[First published by AIER on April 20, 2020 as “Innovation and the Trouble with the Precautionary Principle.”]

In a much-circulated new essay (“It’s Time to Build”), Marc Andreessen has penned a powerful paean to the importance of building. He says the COVID crisis has awakened us to the reality that America is no longer the bastion of entrepreneurial creativity it once was. “Part of the problem is clearlyforesight, a failure of imagination,” he argues. “But the other part of the problem is what we didn’t do in advance, and what we’re failing to do now. And that is a failure of action, and specifically our widespread inability to build.”

Andreessen suggests that, somewhere along the line, something changed in the DNA of the American people and they essentially stopped having the desire to build as they once did. “You don’t just see this smug complacency, this satisfaction with the status quo and the unwillingness to build, in the pandemic, or in healthcare generally,” he says. “You see it throughout Western life, and specifically throughout American life.” He continues:

“The problem is desire. We need to want these things. The problem is inertia. We need to want these things more than we want to prevent these things. The problem is regulatory capture. We need to want new companies to build these things, even if incumbents don’t like it, even if only to force the incumbents to build these things.”

Accordingly, Andreessen continues on to make the case to both the political right and left to change their thinking about building more generally. “It’s time for full-throated, unapologetic, uncompromised political support from the right for aggressive investment in new products, in new industries, in new factories, in new science, in big leaps forward.”

What’s missing in Andreessen’s manifesto is a concrete connection between America’s apparent dwindling desire to build these things and the political realities on the ground that contribute to that problem. Put simply, policy influences attitudes. More specifically, policies that frown upon entrepreneurial risk-taking actively disincentivize the building of new and better things. Thus, to correct the problem Andreessen identifies, it is essential that we must first remove political barriers to productive entrepreneurialism or else we will never get back to being the builders we once were.    

Attitudes about Progress Matter 

The economic historian Joel Mokyr has noted how, “technological progress requires above all tolerance toward the unfamiliar and the eccentric” and that the innovation that undergirds economic growth is best viewed as “a fragile and vulnerable plant” that “is highly sensitive to the social and economic environment and can easily be arrested by relatively small external changes.” Specifically, societal and political attitudes toward growth, risk-taking, and entrepreneurial activities (and failures) are important to the competitive standing of nations and the possibility of long-term prosperity. “How the citizens of any country think about economic growth, and what actions they take in consequence, are,” Benjamin Friedman observes, “a matter of far broader importance than we conventionally assume.”

Former Federal Reserve chairman Alan Greenspan and co-author Adrian Wooldridge have observed that “[t]he key to America’s success lies in its unique toleration for ‘creative destruction,’” and an “enduring preference for change over stability.” This is consistent with the findings of Deirdre McCloskey’s recent 3-volume trilogy about the history of modern economic growth. McCloskey meticulously documents how an embrace of “bourgeois virtues” (i.e., positive attitudes about markets and innovation) was the crucial factor propelling the invention and economic growth that resulted in the Industrial Revolution.The importance of positive attitudes toward innovation and risk-taking were equally important for the Information Revolution more recently. In turn, that also helps explain why so many US-based tech innovators became global powerhouses, while firms from other countries tend to flounder because their innovation culture was more precautionary in orientation.

There are limits to how much policymakers can do to influence the attitudes among citizens toward innovation, entrepreneurialism, and economic growth. When policymakers set the right tone with a positive attitude toward innovation, however, it inevitably infuses various institutions and creates powerful incentives for entrepreneurial efforts to be undertaken. This, in turn, influences broader societal attitudes and institutions toward innovation and creates a positive feedback loop. “If we learn anything from the history of economic development,” argued David Landes in his magisterial The Wealth and Poverty of Nations: Why Some Are So Rich and Some Are So Poor, “it is that culture makes all the difference.” Research by other scholars finds that, “existing cultural conditions determine whether, when, how and in what form a new innovation will be adopted.”

Economists like Mancur Olson speak of the importance of a “structure of incentives” that helps explain why “the great differences in the wealth of nations are mainly due to differences in the quality of their institutions and economic policies.”In this sense, “institutions” include what Elhanan Helpman defines as “systems of rules, beliefs, and organizations,”including the rule of law and court systems,property rights,contracts, free trade policies and institutions, light-touch regulations and regulatory regimes, freedom to travel, and various other incentives to invest.

It is the freedom to invest, the freedom to work, and the freedom to build that particularly concerns Marc Andreessen. But he needs to draw the connection with the specific public policies that hold back our ability to exercise those freedoms. 

