A growing number of conservatives are calling for Big Government censorship of social media speech platforms. Censorship proposals are to conservatives what price controls are to radical leftists: completely outlandish, unworkable, and usually unconstitutional fantasies of controlling things that are ultimately much harder to control than they realize. And the costs of even trying to impose and enforce such extremist controls are always enormous.

Earlier this year, The Wall Street Journal ran a response I wrote to a proposal set forth by columnist Peggy Noonan in which she proposed banning everyone under 18 from all social-media sites (“We Can Protect Children and Keep the Internet Free,” Apr. 15). I expanded upon that letter in an essay here entitled, “Should All Kids Under 18 Be Banned from Social Media?” National Review also recently published an article penned by Christine Rosen in which she also proposes to “Ban Kids from Social Media.” And just this week, Zach Whiting of the Texas Public Policy Foundation published an essay on “Why Texas Should Ban Social Media for Minors.”

I’ll offer a few more thoughts here in addition to what I’ve already said elsewhere. First, here is my response to the Rosen essay. National Review gave me 250 words to respond to her proposal:

While admitting that “law is a blunt instrument for solving complicated social problems,” Christine Rosen (“Keep Them Offline,” June 27) nonetheless downplays the radicalness of her proposal to make all teenagers criminals for accessing the primary media platforms of their generation. She wants us to believe that allowing teens to use social media is the equivalent of letting them operate a vehicle, smoke tobacco, or drink alcohol. This is false equivalence. Being on a social-media site is not the same as operating two tons of steel and glass at speed or using mind-altering substances. Teens certainly face challenges and risks in any new media environment, but to believe that complex social pathologies did not exist before the Internet is folly. Echoing the same “lost generation” claims made by past critics who panicked over comic books and video games, Rosen asks, “Can we afford to lose another generation of children?” and suggests that only sweeping nanny-state controls can save the day. This cycle is apparently endless: Those “lost generations” grow up fine, only to claim it’s the  next generation that is doomed! Rosen casually dismisses free-speech concerns associated with mass-media criminalization, saying that her plan “would not require censorship.” Nothing could be further from the truth. Rosen’s prohibitionist proposal would deny teens the many routine and mostly beneficial interactions they have with their peers online every day. While she belittles media literacy and other educational and empowerment-based solutions to online problems, those approaches continue to be a better response than the repressive regulatory regime she would have Big Government impose on society.

I have a few more things to say beyond these brief comments.

First, as I alluded to in my short response to Rosen, we’ve heard similar “lost generation” stories before. Rosen might as well be channeling the ghost of Dr. Fredric Wertham (author of Seduction of the Innocent), who in the 1950s declared comics books a public health menace and lobbied lawmakers to restrict teen access to them, insisting such comics were “the cause of a psychological mutilation of children.” The same sort of “lost generation” predictions were commonplace in countless anti-video game screeds of the 1990s. Critics were writing books with titles like Stop Teaching Our Kids to Kill and referring to video games as “murder simulators,” Ironically, just as the video game panic was heating up, juvenile crime rates were plummeting. But that didn’t stop the pundits and policymakers from suggesting that an entire generation of so-called “vidiots” were headed for disaster. (See my 2019 short history: “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics“).

It is consistently astonishing to me how, as I noted in 2012 essay, “We Always Sell the Next Generation Short.” There seems to be a never-ending cycle of generational mistrust. “There has probably never been a generation since the Paleolithic that did not deplore the fecklessness of the next and worship a golden memory of the past,” notes Matt Ridley, author of The Rational Optimist.

For example, in 1948, the poet T. S. Eliot declared: “We can assert with some confidence that our own period is one of decline; that the standards of culture are lower than they were fifty years ago; and that the evidences of this decline are visible in every department of human activity.” We’ve heard parents (and policymakers) make similar claims about every generation since then.

What’s going on here? Why does this cycle of generational pessimism and mistrust persist? In a 1992 journal article, the late journalism professor Margaret A. Blanchard offered this explanation:

“[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.”

In a 2009 book on culture, my colleague Tyler Cowen also noted how, “Parents, who are entrusted with human lives of their own making, bring their dearest feelings, years of time, and many thousands of dollars to their childrearing efforts.” Unsurprisingly, therefore, “they will react with extreme vigor against forces that counteract such an important part of their life program.” This explains why “the very same individuals tend to adopt cultural optimism when they are young, and cultural pessimism once they have children,” Cowen says.

Building on Blanchard and Cowen’s observation, I have explained how the most simple explanation for this phenomenon is that many parents and cultural critics have passed through their “adventure window.” The willingness of humans to try new things and experiment with new forms of culture—our “adventure window”—fades rapidly after certain key points in life, as we gradually settle in our ways. As the English satirist Douglas Adams once humorously noted: “Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you’re thirty-five is against the natural order of things.”

There is no doubt social media can create or exacerbate certain social pathologies among youth. But pro-censorship conservatives wants to take the easy way out with a Big Government media ban for the ages.

Ultimately, it’s a solution that will not be effective. Raising children and mentoring youth is certainly the hardest task we face as adults because simple solutions rarely exist to complex human challenges–and the issues kids face are often particularly hard for many parents and adults to grapple with because we often fail to fully understand both the unique issues each generation might face, and we definitely fail to fully grasp the nature of each new medium that youth embrace.  Simplistic solution–even proposals for outright bans–will not work or solve serious problems.

An outright government ban on online platforms or digital devices is likely never going to happen due to First Amendment constraints, but even ignoring the jurisprudential barriers, bans won’t work for a reason that these conservatives never bother considering: Many parents will help their kids get access to those technologies and to evade restrictions on their use. Countless parents already do so in violation of COPPA rules, and not just because they worry that their kid won’t have access to what some other kids have. Rather, many parents (like me) both wanted to make sure I could more easily communicate with them, and also ensure that they could enjoy those technologies and use them to explore the world.

These conservatives might think some parents like me are monsters for allowing my (now grown) children to get on social media when they were teens. I wasn’t blind to the challenges, but recognized that sticking one’s head in the ground or hoping for divine intervention from the Nanny State was impractical and unwise. The hardest conversations I ever had with my kids were about the ugliness they sometimes experienced online, but those conversations were also countered by the many joys that I knew online interactions brought them. Shall I tell you about everything my son learned online before 13 about building model rockets or soapbox derby cars? Or the countless sites my daughter visited gathering ideas for her arts and crafts projects when, before the age of 13, she started hand-painting and selling jean jackets (eventually prompting her to pursue an art school degree)? Again, as I noted in my National Review response, Rosen’s prohibitionist proposal would deny teens these experiences and the countless other routine and entirely beneficial interactions that they have with their peers online every day.

There is simply no substitute for talking to your kids in the most open, understanding, and loving fashion possible. My #1 priority with my own children was not foreclosing all the new digital media platforms and devices at their disposal. That was going to be almost impossible. Other approaches are needed.

Yes, of course, the world can be an ugly place. I mean, have you ever watched the nightly news on television? It’s damn ugly. Shouldn’t we block youth access to it when scenes of war and violence are shown? Newspapers are full of ugliness, too. Should a kid be allowed to see the front page of the paper when it discusses or shows the aftermath of school shootings, acts of terrorism, or even just natural disasters? I could go on, but you get the point. And you could try to claim that somehow today’s social media environment is significantly worse for kids than the mass media of old, but you cannot prove it.

Of course you’ll have anecdotes, and many of them will again point to complex social pathologies. But I have entire shelves full of books on my office wall that made similar claims about the effects of books, the telephone, radio and television, comics, cable TV, every musical medium ever, video games, and advertising efforts across all these mediums. Hundreds upon hundreds of studies were done over the past half century about the effects of depictions of violence in movies, television, and video games. And endless court battles ensued.

In the end, nothing came out of it because the literature was inconclusive and frequently contradictory. After many years of panicking about youth and media violence, in 2020, the American Psychological Association issued a new statement slowly reversing course on misguided past statements about video games and acts of real-world violence. The APA’s old statement said that evidence “confirms [the] link between playing violent video games and aggression.”  But the APA has come around and now says that, “there is insufficient scientific evidence to support a causal link between violent video games and violent behavior.” More specifically, the APA now says: “Violence is a complex social problem that likely stems from many factors that warrant attention from researchers, policy makers and the public. Attributing violence to violent video gaming is not scientifically sound and draws attention away from other factors.”

This is exactly what we should expect to find true for youth and social media. Most of the serious scholars in the field already note studies and findings about youth and social media must be carefully evaluated and that many other factors need to be considered whenever evaluating claims about complex social phenomenon.

While Rosen belittles media literacy and other educational and empowerment-based solutions to online problems, those approaches continue to represent the best first-order response when compared to the repressive regulatory regime she would impose on society.

Finally, I want to just reiterate what I said in my brief  National Review response about the enormous challenges associated with mass criminalization or speech platforms. Rosen seems to image that all the costs and controversies will lie on the supply-side of social media. Just call for a ban and then magically all kids disappear from social media and the big evil tech capitalists eat all the costs and hassles. Nonsense. It’s the demand-side of criminalization efforts where the most serious costs lie. What do you really think kids are going to do if Uncle Sam suddenly does ban everyone under 18 from going on a “social media site,” whatever that very broad term entails? This will become another sad chapter in the history of Big Government prohibitionist efforts that fail miserably, but not before declaring mass groups of people criminals–this time including everyone under 18–and then trying to throw the book at them when they seek to avoid those repressive controls. There are better ways to address these problems than with such extremist proposals.

Additional Reading from Adam Thierer on Media & Content Regulation :

• “Should All Kids Under 18 Be Banned from Social Media?”
• “Why Do We Always Sell the Next Generation Short?”
• “The APA’s Welcome New Statement on Video Game Violence“
• “Video Games and Moral Panic“
• Parental Controls & Online Child Protection: A Survey of Tools & Methods, 4th Edition.
• “Technopanics and the Great Social Networking Scare“
• “More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime“
• “Video Games, Media Violence & the Cathartic Effect Hypothesis.”)
• “The Classical Liberal Approach to Digital Media Free Speech Issues“
• “Left and right take aim at Big Tech — and the First Amendment“
• “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“
• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Conservatives & Common Carriage: Contradictions & Challenges“
• “The Great Deplatforming of 2021“
• “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School, 15 CommLaw Conspectus (Summer 2007): 431-482.
• Testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, March 3, 2010.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,”

Last week, science writer Michael Shermer tweeted out this old xkcd comic strip that I had somehow missed before. Shermer noted that it represented, “another reply to pessimists bemoaning modern technologies as soul-crushing and isolating.” Similarly, there’s this meme that has been making the rounds on Twitter and which jokes about how newspapers made us as antisocial in the past much as newer technologies supposedly do today.

