In a New York Times op-ed this weekend entitled “You Can’t Say That on the Internet,” Evgeny Morozov, author of The Net Delusion, worries that Silicon Valley is imposing a “deeply conservative” “new prudishness” on modern society. The cause, he says, are “dour, one-dimensional algorithms, the mathematical constructs that automatically determine the limits of what is culturally acceptable.” He proposes that some form of external algorithmic auditing be undertaken to counter this supposed problem. Here’s how he puts it in the conclusion of his essay:

Quaint prudishness, excessive enforcement of copyright, unneeded damage to our reputations: algorithmic gatekeeping is exacting a high toll on our public life. Instead of treating algorithms as a natural, objective reflection of reality, we must take them apart and closely examine each line of code. Can we do it without hurting Silicon Valley’s business model? The world of finance, facing a similar problem, offers a clue. After several disasters caused by algorithmic trading earlier this year, authorities in Hong Kong and Australia drafted proposals to establish regular independent audits of the design, development and modifications of computer systems used in such trades. Why couldn’t auditors do the same to Google? Silicon Valley wouldn’t have to disclose its proprietary algorithms, only share them with the auditors. A drastic measure? Perhaps. But it’s one that is proportional to the growing clout technology companies have in reshaping not only our economy but also our culture.

It should be noted that in a Slate essay this past January, Morozov had also proposed that steps be taken to root out lies, deceptions, and conspiracy theories on the Internet.  Morozov was particularly worried about “denialists of global warming or benefits of vaccination,” but he also wondered how we might deal with 9/11 conspiracy theorists, the anti-Darwinian intelligent design movement, and those that refuse to accept the link between HIV and AIDS.

To deal with that supposed problem, he recommended that Google “come up with a database of disputed claims” or “exercise a heavier curatorial control in presenting search results,” to weed out such things. He suggested that the other option “is to nudge search engines to take more responsibility for their index and exercise a heavier curatorial control in presenting search results for issues” that someone (he never says who) determines to be conspiratorial or anti-scientific in nature.

Taken together, these essays can be viewed as a preliminary sketch of what could become a comprehensive information control apparatus instituted at the code layer of the Internet. Morozov absolutely refuses to be nailed down on the details of that system, however. In a response to his earlier Slate essay, I argued that Morozov seemed to be advocating some sort of Ministry of Truth for online search, although he came up short on the details of who or what should play that role. But in both that piece and his New York Times essay this weekend, he implies that greater oversight and accountability are necessary.  “Is it time for some kind of a quality control system [for the Internet]?” he asked in his Slate oped. Perhaps it would be the algorithmic auditors he suggests in his new essay. But who, exactly, are those auditors? What is the scope of their powers?

When I (and others) made inquiries via Twitter requesting greater elaboration on these questions, Morozov summarily dismissed any conversation on the point. Worse yet, he engaged in what is becoming a regular Morozov debating tactic on Twitter: nasty, sarcastic, dismissive responses that call into question the intellectual credentials of anyone who even dares to ask him a question about his proposals.  Unless you happen to be Bruno Latour — the obtuse French sociologist and media theorist who Morozov showers with boundless, adorning praise — you can usually count on Morozov to dismiss you and your questions or concerns in a fairly peremptory fashion.

I’m perplexed by what leads Morozov to behave so badly. When I first met him a couple of years ago, it was at a Georgetown University event he invited me to speak at. He seemed like an agreeable, even charming, fellow in person. But on Twitter, Morozov bears his fangs at every juncture and spits out venomous missives and retorts that I would call sophomoric except that it would be an insult to sophomores everywhere. Morozov even accuses me of “trolling” him whenever I ask him questions on Twitter, even though I am doing nothing more that posing the same sort of hard questions to him that he regularly poses to others (albeit in a much more snarky fashion).  He always seems eager to dish it out, but then throws a Twitter temper tantrum whenever the roles are reversed and the tough questions come his way. Perhaps Morozov is miffed by some of what I had to say in my mixed review of his first book, The Net Delusion, or my Forbes column that raised questions about his earlier proposal for an Internet “quality control” regime.  But I invite others to closely read the tone of those two essays and tell me whether I said anything to warrant Morozov’s wrath. (In fact, I actually said some nice things about his book in that review and later named it the most important information technology policy book of the year.)

Regardless of what motivates his behavior, I do not think it is unreasonable to ask for more substantive responses from Morozov when he is making grand pronouncements and recommendations about how online culture and commerce should be governed. The best I could get him to say on Twitter is that is that he only had 1,200 words to play with in his latest Times oped and that more details about his proposal would be forthcoming. Well, in the spirit of getting that conversation going, allow me to outline a few questions:

1)      What is the specific harm here that needs to be addressed?