Policy Defaults toward Innovation Matter Even More

Unfortunately, a great many barriers exist to entrepreneurial efforts. Those barriers to building include inflexible health and safety regulation, occupational licensing rules, cronyist industrial protectionist schemes, inefficient (industry-rigged) tax schemes, rigid zoning ordinances, and many other layers of regulatory red tape at the federal, state, and local level.  

What unifies all these policies is risk aversion and the precautionary principle. As I argued in my last book, we have a choice when it comes to setting defaults for innovation policy. We can choose to set innovation defaults closer to the green light of “permissionless innovation,” generally allowing entrepreneurial acts unless a compelling case can be made not to. Alternatively, we can set our default closer to the red light of the precautionary principle, which disallows risk-taking or entrepreneurialism until some authority gives us permission to proceed. 

My book made the case for permissionless innovation as the superior default regime. My argument for rejecting the precautionary principle as the default came down to belief that, “living in constant fear of worst-case scenarios—and premising public policy on them—means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning,” I argued, “it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.”  

Heavy-handed preemptive restraints on innovative acts have such deleterious effects because they raise barriers to entry, increase compliance costs, and create more risk and uncertainty for entrepreneurs and investors. Progress is impossible without constant trial-and-error experimentation and entrepreneurial risk-taking. Thus, it is the unseen costs of forgone innovation opportunities that make the precautionary principle so troubling as a policy default. Without risk, there can be no reward. Scientist Martin Rees refers to this truism about the precautionary principle as “the hidden cost of saying no.”  

More generally, risk analysts have noted that the precautionary principle “lacks a firm logical foundation” and is “literally incoherent” because it fails to specify a clear standard by which to judge which risks are most serious and worthy of preemptive control. Moreover, regulatory policy experts have criticized the fact that the precautionary principle, “may be misused for protectionist ends; it tends to undermine international regulatory cooperation; and it may have highly undesirable distributive consequences.” Specifically, large incumbent firms are almost always more likely able to deal with rigid, expensive regulatory regimes or, worse yet, can game those systems by “capturing” policymakers and using regulatory regimes to exclude new rivals.  

Precaution Suffocates Productive Entrepreneurialism 

The problem today is that a massive volume of precautionary policies exist that discourage “productive entrepreneurship” (i.e., building) and instead actively encourage “unproductive entrepreneurship” (i.e., preservation of the status quo). Andreessen identifies this problem when he speaks of “smug complacency, this satisfaction with the status quo and the unwillingness to build.” But he doesn’t fully connect the dots between how the attitudes came about and the public policy incentives that actively encourage such thinking. 

Why try to build when all the incentives are aligned against you? Andreessen wants to know “Where are the supersonic aircraft? Where are the millions of delivery drones? Where are the high speed trains, the soaring monorails, the hyperloops, and yes, the flying cars?” Well, I’ll tell you where they are at. They are trapped in the minds of inventive people who cannot bring them to fruition so long as an endless string of barriers makes it costly or impossible for them to realize those dreams. 

Read Eli Dourado’s important essay on “How Do We Move the Needle on Progress?” to get a more concrete feel for the specific barriers to building in the fields where productive entrepreneurialism is most needed: health, housing, energy, and transportation.

The bottom line, as Dustin Chambers and Jonathan Munemo noted in a 2017 Mercatus Center report on the impact of regulation on entrepreneurial activity, is that “If a nation wishes to promote higher levels of domestic entrepreneurship in both the short and long run, top priority should be given to reducing barriers to entry for new firms and to improving overall institutional quality (especially political stability, regulatory quality, and voice and accountability).” 

This doesn’t mean there is no role for government in helping to promote “building” and entrepreneurialism. A healthy debate continues to rage about “state capacity” as it pertains to government investments in research and development, for example. While I am skeptical, there may very well be some steps governments can take to encourage more and better investments in the sectors and technologies we desperately need. But all the “state capacity” in the world isn’t going to help until we first clear away the barriers that hold back the productive spirit of the people. 

Oiling the Wheels of Novelty

My new book, which is due out next week, discusses how innovation improves economies and government institutions. It builds on the fundamental insight of Calestous Juma, who concluded his masterwork Innovation and Its Enemies by reminding us of the continued importance of “oiling the wheels of novelty,” to constantly replenish the well of important ideas and innovations. “The biggest risk that society faces by adopting approaches that suppress innovation,” Juma said, “is that they amplify the activities of those who want to preserve the status quo by silencing those arguing for a more open future.”