Isolation and inattention panics are some of the most common “fear cycles” that we have seen repeatedly play out through the ages. Indeed, sociologist Frank Furedi reminds us that panics over isolation, distraction, or inattention have been quite common. Consistent with that xkcd comic, Furedi has documented how “inattention has served as a sublimated focus for apprehensions about moral authority” going back to at least the early 1700s and continuing on through the next two centuries. During those years, he notes:

Inattention was increasingly perceived as an obstacle to the socialisation of young people. Countering the habit of inattention among children and young people became the central concern of pedagogy in the 18th century […]  During the 19th century, the state of inattention became thoroughly moralised. Inattentiveness was perceived as a threat to industrial progress, scientific advance and prosperity.

Today, however, the panic over inattention has ramped up, Furedi argues:

Unlike in the 18th century when it was perceived as abnormal, today inattention is often presented as the normal state. The current era is frequently characterised as the Age of Distraction, and inattention is no longer depicted as a condition that afflicts a few. Nowadays, the erosion of humanity’s capacity for attention is portrayed as an existential problem, linked with the allegedly corrosive effects of digitally driven streams of information relentlessly flowing our way.

While I generally agree these panics are overblown, one must also admit that there is some degree of truth to  all of them in the sense that each new technology presents us with some added level of potential distraction. And today we have more of those potential distractions than ever before. So, something’s gotta give, right?

“What information consumes is rather obvious,” Nobel Prize-winning economist and psychologist Herbert Simon remarked in 1971: “the attention of its recipients. Hence a wealth of information creates a poverty of attention, and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.” Almost a half century later, we are confronted with a “wealth of information” that Simon could not have imagined, and that’s what has many critics worried about the potentially socially-destructive consequences of new technologies.

But social critics who write about this supposed “poverty of attention” problem have taken matters to the extreme and concocted some entertaining rhetorical ploys in an attempt to one-up each other on the panic meter. In a 2005 book, I discussed dozens of colorful book and article titles and terms like: “information overload;” “cognitive overload;” “information anxiety;” “information fatigue syndrome;” “information paralysis;” “techno-stress;” “information pollution;” “data smog;” and even “data asphyxiation.”

And that was all pre-Facebook and pre-Twitter! A dozen years later, this isolation-is-killing-us theme is becoming even more prevalent in books and articles. There are far to many books of this ilk to list here, but a quick sampling of the most popular ones would include: Nick Carr ( The Shallows), Franklin Foer (World Without Mind), Maggie Jackson (Distracted), Sherry Turkle (Alone Together), Eli Pariser (The Filter Bubble), John Freeman (The Tyranny of E-Mail), and Cass Sunstein (Republic.com), among many others. I have an entire bookshelf in my office filled with nothing but books of this variety, all penned over just the past 20 years.

Perhaps the sheer volume of panicky tracts suggests that there must be something to these fears. Let’s be clear: isolation, distraction, or inattention  are problems. But to some extent, these are problems that have always been with us and are not going away any time soon.

Social critics and cranky intellectuals love to complain about new technologies, and that’s never going to end. The best of that criticism will incorporate practical strategies for living a better life and suggest steps for how we all can find a better balance with the technologies that dominate our lives–today, tomorrow, and on into the future.

Sadly, most critics take a different approach which implicitly suggests we have somehow departed a golden age of living and that only a dystopian hellscape awaits us from here on out (if we’re not already living in it). It’s utter poppycock. As I’ve written before, pastoral myths and public square fantasies about some supposedly glorious but no-lost “good old days” are a lot of fun right up until you realize that the old days were, in fact, eras of abject misery. By almost every meaningful metric, we are better today than we were in the past, and that is probably just as true for things that we don’t have metrics for, including “attentiveness” or “distractability.”

We’d all like to think that people–especially kids–were somehow more attentive, more social, and more civil in the past than they are in today’s seemingly more cluttered, cacophonous, hurly-burly modern era. But there is absolutely no concrete evidence suggesting that is true and, as Furedi shows, there exists plenty of anecdotal evidence that when it comes to inattention, things really haven’t changed that much at all. We can and should strive to do better and find constructive solutions to problems such as these, but we should not go overboard with rhetorical threat inflation about the nature or severity of this problem. Nor should we pursue impractical or highly destructive solutions that would undermine the many other benefits associated with our new technological capabilities.

Ironically, at their very worst, isolation or inattention panics accomplish the exact opposite of what some social critics suggest that they desire. The critics often claim that they are just looking out for the next generation and trying to chart a better path for them. In reality, however, those critics are often just engaging in the same sort of fear-mongering and youth-shaming that countless other generations have before with their “KIDS THESE DAYS!” complaints. It’s always easy for intellectuals to tap into the worst fears of parents and policymakers by suggesting that the younger generation has lost the ability to reason or communicate effectively. And yet, each generation somehow figures out how to muddle through. We are an imperfect species, but we are also a highly resilient one.

Of course, that won’t stop an entirely new generation of critics from panicking about whatever future technology is apparently distracting the next generation to death. Fear sells and panics get attention. The calmer truths that history teaches us take longer to appreciate.

Additional Reading:

• Is It “Techno-Chauvinist” & “Anti-Humanist” to Believe in the Transformative Potential of Technology? (9/18/18)
• How to Sell a Book about Tech Policy: Turn the Technopanic Dial Up to 11 (1/2/18)
• What a 1911 Silent Movie Tells Us about the Technopanic Mentality (6/21/17)
• Regarding the Use of Apocalyptic Rhetoric in Policy Debates (10/29/14)
• Muddling Through: How We Learn to Cope with Technological Change (6/14/14)
• The Problem with “Pessimism Porn” (5/23/14)
• BOOK: “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom”
• What Does It Mean to “Have a Conversation” about a New Technology? (5/23/13)
• paper: Technopanics, Threat Inflation & an Info-Tech Precautionary Principle (2/28/12)
• Why Do We Always Sell the Next Generation Short? (Forbes, 1/8/12)
• On Nostalgia (12/28/11)

On Sunday night, 60 Minutes aired a feature with the ominous title, “Nobody’s Safe on the Internet,” that focused on connected car hacking and Internet of Things (IoT) device security. It was followed yesterday morning by the release of a new report from the office of Senator Edward J. Markey (D-Mass) called Tracking & Hacking: Security & Privacy Gaps Put American Drivers at Risk,  which focused on connected car security and privacy issues. Employing more than a bit of techno-panic flare, these reports basically suggest that we’re all doomed.

On 60 Minutes, we meet former game developer turned Department of Defense “cyber warrior” Dan (“call me DARPA Dan”) Kaufman–and learn his fears of the future: “Today, all the devices that are on the Internet [and] the ‘Internet of Things’ are fundamentally insecure. There is no real security going on. Connected homes could be hacked and taken over.”

60 Minutes reporter Lesley Stahl, for her part, is aghast. “So if somebody got into my refrigerator,” she ventures, “through the internet, then they would be able to get into everything, right?” Replies DARPA Dan, “Yeah, that’s the fear.” Prankish hackers could make your milk go bad, or hack into your garage door opener, or even your car.

This segues to a humorous segment wherein Stahl takes a networked car for a spin. DARPA Dan and his multiple research teams have been hard at work remotely programming this vehicle for years. A “hacker” on DARPA Dan’s team proceeded to torment poor Lesley with automatic windshield wiping, rude and random beeps, and other hijinks. “Oh my word!” exclaims Stahl.

Never mind that we are told that the “hackers” who “hacked” into this car had been directly working on its systems for years—a luxury scarcely available to the shadowy malicious hackers about whom DARPA Dan and his team so hoped to frighten us. The careful setup, editing, and Lesley Stahl’s squeals made for convincing theater.

Then there’s the Markey report. On the surface, the findings appear grim. For instance, we are warned that “Nearly 100% of cars on the market include wireless technologies that could pose vulnerabilities to hacking or privacy intrusions.” Nearly 100%? We’re practically naked out there! But digging through the report, we learn that the basis for this claim is that most of the 16 manufacturers surveyed responded that 100% of their vehicles are equipped with wireless entry points (WEPs)—like Bluetooth, Wi-Fi, navigation, and anti-theft features. Because these features “could pose vulnerabilities,” they are listed as a threat—one that lurks in nearly 100% of the cars on the market, at that.

Much of the report is similarly panicky and sometimes humorous (complaint #3: “many manufacturers did not seem to understand the questions posed by Senator Markey.”) The report concludes that the “alarmingly inconsistent and incomplete state of industry security and privacy practice,” warrants recommendations that federal regulators — led by the National Highway Traffic Safety Administration (NHTSA) and the Federal Trade Commission (FTC) — “promulgate new standards that will protect the data, security and privacy of drivers in the modern age of increasingly connected vehicles.”

Take a Deep Breath

As we face an uncertain future full of rapidly-evolving technologies, it’s only natural that some might feel a little anxiety about how these new machines and devices operate. Despite the exaggerated and sometimes silly nature of techno-panic reports like these, they reflect many people’s real and understandable concerns about new technologies.

But the problem with these reports is that they embody a “panic-first” approach to digital security and privacy issues. It is certainly true that our cars are become rolling computers, complete with an arsenal of sensors and networking technologies, and the rise of the Internet of Things means almost everything we own or come into contact with will possess networking capabilities. Consequently, just as our current generation of computing and communications technologies are vulnerable to some forms of hacking, it is likely that our cars and IoT devices will be as well.

But don’t you think that automakers and IoT developers know that? Are we really to believe that journalists, congressmen, and DARPA Dan have a greater incentive to understand these issues than the manufacturers whose companies and livelihoods are on the line? And wouldn’t these manufacturers only take on these risks if consumer demand and expected value supported them? Watching the 60 Minutes spot and reading through the Markey report, one is led to think that innovators in this space are completely oblivious to these threats, simply don’t care enough to address them, and don’t have any plans in motion. But that is lunacy.

No Mention of Liability?

To begin, neither report even mentions the possibility of massive liability for future hacking attacks on connected cars or IoT devices. That is amazing considering how the auto industry already attracts an absolutely astonishing amount of litigation activity. (Ambulance-chasing is a full-time legal profession, after all.) Thus, to the extent that some automakers don’t want to talk about everything they are doing to address security issues, it’s likely because they are still figuring out how to address the various vulnerabilities out there without attracting the attention of either enterprising hackers or trial lawyers.

Nonetheless, contrary to the absurd statement by Mr. Kaufman that “There is no real security going on” for connected cars or the Internet of Things, the reality is that these are issues that developers are actively studying and trying to address. Manufacturers of connected devices know that: (1) nobody wants to own or use devices that are fundamentally insecure or dangerous; and (2) if they sell such devices to the public, they are in for a world of hurt once the trial lawyers see the first headlines about it.

It also still quite unclear how big the threat is here. Writing over at Forbes yesterday, Doug Newcomb notes that “the threat of car hacking has largely been overblown by the media – there’s been only one case of a malicious car hack, and that was an inside job by a disgruntled former car dealer employee. But it’s a surefire way to get the attention of the public and policymakers,” he correctly observes. Newcomb also interviewed Damon McCoy, an assistant professor of computer science at George Mason University and a car security researcher, who noted that car hacking hasn’t become prevalent and that “Given the [monetary] motivation of most hackers, the chance of [automotive hacking] is very low.”