• Do you have evidence of systematic algorithmic manipulation or abuse by Google, Apple, or anyone else, for that matter? Or is this all just about a handful of anecdotes that seemed to be corrected fairly quickly?

2)      What standard or metric should we use to determine the extent of this problem, to the extent we determine it is a problem at all?

• To the extent autocomplete results are what troubles you, can you explain how individuals or entities are “harmed” by those results?
• If this is about reputation, what is your theory of reputational harm and when it is legally actionable?
• If this is about informational quality or “truth,” can you explain what would constitute success?
• Can you appreciate the concerns / values on the other side of this that might motivate some degree of algorithmic tailoring? For example, some digital intermediaries may seek to curb the use of a certain amount of vulgarity, hate speech, or other offensive content on their sites since they are broad-based platforms with diverse audiences. (That’s why most search providers default to “moderate” filtering for image searches, for example.) While I think we both favor maximizing free speech online, do you accept that some of this private speech and content balancing is entirely rational and has, to some extent, always gone on? Also, aren’t there plenty of other ways to find the content you’re looking for besides just Google, which you seem preoccupied with?

3)      What is the proposed remedy and what are its potential costs and unintended consequences?

• Can you explain the mechanism of control that you would like to see put in place to remedy this supposed problem? Would it be a formal regulatory regime?
• Have you considered the costs and /or potentially unintended consequences associated with an algorithmic auditing regime if it takes on a regulatory character?
• For example, if you are familiar with how long many regulatory proceedings can take to run their course, do you not fear the consequences of interminable delays and political gaming?
• How often should the “auditing” you propose take place? Would it be a regular affair, or would it be driven by complaints?

4)      Is this regime national in scope? Global? How will it be coordinated /administered?

• In the United States, presumably the Federal Communications Commission or Federal Trade Commission would be granted new authority to carry out algorithmic audits, or would a new entity need to be created?
• Is additional regulatory oversight necessary and, if so, how is this coordinated by nationally and globally?

5)      Are there freedom of speech / censorship considerations that flow from (3) and (4)?

• At least in the United States, algorithmic audits that had the force of law behind them could raise serious freedom of speech concerns. (See Yoo’s paper on “architectural censorship” and the recent work of Volokh & Grimmelmann on search regulation) and long-settled First Amendment law (see, e.g., Tornillo) ensures that editorial discretion is housed in private hands. How would you propose we get around these legal obstacles?

6)      Are there less-restrictive alternatives to administrative regulation?

• Might we be able to devise various alternative dispute resolution techniques to flag problems and deal with them in a non-regulatory / non-litigious fashion?
• Could voluntary industry best practices and/or codes of conduct be developed to assist these efforts?
• Could an entity like the Broadband Internet Technical Advisory Group (BITAG) help sort out “neutrality” claims in this context, as they do in the broadband context?
• Might it be the case that social norms and pressure can keep this problem in check? The very act of shining light on silly algorithmic screw-ups — much as you have in your recent opeds — has a way of keeping this problem in check.

I hope that Morozov finds these questions to be reasonable. My skepticism of most Internet regulation is no secret, so I suppose that Morozov or others might attempt to dismiss some of these questions as the paranoid delusions of a wild-eyed libertarian. But I suspect that I’m not the only one who feels uneasy with Morozov’s proposals since they could open the door to regulators across the globe to engage in “algorithmic auditing” on the flimsy assumption that some great harm exists from a few silly autocomplete suggestions or a couple conspiratorial websites. We deserve answers to questions like these before we start calling in the Code Cops to assume greater control over online speech.

Like Milton, I’m very worried about the political vulnerabilities that might arise if the wireless sector grows more concentrated. Still, I think it’s a big mistake to legitimize one repressive incarnation of coercive state power (antitrust intervention) to reduce the likelihood that another incarnation (information control) will intensify. This approach is not only defeatist, as Hance argues, but it also requires a tactical assessment that rests on several dubious assumptions.

First, Milton overestimates the marginal risk that the AT&T – T-Mobile deal will pave the way for an information control regime. The wireless market isn’t static; the disappearance of T-Mobile as an independent entity (which may well occur regardless of whether this deal goes through) hardly means we’re forever “doomed” to live with 3 nationwide wireless players. With major spectrum auctions likely on the horizon, and the possibility of existing spectrum holdings being combined in creative ways, the eventual emergence of one or more nationwide wireless competitors is quite possible — especially if, as skeptics of the AT&T – T-Mobile deal often argue, the wireless market underperforms in the years following the acquisition.

