It’s been a big year for tech policy books. Several important titles were released in 2008 that offer interesting perspectives about the future of the Internet and the impact digital technologies are having on our lives, culture, and economy. Back in September, I compared some of the most popular technology policy books of the past five years and tried to group them into two camps: “Internet optimists” vs. “Internet pessimists.” That post generated a great deal of discussion and I plan on expanding it into a longer article soon. In this post, however, I will merely list what I regard as the most important technology policy books of the past year.

What qualifies as an “important” tech policy book? Basically, it’s a title that many people in this field are currently discussing and that we will likely be talking about for many years to come. I want to make it clear, however, that merely because a book appears on this list it does not necessarily mean I agree with everything said in it. In fact, I found much with which to disagree in my picks for the two most important books of 2008, as well as many of the other books on the list. [Moreover, after reading all these books, I am more convinced than ever that libertarians are badly losing the intellectual battle of ideas over Internet issues and digital technology policy. There’s just very few people defending a “Hands-Off-the-Net” approach anymore. But that’s a subject for another day!]

Another caveat: Narrowly focused titles lose a few points on my list. For example, as was the case in past years, a number of important IP-related books have come out this year. If a book deals exclusively with copyright or patent issues, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues that have a bearing on digital technology policy. The same could be said of a book that deals exclusively with privacy policy, like Solove’s Understanding Privacy. It’s an important book with implications for the future of tech policy, but I demoted it a bit because of its narrow focus.

With those caveats in mind, here are my Top 10 Most Important Tech Policy Books of 2008 (and please let me know about your picks for book of the year):

(1) Jonathan Zittrain ­– The Future of the Internet, and How to Stop It

Zittrain’s book is the most important of 2008 because it’s the one we will still be talking the most about a decade from now. However, I think we’ll be talking about how wrong his thesis was that the “generative” Internet and general purpose PCs are dying.  Indeed, I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5).  We’ve also debated his book on the an NPR-Boston [audio is here] and we debated in person at New America Foundation in early November [video is here].

Despite my serious reservations, Jonathan’s book is important, well-written, and absolutely deserves your attention if you care about the future of technology policy.

(2) Nick Carr – The Big Switch: Rewiring the World, From Edison to Google

Part 1 of Nick Carr’s book is an eloquent early history of cloud computing, nicely comparing it to previous technological revolutions. It’s beautifully done. In Part 2 of the book, however, Carr turns sour and argues that the impact of cloud computing will be quite miserable for our economy, culture, and society. The Big Switch probably makes the best case than any Net pessimist has been penned thus far, and for that reason alone it deserves your attention. Ultimately, however, I found his case unconvincing.

You can find my complete review of Carr’s book here.

(3) John Palfrey and Urs Gasser – Born Digital: Understanding the First Generation of Digital Natives

Palfrey and Gasser’s fine early history of this generation of “Digital Natives” serves as a starting point for any conversation about how to mentor and interact with the children of the Web. It’s a comprehensive and very even-handed discussion about a variety of concerns or Internet pathologies, including: online safety, personal privacy, copyright piracy, offensive content, classroom learning, and much more. Despite a few nitpicks, I really enjoyed this book and highly recommend it. Importantly, it is a very accessible book that even the non-tech layman can pick up and appreciate. [Note: Don Tapscott’s Grown Up Digital: How the Net Generation is Changing Your World, shares a lot in common with Born Digital, but Tapscott doesn’t spend much time on policy issues and that’s why his book isn’t on my list.]

My review of Palfrey and Gasser’s Born Digital is here. [Update Feb 2009: I also hosted a podcast about the book featuring Prof. Palfrey.]

