Discourse magazine has just published my review of Where Is My Flying Car?, by J. Storrs Hall, which I argue is the most important book on technology policy written in the past quarter century. Hall perfectly defines what is at stake if we fail to embrace a pro-progress policy vision going forward. Hall documents how a “Jetsons” future was within our grasp, but it was stolen away from us. What held back progress in key sectors like transportation, nanotech & energy was anti-technological thinking and the overregulation that accompanies it. “[T]he Great Stagnation was really the Great Strangulation,” he argues. The culprits: negative cultural attitudes toward innovation, incumbent companies or academics looking to protect their turf, litigation-happy trial lawyers, and a raft of risk-averse laws and regulations.

Hall coins the term “the Machiavelli Effect” to identify why many people simultaneously fear the new and different, and they also want to protect whatever status quo they benefit from (or at least feel comfortable with). He builds on this passage from Niccolò Machiavelli’s classic 1532 study of political power, “The Prince”:

[I]t ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, then to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them. Thus it happens that whenever those who are hostile have the opportunity to attack they do it like partisans, whilst the others defend lukewarmly, in such wise that the prince is endangered along with them.

Hall notes that the Machiavelli Effect “has nothing to do with any conspiracy.” Rather, it comes down to human nature: Many people simultaneously fear the new and different, and they also want to protect whatever status quo they benefit from (or at least feel comfortable with). Isaac Asimov identified the same problem in a 1974 lecture when he noted how there had been “bitter, exaggerated, last-stitch resistance . . . to every significant technological change that had taken place on earth.” [On this same point, also see Innovation and Its Enemies: Why People Resist New Technologies, by Calestous Juma. It’s the best history on the topic.]

Hall identifies how the Machiavelli Effect held back nuclear, nanotech, and aviation technologies. “Over the long run, unchecked regulation destroys the learning curve, prevents innovation, protects and preserves inefficiency, and makes progress run backward.” The problem is the Precautionary Principle, which undermines the learning curve is by setting policy defaults to no trial and error as opposed to free to experiment. There can be no reward without some risk! Hall quotes Wilbur Wright on this, who once noted that, “If you are looking for perfect safety, you would do well to sit on a fence and watch the birds.”

Over-regulation of those sectors also resulted in massive misallocation of talent, “taking more than a million of the country’s most talented and motivated people and putting them to work making arguments and filing briefs instead of inventing, developing, and manufacturing.” Hall is equally critical of government R&D efforts. “One of the great tragedies of the latter 20th century, and clearly one of the causes of the Great Stagnation,” he argues, “was the increasing centralization and bureaucratization of science and research funding.”

Hall’s book builds on Jason Crawford’s insight that, “We need a new philosophy of progress,” that is rooted in optimism about the future and support for a culture of trial-and-error experimentation. Hall’s book is a major contribution to that effort. Hall makes a profoundly moral case for innovation. “The zero-sum society is a recipe for evil,” because it leaves us with a “static level of existence” that denies us the ability to improve the human condition. Indeed, Hall’s book is the most full-throated defense of innovation by a trained scientist or engineer since Samuel Florman’s 1976 “Existential Pleasures of Engineering.” Both are celebrations of the potential for humanity to build more and better tools to improve the world.

Hall’s book should also be read alongside books from Virginia Postrel (“The Future and Its Enemies”), Steven Pinker (“Enlightenment Now”), Matt Ridley (“How Innovation Works”) and Deirdre McCloskey’s three-volume trilogy about the history of modern economic growth. These scholars argue that there is a symbiotic relationship between innovation, economic growth, pluralism and human betterment, and that to deny people the ability to improve their lot in life is fundamentally anti-human.

I just cannot recommend Hall’s Where Is My Flying Car? highly enough. It’s a masterpiece. And bravo to Stripe Press for publishing a beautiful hardbound edition. It is a stunning book both to behold and read. Order it now, and jump over to Discourse to read my entire review of it.