Security is a Dynamic, Evolving Process

Regardless, the notion that we can just clean this whole device security situation up with a single set of federal standards, as the Markey report suggests, is appealing but fanciful. “Security threats are constantly changing and can never be holistically accounted for through even the most sophisticated flowcharts,” observed my Mercatus Center colleagues Eli Dourado and Andrea Castillo in their recent white paper on “Why the Cybersecurity Framework Will Make Us Less Secure.” “By prioritizing a set of rigid, centrally designed standards, policymakers are neglecting potent threats that are not yet on their radar,” Dourado and Castillo note elsewhere.

We are at the beginning of a long process. There is no final destination when it comes to security; it’s a never-ending process of devising and refining policies to address vulnerabilities on the fly. The complex problem of cybersecurity readiness requires dynamic solutions that properly align incentives, improve communication and collaboration, and encourage good personal and organizational stewardship of connected systems. Implementing the brittle bureaucratic standards that Markey and others propose could have the tragic unintended consequence of rendering our devices even less secure.

Standards Are Developing Rapidly

Meanwhile, the auto industry has already come up with privacy standards that go above and beyond what most other digital innovators apply to their own products today. Here are the Auto Alliance’s “Consumer Privacy Protection Principles: Privacy Principles for Vehicle Technologies and Services,” which 23 major automobile manufacturers agreed to abide by. And, according to a press release yesterday, “automakers are currently working to establish an Information Sharing Analysis Center (or “Auto-ISAC”) for sharing vehicle cybersecurity information among industry stakeholders.”

Again, progress continues and standards are evolving. This needs to be a flexible, evolutionary process, instead of a static, top-down, one-size-fits-all bureaucratic political proceeding.

We can’t set down security and privacy standards in stone for fast-moving technologies like these for another reason, and one I am constantly stressing in my work on “Why Permissionless Innovation Matters.” If we spend all our time worrying about hypothetical worst-case scenarios — and basing our policy interventions on a parade of hypothetical horribles — then we run the risk that best-case scenarios will never come about.  As analysts at the Center for Data Innovation correctly argue, policymakers should only intervene to address specific, demonstrated harms. “Attempting to erect precautionary regulatory barriers for purely speculative concerns is not only unproductive, but it can discourage future beneficial applications of the Internet of Things.” And the same is true for connected cars.

Trade-Offs Matter

Technopanic indulgence isn’t always merely silly or annoying—it can be deadly.

“During the four deadliest wars the United States fought in the 20th century, 39 percent more Americans were dying in motor vehicles” than on the battlefield. So writes Washington Post reporter Matt McFarland in a powerful new post today. The ongoing toll associated with human error behind the wheel is falling but remains absolutely staggering, with almost 100 people losing their lives and almost 6,500 people injured every day.

We must never fail to appreciate the trade-offs at work when we are pondering precautionary regulation. Ryan Hagemann and I wrote about these issues in our recent Mercatus Center working paper, “Removing Roadblocks to Intelligent Vehicles and Driverless Cars.” That paper, which has been accepted for publication in a forthcoming edition of the Wake Forest Journal of Law & Policy, outlines the many benefits of autonomous or semi-autonomous systems and discusses the potential cost of delaying their widespread adoption.

When it comes to the various security, privacy, and ethical considerations related to intelligent vehicles, Hagemann and I argue that they “need to be evaluated against the backdrop of the current state of affairs, in which tens of thousands of people die each year in auto-related accidents due to human error.” We continue on later in the paper:

Autonomous vehicles are unlikely to create 100 percent safe, crash-free roadways, but if they significantly decrease the number of people killed or injured as a result of human error, then we can comfortably suggest that the implications of the technology, as a whole, are a boon to society. The ethical underpinnings of what makes for good software design and computer-generated responses are a difficult and philosophically robust space for discussion. Given the abstract nature of the intersection of ethics and robotics, a more detailed consideration and analysis of this space must be left for future research. Important work is currently being done on this subject. But those ethical considerations must not derail ongoing experimentation with intelligent-vehicle technology, which could save many lives and have many other benefits, as already noted. Only through ongoing experimentation and feedback mechanisms can we expect to see constant improvement in how autonomous vehicles respond in these situations to further minimize the potential for accidents and harms. (p. 42-3)

As I noted here in another recent essay, “anything we can do to reduce it significantly is something we need to be pursuing with great vigor, even while we continue to sort through some of those challenging ethical issues associated with automated systems and algorithms.”

No Mention of Alternative Solutions

Finally, it is troubling that neither the 60 Minutes segment nor the Markey report spend any time on alternative solutions to these problems. In my forthcoming law review article, “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation,” I devote the second half of the 90-page paper to constructive solutions to the sort of complex challenges raised in the 60 Minutes segment and the Markey report.

Many of the solutions I discuss in that paper — such as education and awareness-building efforts, empowerment solutions, the development of new social norms, and so on – aren’t even touched on by the reports. That’s a real shame because those methods could go a long way toward helping to alleviate many of the issues the reports identify.

We need a better public dialogue than this about the future of connected cars and Internet of Things security. Political scare tactics and techno-panic journalism are not going to help make the world a safer place. In fact, by whipping up a panic and potentially discouraging innovation, reports such as these can actually serve to prevent critical, life-saving technologies that could change society for the better.

Additional Reading

• Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation, January 15, 2015.
• Muddling Through: How We Learn to Cope with Technological Change, June 30, 2014
• Law review article: “Removing Roadblocks to Intelligent Vehicles and Driverless Cars,” September 17, 2014.
• Law review article: “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation.”
• Ongoing blog series: Moral Panics & Technopanics
• Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom (2014)
• Slide Presentation: Policy Issues Surrounding the Internet of Things & Wearable Technology, September 12, 2014
• [Video] Cap Hill Briefing on Emerging Tech Policy Issues (June 2014)
• The Growing Conflict of Visions over the Internet of Things & Privacy, January 14, 2012
• Can We Adapt to the Internet of Things? IAPP Privacy Perspectives, June 19, 2013
• My Filing to the FTC in its ‘Internet of Things’ Proceeding, May 31, 2013

California’s continuing effort to make the Internet their own digital fiefdom continued this week with Gov. Jerry Brown signed legislation that creates an online “Eraser Button” just for minors. The law isn’t quite as sweeping as the seriously misguided “right to be forgotten” notion I’ve critique here (1, 2, 3, 4) and elsewhere (5, 6) before. In any event, the new California law will:

require the operator of an Internet Web site, online service, online application, or mobile application to permit a minor, who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application, to remove, or to request and obtain removal of, content or information posted on the operator’s Internet Web site, service, or application by the minor, unless the content or information was posted by a 3rd party, any other provision of state or federal law requires the operator or 3rd party to maintain the content or information, or the operator anonymizes the content or information. The bill would require the operator to provide notice to a minor that the minor may remove the content or information, as specified.

As always, the very best of intentions motivate this proposal. There’s no doubt that some digital footprints left online by minors could come back to haunt them in the future, and that concern for their future reputation and privacy is the primary motivation for the measure. Alas, noble-minded laws like these often lead to many unintended consequences, and even some thorny constitutional issues. I’d be hard-pressed to do a better job of itemizing those potential problems than Eric Goldman, of Santa Clara University School of Law, and Stephen Balkam, Founder and CEO of the Family Online Safety Institute, have done in recent essays on the issue.

Goldman’s latest essay in Forbes argues that “California’s New ‘Online Eraser’ Law Should Be Erased” and meticulously documents the many problems with the law. “The law is riddled with ambiguities,” Goldman argues, including the fact that:

First, it may not be clear when a website/app is “directed” to teens rather than adults. The federal law protecting kids’ privacy (Children’s Online Privacy Protection Act, or COPPA) only applies to pre-teens, so this will be a new legal analysis for most websites and apps. Second, the law is unclear about when the minor can exercise the removal right. Must the choice be made while the user is still a minor, or can a centenarian decide to remove posts that are over 8 decades old? I think the more natural reading of the statute is that the removal right only applies while the user is still a minor. If that’s right, the law would counterproductively require kids to make an “adult” decision (what content do they want to stand behind for the rest of their lives) when they are still kids. Third, the removal right doesn’t apply if the kids were paid or received “other consideration” for their content. What does “other consideration” mean in this context? If the marketing and distribution inherently provided by a user-generated content (UGC) website is enough, the law will almost never apply. Perhaps we’ll see websites/apps offering nominal compensation to users to bypass the law.

Goldman also notes that it is unclear why California should even have the right to be regulating the Internet in this fashion. It is his opinion that, “states categorically lack authority to regulate the Internet because the Internet is a borderless electronic network, and websites/apps typically cannot make their electronic packets honor state borders.” I’ve been moving in that direction for the past decade myself since patchwork policies for the Internet — regardless of the issue — can really muck up the free flow of both speech and commerce. I teased out my own concerns about this in my January essay on “The Perils of Parochial Privacy Policies” and argued that the a world of “50 state Internet Bureaus isn’t likely to help the digital economy or serve the long-term interests of consumers.”  Sadly, some privacy advocates seem to be cheering on this sort of parochial regulation anyway without thinking through those consequences. They are probably just happy to have another privacy law on the books, but as I always try to point out not just in this context but also in debates over online child safety, cybersecurity, and digital copyright protection, the ends rarely justify the means. I just don’t understand why more people who care about true Internet freedom aren’t railing against these stepped-up state efforts (especially the flurry of California activity) and calling it out for the threat that it is.

In an essay over on LinkedIn entitled, “Let’s Delete The ‘Eraser Button,'” Stephen Balkam points out another mystery about the new California law: “It’s unclear why this law was even proposed when there exists a range of robust reporting mechanism across the Internet landscape.” Indeed, in this particular case it seems like much of the law is redundant and unnecessary. “What this bill should have been about is education and awareness, about taking responsibility for our actions and using the tools that already exist across the social media landscape,” Balkam says. “Here are three key actions that can already be taken:

Delete – you can take down or delete postings, comments and photos that you have put up on Facebook, Twitter, YouTube and most of the other platforms. Report – anyone can report abusive comments or inappropriate content by others about you or other people and, in many cases, have them removed. Request – you can ask that you be untagged from a photo or that a posting or photo be removed that has been uploaded by someone else. In addition there are in-line privacy settings on many of the leading social media sites, so that you or your teen can choose who sees what.”

Balkam is exactly right. The tools are already there; it’s the education and awareness that are lacking. As I have pointed out countless times here before, there is no need for preemptive regulatory approaches when less-restrictive and potentially equally effective remedies already exist. We just need to do a better job informing users about the existence of those tools and methods and then explain how to take advantage of them. Just adding more layers of law — especially parochial regulation — is not going to make that happen magically. Worse yet, in the process, such laws open the barn door to far more creative and meddlesome forms of state-based Internet regulation that should concern us all.

And now for the really interesting question that I have no answer to: Will anyone step up and challenge this law in court?

Timothy B. Lee, founder of The Washington Post’s blog The Switch discusses his approach to reporting at the intersection of technology and policy. He covers how to make tech concepts more accessible; the difference between blogs and the news; the importance of investigative journalism in the tech space; whether paywalls are here to stay; Jeff Bezos’ recent purchase of The Washington Post; and the future of print news.