More importantly, network operators, like almost all Internet gatekeepers, face mounting pressure from their users not to facilitate censorship, surveillance, and repression. Case in point: AT&T is a leading member of the Digital Due Process coalition (to which I also belong) that’s urging Congress to substantially strengthen the 1986 federal statute that governs law enforcement access to private electronic communications. Consider that AT&T’s position on this major issue is officially at odds with the official position of the same Justice Department that’s currently reviewing the AT&T – T-Mobile deal. Would a docile, subservient network operator challenge its state overseers so publicly?

Or take Google. Arguably, it’s an enormously important gatekeeper — in many respects, it’s an even greater “chokepoint” than any single network operator — but the firm has held strong against substantial pressures from the U.S. government to facilitate censorship and surveillance. (See, e.g.: Google’s successful 2006 challenge to a Justice Department request seeking search query logs; Google’s recent refusal to remove DUI apps from its Android market; Google’s widely noted hesitance toward censoring search results absent a lawfully issued takedown request; Google’s 2010 joint amicus brief urging a federal district court to reject a Justice Department subpoena seeking to compel Yahoo! to disclose the contents of a user’s opened emails).

I could go on. The point is that large network operators are often willing to vigorously resist — both in private and in public — governmental demands that they facilitate information control. Working in cahoots with unpopular governmental actors is terrible PR; some major players seem to think it’s bad for business, too.

It’s often overlooked that antitrust intervention deprives us of beneficial competitive reactions to business deals — even deals that, viewed in isolation, appear to be “harmful.” The consequence of the AT&T – T-Mobile deal won’t simply be the two companies operating as a single entity; the deal will also force rivals to respond in unforeseeable ways that will tend to benefit consumers and fuel innovation. As Hance reminds us, this virtuous cycle of Schumpeterian creative destruction is fundamental to the long-term evolution of markets. When government blocks proposed business arrangements, it contributes to stasis — and static markets tend to be much easier to regulate and control than relatively dynamic markets.

To be sure, if the combination of AT&T and T-Mobile exacerbates political pressures for imposing a network information control regime, we cyber-libertarians should fight back vigorously. Turning to antitrust intervention to keep markets relatively unconcentrated — and, hence, more difficult to regulate — is a mistake.

If you welcome the growing pressures for regulating business arrangements in the high-tech sector, an emboldened antitrust regime is just what the doctor ordered.

Arik Hesseldahl has an interesting piece in Business Week about Apple’s control of the iPhone App approval process in which he asks: “Is a smartphone gatekeeper needed?” Plenty of people don’t think so and have raised a stink about Apple trying to play that role for the iPhone. It certainly could be true, as some critics suggest, that Apple is being too heavy-handed on occasion when rejecting apps, but it’s always easy for those of us on the outside of the process to think that.  Hesseldahl notes that:

it’s tempting to consider the implications of a less hands-on approach, as is the case with Macs, Microsoft (MSFT) Windows PCs, or other smartphones, including those running the Google (GOOG)-backed Android operating system. The software market for personal computing has existed in this way for nearly three decades, and while there have certainly been some problems along the way, I’d argue that overall we’re better off without Microsoft or Apple or some other organization approving software applications before they’re released to the market. PC users have learned to be careful about what they put on their computers through unhappy trial and error.

But he also notes that there is another side to the story:

My hunch is that greater vigilance is needed with smartphones, in part because they’re a relatively recent phenomenon. The iPhone has been on the market only 28 months. Users take them everywhere and are quickly inserting them into daily life in ways the personal computer never could have fit. Malware on smartphones could do significantly more damage than malware on a PC. Imagine a nasty application that records every word you speak—both on and off the phone—without your knowledge, and then e-mails the audio to a stranger. Or picture one that surreptitiously tracks your movements and sends them to a stalker.

Hesseldahl interviewed Phil Schiller, Apple’s senior vice-president for worldwide product marketing, for his piece and Schiller confirmed that malware [think iPhone worms] and and other safety & security concerns topped the list of problems that Apple was trying to head-off by managing the applications process. There’s also various types of illegal content that Apple has to contend with.