There is a war going on in the conservative movement over free speech issues and FCC Commissioner Mike O’Reilly just became a causality of that skirmish. Neil Chilson and I just posted a new essay about this over on the Federalist Society blog. As we note there:

Plenty of people claim to favor freedom of expression, but increasingly the First Amendment has more fair-weather friends than die-hard defenders. Michael O’Rielly, a Commissioner at the Federal Communications Commission (FCC), found that out the hard way this week. Last week, O’Rielly delivered an important speech before the Media Institute highlighting a variety of problematic myths about the First Amendment, as well as “a particularly ominous development in this space.” In a previous political era, O’Rielly’s remarks would have been mainstream conservative fare. But his well-worded warnings are timely with many Democrats and Republicans – including some in the White House – looking to resurrect analog-era speech mandates and let Big Government reassert control over speech decisions in the United States.

Shortly after delivering his remarks, the White House yanked O’Rielly’s nomination to be reappointed to the agency. It was a shocking development that was likely motivated by growing animosities between Republicans on the question of how much control the federal government–and the FCC in particular–should exercise over speech platforms, including platforms that the FCC has no authority to regulate.

For the 30 years that I have been covering media and technology policy, I’ve heard conservatives rail against the Fairness Doctrine, Net Neutrality and arbitrary Big Government only to see many of them now reverse suit and become the biggest defenders of these things as it pertains to speech controls and FCC regulation. It will certainly be interesting to see what a potential future Biden Administration does with the various new regulations that some in the GOP are seeking to impose.

But all hope is not lost. There are still brave voices in Republican and conservative circles who continue to stand up the the First Amendment, freedom of speech, and limits on federal regulatory meddling with speech platforms and outcomes. Commissioner O’Reilly basically lost his job because he acted as the equivalent of an intellectual whistle-blower; he called out the ideological rot seen in recent statements and actions by the White House, Senator Josh Hawley, and many other Republicans.

There is nothing remotely “conservative” about calls for reinvigorating the Fairness Doctrine and FCC speech controls. That represents repressive regulation that betrays the First Amendment and which will ultimately backfire badly and come back to haunt conservatives down the road.

Read my new essay with Neil for more details. And down below I have listed all my recent writing on this topic.

Additional Reading:

• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

That’s all nice-sounding rhetoric but it sure doesn’t seem to match up with Hawley’s recent essays and policy proposals, which are straight out of the old era’s elitist and highly paternalistic Washington-Knows-Best playbook. Specifically, Hawley has called for a top-down, technocratic regulatory regime for the Internet and the digital economy more generally. Hawley has repeatedly made claims that digital technology companies have gotten a sweetheart deal from government and they they have censored conservative voices. That’s utter nonsense, but those arguments have driven his increasingly fanatic rhetoric and command-and-control policy proposals. If he succeeds in his plan to empower unelected bureaucrats inside the Beltway to reshape the Internet, it will destroy one of the greatest American success stories in recent memory. It’s hard to understand how that could be labelled “conservative” in any sense of the word.

I’ve been tracking Sen. Hawley’s increasingly radical plans for the digital economy in a series of essays, including:

• “Sen. Hawley’s Moral Panic Over Social Media“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“

In these articles, I have documented how Sen. Hawley has been whipping up a panic about digital technology companies and social media platforms to soften to ground for massive intervention by DC elites. Consider his hotly-worded USA Today op-ed from May in which he argued that, “social media wastes our time and resources,” and is “a field of little productive value” that have only “given us an addiction economy.” Sen. Hawley refers to sites like Facebook, Instagram, and Twitter as “parasites” and blames them for a litany of social problems (including an unproven link to increased suicide). He has even suggested that, “we’d be better off if Facebook disappeared” and seems to hope the same for other sites.

More insultingly, he has argued that the entire digital economy was basically one giant mistake. He says that America’s recent focus on growing the Internet and information technology sectors has “encouraged a generation of our brightest engineers to enter a field of little productive value,” which he regards as “an opportunity missed for the nation.” “What marvels might these bright minds have produced,” Hawley asks, “had they been oriented toward the common good?”