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I liked the title of this new Cecilia Kang article in the Washington Post: “In Silicon Valley, Fast Firms and Slow Regulators.” Kang notes:

As federal regulators launch fresh ­investigations into Silicon Valley, their history of drawn-out cases has companies on edge. In taking on an industry that moves at lightening speed, federal officials risk actions that could appear to be too heavy-handed or embarrassingly outdated, some analysts and antitrust experts say.

For example, she cites ongoing regulatory oversight of Microsoft and MySpace, even though both companies have fallen from the earlier King of the Hill status in their respective fields. Kang notes that some “want the government to aggressively pursue abusive practices but question whether antitrust laws are too dated to rein in firms that are continually redefining themselves and using their dominance in one arena to press into others.”

Simply put, antitrust can’t keep up with an economy built on Moore’s Law, which refers to the rule of thumb that the processing power of computers doubles roughly every 18 months while prices remain fairly constant. This issue has been the topic of several of my Forbes columns over the past year, as well as several other essays I’ve written here and elsewhere. [See the list at bottom of this essay.]  Moore’s Law has been a relentless regulator of markets and has helped keep the power of “tech titans” in check better than any Beltway regulator ever could. As I noted here before in my essay, “Antitrust & Innovation in the New Economy: The Problem with the Static Equilibrium Mindset“:

modern tech markets are highly dynamic. There is no static end-state, “perfect competition,” or “market equilibrium” in today’s information technology marketplace. Change and innovation are chaotic, non-linear, and paradigm-shattering. Schumpeter said it best long ago when he noted how, “in capitalist reality as distinguished from its textbook picture, it is not [perfect] competition which counts but the competition from the new commodity, the new technology, the new source of supply, the new type of organization… competition which commands a decisive cost or quality advantage and which strikes not at the margins of the profits and the outputs of the existing firms but at their foundations and their very lives. This kind of competition is as much more effective than the other,” he argued, because the “ever-present threat” of dynamic, disruptive change “disciplines before it attacks.”

Once we recognize the power of Moore’s Law to naturally regulate markets—and the corresponding danger of leaving Washington’s laws on the books too long—it should be clear why it is essential to align America’s legal and regulatory policies with the realities of modern tech markets. One way policymakers could do so, I argued in this old Forbes essay, is by literally applying the logic of Moore’s Law to all current and future laws and regulations through two simple principles:

• Principle #1 – Every new technology proposal should include a provision sunsetting the law or regulation 18 months after enactment. Policymakers can always reenact the rule if they believe it is still sensible.
• Principle #2 – Reopen all existing technology laws and regulations and reassess their worth. If no compelling reason for their continued existence can be identified and substantiated, those laws or rules should be repealed within 18 months. If a rationale for continuing existing laws and regs can be identified, the rule can be re-implemented and Principle #1 applied to it.

What should be the test for determining when technology laws and regulations are retained? That bar should be fairly high. Conjectural harms and boogeyman scenarios can’t be used in defense of new rules or the reenactment of old ones. Policymakers must conduct a robust cost-benefit analysis of all tech rules and then offer a clear showing of tangible harm or actual market failure before enactment or reenactment of any policy.

Of course, this doesn’t leave much room for antitrust law since it almost never moves that fast. But if you think that there is truth in Kang’s “Fast Firms, Slow Regulators” headline, what option do we have but to largely abandon the effort– especially when Moore’s Law and Schumpeterian “creative destruction” do such a better job of keep markets competitive and innovative?

Of course, some academic and regulatory activists like Columbia’s Tim Wu favor a very different sort of regime based on “agency threats” and a preemptive dismantling of the digital economy through the imposition of a “Separations Principle.” The Separations Principle would divide and strictly quarantine the various elements of the tech world — networks, devices, and content — such that vertical integration would become per se illegal.  That’s certainly one way of dealing with the “Fast Firms, Slow Regulators” problem!  Of course, it would handle that problem by essential decimating much of what makes the digital economy so dynamic and innovative. (I have a new paper coming out shortly that will documented why Wu’s remedy would be such a disaster in practice.)

In any event, it’s good that people are acknowledging that there is a problem here–that antitrust cannot keep pace with the pace of innovation we see in the tech economy–but we must be cautious that this insight does not lead to new or more destructive forms of regulatory adventurism. As I noted in last week’s Forbes column, “The Rule Of Three: The Nature of Competition In The Digital Economy,” there exists a tendency among many to take static snapshots of a sector at any given time and then leap to conclusions about “market power” or “oligopoly.” But competition is a process, not an end-point, and a more sophisticated understanding of the digital economy recognizes how often the borders between sectors are blurred or obliterated by dynamic, disruptive change. Churn is rampant and relentless. Thus, short-term measures of market power are often meaningless since firms can get very big very fast, but they can stumble and fall just as rapidly.

Anyway, if you care to read the very best papers written recently on this topic, you’ll want to check out:

• Geoffrey A. Manne &  Joshua D. Wright, “Innovation and the Limits of Antitrust,” George Mason Law & Economics Research Paper No. 09-54, February 16, 2010.
• J. Gregory Sidak & David J. Teece, “Dynamic Competition in Antitrust Law,” 5 Journal of Competition Law & Economics (2009).
• Thomas Hazlett, David Teece, Leonard Waverman, “Walled Garden Rivalry: The Creation of Mobile Network Ecosystems,” George Mason University Law and Economics Research Paper Series, (November 21, 2011), No. 11-50.
• Bruce Owen, “Antitrust and Vertical Integration in ‘New Economy’ Industries,” Technology Policy Institute (November 2010).
• Daniel F. Spulber, “Unlocking Technology: Antitrust and Innovation,” Journal of Competition Law & Economics, 4(4), 915 (2008).
• Richard Posner, “Antitrust in the New Economy,” 68 ANTITRUST L.J. 925, 927 (2001).
• Jerry Ellig and Daniel Lin, “A Taxonomy of Dynamic Competition Theories,” in Jerry Ellig (ed.), Dynamic Competition and Public Policy: Technology, Innovation, and Antitrust Issues (Cambridge, Cambridge University Press, 2001), 16-44.

Als0 make sure to check out these classic works from ‘Austrian School’ economists:

• Israel Kirzner, Discovery and the Capitalist Process (University of Chicago Press, 1985).
• F.A. Hayek, “Competition as a Discovery Procedure,” in New Studies in Philosophy, Politics, Economics and the History of Ideas (Chicago, IL: University of Chicago Press, 1978).
• Gerald P. O’Driscoll, Jr. & Mario J. Rizzo, “Competition and Discovery,” in The Economics of Time and Ignorance (London: Routledge, 1985, 1996).

Finally, here are a few other essays I have penned on this issue:

• “The Rule Of Three: The Nature of Competition In The Digital Economy,” Forbes, June 29, 2012.
• “Sunsetting Technology Regulation: Applying Moore’s Law to Washington,” Forbes, May 25, 2012.
• “Of “Tech Titans” and Schumpeter’s Vision,” Forbes, August 22, 2011.
• “Bye Bye BlackBerry. How Long Will Apple Last?” Forbes, April 1, 2012.
• “Gary Reback’s Antitrust Love Letter,” Technology Liberation Front, September 20, 2009.
• “What is “Optimal Interoperability”? A Review of Palfrey & Gasser’s’“Interop,’” Technology Liberation Front, June 11, 2012.

In my most recent weekly Forbes column, “Common Sense About Kids, Facebook & The Net,” I consider the wisdom of an online petition that the child safety advocacy group Common Sense Media is pushing, which demands that Facebook give up any thought of letting kids under the age of 13 on the site. “There is absolutely no proof of any meaningful social or educational value of Facebook for children under 13,” their petition insists. “Indeed, there are very legitimate concerns about privacy, as well as its impact on children’s social, emotional, and cognitive development.” Common Sense Media doesn’t offer any evidence to substantiate those claims, but one can sympathize with some of the general worries. Nonetheless, as I argue in my essay:

Common Sense Media’s approach to the issue is short-sighted. Calling for a zero-tolerance, prohibitionist policy toward kids on Facebook (and interactive media more generally) is tantamount to a bury-your-head-in-sand approach to child safety. Again, younger kids are increasingly online, often because their parents allow or even encourage it. To make sure they get online safely and remain safe, we’ll need a different approach than Common Sense Media’s unworkable “just-say-no” model.

Think about it this way: Would it make sense to start a petition demanding that kids be kept out of town squares, public parks, or shopping malls? Most of us would find the suggestion ludicrous. Kids will be present in those environments not just because they want to be but because, more often than not, their parents or guardians want them to be there as well. That doesn’t me we just throw them into those environments and hope for the best. Instead, we assimilate children gradually into these public spaces and use mentoring strategies to make sure they understand how to cope with the challenges they will face. That’s the same approach we should take in the digital age with online public spaces like Facebook.  As my fellow Forbes contributor Joshua Gans rightly notes, “we want children to experience these networks. Put simply, a parental supervised approach is like giving them training wheels for society.” This approach will better prepare our youth for a future in which their online and offline lives are increasingly intertwined. It represents a more sensible use of our personal and public resources since education and mentoring strategies are entirely constitution and avoid the protracted legal battles that would accompany new regulations.

For more, read my entire column.

Imagine the following scenario. The government passes a law that includes regulations governing “transactional consent” for retail commerce. These regulations stipulate how buyers and sellers of various goods shall do business. Some of the rules give the sellers special rights to demand that the stores carry some of their goods as well as rules stipulating that stores not carry the goods of competing sellers from other markets. On the flip side, other preexisting rules give buyers the right to demand that certain sellers deal their goods to them at regulated rates.

Now, it’s true that a contractual negotiation takes place in this “marketplace” governed by “transactional consent” regulations, but does this sound like a truly free market to you? Most of us would say No.

Regrettably, that’s the essential error that the American Conservative Union (ACU) makes in a letter they sent to members of Congress this week in which they made the case against H.R. 3675 and S. 2008, “The Next Generation Television Marketplace Act.” That bill, which is sponsored by Senator Jim DeMint (R-SC) and Rep. Steve Scalise (R-LA), represents a comprehensive attempt to deregulate America’s heavily regulated video marketplace. In a recent Forbes oped, I argued that the DeMint-Scalise effort would take us “Toward a True Free Market in Television Programming” by eliminating a litany of archaic media regulations that should have never been on the books to begin with. The measure would:

• eliminate: “retransmission consent” regulations (rules governing contractual negotiations for content);
• end “must carry” mandates (the requirement that video distributors carry broadcast signals even if they don’t want to);
• repeal “network non-duplication” and “syndicated exclusivity” regulations (rules that prohibit distributors from striking deals with broadcasters outside their local communities);
• end various media ownership regulations; and
• end the compulsory licensing requirements of the Copyright Act of 1976, which essentially forced a “duty to deal” upon content owners to the benefit of video distributors.