The openness Juma had in mind represents a tolerance of new ideas, inventions, and unknown futures. It can and should also represent an openness to new, more flexible methods of governance. For, if it doesn’t, the builder movement that Andreessen and others long for will remain just a distant dream, incapable of ever being realized so long as the wheels of novelty are gummed up by decades of inefficient, archaic, counterproductive public policies.

_________

P.S. I highly recommend this excellent essay by Jerry Brito, “We don’t want to build? Maybe we should build anyway.” It touches on many of the same themes I discuss in my response essay as well as in my new book, Evasive Entrepreneurs and the Future of Governance: How Innovation Improves Economies and Governments.

Today, the U.S. Department of Transportation released its eagerly-awaited “Federal Automated Vehicles Policy.” There’s a lot to like about the guidance document, beginning with the agency’s genuine embrace of the potential for highly automated vehicles (HAVs) to revolutionize this sector and save thousands of lives annually in the process.

It is important we get HAV policy right, the DOT notes, because, “35,092 people died on U.S. roadways in 2015 alone” and “94 percent of crashes can be tied to a human choice or error.” (p. 5) HAVs could help us reverse that trend and save thousands of lives and billions in economic costs annually. The agency also documents many other benefits associated with HAVs, such as increasing personal mobility, reducing traffic and pollution, and cutting infrastructure costs.

I will not attempt here to comment on every specific recommendation or guideline suggested in the new DOT guidance document. I could nit-pick about some of the specific recommended guidelines, but I think many of the guidelines are quite reasonable, whether they are related to safety, security, privacy, or state regulatory issues. Other issues need to be addressed and CEI’s Marc Scribner does a nice job documenting some of them is his response to the new guidelines.

Instead of discussing those specific issues today, I want to ask a more fundamental and far-reaching question which I have been writing about in recent papers and essays: Is this guidance or regulation? And what does the use of informal guidance mechanisms like these signal for the future of technological governance more generally?

When Is “Voluntary” Really Mandatory?

The surreal thing about DOT’s new driverless car guidance is how the agency repeatedly stresses it “is not mandatory” and that the guidelines are voluntary in nature but then — often in the same paragraph or sentence — the agency hints how it might convert those recommendations into regulations in the near future. Consider this paragraph on pg. 11 of the DOT’s new guidance document:

The Agency expects to pursue follow-on actions to this Guidance, such as performing additional research in areas such as benefits assessment, human factors, cybersecurity, performance metrics, objective testing, and others as they are identified in the future. As discussed, DOT further intends to hold public workshops and obtain public comment on this Guidance and the other elements of the Policy. This Guidance highlights important areas that manufacturers and other entities designing HAV systems should be considering and addressing as they design, test, and deploy HAVs. This Guidance is not mandatory. NHTSA may consider, in the future, proposing to make some elements of this Guidance mandatory and binding through future regulatory actions. This Guidance is not intended for States to codify as legal requirements for the development, design, manufacture, testing, and operation of automated vehicles. Additional next steps are outlined at the end of this Guidance. [emphasis added.]

The agency continues on to request that “manufacturers and other entities voluntarily provide reports regarding how the Guidance has been followed,” but then notes how “[t]his reporting process may be refined and made mandatory through a future rulemaking.” (p. 15)

And so it goes throughout the DOT’s new “guidance” document. With one breath the DOT suggests that everything is informal and voluntary; with the next it suggests that some form of regulation could be right around the proverbial corner.

Agency Threats Are the Future of Technological Governance

What’s going on here? In essence, DOT’s driverless car guidance is another example of how “soft law” and “agency threats” are becoming the dominant governance models for fast-paced emerging technology.

As noted by Tim Wu, a proponent of such regimes, these agency threats can include “warning letters, official speeches, interpretations, and private meetings with regulated parties.” “Soft law” simply refers to any sort of informal governance mechanism that agencies might seek to use to influence private decision-making or in this case the future course of technological innovation.

The problem with agency threats, as my former Mercatus Center colleague Jerry Brito pointed out in a 2014 law review article, is that they are fundamentally undemocratic and represent a betrayal of the rule of law. The use of “threat regimes,” Brito argued, “places undue power in the hands of regulators unconstrained by predictable procedures.” Such regimes breed uncertainty by leaving decisions up to the whim of regulators who will be unconstrained by administrative procedures, legal precedents, and strict timetables. “[B]ecause it has no limiting principle,” Brito concluded, the agency threats model “leaves the regulatory process without much meaning” and “would obviously be ripe for abuse.”