Again, this isn’t the sort of rhetoric that conservatives are usually known for. This is elitist, paternalistic tripe that we usually hear from market-hating neo-Marxists. It takes a lot of hubris for Sen. Hawley to suggest that he knows best which professions or sectors are in “the common good.” As I responded in one of my essays:

Had some benevolent philosopher kings in Washington stopped the digital economy from developing over the past quarter century, would all those tech workers really have chosen more noble-minded and worthwhile professions? Could he or others in Congress really have had the foresight to steer us in a better direction?

Why would Sen. Hawley think DC elites could do a better job centrally planning the economy? He doesn’t really tell us, instead preferring to fall back on conspiratorial rhetoric about evil “Big Tech” companies “censoring” conservatives voices. That’s the same card he played when he joined President Trump at the White House for the surreal, rambling “Social Media Summit” that took place last month. Trump used the same approach that Sen. Hawley and Sen. Ted Cruz (R-TX) have been using during recently Senate Judiciary Committee hearings: brow-beat witnesses and make wild claims about the whole digital world being out to muzzle conservative voices. As Andrea O’Sullivan and I noted in our essay about the Social Media Summit:

The President and other conservatives are tapping another approach: indirect censorship through both subtle and direct threats. This is an old playbook that goes by many different names: “jawboning,” “administrative arm-twisting,” “agency threats,” and “regulation by raised eyebrow.” These were the names given to broadcast-era efforts to pressure old radio and TV outlets to bring their programming choices in line with the desires of politicians and bureaucrats.

This is an old DC playbook that elites have used for decades to “work the refs” and try to extract promises from various parties under threat of more far-reaching regulation if they fail to comply with the demands of politicians. Again, there’s nothing remotely “conservative” about it.

Brushing aside such concerns, Sen. Hawley has started sketching out what a comprehensive regulatory regime for the Internet and social media might look like. He does so in two new bills, the “Ending Support for Internet Censorship Act” (co-sponsored by Sen. Cruz) and the “Social Media Addiction Reduction Technology (SMART) Act.” These two measures, if implemented, would radically remake the digital economy and lead to a remarkably intrusive regulatory regime for online speech and commerce.

The ridiculously named “Ending Support for Internet Censorship Act” would actually encourage the exact opposite result than its title suggests. The proposal would mandate that regulators at the Federal Trade Commission evaluate whether platforms have engaged in “politically biased moderation,” which is defined as moderation practices that are supposedly, “designed to negatively affect” or those that “disproportionately [restrict] or promote access to … a political party, political candidate, or political viewpoint.” Social media providers would need to petition the FTC for “immunity certifications” to then get regular audits to ensure they are moderating content in a government-approved manner. If they didn’t, they would lose their platform liability protections, which could effectively run them out of business.

This is permission slip-based regulation and it makes the old Federal Communications Commission licensing regime for broadcast radio and television look like child’s play by comparison. Hawley’s “Mother, May I?” licensing scheme for the Net would have unelected FTC bureaucrats make speech decisions for the entire Internet. It’s a massive First Amendment violation, and it would almost certainly face constitutional challenge if implemented.

What makes this all the more shocking, as I noted in response, this measure combines core elements of the old Fairness Doctrine as well as “net neutrality” mandates that conservatives have traditionally decried. The bill would also empower insider-the-Beltway lawyers, lobbyists, and consultants, who would be needed to navigate the maze of red tape this measure would give rise to. Worst of all, the measure is a massive gift to the trial lawyers Republicans love to hate because Hawley’s new regulatory regime would empower them to file an endless string of frivolous suits aimed at simply shaking down companies through early settlements. Again, how is this “conservative”?

