Lives With Autonomous Cars Are Far Murkier Than You Think.” Lin is the director of the Ethics + Emerging Sciences Group at California Polytechnic State University in San Luis Obispo and lead editor of Robot Ethics (MIT Press, 2012). So, this a man who has obviously done a lot of thinking about the potential ethical challenges presented by the growing ubiquity of robots and autonomous vehicles in society. (His column makes for particularly fun reading if you’ve ever spent time pondering Asimov’s “Laws of Robotics.”)

Lin walks through various hypothetical scenarios regarding the future of autonomous vehicles and discusses the ethical trade-offs at work here. He asks a number of questions about a future of robotic cars and encourages us to give some thoughtful deliberation to the benefits and potential costs of autonomous vehicles. I will not comment here on all the specific issues that lead Lin to question whether they are worth it; instead I want to focus on Lin’s ultimate conclusion.

I commenting on the potential risks and trade-offs, Lin notes:

The introduction of any new technology changes the lives of future people. We know it as the “butterfly effect” or chaos theory: Anything we do could start a chain-reaction of other effects that result in actual harm (or benefit) to some persons somewhere on the planet.

That’s self-evident, of course, but what of it? How should that truism influence tech ethics and/or tech policy? Here are Lin’s thoughts:

For us humans, those effects are impossible to precisely predict, and therefore it is impractical to worry about those effects too much. It would be absurdly paralyzing to follow an ethical principle that we ought to stand down on any action that could have bad butterfly-effects, as any action or inaction could have negative unforeseen and unintended consequences. But … we can foresee the general disruptive effects of a new technology, especially the nearer-term ones, and we should therefore mitigate them. The butterfly-effect doesn’t release us from the responsibility of anticipating and addressing problems the best we can. As we rush into our technological future, don’t think of these sorts of issues as roadblocks, but as a sensible yellow light — telling us to look carefully both ways before we cross an ethical intersection.

Lin makes some important points here, but these closing comments (and his article more generally) have a whiff of “precautionary principle” thinking to it that makes me more than a bit uncomfortable. The precautionary principle generally holds that, because a new idea or technology could pose some theoretical danger or risk in the future, public policies should control or limit the development of such innovations until their creators can prove that they won’t cause any harms. Before we walk down that precautionary path, we need to consider the consequences.

The Problem with Precaution

I have spent a great deal of time writing about the dangers of precautionary principle thinking in my recent articles and essays, including my recent law review article, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” as well as in two lengthy blog posts asking the questions, “Who Really Believes in ‘Permissionless Innovation’?” and “What Does It Mean to ‘Have a Conversation’ about a New Technology?”

The key point I try to get across in those essays is that letting such precautionary thinking guide policy poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity. If public policy is guided at every turn by the precautionary principle, technological innovation is impossible because of fear of the unknown; hypothetical worst-case scenarios trump all other considerations. Social learning and economic opportunities become far less likely, perhaps even impossible, under such a regime. In practical terms, it means fewer services, lower quality goods, higher prices, diminished economic growth, and a decline in the overall standard of living.

In Lin’s essay, we see some precautionary reasoning at work when he argues that “we can foresee the general disruptive effects of a new technology, especially the nearer-term ones, and we should therefore mitigate them” and that we have “responsibility [for] anticipating and addressing problems the best we can.”

To be fair, Lin caveats this by first noting that precise effects are “impossible to predict” and, therefore, that “It would be absurdly paralyzing to follow an ethical principle that we ought to stand down on any action that could have bad butterfly-effects, as any action or inaction could have negative unforeseen and unintended consequences.” Second, as it relates to general effects, he says we should just be “addressing problems the best we can.”

Despite those caveats, I continue to have serious concerns about the potential blurring of ethics and law here. The most obvious question I would have for Lin is: Who is the “we” in this construct?  Is it “we” as individuals and institutions interacting throughout society freely and spontaneously, or is it “we” as in the government imposing precautionary thinking through top-down public policy?