The danger exists that we are witnessing gradual mission creep as the DOT’s “guidance” process slowly moves from being a truly voluntary self-certification process to something more akin to a pre-market approval process. Every “informal” request that DOT makes — even when those requests are just presented in the form of vague questions — opens the door to greater technocratic meddling in the innovation process by federal bureaucrats.

Coping with the Pacing Problem

Why are agencies like the DOT adopting this new playbook? In a nutshell, it comes down to the realization on their part that the “pacing problem” is now an undeniable fact of life.

I discussed the pacing problem at length in my recent review of Wendell Wallach’s important new book, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. Wallach nicely defined the pacing problem as “the gap between the introduction of a new technology and the establishment of laws, regulations, and oversight mechanisms for shaping its safe development.” “There has always been a pacing problem,” Wallach noted, but like other philosophers, he believes that modern technological innovation is occurring at an unprecedented pace, making it harder than ever to “govern” it using traditional legal and regulatory mechanisms.

Which is exactly why the DOT and whole lot of other agencies are now defaulting to soft law and agencies threat models as their old regimes struggle to keep up with the pace of modern technological innovation. As the DOT put it in its new guidance document: “The speed with which HAVs are advancing, combined with the complexity and novelty of these innovations, threatens to outpace the Agency’s conventional regulatory processes and capabilities.” (p. 8)  More specifically, the agency notes that:

The remarkable speed with which increasingly complex HAVs are evolving challenges DOT to take new approaches that ensure these technologies are safely introduced (i.e., do not introduce significant new safety risks), provide safety benefits today, and achieve their full safety potential in the future. To meet this challenge, we must rapidly build our expertise and knowledge to keep pace with developments, expand our regulatory capability, and increase our speed of execution. (p. 6)

Rarely has any agency been quite so blunt about how it is racing to get ahead of the pacing problem before it completely loses control of the future course of technological innovation.

But the DOT is hardly alone in its increased reliance on soft law governance mechanisms. In fact, I’m in the early research stages of a new paper about what soft law and agency threat models mean for the future of emerging technology and its governance. In that paper, I hope to document how many different agencies (FAA, FDA, FTC, FCC, NTIA, & DOT among others) are using some variant of soft law model to informally regulate the growing universe of emerging technologies out there today (commercial drones, connected medical devices, the Internet of Things, 3D printing, immersive technology, the sharing economy, driverless cars, and more.)

If nothing else, I would like to devise a taxonomy of soft law/agency threat models and then discuss the upsides and downsides of those models. If anyone has recommendations for additional reading on this topic, please let me know. The best thing I have seen on the issue is a 2013 book of collected essays on Innovative Governance Models for Emerging Technologies, edited by Gary E. Marchant, Kenneth W. Abbott and Braden Allenby. I’m surprised more hasn’t been written about this in law reviews or political science journals.

What Does It Mean for Innovation? And Accountable Government?

So, what does all this mean for the future of driverless cars, autonomous systems, and other emerging technologies? I think it’s both good and bad news.

The good news — at least from the perspective of those of us who want to see innovators freed up to experiment more without prior restraint — is that the technological genie is increasingly out of the bottle. Technology regulators are at an impasse and they know it. Their old regulatory regimes are doomed to always be one step behind the action. Thus, a lot of technological innovation is going to be happening before any blessing has been given to engage in those experiments.

The bad news is that the regulatory regimes of the future will become almost hopelessly arbitrary in terms of their contours and enforcement ceiling. Basically, in our new world of soft law and agency threats, you can tear up the Administrative Procedures Act and throw it out the window.  When regulatory agencies act in the future, they will do so in a sort of extra-legal Twilight Zone, where things are not always as they seem. Agencies will increasingly act like nagging nannies, constantly pressuring innovators to behave themselves. And sometimes that nagging will work, and sometimes it will even improve consumer welfare at the margin! It will work sometimes precisely because government still wields a mighty big hammer and no innovator wants to be nailed to the ground in the courts, or the court of public opinion for that matter. Thus, many — not all, but many — of those innovators will go along with whatever agencies like DOT suggests as “best practices” even if those guidelines are horribly misguided or have no force of law whatsoever. And because agencies know that many (perhaps most) innovators will fall in line with whatever “best practices” or “codes of conduct” that they concoct, it will reinforce the legitimacy of this model and become the new method of imposing their will on current or emerging technology sectors.

Again, agency threats won’t always work because some innovators will continue to engage in rough forms of “technological civil disobedience” and just ignore a lot of these informal guidelines and agency threats. Agencies will push back and seek to make an example of specific innovators (especially the ones with deep pockets) in order to send a message to every other innovator out there that they better fall in line or else!