(4) Clay Shirky – Here Comes Everybody: The Power of Organizing without Organizations

While Nick Carr [see #2 above] and Lee Siegel [see #5 below] are leading the “techno-pessimist” parade this year, Clay Shirky is this year’s leading cheerleader for “cyber-optimism.” Shirky argues that the falling costs and growing ease of digital distribution are making it increasingly easy for individuals to engage in group-forming and collective action endeavors. The resulting rise of “mass amateurization” poses a significant challenge to old media operations and traditional business models and practices. In this sense, Shirky is building on many of the themes and arguments previously set forth in books like The Wealth of Networks (Benkler), Wikinomics (Tapscott and Williams), and Convergence Culture (Jenkins). If you’ve already read those titles, you’ll find a great deal of familiar thinking here.

I never got around to putting together a full review of Here Comes Everybody, but Tim Lee had a nice write-up over at Ars earlier this year.

(5) Lee Siegel – Against the Machine: Being Human in the Age of the Electronic Mob

Siegal is this year’s Andrew Keen; a cyber-sourpuss who thinks the whole world is going to hell and that the Internet is to blame. Like Keen’s Cult of the Amateur, Siegel’s Against the Machine is an anti-Web 2.0 screed that finds no redeeming qualities about the Internet or user-generated content.  In particular, Wikipedia and amateur production are blasted as being detrimental to professional media.

Both Siegel and Keen are essentially channeling the ghost of the late Neil Postman, whose 1992 book Technopoly remains the classic statement of techno-pessimism. They prove worthy disciples as they preach the Gospel According to Chicken Little and push for a neo-Luddite revival. But Siegel’s techno-pessimism is boundless and his hatred for all things digital is truly breathtaking. For that reason, however, his book deserves attention.

My lengthy critique of Siegel’s book can be found here.

(6) Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds.) – Access Denied: The Practice and Policy of Global Internet Filtering

This is essential reading for anyone studying the methods governments are using to stifle online expression. The contributors provide a regional and country-by-country overview of the global state of online speech controls and discuss the long-term ramifications of increasing government filtering of online networks. Even if you don’t read the whole thing, this is a must-have title for your bookshelf since there is no other resource out there like this. And it should be required reading in every cyberlaw class in America. [Note: It also contains a very helpful chapter on the mechanics of Net filtering.]  Very highly recommended.

(7) Hal Abelson, Ken Ledeen, and Harry Lewis – Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion

Think of this book as “Internet Policy for the Educated Layman.” Abelson, Ledeen, and Lewis survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a nice history and technology primer on each topic. Like Palfrey and Gasser’s Born Digital [see #3 above], Blown to Bits is very accessible and each chapter contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. Recommended.

My review of Blown to Bits can be found here.

(8) Lawrence Lessig – Remix: Making Art and Commerce Thrive in the Hybrid Economy

Remix treads a lot of ground already covered in Lessig’s other books and essays (perhaps it should have been called “Rehash”), but it more fully develops his thinking on the legal treatment of derivative works. Actually, in some ways (especially in the second half of the book), it’s more of a restatement of much of what is found in Benkler’s Wealth of Networks, albeit in a far less verbose fashion. Regardless, Prof. Lessig has attained rock-star status in tech policy circles and the release of each of his new books or papers becomes a bit of an event. Remix has been no different. It has already attracted a great deal of attention and deserves to be on this list for that reason alone. But if you have read his previous work, you’ll already be familiar with much of what you find in Remix.

Generally speaking, I thought Prof. Lessig made a good case regarding the benefits of remix culture and why copyright law should leave breathing room for the various derivative works of amateur creators. But he too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it). To solve that latter problem, he endorses a “simple” blanket licensing scheme for the Internet. In this essay, I addressed why blanket online licensing would be anything but simple.

(9) James Bessen and Michael J. Meurer – Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk

Bessen and Meurer argue that America’s patent system is in trouble because “it fail[s] to provide clear and efficient notice of the boundaries of the rights granted.” Patent litigation has exploded, they say, and the costs of the system now outweigh the benefits. Generally speaking, with the exception of the chemical and pharmaceutical industries, Bessen and Meurer don’t feel the patent system does a lot of good.”[I]t seems unlikely that patents today are an effective policy instrument to encourage innovation overall,” they conclude. They detail several reforms to help improve notice and to “make patents work as property” again the way they claim they once did.