I can imagine plenty of scenarios in which a certain amount of precautionary thinking may be entirely appropriate if applied as an informal ethical norm at the individual, household, organizational or even societal level, but which would not be as sensible if applied as a policy prescription. For example, parents should take steps to shield their kids from truly offensive and hateful material on the Internet before they are mature enough to understand the ramifications of it. But that doesn’t mean it would be wise to enshrine the same principle into law in the form of censorship.

Similarly, there are plenty of smart privacy and security norms that organizations should practice that need not be forced on them by law, especially since such mandates would have serious costs if mandated. For example, I think that organizations should feel a strong obligation to safeguard user data and avoid privacy and security screw-ups. I’d like to see more organizations using encryption wherever they can in their systems and also delete unnecessary data whenever possible. But, for a variety of reasons, I do not believe any of these things should be mandated through law or regulation.

Don’t Foreclose Experimentation

While Lin rightly acknowledges the “negative unforeseen and unintended consequences” of preemptive policy action to address precise concerns, he does not unpack the full ramifications of those unseen consequences. Nor does he answer how the royal “we” separate the “precise” from the “general” concerns? (For example, are the specific issues I just raised in the preceding paragraphs “precise” or “general”? What’s the line between the two?)

But I have a bigger concern with Lin’s argument, as well with the field of technology ethics more generally: We rarely hear much discussion of the benefits associated with the ongoing process of trial-and-error experimentation and, more importantly, the benefits of failure and what we learn — both individually and collectively — from the mistakes we inevitably make.

The problem with regulatory systems is that they are permission-based. They focus on preemptive remedies that aim to forecast the future, and future mistakes (i.e., Lin’s “butterfly effects”) in particular.  Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things — including what we learn from failed efforts at doing things. But we will never discover better ways of doing things unless the process of evolutionary, experimental change is allowed to continue. We need to keep trying and failing in order to learn how we can move forward. As Samuel Beckett once counseled: “Ever tried. Ever failed. No matter. Try Again. Fail again. Fail better.” Real wisdom is born of experience, especially mistakes we make along the way.

This is why I feel so passionately about drawing a distinction between ethical norms and public policy pronouncements.  Law forecloses. It is inflexible. It does not adapt as efficiently or rapidly as social norms do. Ethics and norms provide guidance but also leave plenty of breathing room for ongoing experimentation, and they are refined continuously and in response to ongoing social developments.

It is worth noting that ethics evolve, too. There is a sort of ethical trial-and-error that occurs in society over time as new developments challenge, and then change, old ethical norms. This is another reason we want to be careful about enshrining norms into law.

Thus, policymakers should not be imposing prospective restrictions on new innovations without clear evidence of actual, not merely hypothesized, harm. That’s especially the case since, more often than not, human adapt to new technologies and find creative ways to assimilate even the most disruptive innovations into their lives. We cannot possibly plan for all the “bad butterfly-effects” that might occur, and attempts to do so will result in significant sacrifices in terms of social and economic liberty.

The burden of proof should be on those who advocate preemptive restrictions on technological innovation to show why freedom to tinker and experiment must be foreclosed by policy. There should exist the strongest presumption that the freedom to innovate and experiment will advance human welfare and teach us new and better ways of doing things to overcome most of those “bad butterfly-effects” over time.

So, in closing, let us yield at Lin’s “sensible yellow light — telling us to look carefully both ways before we cross an ethical intersection.” But let us not be cowed into an irrational fear of an unknown and ultimately unknowable future. And let us not be tempted to try to plan for every potential pitfall through preemptive policy prescriptions, lest progress and prosperity get sacrificed as a result of such hubris.