But what that “or else!” moment or action looks like remains completely unclear. The problem with soft law is that, by its very nature, it is completely open-ended and fundamentally arbitrary. It is really just “ non-law law.” That’s the “legal regime” that will “govern” the emerging technologies of the present and the future.

Isn’t Soft Law Better Than the Alternative?

Now, here’s the funny thing about this messy, arbitrary, unaccountable world of soft law and agency threats: It is probably a hell of lot better than the old world we used to live in!

The old analog era regulatory systems were very top-down and command-and-control in orientation. These traditional regimes were driven by the desire of regulators to enforce policy priorities by imposing prior restraints on innovation and then selectively passing out permission slips to get around those rules.

As I noted in my latest book, the problem with those traditional regulatory systems is that they “tend to be overly rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things.” (Permissionless Innovation, p. 120)

For all the reasons I outlined in my book and other papers on these topics, “permissionless innovation” remains the superior policy default compared to precautionary principle-based prior restraints. But I am not so naïve as to expect that permissionless innovation will prevail in the policy world all of the time. Moreover, I am not one of those technological determinists who goes around saying that technology is an unstoppable force that relentlessly drives history, regardless of what policymakers say. I am more of a soft determinist who believes that technology often can be a major driver of history, but not without a significant shaping from other social, cultural, economic, and political forces.

Thus, as much as I worry about the new “soft law/agency threats” regime being arbitrary, unaccountable, and innovation-threatening, I know that the ideal of permissionless innovation will only rarely be our default policy regime. But I also don’t think we are going back the old regulatory regimes of the past and we absolutely wouldn’t want to anyway in light of the deleterious impacts those regimes had on innovation in practice.

The best bet for those of us who care about the freedom to innovate is to make sure that these soft law governance mechanisms have some oversight from Congress (unlikely) and the Courts (more likely) when agencies push too far with informal agency threats. Better yet, we can hope that the pace of technological change continues to accelerate and pressures agencies to only intervene to address the most pressing problems and then largely leaves the rest of the field wide open for continued experimentation with new and better ways of doing things.

But make no doubt about it, as today’s DOT guidance document for driverless cars makes clear, “agency threats” will increasingly shape the future of emerging technologies whether we like it or not.

Farhad Manjoo’s latest New York Times column, “Giving the Drone Industry the Leeway to Innovate,” discusses how the Federal Aviation Administration’s (FAA) current regulatory morass continues to thwart many potentially beneficial drone innovations. I particularly appreciated this point:

But perhaps the most interesting applications for drones are the ones we can’t predict. Imposing broad limitations on drone use now would be squashing a promising new area of innovation just as it’s getting started, and before we’ve seen many of the potential uses. “In the 1980s, the Internet was good for some specific military applications, but some of the most important things haven’t really come about until the last decade,” said Michael Perry, a spokesman for DJI [maker of Phantom drones]. . . . He added, “Opening the technology to more people allows for the kind of innovation that nobody can predict.”

That is exactly right and it reflects the general notion of “permissionless innovation” that I have written about extensively here in recent years. As I summarized in a recent essay: “Permissionless innovation refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention or business model will bring serious harm to individuals, innovation should be allowed to continue unabated and problems, if they develop at all, can be addressed later.”

The reason that permissionless innovation is so important is that innovation is more likely in political systems that maximize breathing room for ongoing economic and social experimentation, evolution, and adaptation. We don’t know what the future holds. Only incessant experimentation and trial-and-error can help us achieve new heights of greatness. If, however, we adopt the opposite approach of “precautionary principle”-based reasoning and regulation, then these chances for serendipitous discovery evaporate. As I put it in my recent book, “living in constant fear of worst-case scenarios—and premising public policy upon them—means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning, it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.”

In this regard, the unprecedented growth of the Internet is a good example of how permissionless innovation can significantly improve consumer welfare and our nation’s competitive status relative to the rest of the world. And this also holds lessons for how we treat commercial drone technologies, as Jerry Brito, Eli Dourado, and I noted when filing comments with the FAA back in April 2013. We argued:

Like the Internet, airspace is a platform for commercial and social innovation. We cannot accurately predict to what uses it will be put when restrictions on commercial use of UASs are lifted. Nevertheless, experience shows that it is vital that innovation and entrepreneurship be allowed to proceed without ex ante barriers imposed by regulators. We therefore urge the FAA not to impose  any prospective restrictions on the use of commercial UASs without clear evidence of actual, not merely hypothesized, harm.