Then there’s Hawley’s new “SMART Act,” which as Andrea O’Sullivan and I argue in our latest essay is really quite stupid. The highly technocratic measure lists a variety of business practices that would be automatically verboten. As Andrea and I summarize:

On the chopping block are infinite scrolling, video autoplay, and “gamification” features like offering badges or streaks for accomplishing certain feats. The bill would also require that social media companies build default time limits and pop-up notifications telling users how long they’ve been on a platform within six months of the bill passing. Weirdly, the bill specifies a time limit of 30 minutes on all social media platforms on all devices per day, after which point they will be locked out. The user would be able to raise that limit through platform settings, but it would reset to 30 minutes at the beginning of each month.

Who would have ever thought we now be living in a world where conservatives are calling for paternalistic, Washington-knows-best nannyism that lets agency bureaucrats forcibly shut down your social media access each day after just 30 minutes of use? Hell, why stop there? Perhaps Sen. Hawley could next impose daily limits how many Netflix shows we stream, how many podcasts we listen to, or how much time we spend playing video games. After all, he clearly thinks he knows what is in our own best interest.

No matter how much Sen. Hawley rails against elites and big government, what he has been saying and proposing represent elitism and regulatory paternalism of the very highest order. He may say that “the old era is ending and the old ways will not do” in his speeches, but through his actions he has whole-hardheartedly embraced the old order. And while he can mouth lines about how “it’s time that we stood up to big government, to the people in government who think they know better,” and while he might claim that he is “for free competition [and] the free market,” in reality, Sen. Hawley has become the most aggressive Republican booster of Big Government and managed markets that I have seen in my 30 years covering technology policy.

Hopefully, the real conservatives left out there will make a stand against Sen. Hawley’s abominable corruption of their movement and ideals.

This essay originally appeared on The Bridge under the title “Confessions of a Vidiot” on July 16, 2019.

I have a confession: I’m 50 years old and still completely in love with video games.

I feel silly saying that, even though I really shouldn’t. Video games are now fully intertwined with the fabric of modern life and, by this point, there have been a couple of generations of adults who, like me, have played them actively over the past few decades. Somehow, despite the seemingly endless moral panics about video games, we came out alright. But that likely will not stop some critics from finding new things to panic over.

As a child of the 1970s, I straddled the divide between the old and new worlds of gaming. I was (and remain) obsessed with board and card games, which my family played avidly. But then Atari’s home version of “Pong” landed in 1976. The console had rudimentary graphics and controls, and just one game to play, but it was a revelation. After my uncle bought Pong for my cousins, our families and neighbors would gather round his tiny 20-inch television to watch two electronic paddles and a little dot move around the screen.

Every kid in the world immediately began lobbying their parents for a Pong game of their own, but then a year later something even more magical hit the market: Atari’s 2600 gaming platform. It was followed by Mattel’s “Intellivision” and Coleco’s “ColecoVision.” The platform wars had begun, and home video games had gone mainstream.

My grandmother, who lived with us at the time, started calling my brother and me “vidiots,” which was short for “video game idiots.” My grandmother raised me and was an absolute treasure to my existence, but when it came to video games (as well as rock music), the generational tensions between us were omnipresent. She was constantly haranguing my brother and me about how we were never going to amount to much in life if we didn’t get away from those damn video games!

I used to ask her why she never gave us as much grief about playing board or card games. She thought those were mostly fine. There was just something about the electronic or more interactive nature of video games that set her and the older generation off.

And, of course, there was the violence. There is no doubt that video games contained violent themes and images that were new to the gaming experience. In the analog gaming era, violent action was left mostly to the imagination. With electronic games, it was right there for us to see in all its (very bloody) glory.

As depictions of violence in video games became more intense, parental anxiety boiled over into political activism. By the early 1990s, complaints by parent groups and politicians escalated and congressional hearings commenced. This was the Nintendo and Sega era, when games like “Mortal Kombat” and “Night Trap” were capturing attention for their violent themes.