Although the authors deal with patents broadly, the book has great relevance to digital technology policy because of their discussion of business method patents and software patents. (Incidentally, that chapter from the book is available online). They argue that software technology is especially prone to problems of “abstraction” and obviousness. As a result, software patenting has been a major contributor to the litigation explosion we have seen in recent years.

Although I agree with their case against software patents, I remain unconvinced that the patent system is failing as badly as Bessen and Meurer claim. Nonetheless, they present a powerful case that deserves to be taken seriously. Patent Failure will have an enormous impact on these debates going forward.

For more opinions on the book… Tim Lee posted a favorable review of Patent Failure over at Ars this summer. And, back in March, there was a lively discussion about the book over at Patently-O. Finally, at last year’s PFF “Aspen Summit,” Michael Meurer debated these issues with some of America’s leading patent law experts. Bronwyn H. Hall, Professor of Economics at Cal-Berkeley, challenges his findings. The video of that panel is here.

(10) Daniel Solove – Understanding Privacy

Daniel Solove’s book — and his approach to classifying and dealing with privacy problems — will have a profound impact on all future privacy debates. In that sense, it is a vital text; a must read for all who follow, or engage in, privacy debates.  On the other hand, Solove’s claim that he can construct a new paradigm based strictly on a pragmatic, utilitarian, “?problem-solving” approach, is ultimately a failure. There is just no getting around the fact that, at some point, you are going to have to provide a more robust theory of rights or justice to explain why one right trumps another. I elaborate in this lengthy critique of Solove’s Understanding Privacy.

Honorable Mentions: Here are a couple of titles that I couldn’t fit on my list but that you might want to also consider reading: Neil Netanel – Copyright’s Paradox; Matt Mason – The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism; David Friedman – Future Imperfect: Technology and Freedom in an Uncertain World; Cory Doctorow — Content; and Don Tapscott — Grown Up Digital: How the Net Generation is Changing Your World.

Please let me know if there are other titles I have overlooked, and let me know your opinion about the best technology policy book(s) of 2008 by voting in our poll and commenting more down below.

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Over the past year, I have been monitoring a very interesting trend with important ramifications for the future of Internet policy. State Attorneys General (AGs) — often in league with the National Center for Missing and Exploited Children (NCMEC) — have been striking a variety of “voluntary” agreements with various Internet companies that deal with child safety concerns or other online issues. These agreements require the companies involved to take various steps to alter site architecture and functionality, commit to stop certain practices, or take steps to block certain users (ex: predators; escort services) or types of content (ex: child porn; online “discrimination”) altogether.

To begin, let me be very clear about one thing: Some of these activities or types of content warrant a law enforcement response. That is certainly the case with child pornography or predation, for example. However, as I will note down below, there is a legitimate question about whether state officials and a non-profit private organization should be crafting legal or regulatory policies to address such concerns for a global medium like the Internet. Regardless, these agreements are creating a new layer of Internet regulation (almost extra-legal in character) that is worthy of exploration.

First, let me itemize some of these recent “voluntary” agreements between Internet companies and the AGs and/or NCMEC:

• MySpace, Facebook & 49 state AGs: On January 14th, 2008, social networking website operator MySpace.com announced an agreement with 49 state Attorneys General (AGs) aimed at better protecting children online. As part their “Joint Statement on Key Principles of Social Networking Safety,” MySpace promised the AGs it would expand online safety tools, improve education efforts, and expand its cooperation with law enforcement. Facebook entered into a similar agreement with the AGs in May. These agreements came after AGs had relentlessly pushed these social networking sites for over a year to adopt age verification techniques to screen site users. Although mandatory age verification was not part of the final agreements, an Internet Safety Technical Task Force (ISTTF) was formed to study online safety tools, including a review of online identity authentication technology. It was clear when the announcements were made that the AGs were very interested in seeing online age verification pursued.
• Various ISPs and New York AG + NCMEC: In June 2008, New York Attorney General Andrew Cuomo pushed several major ISPs to enter into a Memorandum of Understanding (MOU) with NCMEC to address the dissemination of child pornography online.  Under the MOU, the ISPs must use a NCMEC-provided list of URLs supposedly containing child pornographic images to blacklist and block all access to those sites for their users. The agreement also closed off access to Usenet discussion boards on those ISP’s networks.
• Craigslist & California AG + NCMEC: In early November, Craigslist struck an agreement with 40 state AGs as well as NCMEC in which the online classifies operator agreed to take steps to root out certain sexually-themed or “erotic services” listings. See this Ars Technica article for additional details.
• eHarmony & New Jersey AG: Just this past week, the online dating service company eHarmony announced it had struck an agreement with the Attorney General of New Jersey to settle a complaint that a New Jersey resident filed with the state in 2005 alleging that eHarmony violated his rights by not offering a same-sex matching service. The agreement creates some interesting questions, as George Mason University law professor David Bernstein told the Wall Street Journal. The discrimination claim “seems like quite a stretch,” he said, and he said that he is worried it might encourage similar claims. “If you start a dating service for African Americans, do you need one for whites and Latinos? If you have one for Jews, do you need one for Christians and Muslims?” According to the Journal, eHarmony faces a similar discrimination claim in a California court, so we might get answers soon enough.

There are a number of interesting legal and practical questions raised by these agreements:

• “Voluntary” Agreements & the Law: Although typically billed as “voluntary” in nature, it seems highly unlikely that any of the companies involved would have made these concessions without  pressure from the state AGs (and sometimes NCMEC) to do so. How binding are these agreements in light of that? Of course, it is unlikely any of the companies involved would (or could) later challenge the validity or scope of these agreements after they had already signed onto them. But what if a free speech or civil liberties group challenged these agreements in court because of their impact on the Internet, online speech, or a certain group of citizens? Would they have a case? Would they even have standing? Where do they have it?
• Precedent & Applicability: Do such agreements constitute precedents that could be applied in other cases or contexts? Could parties not involved in the original agreements — either because they refused or did not yet exist — eventually be covered by them in some fashion? Do these agreements cover services available in the American but hosted entirely overseas?
• Commerce Clause Issues: Do state Attorneys General have the right to impose such quasi-regulatory regimes on an interstate medium like the Internet? Can 50 state AGs impose uniform laws on the Net without any congressional oversight, as was the case in the MySpace and Craigslist agreements? Conversely, what will the impact be of individual state AGs going their own way, as was the case with the eHarmony agreement? If Congress remains silent on the agreements but a group (ex: a civil liberties group) brings a dormant Commerce Clause case, what are their chances of prevailing in court?
• Accountability & Effectiveness: Will anyone in Congress or a federal agency oversee these agreements? How transparent are these agreements when they are brokered behind closed doors or with NCMEC? Does the Freedom of Information Act (FOIA) apply such that records and information can be made public?  What is the benchmark of success when different states adopt different legal regimes for the Net?

I’m not saying I have any good answers here; I’m just trying to get the questions on the table and get a discussion going. I would appreciate any input on the matter, especially of the legal variety. It strikes me that we are in somewhat uncharted waters here, at least for the Internet. On the other hand, I’m sure there have been state AG-related “voluntary” agreements struck in other industries and contexts in the past that might provide some insight into what, if anything, happens next.

What I find most interesting about these developments is that the state AGs appear to be gradually accomplishing what Congress has not been able to do over the past dozen years: To impose a comprehensive regulatory structure on the Internet. But that emerging regulatory structure is highly fractured and piecemeal in nature, and that troubles me. I am particularly concerned about the long-term impact of a 50-state patchwork approach to online regulation — both for speech and commerce. It’s not like we’re talking about the regulation of a corner newsstand here, after all. This is the Internet, and localized regulation of this national — actually global — platform makes me more than a bit nervous.