Manjoo builds on that same point in his new Times essay when he notes:

[drone] enthusiasts see almost limitless potential for flying robots. When they fantasize about our drone-addled future, they picture not a single gadget, but a platform — a new class of general-purpose computer, as important as the PC or the smartphone, that may be put to use in a wide variety of ways. They talk about applications in construction, firefighting, monitoring and repairing infrastructure, agriculture, search and response, Internet and communications services, logistics and delivery, filmmaking and wildlife preservation, among other uses.

If only the folks at the FAA and in Congress saw things this way. We need to open up the skies to the amazing innovative potential of commercial drone technology, especially before the rest of the world seizes the opportunity to jump into the lead on this front.

___________________________

Additional  Reading

• DRM for Drones Will Fail, January 28, 2015.
• Regulatory Capture: FAA and Commercial Drones Edition, January 16, 2015.
• Global Innovation Arbitrage: Commercial Drones & Sharing Economy Edition, December 9, 2014.
• How to Destroy American Innovation: The FAA & Commercial Drones, October 6, 2014.
• Filing to FAA on Drones & “Model Aircraft”, Sept. 23, 2014.
• Private Drones & the First Amendment, Sept. 19, 2014.
• [TV interview] The Beneficial Uses of Private Drones, March 28, 2014.
• Comments of the Mercatus Center to the FAA on integration of drones into the nation’s airspace, April 23, 2o13.
• Eli Dourado, Deregulate the Skies: Why We Can’t Afford to Fear Drones, Wired, April 23, 2013.
• Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom (2014).
• [Video] Cap Hill Briefing on Emerging Tech Policy Issues (June 2014).

Patrick Ruffini, political strategist, author, and President of Engage, a digital agency in Washington, DC, discusses his latest book with coauthors David Segal and David Moon: Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet. Ruffini covers the history behind SOPA, its implications for Internet freedom, the “Internet blackout” in January of 2012, and how the threat of SOPA united activists, technology companies, and the broader Internet community.

Download

Related Links

• Patrick Ruffini, Engage
• Patrick Ruffini, Huffington Post
• Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists and Suits Teamed Up to Defeat SOPA and Save the Internet, Goodreads

Register here now for next Wednesday’s Cato book forum on Laws of Creation: Property Rights in the World of Ideas.

In the book, Ronald A. Cass and Keith Hylton reject the idea that changing technology undermines the case for intellectual property rights. They argue that making the work of inventors and creators free would be a costly mistake.

That cuts against the bulk of academic opinion today, which is critical of the broad scope and length of intellectual property protections today. The book has qualities that many libertarians will enjoy because it starts with first principles: the theoretical underpinnings and practical benefits of property rights.

By no means does the book answer all the questions, and we’ll have TLF’s own Jerry Brito, the editor of Copyright Unbalanced, on hand to provide commentary.

That’s Wednesday (3/20) at noon in the Cato Institute’s F.A. Hayek auditorium. There’s no such thing as a free lunch, but the sandwiches provided afterwards come at the low cost of learning more dimensions of the intellectual property debate. Register now!

This morning, I’m gearing up for Thursday’s noon-time Cato book forum on the Mercatus/Jerry Brito book, Copyright Unbalanced: From Incentive to Excess.

With the recent release and withdrawal of a Republican Study Committee memo on copyright policy, there is even greater tension around the issues than usual. So here’s a line from the planning email I sent to panelists Jerry Brito, Tom W. Bell, and Mitch Glazier.

Given how hot the issues we’ll discuss tend to be, I’ll emphasize that we’re all friends through the transitive property of friendship. I’ll be policing against ad hominem and stuff like that coming from any side. In other words, don’t bother saying or implying why a co-panelist thinks what he does because you don’t know, and because I’ll make fun of you for it.

It might be worth coming just to see how well I do with my moderation duties. Whatever the case, I think our panelists will provide a vibrant discussion on the question of where libertarians and conservatives should be on copyright. Register here now.

Five years ago today the Technology Liberation Front (the “TLF”) got underway with this post.  The idea for the TLF came about after I asked some tech policy wonks whether it was worth put together a blog dedicated to covering Internet-related issues from a cyber-libertarian perspective.  The model I had in mind was a “Volokh Conspiracy for Tech Issues,” if you will. I wanted to bring together a collection of sharp, liberty-loving wonks (most of whom worked in the think tank world) to talk about their research on this front and to give them a place to post their views on breaking tech policy developments.  It was to be a sort of central clearinghouse for libertarian-oriented tech policy analysis and advocacy.