Anyway, my only interest in bringing this to everyone’s attention is because I have spent the last few years debating a growing crop of academics (Zittrain, Lessig, Wu) and policy shops (Public Knowledge, Free Press, etc) who suggest that proprietary devices and app stores constitute the revival of online “walled gardens” from the early Internet era (like AOL, Prodigy & CompuServe).  Personally, I don’t see any solid evidence that Apple’s model is indicative of a mass trend toward online “gatekeepers.” As Hesseldahl points out, there’s still plenty of other devices and stores out there from which to choose.  Moreover, as I pointed out in my first review of Zittrain’s book The Future of the Internet and How to Stop It, we should be thankful that we have a range of device and store options to choose from.  That’s a great thing. If you don’t like Apple’s style, then don’t get an iPhone.  It’s one of the reasons I didn’t.  Vote with your pocketbooks, people!

Over the past couple of years here, I have relentlessly hammered Harvard’s dynamic duo of digital doom, Jonathan Zittrain (see 1, 2, 3, 4, 5, 6) and Lawrence Lessig (see 1, 2, 3), for their extraordinarily gloomy predictions about the Internet creating a world of “perfect control.”  In the hyper-pessimistic Lessig-Zittrain view of things, cyberspace is perpetually haunted by the specter of nefarious corporate schemers out to suffocate innovation, screw consumers, and quash dissent.  In the 1990s, Lessig’s big-bad-bogeyman was AOL.  Today, Zittrain casts Apple in the lead role of Cyber-Big Brother.  The problem with their thesis? In a word: Reality.  As Tim Lee has pointed out before, “Lessig’s specific predictions in Code turned out to be… spectacularly wrong”:

Lessig was absolutely convinced that a system of robust user authentication would put an end to the Internet’s free-wheeling, decentralized nature. Not only has that not happened, but I suspect that few would seriously defend Lessig’s specific prediction will come to pass.

Absolutely correct, and the same is true of the fears and predictions Zittrain tosses around in The Future of the Internet.  And yet, as we saw most recently during my debate with Lessig and Zittrain over at Cato Unbound upon the occasion of the 10th anniversary of the publication Code, neither of them have relented one bit. Indeed, they have actually been escalating their morose rhetoric recently.

The fact that Zittrain casts Apple as the central villain in his drama is particularly interesting because millions upon millions of people absolutely love the company and its amazingly innovative products — even if I’m not one of them.  And there is absolutely no way Zittrain can continue to sell us this story of Apple quashing innovation when, in just one year’s time, there were 1.5 Billion iPhone Store downloads of over 65,000 free and paid apps by consumers in 77 countries.  I mean, seriously, is there any application you cannot get for the iPhone these days?

Apparently not, because over at the Wall Street Journal “Digits” blog,  Andrew LaVallee writes of the latest innovative application to pop up in the Apple iPhone Store, iPot — a tool to help you find dope shops in California!!

Seeing an untapped opportunity in the growing number of legal California dispensaries and limited advertising outlets, app developer NexStudios launched iPot, an application for Apple’s iPhone that lists nearby stores. .. The free version of the app provides basic location information for nearby stores, while the $2 upgrade adds reviews and ratings and does away with advertising. The two apps have been downloaded nearly 100,000 times since their July launch, with about 80% opting for the free one.

Holy smokes, pot on your iPhone!  Geo-located in real time!  With reviews!  Am I living in a “Cheech & Chong” movie?

OK, seriously, let’s get back to that Zittrain-Lessig thesis.  My point here is that, contrary to their belief that the whole digital world is going to hell in a handbasket because of excessive “control” by corporate actors, in reality, things are getting better all the time.  Does Apple exercise some “control” over the iPhone store? Yes. Do they use that control to bock innovation at every juncture, restrict choice, and screw consumers?  Show me the evidence.

And when I say I want to see evidence, it has to be something more than a random anecdote like this “gem” I have heard Zittrain use many times:

Recently Apple got rid of the “I Am Rich” app, which cost the maximum $999.99, and simply featured a glowing red gem on buyers’ screens. Eight people apparently bought it, with several receiving refunds.  (”Category: Lifestyle.”  Heh.)  The app’s author doesn’t yet know whether he’ll get the money from the rest, minus Apple’s 30% vig.

Come on, seriously?  Is that the best you got? Moreover, Jonathan is willing to acknowledge that at least a certain amount of “gatekeeping might help keep malicious or poor quality apps away.”  Indeed, that’s about all the gatekeeping Apple does.  For God’s sake they are apparently not even trying to keep out the potheads anymore!  And finally, it goes without saying that Apple can’t even keep people from jailbreaking their phones in a matter of hours after release when users want to do even more with them.

How all this adds up to the specter of “perfect control” is beyond me.