I somehow missed this excellent ITIF paper by Robert D. Atkinson and George Ou when it came out at this point last year, but George has just dusted it off, made a couple of updates, and re-posted it over at the Digital Society blog. Worth reading. It touches on a lot of the same case studies I have been documenting in my ongoing series, “Problems in Public Utility Paradise.”  In particular, it focuses on the UTOPIA and iProvo fiascos out in Utah. Here’s a key takeaway from those case studies:

The lessons learned in Utah is that projected uptake models and deployment plans don’t always come to fruition, and when that happens the consequence is failure.  For UTOPIA, the project was projected to reach 35% uptake rates by February 2008 but the reality was less than 17% uptake.  UTOPIA had also hoped for 17% uptake from lucrative business customers but the reality was only 2 to 3 percent.  Provo County’s iProvo was hoping for 10,000 subscribers by July 2006 with the assumption that 75% of those customers would subscribe to lucrative triple play services, but the reality was 10,000 customers in late 2007 with only 17% of those customers subscribing to triple play.  Many consumers were quite happy to subscribe to existing broadband cable or telecom providers.  The consistent theme in Utah was an overestimation of the uptake rates and the underestimation of competition from incumbent cable operator Comcast and telecom operator Qwest which led to consistent underperformance.

Ouch. For more details, see this old essay of mine about UTOPIA from 2008, and this piece from last Sept about iProvo. Not a pretty picture. As I say every time I pen a piece about the latest muni failure du jour, these case studies should serve as a cautionary tale about the dangers of grandiose, centrally planned broadband schemes. There is no such thing as a free lunch. Network-building is hard, and politicians usually aren’t that good at doing it.

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:

The AppStore is the seductive angel of death for computing. It enables Apple to keep quality up and, more important, to keep support costs down. But a computer that can’t be programmed except by its manufacturer (or with the permission of its manufacturer) isn’t a real computer. The success of the AppStore is a gloomy, scary harbinger. From controlling the apps that can go on its mobile phone, it’s a short step for Apple to decide to control the apps that can go on its rumored slate/netbook device. And since so much of the future of computing will occur on mobiles and netbooks, this portends a serious de-generation of computing, as predicted by Jonathan Zittrain in The Future of the Internet and How to Stop It.

The “angel of death”? A “gloomy, scary harbinger”? Wow, who knew!  In Weinberger’s world, Apple is guilty of the heinous crime of “keep[ing] quality up and, more important, [keeping] support costs down.”  OH MY GOD, how dare they.  Somebody make them stop!  No, seriously, how silly is all this? It’s like those Republicans who, in their zeal to do anything to defeat health care nationalization, decide it’s OK to make up spooky stories about “death panels” hidden deep inside congressional bills.

I find Weinberger’s claim that “a serious de-generation of computing” is looming because of the iPhone to be especially ridiculous. It’s the same sort of rubbish Lessig was spewing in Code when he predicted that AOL’s walled garden model was going to take over the entire cyber-world and ensure “perfect control,” just one of the many things Lessig got wrong in the book.  And it’s the same silliness we see at work in Zittrain’s work when he claims that we’re doomed to live in a world of closed “sterile and tethered” digital technologies and networks. Similarly, last year, Public Knowledge analyst Alex Curtis managed to reach the zenith of this rhetorical insanity when he likened the Apple App Store to an Orwellian Big Brother that was bringing us a “1984 kind of total control.”  You know, because Apple is forcing us all to own iPhones and locking us into re-education camps.  Right.

I Fart, Therefore I Am (Generative)

Which brings me back to the Droid.  If all these dour predictions about the death of digital generativity and the rise of closed networks and walled gardens were true, how in the world does a phone with an open source operating system and a completely open applications process for developers even exist? (Android devices like the Droid don’t require users to rely exclusively on the Android Marketplace for apps; you can run other apps if you like).