At first, Tim Lee and I debated whether it even made sense to have that sort of narrow focus, but I think the passage of time and the rise of plenty of competition on this front shows that it was worthwhile.  And I’ve been very pleased with the tag-team effort of all our TLF contributors and the way—without anyone planning it, in true libertarian fashion—we’ve sort of developed a nice division of labor on various tech policy issues.

Perhaps a few stats are in order on this occasion to mark our progress 5 years in. The best indication of our success is the fact that our Pagerank (Google’s logarithmic scale of website importance based on links to that site) has reached 7/10—the same score shared by the Volokh Conspiracy (our model), as well as Techmeme (the leading tech news aggregator), the Cato Institute, CDT, etc. (For comparison: ArsTechnica and EFF are 8s.) Unfortunately, we’ve only been using Google Analytics for three of the past five years, so it’s impossible to get a authoritative accounting of traffic growth since Day 1. But here are few markers:

• 4,450+ posts
• 29,000+ comments
• 2,698 RSS subscribers
• 15,763 unique visitors per month
• 1,000,000 pageviews since Nov. 2006 when we started using Google Analytics
• Besides organic search and direct links, we get the bulk of our traffic from other tech-oriented sites (in order of hits) TechDirt, Freedom to Tinker, Ars Technica, GamePolitics.com, TechMeme, Slate, etc., and aggregators such as reddit, Fark, and StumbleUpon

So, what’s our #1 post of all-time? That would be Jim Harper’s “Where to Get Your Fake ID,” proving that if you play Google search terms wisely, you can build a link goldmine!  18,200+ pageviews and counting!  (Harper… You finally have something to list on your resume that lots of people have read!)  Sometimes silly posts like that can net a lot of traffic. For example, another top 5 TLF post was my piece on “The Most Powerful Computer Ever,” which has netted over 7,700 pageviews.  It was just an old magazine ad that Wayne Crews had found years ago and sent me a copy of.

In case you’re interested, some of our other most popular TLF posts include:

• My post “Grouping Recent Net Books: Internet Optimists vs. Pessimists” (6,631 views)
• Jim Harper’s “Social Hack on Gmail Users” (3,756 views)
• My rant on “Video Games & Moral Panic” (3,408 views)
• Berin Szoka’s look at “The Right Way to Allow Cell Phone Jammers” (3,322 views)
• Tim Lee’s piece on the tech community & civil liberties: “Pissing on Their Graves” (2,828 views)
• Harper’s “ID Checks are About Control, Not Security” (2,870) and his look at “Border Biometrics” (2,402 views)
• Cord Blomquist’s “Sirius XM Bankruptcy: Thank Washington for the Delay” (2,069 views)
• Alex Harris’s look at the “Best and Worst Supreme Court Decisions” (1,714 views)
• My book review of  “Zittrain’s Future of the Internet” (1,689 views)

I want to thank all my TLF blogging colleagues for their contributions over the past 5 years. As I noted in that very first post here back in 2004, “this blog is not a one-man show.”  Almost all of us here have our own personal or organizational blogs, but when we come together here on the TLF, it helps us show the world that there is another vision for ordering the affairs of cyberspace beside the command-and-control, hands-all-over-the-Net mentality that dominates today: real Internet freedom!

There are a couple of people who deserve special thanks for what they have done for the TLF:

PJ Doland has not only generously hosted our site all these years and donated endless hours of his time to keeping it running through waves of spam attacks, but he also designed our unique TLF banner. His use of Soviet-style art for libertarian purposes is the perfect compliment to our “Liberation Front” theme.  PJ also provided that awesome TLF tagline: “The real problem is not whether machines think but whether men do.” (It’s a B.F. Skinner quote, incidentally).

Jerry Brito has also been enormously helpful with the back office stuff, including getting our podcast off the ground. He is also is responsible for the wonderful site redesign and improvements that were just rolled out recently. And Jerry has been extremely patient with all the TLF bloggers through the years as he taught us the basics about how to be more effective bloggers.

Tim Lee has been the TLF’s most prolific and popular blogger and, as I noted recently when he announced his departure from the TLF, it is not an overstatement to say that for many of the TLF’s five years the rest of us here have simply been riding on his coat tails. We were just lucky to be along for the ride as he made the TLF more visible to the tech policy world. He brought us a significant portion of the audience and respect that we have to today and I cannot thank him enough for that.

Berin Szoka, my colleague at PFF, came on board just over a year ago but since then has become a prolific force on the TLF and helped spawn several new “ongoing series” features such as the Privacy Solutions Series, “Googlephobia,” and Cutting the Video Cord.  Berin is also helping with the back-office stuff and trying to help me get the podcast going again regularly.