Despite these clearly deregulatory provisions, in its letter to Capitol Hill, the ACU argues that the DeMint-Scalise bill would somehow interfere with what they regard as a free market in video programming. The ACU writes:

one of the major outcomes of the bill would be to strip away the negotiation process known as “retransmission consent.”  This process created a marketplace to ensure that broadcasters were compensated by pay-tv providers for the use of their signal and content. In 1992 Congress set up “retransmission consent” — a process by which broadcasters and the pay-tv industry would have to negotiate with each other for the use of the broadcast signal.  This prevented the pay-tv industry’s previous practice of using the signal for free and then profiting from its retransmission by selling the broadcasters’ content as part of their basic service. The programming that is most viewed today is still produced by broadcasting companies.  Broadcasters take risks by investing significant amounts of money into content production and marketing, and should have the right of determining its distribution.

It continues on:

The reality is that today we have a functioning market in which opposing parties are able to bring value to the negotiating table.  By stripping away the right to compensation for the use of the signal the government would be tipping the scales heavily to the side of the pay-tv companies.  It would distort the marketplace and allow an uncompensated use of broadcast signals and content and is certainly not “deregulation.”  So we urge you to oppose the retransmission consent provisions contained in HR 3675 and S 2008.

ACU has mistakenly equated the retransmission consent regulatory process with an actual free market contracting process. The two are not synonymous. Again, there are many layers of red tape that continue to encumber this marketplace and it would be incorrect to claim that the contracting process for video signals today represents a truly free and unfettered marketplace. The government has its thumb on one side of the scales with the retrans, must carry, and out-of-market signal regulations, but government simultaneously has its other thumb on the other side of the scale with the compulsory licensing requirements. And plenty of other regs litter the video landscape.  Thus, contrary to what the ACU claims, (1) a truly free video marketplace does not exist today because, by definition, a truly free marketplace would not be cluttered with so many federal regulations; and (2) the DeMint-Scalise bill absolutely does represent genuine deregulation of this marketplace since it would remove those unnecessary regulations. These are indisputable facts. No contortion of the English language can render them otherwise.

Unsurprisingly, because the ACU has made the mistake of assuming we currently live in a free market nirvana, it makes another error commonly heard in this debate. The ACU claims that an elimination of retransmission consent rules represents the end of free market contracting for video services. Indeed, the ACU’s claim that the DeMint-Scalise bill “would distort the marketplace and allow an uncompensated use of broadcast signals and content” gets it exactly backward. In reality, the DeMint-Scalise bill would end the regulatory policies that actually do currently “distort the marketplace” and then allow a truly free marketplace in video contracting to develop without any regulatory thumb on the scale in either direction.

Most importantly, nothing in this bill forces content creators or broadcasters to deal their content to other distributors. And nothing in the bill gives those other video distributors the right to freely distribute content without the permission of its owners. In sum, the bill does not repeal copyright law — it only repeals the compulsory licensing rules that force content owners to deal their programming against their consent on government regulated terms.  That means copyright is actually strengthened under this bill and that content owners have more bargaining power than they do today. Thus, the ACU is horribly mistaken in asserting that the DeMint-Scalise bill would “allow an uncompensated use of broadcast signals and content.” The exact opposite is the case.

If the ACU wants to make a case against this measure, I would respectfully suggest that they first get their terminology and facts right. And then we can have an honest debate about true video marketplace deregulation–which is exactly what the DeMint-Scalise bill represents.

My thanks to both Maria H. Andersen and Michael Sacasas for their thoughtful responses to my recent Forbes essay on “10 Things Our Kids Will Never Worry About Thanks to the Information Revolution.” They both go point by point through my Top 10 list and offer an alternative way of looking at each of the trends I identify. What their responses share in common is a general unease with the hyper-optimism of my Forbes piece. That’s understandable. Typically in my work on technological “optimism” and “pessimism” — and yes, I admit those labels are overly simplistic — I always try to strike a sensible balance between pollyannism and hyper-pessimism as it pertains to the impact of technological change on our culture and economy. I have called this middle ground position “pragmatic optimism.” In my Forbes essay, however, I was in full-blown pollyanna mode. That doesn’t mean I don’t generally feel very positive about the changes I itemized in that essay, rather, I just didn’t have the space in a 1,000-word column to identify the tradeoffs inherent in each trend. Thus, Andersen and Sacasas are rightfully pushing back against my lack of balance.

But there is a problem with their slightly pessimistic pushback, too. To better explain my own position and respond to Andersen and Sacasas, let me return to the story we hear again and again in discussion about technological change: the well-known allegorical tale from Plato’s Phaedrus about the dangers of the written word. In the tale, the god Theuth comes to King Thamus and boasts of how Theuth’s invention of writing would improve the wisdom and memory of the masses relative to the oral tradition of learning.  King Thamus shot back, “the discoverer of an art is not the best judge of the good or harm which will accrue to those who practice it.”  King Thamus then passed judgment himself about the impact of writing on society, saying he feared that the people “will receive a quantity of information without proper instruction, and in consequence be thought very knowledgeable when they are for the most part quite ignorant.”

After recounting Plato’s allegory in my essay, “Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society,” I noted how this same tension has played out in every subsequent debate about the impact of a new technology on culture, values, morals, language, learning, and so on. It is a never-ending cycle. Now, here’s the interesting thing about that allegory that you will be surprised to hear an optimist like me admit: King Thamus was right! Well, at least partially right. There is little doubt that the invention of writing largely displaced the tradition of oral learning and instruction. Let’s face it, once people knew they could write something down or go back and read a passage from an important text, what was the use in memorizing it? Thus, there was a clear cost associated with the advent of writing and printing: A diminished interest in committing lessons or texts to memory. More profoundly, one might argue this also diminished our cognitive capabilities by requiring less of a mental workout for our brains. Thus, had Nick Carr been around to document the Theuth-Thamus debate, he might have penned a book entitled, “Is Writing Making Us Stupid?” (I’m assuming everyone is aware of Nick’s recent article asking “Is Google Making Us Stupid” and his subsequent book, The Shallows, which discussed “what the Internet is doing to our brains.”) Of course, it would have been a bit ironic for Nick to write it all down, so perhaps he would have just memorized it all and verbally passed his analysis along to descendants and followers!

Anyway, here’s what I am getting at by returning to Plato’s allegory: Technological change forces tradeoffs upon us. It forces sacrifices. There are definitely losses. But, in each case, we must ask two essential questions:

(1) Don’t the benefits of technological change generally outweigh the costs? I think they generally do, and that’s why I tend to side with the optimists more often than not. Sure, we can find plenty of reasons to be nostalgic about the decline of letter-writing, the disappearance of expensive encyclopedias, the end of typing classes, the elimination of phone booths on the corner, the loss of community video stores or record stores, or any of the other things I identified in my Forbes essay. But we should consider the many ways in which those changes have generally benefited society and opened the door to new innovations, new ways of learning and communicating, and new forms of culture and expression.

(2) Even if we are skeptical about the benefits of technological change, what are we going to do about it? Are we going to take steps to slow down technological change? What sort of steps are we talking about? Who makes that call or determines those responses? These are difficult but essential questions. Too many social critics get a free pass when it comes to answering them. This is what always drives me batty when reading the work of Net pessimists like Neil Postman, Lee Siegel, Andrew Keen, Jaron Lanier, etc. These guys excel at the art of the teardown. They can lambast the agents and elements of technological change with immense rhetorical power. At times, even I find their case convincing.  But these critics are horrible when it comes to proposing alternatives or constructive solutions. Often they have none. I believe it is the duty of a good social critic to offer constructive solutions to the problems they identify. One reason they probably don’t offer many is because they are simply afraid to admit that, if they could play God for a day, they probably would roll back the clock and slow or stop many forms of technological change.

The more constructive approach to these challenges comes back to education and empowerment. If we can be mature enough to (a) admit that pessimistic social critics have some valid concerns but that (b) the optimists are right about the benefits typically outweighing the costs, then the logical response is to take steps to educate people about technological change and empower them to deal with it. Other times, however, people simply have to learn how to adapt and be resilient through experimentation and coping strategies. It isn’t easy, of course. But education can help here, too. I’ve spent time trying to educate my father and other older relatives about how to use digital technologies they continue to be very uncomfortable with. I appreciate their concerns about privacy, security, and technological complexity. These are valid concerns or complaints. But these technologies are not going away and I have taken upon myself to help them assimilate the new tools and methods into their lives. I also mentor my children and guide their use of these new information technologies. They are surprisingly good at adapting to their new tools, but we must take to heart the lessons the social critics and pessimists offer about the downsides and dangers of some of those new tools.

As you can sense, my perspective here is very much shaped by the fact that I am, for the most part, a technological determinist. Not a rigid or “hard” tech determinist, but at least a “soft” one.  In a brilliant and highly provocative recently paper, “ Hasta La Vista Privacy, or How Technology Terminated Privacy,” Konstantinos K. Stylianou of the University of Pennsylvania Law School discusses varieties of technological determinism as it pertains to information control and noted:

In-between the two extremes (technology as the defining factor of change and technology as a mere tangent of change) and in a multitude of combinations falls the so called soft determinism; that is, variations of the combined effect of technology on one hand and human choices and actions on the other. (p. 46)

Unfortunately, Stylianou notes, “The scope of soft determinism is unfortunately so broad that is loses all normative value. Encapsulated in the axiom ‘human beings do make their world, but they are also made by it,’ soft determinism is reduced to the self-evident.”  Nonetheless, he argues, “a compromise can be reached by mixing soft and hard determinism in a blend that reserves for technology the predominant role only in limited cases,” since he believes “there are indeed technologies so disruptive by their very nature they cause a certain change regardless of other factors.” (p. 46) He concludes his essay by noting:

it seems reasonable to infer that the thrust behind technological progress is so powerful that it is almost impossible for traditional legislation to catch up. While designing flexible rules may be of help, it also appears that technology has already advanced to the degree that is is able to bypass or manipulate legislation. As a result, the cat-and-mouse chase game between the law and technology will probably always tip in favor of technology. It may thus be a wise choice for the law to stop underestimating the dynamics of technology, and instead adapt to embrace it. (p. 54)

That pretty much sums up where I’m at on most information policy issues and explains why I sound so fatalistic at times. But my soft determinism also explains why I feel it is so important to devise coping strategies to help us through the changes that the information revolution has ushered in and forced upon us. There’s just no putting the digital genie back in the bottle. We can wax nostalgic all we want about those supposedly “good ‘ol days” but they ain’t never coming back. And they weren’t that great anyway!

If this discussion interests you, you might want to read my book chapter from the book The Next Digital Decade, which was entitled, “The Case for Internet Optimism, Part 1: Saving the Net From Its Detractors.”   Oh, and if you don’t already have Michael Sacasas’s blog (The Frailest Thing) at the top of your RSS feed, add it now. Absolutely terrific reading, even when I don’t agree with (or even understand!) all of it.