Moreover, it’s not just that a remarkably innovative and generative device like the Droid gets widespread release and praise, it’s the fact that there are countless other mobile devices and applications on the market today much like it. On the Zittrainian “generative-vs.-sterile appliance” spectrum, the range of mobile devices just continues to grow and grow in both directions. You can decide exactly what type of device you want.  But here’s the more important point: How much of a difference does it even make how “open” these phones and app stores are?  You’ve got more “closed” systems like Apple’s iPhone and Palm’s Pre on one end of the spectrum and then more “open” systems like the Droid and even many Windows Mobile devices on the other end, but do these competing models really result in many difference in terms of functionality and innovation?  The reality is this: tons of innovation is occurring across all of these devices and platforms regardless of how “open” or “closed” they may be.

For example, when I go to Handango, a terrific mobile application marketplace, and search for “all apps” available for my HTC Touch (which runs a Windows Mobile OS), my senses are assaulted with 6,677 choices.  It’s all a bit overwhelming.  Luckily, a quick search can get me right to the important applications I really need — like the “Pocket Fart” app.  Folks, let me tell you, no “generative” device is worth its salt without a good farting application.  I don’t care how bad of a mood my kids are in, when I fire up a fart app, it puts an instant smile on their faces!

But hey, guess what… that “angel of death,” the iPhone Store, offers fart apps, too!  Dozens and dozens of fart apps, in fact.  In terms of Zittrainian generativity, the iPhone is positively fart-tastic. Just check out that video below. And in addition to those dozens of flatulence apps, the Apple AppStore has another 100,000 apps available for downloading, making it the largest applications store in the world. And back in September, Apple announced that more than two billion apps had been downloaded from the App Store in its short existence. That’s Billion with a “B”.  Does this sound like it “portends a serious de-generation of computing” as Weinberger suggests?  Incidentally, if he’s so frightened that Steve Jobs is the Grim Reaper incarnate he can always go find another phone. Seriously, Steve Jobs doesn’t force anybody to buy one of these expensive toys.

If the iPhone is Good Enough for Zittrain, Why Isn’t It Fine for the Rest of Us?

Incidentally, despite all the fear and loathing about Steve Jobs and the iPhone that one finds in Future of the Internet, I was very entertained to discover that Jonathan Zittrain is an iPhone user himself!  I used some shameless McCarthyite tactics during our debate at New America Foundation last year — “Are you now, or have you ever been, an iPhone user!” — to publicly out him. [Go to the 55:00 minute mark of the video to see.]  But my point to him that day was a serious one: If you so fear the death of generativity because of that little demonic device, than why carry one in your coat pocket?  Why not use a device that lets you break all the rules because it essentially has no rules?  There are multiple open source mobile operating systems and a thriving community of “homebrew” developers. Go spend a few minutes at PCC Geeks or Howard’s Forums and see what I mean.

But the Berkman boys don’t seem content with all that.  And I wouldn’t usually give a damn about the lunacy of these hyper-pessimistic prognostications from the Harvard crew if it was all just harmless cyber-sourpuss ramblings from the ivory tower geeks with too much time on their hands.  But the problem is that these people want regulators to take steps to correct these supposed “code failures,” as Lessig calls them.  Zittrain calls for “API neutrality” in his book, which would force net neutrality-like mandates on digital devices. And in a New York Times editorial this summer entitled “Lost in the Cloud,” he made it clear that cloud neutrality regulation was next on the list. [Others are joining that call.] I’ve got a serious problem with that, as I detailed extensively in earlier essays (here and here), and Berin Szoka and I have discussed how these escalating neutrality wars are bound to lead to the digital equivalent of “mutually assured destruction” within the tech community before it’s all over.

Finally, when the Berkman gang, which is the most respected cyberlaw shop in the land, go around casting these debates with terms like “evil” applications and “angels of death,” then I have a serious problem because the game you are playing becomes hazardous to the health of the digital economy.  This poisons the public policy debate by using absurd moralistic rhetoric about something as fundamentally agnostic as digital platforms and protocols.  These things are neither good nor evil; they are just choices.  They represent different ways of promoting innovation.  And we should be happy that our current digital marketplace is offering us a rich mosaic of business models and options that can fill almost any need and fit almost any picky user’s desires.  If that ain’t progress, I don’t what is.