By this time, I had moved to Washington, DC and taken a job with a think tank. I was a young researcher covering media and telecommunications policy issues, so I had both a personal and professional interest in covering video game hearings. What ensued was a media spectacle in which an endless parade of politicians and self-anointed “parent advocates” expressed their concerns about various games and the supposed lost generation of kids playing them.

The first major congressional hearing on video game violence that I attended in 1993 included then-Sen. Joe Lieberman and other lawmakers speaking with disgust and furrowed brows as they watched clips from those games. But most of us twenty-somethings in the hearing room were rolling our eyes through the entire spectacle. I distinctly remember hearing a Capitol Hill staffer that I was sitting next to whisper, “This is the greatest ad for getting a Sega Genesis ever!” Following the hearing, several friends and I went to my house and played Mortal Kombat together just for kicks.

As the decade went on and gamers began enjoying a third generation of consoles that included Playstation and XBox, the moral panic surrounding violent video gamesrapidly intensified. This was the era of “Doom,” “Resident Evil” and then “Grand Theft Auto.” The whole world went mad.

Critics were writing books with titles like Stop Teaching Our Kids to Kill and referring to video games as “murder simulators.” Every TV news outlet was running some sort of hair-raising report about how America’s youth were doomed for a life of depravity due to video games. By 2006, Sen. Lieberman and then-Sen. Hillary Clinton were floating the “Family Entertainment Protection Act” to create a federal enforcement regime for video games ratings and sales. Court battles ensued over the constitutionality of restrictions on video game sales.

During this push for video game censorship, I wrote many essays, papers, and even contributed to court filings in which I poured over the evidence—or rather the lack thereof—for what we might think of as the “monkey see-monkey do” theory of human behavior. Put simply, there has never been any conclusive scientific evidence correlating video game exposure and real-world acts of violence. If this theory held any water, at some point it should have shown up in crime statistics either here or abroad. But it hasn’t.

In fact, over the past two decades, the US population has grown from 270 million in 1998 to 325 million today, and video games have grown in popularity over that same period. At the same time, according to FBI data, overall violent crime has fallen by almost 19 percent, and for adolescents ages 12 to 20, every class of crime plummeted over the same period.

To be sure, video games—violent or otherwise—can give rise to some problems worth worrying about. Addiction is a real concern, and not just for juveniles. Again, I’m an old man, but I still play far too many games on my phone when I could be doing other things. That’s not technically addiction, but it sure feels like it sometimes. When our kids, or even some adults, go overboard with game time, they need strategies to find a better balance. That has always been a legitimate issue deserving attention.

But the people and politicians who engaged in panics and proselytizing about the supposed evils of video games went much too far. What they failed to realize—as almost all cultural critics have mistakenly done throughout history—is that humans are more sensible and resilient than they assume. We can muddle through and find a reasonable balance.

Indeed, a great many first and second generation gamers are now raising kids and actively gaming with them. My teenage son and I play multiple games together and are part of many different leagues and teams. On our phones, we play “Boom Beach” and other games together, often with groups of other father and son gamers. At home, we love to play “Star Wars: Battlefront” and we are absolutely infatuated with the alien bug-killing “Earth Defense Force” games.

A few years back, my son and I got so good at the game “Toy Soldiers: Cold War” that we were briefly ranked in the top 15 globally. We also play a lot of board games together. I now include him in monthly poker nights at my house, where he has become quite the card shark, regularly depriving many of my adult friends of their money.

My strategy with my son and gaming activity has been simple: stay involved, be open-minded, and set reasonable limits. Oh sure, there are games he plays that I find silly and worthless. But I try to talk to him about all of them and get a better understanding of what they are about. And I encourage him—not always successfully—to get off the couch and go outside to get plenty of outdoor playtime in, too.

While heavy-handed regulatory efforts have been beaten back, we can expect moral panics to continue as video games become even more interactive and immersive. We aging gamers should be willing to hear out concerns about those new gaming themes and capabilities and consider reasonable responses.

