I’ve been floating around in conservative policy circles for 30 years and I have spent much of that time covering media policy and child safety issues. My time in conservative circles began in 1992 with a 9-year stint at the Heritage Foundation, where I launched the organization’s policy efforts on media regulation, the Internet, and digital technology. Meanwhile, my work on child safety has spanned 4 think tanks, multiple blue ribbon child safety commissions, countless essays, dozens of filings and testimonies, and even a multi-edition book.
During this three-decade run, I’ve tried my hardest to find balanced ways of addressing some of the legitimate concerns that many conservatives have about kids, media content, and online safety issues. Raising kids is the hardest job in the world. My daughter and son are now off at college, but the last twenty years of helping them figure out how to navigate the world and all the challenges it poses was filled with difficulties. This was especially true because my daughter and son faced completely different challenges when it came to media content and online interactions. Simply put, there is no one-size-fits-all playbook when it comes to raising kids or addressing concerns about healthy media interactions. Continue reading →
On December 13th, I will be participating in an Atlas Network panel on, “Big Tech, Free Speech, and Censorship: The Classical Liberal Approach.” In anticipation of that event, I have also just published a new op-ed for The Hill entitled, “Left and right take aim at Big Tech — and the First Amendment.” In this essay, I expand upon that op-ed and discuss the growing calls from both the Left and the Right for a variety of new content regulations. I then outline the classical liberal approach to concerns about free speech platforms more generally, which ultimately comes down to the proposition that innovation and competition are always superior to government regulation when it comes to content policy.
In the current debates, I am particularly concerned with calls by many conservatives for more comprehensive governmental controls on speech policies enforced by various private platforms, so I will zero in on those efforts in this essay. First, here’s what both the Left and the Right share in common in these debates: Many on both sides of the aisle desire more government control over the editorial decisions made by private platforms. They both advocate more political meddling with the way private firms make decisions about what types of content and communications are allowed on their platforms. In today’s hyper-partisan world,” I argue in my
Hill column, “tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day — like property rights, free speech and editorial independence — become disposable. These are things we take for granted until they’ve been chipped away at and lost.”
Despite a shared objective for greater politicization of media markets, the Left and the Right part ways quickly when it comes to the underlying objectives of expanded government control. As I noted in my
Hill op-ed:
there is considerable confusion in the complaints both parties make about “Big Tech.” Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.
This makes life very lonely for free speech defenders and classical liberals. Usually in the past, we could count on the Left to be with us in some free speech battles (such as putting an end to “indecency” regulations for broadcast radio and television), while the Right would be with us on others (such as opposition to the “Fairness Doctrine,” or similar mandates). Today, however, it is more common for classical liberals to be fighting with both sides about free speech issues.
My focus is primarily on the Right because, with the rise of Donald Trump and “national conservatism,” there seems to be a lot of soul-searching going on among conservatives about their stance toward private media platforms, and the editorial rights of digital platforms in particular. Continue reading →
Over at Discourse magazine I’ve posted my latest essay on how conservatives are increasingly flirting with the idea of greatly expanding regulatory control of private speech platforms via some sort of common carriage regulation or new Fairness Doctrine for the internet. It begins:
Conservatives have traditionally viewed the administrative state with suspicion and worried about their values and policy prescriptions getting a fair shake within regulatory bureaucracies. This makes their newfound embrace of common carriage regulation and media access theory (i.e., the notion that government should act to force access to private media platforms because they provide an essential public service) somewhat confusing. Recent opinions from Supreme Court Justice Clarence Thomas as well as various comments and proposals of Sen. Josh Hawley and former President Trump signal a remarkable openness to greater administrative control of private speech platforms.
Given the takedown actions some large tech companies have employed recently against some conservative leaders and viewpoints, the frustration of many on the right is understandable. But why would conservatives think they are going to get a better shake from state-regulated monopolists than they would from today’s constellation of players or, more importantly, from a future market with other players and platforms?
I continue on to explain why conservatives should be skeptical of the administrative state being their friend when it comes to the control of free speech. I end by reminding conservatives what President Ronald Reagan said in his 1987 veto of legislation to reestablish the Fairness Doctrine: “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.”