In closing, I want to again reiterate that I do not necessarily oppose intervention in any of these cases. However, to the extent such regulations do need to be imposed and enforced, it may make more sense for the process to be federalized and NCMEC’s role nationalized and administered by the Federal Bureau of Investigation or some branch of the Department of Justice. There needs to be greater transparency and accountability when matters of child pornography or predation are at issue, and NCMEC’s lack of FOIA-ability in this regard is problematic. I think NCMEC is a fine organization that does very important work to help protect children, but it is work that involves criminal activities and the collection of evidence that could be used in criminal court proceedings. In light of that — and in light of the expanded law enforcement powers being granted to NCMEC — I believe the time has come to have a serious conversation about whether those powers should continue to be housed in a private, non-profit organization, or if they should be transfered to a federal law enforcement agency. Of course, there could be serious downsides associated with the nationalization of those powers, which also should be considered.

I’ve just finished reading Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion, by Hal Abelson, Ken Ledeen, and Harry Lewis, and it’s another title worth adding to your tech policy reading list. The authors survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a wonderful history and technology primer on each topic.

I like the approach and tone they use throughout the book. It is certainly something more than “Internet Policy for Dummies.” It’s more like “Internet Policy for the Educated Layman”: a nice mix of background, policy, and advice. I think Ray Lodato’s Slashdot review gets it generally right in noting that, “Each chapter will alternatively interest you and leave you appalled (and perhaps a little frightened). You will be given the insight to protect yourself a little better, and it provides background for intelligent discussions about the legalities that impact our use of technology.”

Abelson, Ledeen, and Lewis aren’t really seeking to be polemical in this book by advancing a single thesis or worldview. To the extent the book’s chapters are guided by any central theme, it comes in the form of the “two basic morals about technology” they outline in Chapter 1:

The first is that information technology is inherently neither good nor bad — it can be used for good or ill, to free us or to shackle us. Second, new technology brings social change, and change comes with both risks and opportunities. All of us, and all of our public agencies and private institutions, have a say in whether technology will be used for good or ill and whether we will fall prey to its risks or prosper from the opportunities it creates. (p. 14)

Mostly, what they aim to show is that digital technology is reshaping society and, whether we like or it not, we better get used to it — and quick!  “The digital explosion is changing the world as much as printing once did — and some of the changes are catching us unaware, blowing to bits our assumptions about the way the world works… The explosion, and the social disruption that it will create, have barely begun.” (p 3)

In that sense, most chapters discuss how technology and technological change can be both a blessing and a curse, but the authors are generally more optimistic than pessimistic about the impact of the Net and digital technology on our society. What follows is a quick summary of some of the major issues covered in Blown to Bits.

Privacy: In the chapter on privacy, the authors conclude that it is increasingly difficult to bottle up our personal information and protect it and ourselves entirely from the outside world. “Despite the very best efforts, and the most sophisticated technologies, we can not control the spread of our private information. And we often want information to be made public to serve our own, or society’s purposes.” (p. 70) They argue that there still may be some ways to deal with the misuse of information and that some new technologies might be able to help protect our privacy at the margins. Generally speaking, however, this is a losing battle, and, more importantly, there is an increasing tension between privacy and freedom of speech:

A continuing border war is likely to be waged, however, along an existing free speech front: the line separating my right to tell the truth about you from your right not to have that information used against you. In the realm of privacy, the digital explosion has left matters deeply unsettled. (p. 70)

These are issues I discussed in more detail in my recent review of Daniel Solove’s important new book, Understanding Privacy. Abelson, Ledeen, and Lewis are right to point out that these tensions are only going to increase in coming years and their chapter outlines many of the new fault lines in the debate over online privacy.