I’m currently finishing up my next book. It addresses various strands of “Internet pessimism” and attempts to explain why all the gloom and doom theories we hear about the Internet’s impact on modern culture and economy are not generally warranted.  A key theme of my book is that most Internet pessimists overlook the importance of human adaptability in the face of technological change.  The amazing thing about humans is that we adapt so much better than other creatures. We learn how to use the new tools given to us and make them part of our lives and culture. The worst situations often bring out the most creative, innovative solutions. Media critic Jack Shafer has noted that “the techno-apocalypse never comes” because “cultures tend to assimilate and normalize new technology in ways the fretful never anticipate.”

In a cultural sense, humans have again and again adapted to technological change despite the radical disruptions to their lives, mores, manners, and methods of learning. As Aleks Krotoski recently points out in her new Guardian essay, “How the Internet Has Changed Our Concept of What Home Is”:

We are adaptable creatures and will work within the confines of our existing homes to integrate this new creature into our lives. We have already made the web part of our domestic ecologies and we continually imbue it with a sense of place. Perhaps its malleability is why it has been so successful and why we are willing to bring this interruptive technology into our most intimate worlds.

Human adaption also works magic in an economic sense. Entrepreneurs are constantly developing disruptive technologies that transform markets and expand opportunities. Innovators respond to incentives, including short-term spells of excessive “market power.” [More on that in my latest Forbes column, “No One Owns a Techno Crystal Ball.”]

Techno-pessimism and technopanics are born from irrational fears and a failure to appreciate that humans have, many times before, faced and conquered the technological unknown. Simply put, pessimists have very little faith in human ingenuity and resiliency.

The debate over the imposition of sales tax collection obligations on interstate vendors is heating up again at the federal level with the introduction of S. 1452, “The Main Street Fairness Act.” [pdf]  The measure would give congressional blessing to a multistate compact that would let states impose sales taxes on interstate commerce, something usually blocked by the Commerce Clause of the U.S. Constitution.  Senator Dick Durbin (D-IL) introduced the bill in the Senate along with Tim Johnson (D-SD) and Jack Reed (D-RI).  The measure is being sponsored in the House of Representatives by John Conyers (D-MI) and Peter Welch (D-VT). At this time, there are no Republican co-sponsors even though Sen. Mike Enzi was rumored to be a considered co-sponsoring the measure before introduction.

Without any Republicans on board the effort, the measure may not advance very far in Congress. Nonetheless, to the extent the measure gets any traction, it is worth itemizing a few of the problems with this approach. My Mercatus Center colleague Veronique de Rugy and I have done some work on this issue together in the past and we are planning a short new paper on the topic. It will build on this lengthy Cato Institute paper we authored together in 2003, “The Internet Tax Solution: Tax Competition, Not Tax Collusion.” The key principle we set forth was this: “Congress must.. take an affirmative stand against efforts by state and local governments to create a collusive multistate tax compact to tax interstate sales.” “It would be wrong,” we argued, “for members of Congress to abdicate their responsibility to safeguard the national marketplace by giving the states carte blanche to tax interstate commercial activities through a tax compact. The guiding ethic of this debate must remain tax competition, not tax collusion.”

Proponents of simply extending current sales tax collection obligations to interstate sales will claim that the so-called “Streamlined Sales and Use Tax Agreement” (SSTUA) they want Congress to bless has solved the compliance cost and complexity problem associated with taxing “remote” interstate sales. Yet, as I pointed out in my recent Forbes essay, “The Internet Taxman Cometh,” this 200-page “simplification” effort remains a Swiss cheese tax system, however, riddled with loopholes and complexities that could burden vendors, especially mom-and-pop operators. America’s estimated 7,400 local jurisdictions still have many different definitions and exemptions that complicate the sales tax code. For example, is a cookie a “candy,” (which is taxed in most jurisdictions) or a “baked good,” (which is typically tax-exempt)? Thus, forcing online vendors to collect local taxes would create significant burdens on interstate commerce.

This is not to say there aren’t some legitimate tax “fairness” arguments in play here. It really is unfair that “Main Street” vendors are burdened with significant tax collection responsibilities while others are not. But “fairness” cuts many ways. It’s also unfair and unconstitutional to require out-of-state vendors to collect sales taxes on behalf of a jurisdiction where they have no physical presence. After all, at least in theory, those who are taxed should expect to receive some benefit for it. Interstate vendors receive no benefit but bear all the cost.

To the extent we want to “level the playing field,” therefore, one approach is to cut or eliminate sales taxes on in-state vendors. Of course, that’s a tough pill for many states and localities to swallow. If they got their profligate spending habits under control, however, that might be easier.

Another alternative would be the creation of a national Internet sales tax that would avoid the complexity problem by imposing a single rate and set of definitions on all vendors. But that just opens the door to a new federal tax base, which would grow to be burdensome in other ways at a time when American consumers and companies are already over-taxed. I doubt the idea would get much traction in Congress, anyway.

Perhaps the best alternative would be to switch the sourcing methodology for state sales tax collection obligations from destination-based to “origin-based.”  Stated differently, the rule would be “you can tax your own exports, not the imports from other states.” Here’s how Veronique and I summarized an origin-based solution in our old Cato paper:

under an origin-based sourcing rule—also referred to as a “seller state,” “vendor-state,” or “source-based” rule by some scholars—all interstate sales through all channels (traditional stores or cyber-retailers) would be taxed at the point of sale (meaning the company’s “principal place of business”) instead of at the point of destination, if the state or locality chooses to impose a tax. All goods within a given state or locality would be taxed at the locally applicable rate no matter how they were purchased and no matter where they were consumed.  This option would take care of most of the problems posed by the destination-based methodology that is favored by most state and local policymakers today.

Specifically, an origin-based sourcing rule would have the following advantages:

• Minimize the burden on sellers by requiring sellers to know and abide by the tax rates and regulations within their principal place of business instead of the rates and definitions of thousands of different taxing jurisdiction.
• Ensure tax parity between Main Street vendors and interstate sellers.
• Do away with the need for a multistate collection arrangement such as the SSTUA by eliminating any need to trace interstate transactions to the final point of consumption.
• Remove nexus uncertainties and constitutional concerns, because only companies within a state or local government’s borders would be taxed.
• Largely remove any need for continued reliance on the use tax because all transactions would henceforth be sourced to the origin of sale and collected immediately by the vendor at that point.
• Respect buyers’ privacy rights by eliminating the need to collect any special or unique information about a buyer, and  by not using third-party tax collectors to gather information about buyers.
• Respect federalism principles and enhance jurisdictional tax competition  by permitting each state to determine its  own tax policies and encouraging healthy state-by-state tax rivalry.
• Preserve local jurisdictional tax authority where a harmonization proposal like the SSTUA plans would create a de facto national sales tax system and run roughshod over local governments.
• Because it is more politically / constitutionally feasible it may maximize the amount of tax collected for states by making compliance easier and incorporating activities that are currently untaxed.

Please see the old Cato paper for more details and answers to potential objections, but I hope it’s clear why an “origin-based” solution offers a sensible way to break the current logjam and achieve tax “fairness” in the process.

Some states officials will object to the vigorous tax competition spawned by an origin-based sourcing rule. But that’s a feature, not a bug! Tax competition is good for consumers and the continued vitality of American federalism. A multistate tax compact, by contrast, would encourage tax collusion and let states too easily raise rates on interstate sales.

Moreover, I think it bears repeating that state officials have been at this for 15 years and still not found a way to truly simplify their sales taxes and get around constitutional limitations on the taxation of interstate activity. An origin-based system, therefore, may offer them the only way for them to finally tax the Internet and interstate sales.  I’d prefer they scale back their taxing ways, of course, but to the extent they insist on pushing out the boundaries of their tax authority, an origin-based solution — not the “Main Street Tax Fairness Act” — is the only sensible, constitutional way for them to do so.

Two data points in the news over the past 24 hours to consider:

• A new report on “Smartphone Adoption & Usage” by the Pew Internet Project finds that “one third of American adults – 35% – own smartphones” and that of that group “some 87% of smartphone owners access the Internet or email on their handheld” and “25% of smartphone owners say that they mostly go online using their phone, rather than with a computer.”
• According to the Wall Street Journal, the “Average iPhone Owner Will Download 83 Apps This Year.” That’s up from an average of 51 apps downloaded in 2010. (At first I was astonished when I read that, but then realized that I’ve probably downloaded an equal number of apps myself, albeit on an Android-based device.)

As I explain in my latest Forbes column, facts like these help us understand “How iPhones And Androids Ushered In A Smartphone Pricing Revolution.” That is, major wireless carriers are in the process of migrating from flat-rate, “all-you-can-eat” wireless data plans to usage-based plans. The reason is simple economics: data demand is exploding faster than data supply can keep up.

“It’s been four years since the introduction of the iPhone and rival devices that run Google’s Android software,” notes Cecilia Kang of The Washington Post. “In that time, the devices have turned much of America into an always-on, Internet-on-the-go society.” Indeed, but it’s not just the iPhone and Android smartphones. It’s all those tablets that have just come online over the past year, too. We are witnessing a tectonic shift in how humans consume media and information, and we are witnessing this revolution unfold over a very short time frame.

Unsurprisingly, therefore, “unlimited” wireless data plans are probably on the way out since, as I observe in my Forbes piece:

That model created unsustainable network traffic burdens and it’s surprising unlimited plans have lasted this long. With smartphone users increasingly using their mobile devices to access the Internet and consume more cloud-based services and mobile video than ever, the “all you can eat” data buffet eventually had to end.

But critics are far too quick to suggest this is some of nefarious, anti-consumer conspiracy. In reality, I argue:

Tiered and metered pricing schemes are a sensible way to price demand for bandwidth-intensive users and applications and, in the process, alleviate network congestion, encourage new investment, and ensure that average costs for consumers are more reasonable over time.

Using usage data provided by Nielsen, I document the dramatic traffic growth that carriers are struggling to deal with but also show how most average consumers will do better under the new tiered plans. That’s because, even with a significant uptick in wireless data demand, the vast majority of users will not exceed the lowest tier of service (2 GB) that carriers are pricing at $20-$30. That’s less than most of them pay today. Thus:

It’s only the most rapacious mobile data consumers who’ll pay the higher tier prices. Doesn’t it make more sense that the most intensive network users pay more instead of raising average costs for all consumers? Why should minimal data users subsidize the big eaters?

Instead of repeating it all here, I’d just encourage you to bounce over to Forbes to read my entire essay.

The interesting policy question raised by all this is whether critics and policymakers will give network operators the freedom to innovate and employ creative business models so market experimentation can determine which pricing schemes will best calibrate supply and demand while also ensuring optimal network investment. You may recall that usage-based pricing has already become a flashpoint in the Net neutrality wars, and just last Friday I wrote about Netflix’s shameless attempt to get the feds to regulate usage-based pricing on the wireline front.

So, stay tuned. This fight could really heat up. Perhaps it’s time to dust off the old books and papers about how to fight off government price controls!