Read more at
Discourse, and down below you will find several other recent essays I’ve written on the topic.
President Trump and his allies have gone to war with social media sites and digital communications platforms like Twitter, Facebook, and Google. Decrying supposed anti-conservative “bias,” Trump has even floated an Executive Order aimed at “Preventing Online Censorship,” that entails many new forms of government meddling with these private speech platforms. Section 230 is their crosshairs and First Amendment restraints are being thrown to the wind.
Various others have already documented the many legal things wrong with Trump’s call for greater government oversight of private speech platforms. I want to focus on something slightly different here: The surprising ideological origins of what Trump and his allies are proposing. Because for those of us who are old-timers and have followed communications and media policy for many decades, this moment feels like deja vu all over again, but with the strange twist that supposed “conservatives” are calling for a form of communications collectivism that used to be the exclusive province of hard-core Leftists.
To begin, the truly crazy thing about President Trump and some conservatives saying that social media should be regulated as public forums is not just that they’re abandoning free speech rights, it’s that they’re betraying
property rights, too. Treating private media like a “public square” entails a taking of private property. Amazingly, Trump and his followers have taken over the old “media access movement” and given it their own spin. Continue reading →
The Mercatus Center at George Mason University has just released my latest working paper, “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation.” The “Internet of Things” (IoT) generally refers to “smart” devices that are connected to both the Internet and other devices. Wearable technologies are IoT devices that are worn somewhere on the body and which gather data about us for various purposes. These technologies promise to usher in the next wave of Internet-enabled services and data-driven innovation. Basically, the Internet will be “baked in” to almost everything that consumers own and come into contact with.
Some critics are worried about the privacy and security implications of the Internet of Things and wearable technology, however, and are proposing regulation to address these concerns. In my new 93-page article, I explain why preemptive, top-down regulation would derail the many life-enriching innovations that could come from these new IoT technologies. Building on a recent book of mine, I argue that “permissionless innovation,” which allows new technology to flourish and develop in a relatively unabated fashion, is the superior approach to the Internet of Things.
As I note in the paper and my earlier book, if we spend all our time living in fear of the worst-case scenarios — and basing public policies on them — then best-case scenarios can never come about. As the old saying goes: nothing ventured, nothing gained. Precautionary principle-based regulation paralyzes progress and must be avoided. We instead need to find constructive, “bottom-up” solutions to the privacy and security risks accompanying these new IoT technologies instead of top-down controls that would limit the development of life-enriching IoT innovations. Continue reading →
The use of unmanned aircraft systems, or “drones,” for private and commercial uses remains the subject of much debate. The issue has been heating up lately after Congress ordered the Federal Aviation Administration (FAA) to integrate UASs into the nation’s airspace system by 2015 as part of the FAA Modernization and Reform Act of 2012.
The debate has thus far centered mostly around the safety and privacy-related concerns associated with private use of drones. The FAA continues to move slowly on this front based on a fear that private drones could jeopardize air safety or the safety of others on the ground. Meanwhile, some privacy advocates are worried that private drones might be used in ways that invade private spaces or even public areas where citizens have a reasonable expectation of privacy. For these and other reasons, the FAA’s current ban on private operation of drones in the nation’s airspace remains in place.
But what about the
speech-related implications of this debate? After all, private and commercial UASs can have many peaceful, speech-related uses. Indeed, to borrow Ithiel de Sola Pool’s term, private drones can be thought of as “technologies or freedom” that expand and enhance the ability of humans to gather and share information, thus in turn expanding the range of human knowledge and freedom.
A new Mercatus Center at George Mason University working paper, “News from Above: First Amendment Implications of the Federal Aviation Administration Ban on Commercial Drones,” deals with these questions. This 59-page working paper was authored by Cynthia Love, Sean T. Lawson, and Avery Holton. (Love is currently a Law Clerk for Judge Carolyn B. McHugh in 10th Circuit U.S. Court of Appeals. Lawson and Holton are affliated with the Department of Communication at the University of Utah.)