Encryption: Having followed the “crypto wars” closely in the mid-1990s, I also found their chapter on cryptography intriguing. The authors note that encryption has gone mainstream. “Keys are cheap. Secret messages are everywhere on the Internet. We are all cryptographers now.” Despite that, the authors note that “very little email is encrypted today.” With the exception of some human rights groups and some particularly privacy-sensitive users, most of us are perfectly content to send our e-mails unencrypted. They argue that there are three reasons most people are unconcerned about their e-mail privacy:

First, there is still little awareness of how easily our e-mail can be captured as the packets flow through the Internet. […] Second, there is little concern because most ordinary citizens feel they have little to hide, so why would anyone bother looking? […] Finally, encrypted email is not built into the Internet infrastructure in the way encrypted web browsing is. (p. 191-92)

They continue and conclude:

Overall, the public seems unconcerned about privacy of communication today, and that privacy fervor that permeated the crypto wars a decade ago is nowhere to be seen. In a very real sense, the dystopian predictions of both sides of that debate are being realized: On the one hand, encryption technology is readily available around the world, and people can hide the contents of their messages, just as law-enforcement feared… At the same time, the spread of the Internet has been accompanied by an increase in surveillance, just as the opponents of encryption regulation feared. (p. 193)

Actually, I’m not sure there really was a “privacy fervor that permeated the crypto wars a decade ago.” Many of us who argued passionately for crypto-freedom back then knew it was unlikely that the masses were going to rush right out and start encrypting all their mail the minute the policy battle ended. In reality, most of us live pretty mundane lives and just don’t care enough to go through the hassle of encrypting the random chatter of e-mail. But it was the principle of the matter that counted — the government should never be given the keys to unlock all private communications. That is what we were fighting about in the crypto wars — not the necessity of everyone encyrpting every e-mail they sent.

Importantly, however, the authors correctly note how the truly beneficial result of the fight for crypto-freedom was an explosion of online commerce, facilitated by behind-the-scenes crypto protecting our transactions. Amazon, eBay, and many other e-commerce vendors, both big and small, have prospered because of strong crypto. That was the security blanket many of us needed before we were willing to take the plunge and begin doing most of our shopping and financial transactions online. This is a great public policy success story, and Abelson, Ledeen, and Lewis do a wonderful job relaying it to the reader.

Online Free Speech / Age Verification: As a passionate First Amendment advocate, the chapter on free speech issues was also of great interest to me. The authors run through the early history of efforts to censor online speech, including the Communications Decency Act of 1996 (CDA) and the Child Online Protection Act of 1998 (COPA), and bring us right up to speed with congressional efforts such as the Deleting Online Predators Act (DOPA), which would ban social networking sites and services in publicly funded schools and libraries. “DOPA, which has not passed into law, is the latest battle in a long war between conflicting values,” note the authors. “On the one hand, society has an interest in keeping unwanted information away from children. On the other hand, society as a whole has an interest in maximizing open communication.” (p. 231)

Abelson, Ledeen, and Lewis go on to outline the dangers of online censorship and the importance of defending the First Amendment from new legislative and regulatory attacks, but they would have done well to cite the growing diversity of parental control tools and methods that are now on the market. I share their passion for defending free speech values, but it is equally important we work hard to show parents and policymakers how many effective self-help tools and strategies are out there on the market today to help them guide — or even control — their child’s media and Internet experiences. Not everyone is equally excited about what a world of media abundance offers us, or out children. If we hope to continue to fend off attacks on the First Amendment, we have to make sure parents are empowered to mentor their kids and limit access to content they find objectionable so they don’t expect Uncle Sam to play the role of national nanny.

I was glad to see the authors spend some time focusing on online age verification / identity authentication since that is probably the most important free speech debate raging today. [I’ve written quite a bit here about the battle over online age verification for social networking sites and other online sites.] The authors point out Congress already attempted to impose age verification on the Internet when they passed the Child Online Protection Act in 1998. “The big problem,” the authors note, “was that these methods either didn’t work or didn’t even exist.” (p. 248) Indeed, the effort in COPA to require “adult personal identification numbers” or a “digital certificate that verifies age” was in their words, “basically a plea from Congress for the industry to come up with some technical magic for determining age at a distance.” (p. 248)  And things really haven’t advanced much since then, they argue:

In the state-of-the-art, however, computers can’t reliably tell the if party on the other end of the communications link is a human or is another computer. For a computer to tell whether a human is over or under the age of 17, even imperfectly, would be very hard indeed. Mischievous 15-year-olds could get around any simple screening system that could be used in the home. The Internet just isn’t like a magazine store. (p. 249)

I hope policymakers are listening — especially the many stubborn state attorneys general who continue to push age verification as a silver-bullet solution to online child safety concerns.