Related Reading:

• Netflix Falls Prey to Marginal Cost Fallacy & Pleads for a Broadband Free Ride (July 8, 2011)
• Why Congestion Pricing for the iPhone & Broadband Makes Sense (October 7, 2009)
• The (Un)Free Press Calls for Internet Price Controls: “The Broadband Internet Fairness Act” (June 17, 2009)
• Free Press Hypocrisy over Metering & Internet Price Controls (June 18, 2009)
• Once Again, Why Not Meter Broadband Pipes?  (September 7, 2007)
• Why Not Meter? (March 12, 2007)
• The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation (October 27, 2005)

My latest Forbes column notes how “Taxes On Talking Are On the Rise Across the U.S.” with levies on mobile phones and devices skyrocketing.  I build my argument around data and arguments found in Dan Rothschild’s excellent recent Mercatus Center paper, which makes “The Case Against Taxing Cell Phone Subscribers,” as well as an important recent study by Scott Mackey, an economist and partner at KSE Partners LLP, which documents the growing burden of these wireless taxes and fees.

“Wireless users now face a combined federal, state, and local tax and fee burden of 16.3%, a rate two times higher than the average retail sales tax rate and the highest wireless rate since 2005,” Mackey finds. Mobile tax rates range from a high of 23.7% in Nebraska to a low of 6.9% in Oregon.  48 states have an average combined wireless tax rate above 11%.  These burdensome taxes on talking just don’t make any sense, argues Rothschild. “There is no economic justification for these high tax rates: reducing cell phone ownership is not a public policy goal, cell phone use by one customer does not affect other customers or other people, and these taxes fall disproportionately on lower-income households.”

You can read my entire essay here, but also make sure to re-read Dan Rothschild’s guest post here at the TLF on the issue. It’s much better than my own treatment.  For me, the key point is this: If the primary policy goal in this arena is to build out a first-class communications and data infrastructure and make sure all Americans have access to it, discriminatory taxes on wireless services and networks are highly counter-productive. Policymakers should hang up on the Talking Tax.

My latest Forbes column is a celebration of 47 U.S.C. §230, otherwise known as “Section 230.” Sec. 230 turns 15 years old this year and I argue that this important law has “helped foster the abundance of informational riches that lies at our fingertips today” and has served as “the foundation of our Internet freedoms.”  Sadly, however, few people have even heard of it. Worse yet, as I note in my essay, this important law is under attack from various academics and organizations who want it modified to address a variety of online problems. But, as I note:

If the threat of punishing liability is increased, the chilling effect on the free exchange of views and information would likely be quite profound. Many site administrators would immediately start removing massive amounts of content to avoid liability. More simply, they might just shut down any interactive features on their sites or limit service in other ways.

Head over to Forbes to read the rest. And here’s a graphic I put together illustrating all the new fault lines in the war against Sec. 230. It will be included in a new paper on the issue that I am wrapping up right now.

Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas) have released a discussion draft of their forthcoming “Do Not Track Kids Act of 2011.”  I’ve only had a chance to give it a quick read, but the bill, which is intended to help safeguard kids’ privacy online, has two major regulatory provisions of interest:

(1) New regulations aimed at limiting data collection about children and teens, including (a) expansion of the Children’s Online Privacy Protection Act (COPPA) of 1998, which would build upon COPPA’s “verifiable parental consent” model; and (b) a new “Digital Marketing Bill of Rights for Teens;” and (c) limits on collection of geolocation information about both children and teens.

(2) An Internet “Eraser Button” for Kids to help kids wipe out embarrassing facts they have place online but later come to regret.  Specifically, the bill would require online operators “to the extent technologically feasible, to implement mechanisms that permit users of the website, service, or application of the operator to erase or otherwise eliminate content that is publicly available through the website, service, or application and contains or displays personal information of children or minors.” This is loosely modeled on a similar idea currently being considered in the European Union, a so-called “right to be forgotten” online.

Both of these proposals were originally floated by the child safety group Common Sense Media (CSM) in a report released last December.  It’s understandable why some policymakers and child safety advocates like CSM would favor such steps. They fear that there is simply too much information about kids online today or that kids are voluntarily placing far too much personal information online that could come back to haunt them in the future. These are valid concerns, but there are both practical and principled reasons to be worried about the regulatory approach embodied in the Markey-Barton “Do Not Track Kids Act”:

• It is very hard to imagine how most elements of this new “Do Not Track Kids” regulatory regime would work without requiring mandatory online age verification of all websurfers, which would raise serious constitutional issues. Previous efforts to age-verify websurfers (namely, The Child Online Protection Act or COPA) have been found to violate the First Amendment and also to raise different privacy concerns. By contrast, the Children’s Online Privacy Protection Act (COPPA) partially avoided this problem by limiting its coverage to kids 12 and under and did not mandate strict age verification. The Markey-Barton bill seems to imagine that the COPPA regime can simply be expanded without serious constitutional scrutiny (or economic cost, for that matter). The sponsors are wrong. Their bill puts COPPA on a collision course with COPA because it would necessitate expanded age verification in order to be effective.
• An Internet “Eraser Button” is similarly challenged by practical realities and principled concerns. It’s unclear how to even enforce such a notion. Moreover, if it could be enforced, it would raise profound free speech issues since it is tantamount to digital censorship and specifically threatens press freedoms. And the economic costs of such a mandate — especially on smaller operators — could be quite significant. See my recent Forbes essay for a discussion of those problems.
• Although some of the concerns that motivate the “Do Not Track Kids Act” are understandable, there are two very different models for how we might address these problems: ‘Legislate & Regulate’ vs. ‘Educate & Empower.’ The latter is the superior framework for dealing with these concerns in light of the practical and principled problems associated with the former.

I will expand upon these concerns in a follow-up post, but for now I would direct your attention to the 36-page white paper that Berin Szoka and I released two years ago on this topic:”COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.” It explains why this issue is so complicated and raises so many constitutional red flags.

Additional Reading:

on COPA:

• Son of COPA?: H.R. 4059, “The Online Age Verification and Child Safety Act” – by Adam Thierer
• Closing the Book on COPA? – by Adam Thierer
• COPA Struck Down (Part 1): Again! – by Adam Thierer
• COPA Struck Down (Part 2): The Effectiveness of Filtering & Age Verification – by Adam Thierer
• COPA Struck Down (Part 3): Implications for Age Verification & Social Networking – by Adam Thierer

on Eraser Button:

• Erasing Our Past On The Internet – by Adam Thierer [Forbes essay]
• Europe Reimagines Orwell’s Memory Hole – by Larry Downes
• “Privacy” as Censorship: Fleischer Dismantles the EU’s “Right to Forget” – by Berin Szoka
• The Conflict Between a “Right to Be Forgotten” & Speech / Press Freedoms – by Adam Thierer

I spaced out and completely forget to post a link here to my latest Forbes column which came out over the weekend.  It’s a look at back at last week’s hullabaloo over “Apple, The iPhone, and a Locational Privacy Techno-Panic.” In it, I argue:

Some of the concerns raised about the retention of locational data are valid. But panic, prohibition and a “privacy precautionary principle” that would preemptively block technological innovation until government regulators give their blessings are not valid answers to these concerns. The struggle to conceptualize and protect privacy rights should be an evolutionary and experimental process, not one micro-managed at every turn by regulation.

I conclude the piece by noting that:

Public pressure and market norms also encourage companies to correct bone-headed mistakes like the locational info retained by Apple.  But we shouldn’t expect less data collection or less “tracking” any time soon.  Information powers the digital economy, and we must learn to assimilate new technology into our lives.

Read the rest here. And if you missed essay Larry Downes posted here on the same subject last week, make sure to check it out.

In my latest “Technologies of Freedom” column for Forbes, I take a closer look at the idea of an “Internet eraser button” as one method of protecting privacy or safeguarding reputation online. The child safety group Common Sense Media has suggested it is needed to help kids and others wipe out embarrassing facts we’ve place online but later come to regret. The Eraser Button idea is similar to “the right to be forgotten” proposal currently being hotly debated in Europe.

In my column, I argue that “it is unlikely that such a mechanism could be implemented, and even if it could, it would have troubling ramifications for freedom of speech, digital commerce, and Internet governance more generally.” I dwell a bit on the free speech issues and note that “What we are talking about here is the destruction of history, otherwise known as censorship. Few would have suggested that burning books was a smart way to protect privacy in the past. Is burning binary bits of information any wiser?” But the point seems moot in light of the significant enforcement challenges the notion faces, including the question: Who actually owns the data collected by online sites and services?

Anyway, read the rest of the essay over at Forbes. And here are a few other pieces we’ve run here at the TLF on the issue: 1, 2, 3.

I’m very excited to announce that I now have a regular Forbes column that will fly under the banner, “Technologies of Freedom.” My first essay for them is already live and it addresses a topic I’ve dealt with here extensively through the years: Irrational fears about tech monopolies and “information empires.” Jump over to Forbes to read the whole thing.

Regular readers of this blog will understand why I chose “Technologies of Freedom” as the title for my column, but I thought it was worth reiterating. No book has had a more formative impact on my thinking about technology policy than Ithiel de Sola Pool’s 1983 masterpiece, Technologies of Freedom: On Free Speech in an Electronic Age.  As I noted in my short Amazon.com review, Pool’s technological tour de force is simply breathtaking in its polemical power and predictive capabilities. Reading this book almost three decades after it was published, one comes to believe that Pool must have possessed a crystal ball or had a Nostradamus-like ability to foresee the future.

For example, long before anyone else had envisioned what we now refer to as “cyberspace,” Pool was describing it in this book. “Networked computers will be the printing presses of the twenty-first century,” he argued in his remarkably prescient chapter on electronic publishing. “Soon most published information will disseminated electronically,” and “there will be networks on networks on networks,” he predicted. “A panoply of electronic devices puts at everyone’s hands capacities far beyond anything that the printing press could offer.” Few probably believed his prophecies in 1983, but no one doubts him now!

Far more importantly, Pool did all this while also providing a passionate defense of technological freedom and freedom of speech in the electronic age. In his closing chapter on “Policies for Freedom,” Pool discussed possible futures for the emerging world of electronic communications and noted that:

Technology will not be to blame if Americans fail to encompass this system within the political tradition of free speech. On the contrary, electronic technology is conducive to freedom. The degree of diversity and plenitude of access that mature electronic technology allows far exceed what is enjoyed today. Computerized information networks of the twenty-first century need not be any less free for all to use without hindrance than was the printing press. Only political errors might make them so. (p. 231)

Pool went on to outline his “Guidelines for Freedom.” #1 was that “the First Amendment applies fully to all media” and #2 was that “anyone may publish at will.” Regarding economic regulation of tech markets, Pool stressed in principles #3 and #4 that “enforcement must be after the fact, not by prior restraint” and that “regulation is a last recourse. In a free society, the burden of proof is for the least possible regulation of communication.”

This framework for freedom and innovation has governed everything I have done over my first two decades in the field of technology policy and it will shape everything I pen for Forbes, much like it has here at the TLF through the years. I can’t pretend to possess Pool’s predictive powers, but I can and will commit myself to espousing and defending his beautiful vision of technological freedom and progress.

This is what I wake up and go to work for each day.  The fight for technological freedom!