Our Readers! Seriously, we thank each and every one of you who has taken the time to visit our site, read our rants, and leave comments (even the shitty ones!)  We really appreciate it. We know there are countless other blogs out there to occupy your time and we’re honored that you’d give ours even a few minutes of your day. If you’re in D.C. today, we hope you’ll join us for our celebratory happy hour tonight!

Here’s to another 5 great years of technology freedom!  If you haven’t already done so, please subscribe to our blog feed, podcast feed (iTunes), Twitter and Facebook page.

Cheers,

Adam Thierer

P.S. I’m feeling a bit sentimental as I think back and realize all the things that didn’t exist even just 5 years ago: Twitter, the iPhone, FiOS, Facebook, Pandora, Chrome, the PS3 + Wii + 360, YouTube, Hulu, etc…   Just imagine how exciting the next 5 years will be!

Over at Twitter, our TLF blogging colleague Jerry Brito asks a smart question about the Federal Communications Commission’s recently-opened investigation of the Apple-Google spat over Apple’s recent decision to reject the Google Voice app from the iPhone App Store.  Jerry asks: “Maybe I should know this, but what authority does the FCC have to demand that Apple explain anything?”  Good question, Jerry!  But no, I don’t think there’s anything you’re missing.  We might consider this merely the latest chapter of the agency’s rogue operator history: If you can’t find the authority to do something, just assert it anyway and go for broke!  The idea of living within the confines of the law and paying attention to statutory authority seems like an alien concept to the FCC.  As my PFF colleagues Barbara Esbin and Adam Marcus have pointed out in their amazing recent law review article, “The Law Is Whatever the Nobles Do: Undue Process at the FCC,” when all else fails, the agency just asserts “ancillary jurisdiction” and claims that the whole world is their oyster. They argue:

The FCC’s means of asserting regulatory authority over broadband Internet service providers’ (“ISP”) network management practices is unprecedented, sweeping in its breadth, and seemingly unbounded by conventional rules of interpretation and procedure. We should all be concerned, for apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers.

Of course, even if we ignore the agency’s cavalier attitude about the law and statutory authority, there are other reasons to be concerned about FCC interference in this matter. Berin and Ryan have already pointed out the other side of the story: That this is just old-fashion cut-throat competition, and that consumers continue to enjoy rapidly expanding options in this marketplace. [Also see this paper that Barbara Esbin and Berin co-authored: Should the FCC Kill The Goose That Laid The Golden iPhone.] And even some of those folks in the press or the blogosphere who welcome some FCC oversight in this case recognize the horrific potential downside here.  As Larry Dignan, Editor in Chief of ZDNet, argues in his piece today, “FCC’s More Proactive Stance: Should We Cheer or Worry?”:

But then there’s the other side of the equation. The one that can make you squirm. The FCC is looking into everything from app approval to exclusive deals between carriers and device makers. At some point, the FCC meddles in free markets. It will micromanage. For now, the FCC’s moves require a wait-and-see approach, but it’s clear there’s a new sheriff in town and he isn’t going to be shy about probing all aspects of the wireless business. Stay tuned to see how this turns out.

Uh, yeah. And that’s what has some of us so worried. When the FCC “meddles” and “micromanages” the results are usually less than stellar.  Once the FCC starts regulating every aspect of our smartphones, chances are they won’t be so smart any more.  In just one year’s time, the Apple iPhone Store has facilitated 1.5 Billion downloads of over 65,000 free and paid apps by consumers in 77 countries. Does anyone think the FCC is going to do better than that once they start micro-managing the process?

On this week’s show, we discuss government transparency—a topic a number of us here at the TLF have written about lately.  Among other things, we discuss:

• Why transparency is important
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• What data the government should provide and how
• Good and bad examples of transparency
• President Obama’s promise to have the most accountable administration in history
• Obama’s plans to appoint a Chief Technology Officer

My guests for this show are:

• TLFer Jerry Brito of the Mercatus Institute, who’s written extensively about transparency and has recently launched an e-Government project called StimulusWatch
• TLFer Jim Harper of the Cato Institute and WashingtonWatch.com, another very successful e-Government project, who’s asked some tough questions about the Administration’s implementation of e-Government thus far and led a great Cato policy forum on this issue (featuring Jerry, among others)
• John Wonderlich of the Sunlight Foundation, the leading e-Government non-profit whose “non-partisan mission [is to use] the revolutionary power of the Internet to make information about Congress and the federal government more meaningfully accessible to citizens”

You can subscribe to our podcast here or through iTunes here.  Or, you can play or download this podcast using the online player below.

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