“To date, little attention has been paid to the First Amendment implications of the [FAA] ban,” note Love, Lawson, and Holton. Their article argues that “aerial photography with UASs, whether commercial or not, is protected First Amendment activity, particularly for news-gathering purposes. The FAA must take First Amendment-protected uses of this technology into account as it proceeds with meeting its congressional mandate to promulgate rules for domestic UASs.” They conclude by noting that “The dangers of [the FAA’s] regulatory approach are no mere matter of esoteric administrative law. Rather, as we have demonstrated, use of threats to enforce illegally promulgated rules, in particular a ban on journalistic use of UASs, infringes upon perhaps our most cherished constitutional right, that of free speech and a free press.” Continue reading →
On Thursday, it was my great pleasure to present a draft of my forthcoming paper, “The Internet of Things & Wearable Technology: Addressing Privacy & Security Concerns without Derailing Innovation,” at a conference that took place at the Federal Communications Commission on “Regulating the Evolving Broadband Ecosystem.” The 3-day event was co-sponsored by the American Enterprise Institute and the University of Nebraska College of Law.
The 65-page working paper I presented is still going through final peer review and copyediting, but I posted a very rough first draft on SSRN for conference participants. I expect the paper to be released as a Mercatus Center working paper in October and then I hope to find a home for it in a law review. I will post the final version once it is released. [UPDATE:The final version of this working paper was released on November 19, 2014.]
In the meantime, however, I thought I would post the 46 slides I presented at the conference, which offer an overview of the nature of the Internet of Things and wearable technology, the potential economic opportunities that exist in this space, and the various privacy and security challenges that could hold this technological revolution back. I also outlined some constructive solutions to those concerns. I plan to be very active on these issues in coming months.
Continue reading →
My latest law review article is entitled, “Privacy Law’s Precautionary Principle Problem,” and it appears in Vol. 66, No. 2 of the Maine Law Review. You can download the article on my Mercatus Center page, on the Maine Law Review website, or via SSRN. Here’s the abstract for the article:
Privacy law today faces two interrelated problems. The first is an
information control problem. Like so many other fields of modern cyberlaw—intellectual property, online safety, cybersecurity, etc.—privacy law is being challenged by intractable Information Age realities. Specifically, it is easier than ever before for information to circulate freely and harder than ever to bottle it up once it is released.
This has not slowed efforts to fashion new rules aimed at bottling up those information flows. If anything, the pace of privacy-related regulatory proposals has been steadily increasing in recent years even as these information control challenges multiply.
This has led to privacy law’s second major problem:
the precautionary principle problem. The precautionary principle generally holds that new innovations should be curbed or even forbidden until they are proven safe. Fashioning privacy rules based on precautionary principle reasoning necessitates prophylactic regulation that makes new forms of digital innovation guilty until proven innocent.
This puts privacy law on a collision course with the general freedom to innovate that has thus far powered the Internet revolution, and privacy law threatens to limit innovations consumers have come to expect or even raise prices for services consumers currently receive free of charge. As a result, even if new regulations are pursued or imposed, there will likely be formidable push-back not just from affected industries but also from their consumers.
In light of both these information control and precautionary principle problems, new approaches to privacy protection are necessary. Continue reading →
James Barrat, author of Our Final Invention: Artificial Intelligence and the End of the Human Era, discusses the future of Artificial Intelligence (AI). Barrat takes a look at how to create friendly AI with human characteristics, which other countries are developing AI, and what we could expect with the arrival of the Singularity. He also touches on the evolution of AI and how companies like Google and IBM and government entities like DARPA and the NSA are developing artificial general intelligence devices right now.
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Robert Scoble, Startup Liaison Officer at Rackspace discusses his recent book, Age of Context: Mobile, Sensors, Data and the Future of Privacy, co-authored by Shel Israel. Scoble believes that over the next five years we’ll see a tremendous rise in wearable computers, building on interest we’ve already seen in devices like Google Glass. Much like the desktop, laptop, and smartphone before it, Scoble predicts wearable computers represent the next wave in groundbreaking innovation. Scoble answers questions such as: How will wearable computers help us live our lives? Will they become as common as the cellphone is today? Will we have to sacrifice privacy for these devices to better understand our preferences? How will sensors in everyday products help companies improve the customer experience?
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.