Writing over at Forbes, Bret Swanson notes that the progression of information technology history isn’t going so well for those Net pessimists who, not so long ago, predicted that the sky was set to fall on consumers and that digital innovation was dying. Specifically, Swanson addresses the theories set forth by cyberlaw professors Lessig, Zittrain, and Wu (among others), whose theories about “perfect control,” the death of “generativity,” and the rise of the “master switch,” I have addressed here many time before.  [See this compendium of TLF essays discussing “Problems with the Lessig-Zittrain-Wu Thesis.”] Swanson summarizes what went wrong with their gloomy Chicken Little theories and their predictions of the coming cyber end-times:

As the cloud wars roar, the cyber lawyers simmer. This wasn’t how it was supposed to be. The technology law triad of Harvard’s Lawrence Lessig and Jonathan Zittrain and Columbia’s Tim Wu had a vision. They saw an arts and crafts commune of cyber-togetherness. Homemade Web pages with flashing sirens and tacky text were more authentic. “Generativity” was Zittrain’s watchword, a vague aesthetic whose only definition came from its opposition to the ominous “perfect control” imposed by corporations dictating “code” and throwing the “master switch.” In their straw world of “open” heros and “closed” monsters, AOL’s “walled garden” of the 1990s was the first sign of trouble. Microsoft was an obvious villain. The broadband service providers were  of course dangerous gatekeepers, the iPhone was too sleek and integrated, and now even Facebook threatens their ideal of uncurated chaos. These were just a few of the many companies that were supposed to kill the Internet. The triad’s perfect world would be mostly broke organic farmers and struggling artists. Instead, we got Apple’s beautifully beveled apps and Google’s intergalactic ubiquity. Worst of all, the Web started making money.

Swanson goes on to argue that, despite all the hang-wringing we’re heard from this triumvirate and their many, many disciples in the academic and regulatory activist world, things just keep getting more innovative, more generative, and yes, even more “open.”  As I noted in my book chapter on “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters” as well as my recent Reason magazine essay on “The Rise of Cybercollectivism,” scholars like Lessig, Zittrain, and Wu:

seem trapped in what Virginia Postrel labeled the “stasis mentality” in her 1998 book The Future and Its Enemies. They want an engineered world that promises certain outcomes. They are prone to taking snapshots of market activity and suggesting that those temporary patterns are permanent disasters requiring immediate correction. (Recall Lessig’s fear of AOL, which once had 25 million subscribers who were willing to pay $20 a month to get a guided tour of the Internet, but which ignored the rise of search and social networks at its own peril. It didn’t help that the company’s disastrous merger with Time Warner ended with over $100 billion in shareholders losses and an eventual divorce.) The better approach is what Postrel termed dynamism: “a world of constant creation, discovery, and competition.” Dynamism places heavy stress on the heuristic and believes there is inherent value in an experimental, evolutionary process, no matter how messy it can be in practice.

Moreover, I think these scholars fail to appreciate a point I tried to make in my essay earlier this week on “Techno-Panic Cycles“:

many people overlook the importance of human adaptability and resiliency.  The amazing thing about humans is that we adapt so much better than other creatures. When it comes to technological change, resiliency is hard-wired into our genes.  … We learn how to use the new tools given to us and make them part of our lives and culture.

Just as that is true for social or speech-related technology developments, so too for economic developments. People don’t sit still — consumers, coders, new companies, etc. — they respond to marketplace developments and incentives. They seek out new ways of doing things.  They hack. They crack. They code. They are always looking to build or buy a better mousetrap. And when they find them, they don’t just settle for the state-of-the-art ; they expect everything to be reworked and re-launched constantly with revisions and improvements at every level. For example, the original Verizon Droid 1 that I got just 15 months ago now feels like an antique compared to the latest devices on the market. I am dying to upgrade to a new model, which will give me more processing power, more storage, more high-speed access, more apps, more of everything. I am so pampered by the pace of progress that expect and demand it!

No doubt, the ivory tower worrywarts will continue to grumble about how their techno-cratic philosopher king approach would supposedly make the world even more innovative and consumer-friendly, if only we adopted a healthy dose of top-down planning and centralized direction. But we need to ask ourselves whether their prescription for planning can really beat the track record that is unfolding on a daily basis right before our eyes.

Forbes.com has just published an editorial that Berin Szoka and I penned about yesterday’s net neutrality announcement from the FCC.

The Day Internet Freedom Died

by Adam Thierer & Berin Szoka

There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.

Those days are now gone; the presumption of online liberty is giving way to a presumption of regulation. A massive assault on real Internet freedom has been gathering steam for years and has finally come to a head. Ironically, victory for those who carry the banner of “Internet Freedom” would mean nothing less than the death of that freedom.

We refer to the gradual but certain movement to have the federal government impose “neutrality” regulation for all Internet actors and activities—and in particular, to yesterday’s announcement by Federal Communications Commission (FCC) Chairman Julius Genachowski that new rules will be floated shortly. “But wait,” you say, “You’re mixing things up! All that’s being talked about right now is the application of ‘simple net neutrality,’ regulations for the infrastructure layer of the net.” You might even claim regulations are not really regulation but pro-freedom principles to keep the net “free and open.”

Such thinking is terribly short-sighted. Here is the reality: Because of the steps being taken in Washington right now, real Internet Freedom—for all Internet operators and consumers, and for economic and speech rights alike—is about to start dying a death by a thousand regulatory cuts. Policymakers and activists groups are ramping up the FCC’s regulatory machine for a massive assault on cyber-liberty. This assault rests on the supposed superiority of common carriage regulation and “public interest” mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular. Stated differently, cyber-collectivism is back in vogue—and it’s coming very soon to a computer near you!

“Net Neutrality” proponents insist, however, that only regulation can save us from nefarious corporate schemers out to quash our rights and destroy all innovation. Over the last decade, a cabal of activist-minded cyber-law professors have successfully turned the world of Internet policy upside down by persuading an entire generation of law students, policymakers, and a number of large Internet companies that “Internet Freedom” means the very opposite of what it used to mean. Borrowing tactics that would have made Orwell proud, they have convinced many in the public and the policymaking community that the old Internet Freedom is slavery, in that we are all just tools of Corporate Big Brother. Thus, they offer us a new Internet Freedom: Neutrality über alles! Their freedom, as in Orwell’s Oceania, is not a freedom from the State, but a gleaming utopia that can only be created by the State.

We see the triumph of this thinking with Chairman Genachowski’s proclamation that, “This is not about government regulation of the Internet. It’s about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity and entrepreneurial activity.”

Yet, no matter how vociferously the proponents of FCC-enforced “neutrality” insist that it is not regulation they seek, the reality is that the steps they counsel would put the FCC in the driver’s seat for a host of Internet economic and social issues. Internet companies and technologies will come to be regulated like crusty old “common carriers” and broadcast stations that must serve some amorphous “public interest.”

But as the FCC’s long history of meddling in media and communications markets makes clear, micro-management of dynamic markets is a recipe for economic stagnation, strangled innovation, and speech controls. And the path to regulation does not end with infrastructure providers. The specter of neutrality haunts not just today’s Internet service providers but also all high-tech innovators, like Google, Apple, Facebook, Microsoft and their descendents. Although the FCC’s original mandate was mostly to deal with spectrum “interference”—something that could have been, and actually was being, dealt with using property rights—the agency quickly expanded its mission: Broadcast regulation metastasized into government control over speech, innovation, campaign advertising and a “fairness doctrine” for news coverage. Likewise, Net Neutrality mandates will give rise to neutrality mandates for other areas.

The slope is slippery and we’re already heading down it: The push for “Wireless Neutrality” is already well under way and the FCC is currently investigating Apple’s rejection of the Google Voice application for the iPhone. Thus, “Net Neutrality” leads to “Device Neutrality” and “Application Neutrality,” but the same rationale would apply equally to any circumstance in which access to a communications platform is supposedly limited to a few “gatekeepers.” Some academics have already proposed a “Federal Search Commission” to deal with accusations of “search bias.” At the end of the day, we’ll need a full-blown Federal Information Commission with a Search Bureau, a Cloud Computing Division and several other ministries to micro-manage the many flavors of neutrality regulation.

The path back toward real Internet freedom lies in restoring the presumption of liberty enshrined in the First Amendment, which is not a sword with which the government can ensure fairness, diversity or openness, but a shield against government meddling in media, communications and online markets.

A key point that Berin and I try to get across in our Forbes editorial today about the Yahoo!-Microsoft deal is that the high-tech marketplace evolves too rapidly for creaky Analog Era antitrust laws to keep up. We wanted to say more on that point in our piece, but we had a tight deadline (and a strict word limit!)  Well, turns out that we really don’t need to do so now because Farhad Manjoo of Slate has done a better job than we ever could have making that point in this essay today entitled, “The Case Against the Case Against Google“:

But if the government was right on the facts [in the Microsoft case], it was wrong on the big picture. The theory behind the prosecution was that Microsoft’s mobster tactics would raise the price of software and slow down innovation. But that didn’t happen. In 2002, Microsoft settled the antitrust case with the Bush administration; it faced no substantial penalties for its years of bad behavior. At that point, it still looked unbeatable—it had the same OS monopoly, office-software monopoly, and Web-browser monopoly. And you know what happened? It got beat anyway. Many of Microsoft’s assets turned out not to matter, because upstarts like Google and old foes like Apple found ways to innovate around them.

Indeed, in many ways Microsoft’s size was a liability, not an asset. This is the classic innovator’s dilemma; the company was so intent on protecting its cash cows—it derives most of its revenue from two products, Windows and Office—that it was blind to opportunities in new markets. Microsoft couldn’t make a Web e-mail system like Gmail, because that would have threatened Outlook. And why should Microsoft bother with free online word processing apps when Office was doing so well? When journalist Steven Levy showed Bill Gates the first iPod, Gates’ first reaction was, “It’s only for Macintosh?” Gates saw the iPod through the lens of desktop computers; if the iPod connected only to Macs, it didn’t pose a threat to Microsoft. What he didn’t figure out was that the iPod would herald the iTunes Store, allowing Apple to become not only the most influential entertainment company in the world, but also the dominant software maker for mobile devices. Yes, the first iPod didn’t work on Windows. In time, it would help render Windows irrelevant.

Exactly right. Antitrust advocates have often failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable.

Lisa Lerer of Forbes was nice enough to do a feature story this week about my views on the panic over social networking and the push for age verification of such sites. Her piece is entitled “Why MySpace is a Safe Space,” and begins as follows: “Adam Thierer doesn’t look like much of a revolutionary. But last month he challenged both Washington and conventional wisdom with a fairly radical proposition: Perhaps MySpace and the Internet aren’t so scary for kids, after all.”

I don’t really regard what I’ve been saying in my recent essays or big new PFF study as “revolutionary.” Rather, if you spend any time studying this issue and these sites in a dispassionate, educated way, I think the conclusions I draw seem quite reasonable. Unfortunately, I don’t think many policy makers or critics have spent any serious time on these sites or seriously explored the relative danger of online social networking sites relative to offline social networking places. A classic “moral panic” has developed because of this: An older generation fears a new medium that it does not use or understand.

Anyway, read my discussion with Lisa for more details.