Spectrum Policy: The authors point out how the death of media scarcity has profound implications for the future of speech regulation and spectrum policy alike. “As a society,” they argue, “we simply have to confront the reality that our mindset about radio and television is wrong. It has been shaped by decades of the scarcity argument.” (p. 292)  Regarding what it means for speech controls, they note:

If almost anyone can now send information that many people can receive, perhaps the government’s interest in restricting transmissions should be less than what it once was, not greater. In the absence of scarcity, perhaps the government should have no more authority over what gets said on radio and TV than it does over what gets printed in newspapers. (p. 261)

I couldn’t agree more, and I’ve written voluminously on the topic of creating a “consistent First Amendment standard for the Information Age.” Abelson, Ledeen, and Lewis seem to agree with what I said there when they argue:

Other regulation of broadcast words and images should end. Its legal foundation survives no longer in the newly engineered world of information. There are too many ways for the information to reach us. We need to take responsibility for what we see, and what our children are allowed to see. And they must be educated to live in a world of information plenty. (p. 293)

The death of the scarcity doctrine should also have a profound impact on the future spectrum policy decisions, they say. Perhaps scarcity-based rationales for regulation made (some) sense in the past, but:

These were facts of the technology of the time. They were true, but they were contingent truths of engineering. They were never universal laws of physics, and are no longer limitations of technology. Because of engineering innovations over the past 20 years, there is no practically significant “natural limitation” on the number of broadcast stations. Arguments from inevitable scarcity can no longer justify U.S. government denials of the use of the airwaves. The vast regulatory infrastructure, built to rationalize use of the spectrum but much more limited radio technology, has adjusted slowly — as it almost inevitably must: Bureaucracies don’t move as quickly as technological innovators. The FCC tries to anticipate resource needs centrally and far in advance. But technology can cause abrupt changes in supply, and market forces can cause abrupt changes in demand. Central planning works no better for the FCC than it did for the Soviet Union. (p. 272)

I completely agree, although challenging questions remain about how to get us out of the current mess. Abelson, Ledeen, and Lewis argue that “commons-based” approaches make the most sense. I am certainly open to the idea of treating certain swaths of spectrum as a commons, but it’s important to recognize that this does not necessarily get the regulators completely out of the picture. In fact, as my TLF colleague Jerry Brito has persuasively argued, there is the real potential that the FCC could become an aggressive device regulator if we switch to this approach. “A ‘commons’ model is not a third way between regulation and property, it is just another kind of regulation,” Brito concludes. That’s why I continue to believe that a property rights-based approach for most spectrum allocation makes the most sense and will get the spectrum deployed for its most highly-valued use. Commons-based approaches should supplement, not supplant, that model.

Abelson, Ledeen, and Lewis also fail to sweat the details about how to handle the issue of incumbent spectrum users in the transition to their preferred commons-based model. That strikes me as a pretty big problem. They repeatedly mention how incumbents often seek to block beneficial spectrum reforms — which is no doubt true on some occasions — but that doesn’t mean incumbent spectrum holders don’t have legitimate rights in their existing allocations that should be honored. I would hope that, even if they wanted to go with a pure commons approach going forward, the authors would at least be willing to grandfather-in existing spectrum users. If the goal is to encourage them to vacate what they currently have, incentivize them with flexible use and resale rights. For example, for the right price, a lot of broadcast spectrum holders might be willing to give up their current allotment. Alternatively, if flexible use was allowed, they might deploy their spectrum for a different purpose. Unfortunately, both of these options are currently prohibited by the FCC’s command-and-control regulatory system.

Overall, however, I enjoyed the spectrum chapter and found the history and technology primer in this chapter to be the best in the book.

Copyright: The authors have a strongly-worded chapter on copyright that generally argues for relaxing copyright protections. Interestingly, however, (unless I am missing something) I notice they don’t offer their book for free download on their site.  I’m always intrigued by copyright critics who refuse to put their own content online. Apparently, it’s another case of ‘copying is good for me, but not for thee.’ Regardless, in their copyright chapter, they argue that:

The war over copyright and the Internet has been escalating for more than 15 years. It is a spiral of more and more technology that makes it ever easier for more and more people to share more and more information. This explosion is countered by a legislative response that brings more and more acts within the scope of copyright enforcement, subject to punishments that grow ever more severe. Regulation tries to keep pace by banning technology, sometimes even before the technology exists… If we cannot slow the arms race, tomorrow’s casualties may come to include the open Internet and dynamic of innovation that fuels the information revolution. (p. 199)

The authors make a fair point about the perils of banning technologies to protect copyright. That’s never the right answer. Regrettably, however, they pay less attention to what I regard as the legitimate concerns of copyright holders about how to protect their creative works and expressive endeavors going forward. And it’s not just about protecting large-scale industries, as they and other copyright critics are often prone to claim. It’s about whether or not we want a workable copyright system going forward. Of course, some critics wouldn’t mind seeing copyright law fade into the sunset altogether. But Abelson, Ledeen, and Lewis don’t really make it clear how far they’d be willing to go. They do have a brief discussion about collective licensing approaches as a possible solution, which may be coming sooner than we think for the Net. Unfortunately, they don’t spend much time developing the details. I remain skeptical about the sensibility of that approach — especially since it will likely end up being compulsory in nature and fraught with fairness problems (i.e. Who pays in? How much? On the other end, who gets paid how much when their content appears online? etc.) Nonetheless, I think that’s where we’ll end up before the copyright wars are over, so it would have been nice to see the authors spend more time on collective licensing issues.

They also spend a lot of time discussing DRM. I was surprised by their comment that, “Developers of DRM and trusted platforms may be creating effective technologies to control the use of information, but no one has yet devised effective methods to circumscribe the limits of that control.” (p. 212) I must say, that does not seem to match up with the reality of the market we see around us today in which DRM systems are rapidly crumbling and being abandoned left and right.

Conclusion

I didn’t agree with everything in Blown to Bits, such as their unfortunate call for Net neutrality regulation. Overall, however, I enjoyed the book and recommend it. The narrative can be a little disjointed at times, almost sounding like a series of e-mail exchanges between friends (which may have been the case since the book had three authors). But the text is very accessible and contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. If the authors are smart, they’ll throw the book online and update it periodically to keep it fresh. As I have found with my parental controls and Media Metrics reports, that’s the only way to keep up with the frantic pace of change in the tech policy arena — version your books like software and release periodic updates.

This book will definitely appear on my big, end-of-year “Most Important Tech Policy Books of 2008” list, which I should have wrapped up shortly. Also, I think this book makes a nice complement to Palfrey and Gasser’s Born Digital, which I reviewed here last month. And, if you are interested in another title that takes an approach similar to what Abelson, Ledeen, and Lewis have taken here, you might want to check out Bruce Owen’s outstanding 1999 book “The Internet Challenge to Television.” It’s an oldy but a goodie, as I noted here.

Finally, given the title of the book and the countless times in the text that Abelson, Ledeen, and Lewis talk about the “bits revolution,” how “bits are bits,” and how “bits behave strangely,” shockingly, they never seem to get around to crediting Nicholas Negroponte for his pioneering work on this front in Being Digital. Long before anybody else gave a damn about how the movement from a world of atoms to a world bits would change our entire existence, Nicholas Negroponte was preaching that gospel to the unconverted. And considering he was saying all that back in the dark (dial-up) ages of 1995, the man deserves some credit, as I have noted here before.