If we have learned anything from the first half century of video game history, it is that over-reaction is never the right response. Whether you are a parent or a politician, try to be patient and willing to talk to kids in an open and understanding fashion about things you might not appreciate at first.

Now please excuse me while my son and I get back to killing some alien bugs and saving the Earth once more!

Additional Reading :

• The Social Science Debate over Violent Video Games Will Never End
• Video Games, Media Violence & the Cathartic Effect Hypothesis
• More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime
• Video Games, Free Speech & the Lunacy of “Ecogenerism”
• Video Games and “Moral Panic”
• Video Games, Violence, & Social “Science”: Another Day, Another Fight

[This essay originally appeared on the AIER blog on May 28, 2019. The USA TODAY also ran a shorter version of this essay as a letter to the editor on June 2, 2019.]

In a hotly-worded USA Today op-ed last week, Senator Josh Hawley (R-Missouri) railed against social media sites Facebook, Instagram, and Twitter. He argued that, “social media wastes our time and resources,” and is “a field of little productive value” that have only “given us an addiction economy.” Sen. Hawley refers to these sites as “parasites” and blames them for a litany of social problems (including an unproven link to increased suicide), leading him to declare that, “we’d be better off if Facebook disappeared.”

As far as moral panics go, Sen. Hawley’s will go down as one for the ages. Politicians have always castigated new technologies, media platforms, and content for supposedly corrupting the youth of their generation. But Sen. Hawley’s inflammatory rhetoric and proposals are something we haven’t seen in quite some time.

He sounds like those fire-breathing politicians and pundits of the past century who vociferously protested everything from comic books to cable television, the waltz to the Walkman, and rock-and-roll to rap music. In order to save the youth of America, many past critics said, we must destroy the media or media platforms they are supposedly addicted to. That is exactly what Sen. Hawley would have us do to today’s leading media platforms because, in his opinion, they “do our country more harm than good.”

We have to hope that Sen. Hawley is no more successful than past critics and politicians who wanted to take these choices away from the public. Paternalistic politicians should not be dictating content choices for the rest of us or destroying technologies and platforms that millions of people benefit from.

Addiction Panics: We’ve Been Here Before

Ironically, Sen. Hawley isn’t even right about what the youth of America are apparently obsessed with. Most kids view Facebook and Twitter as places where old people hang out. My teenage kids laugh when I ask them about those sites. Pew Research polling finds that many younger users are increasingly deleting Facebook (if they used it at all) or flocking to other platforms, such as Snapchat or YouTube.

But shouldn’t we be concerned with kids overusing social media more generally? Yes, of course we should—but that’s no reason to call for their outright elimination, as Sen. Hawley recommends. Such rhetoric is particularly concerning at a time when critics are proposing a “break up” of tech companies. Sen. Hawley sits on the U.S. Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights. It is likely he and others will employ these arguments to fan the flames of regulatory intervention or antitrust action against at least Facebook.

Forcing social media sites to “disappear” or be broken up is one of the worst ways to deal with these concerns. It is always wise to mentor our youth and teach them how to achieve a balanced media diet. Many youths—and many adults—are probably overusing certain technologies (smartphones, in particular) and over-consuming some types of media. For those truly suffering from addiction, it is worth considering targeted strategies to address that problem. However, that is not what antitrust law is meant to address.

Moreover, concerns about addiction and distraction have popped up repeatedly during past moral panics and we should take such claims with a big grain of salt. Sociologist Frank Furedi has documented how, “inattention has served as a sublimated focus for apprehensions about moral authority” going back to at least the early 1700s. With each new form of media or means of communication, the older generation taps into the same “kids-these-days!” fears about how the younger generation has apparently lost the ability to concentrate or reason effectively.

For example, in the past century, critics said the same thing about radio and television broadcasting, comparing them to tobacco in terms of addiction and suggesting that media companies were “manipulating” us into listening or watching. Rock-and-roll and rap music got the same treatment, and similar panics about video games are still with us today.

Strangely, many elites, politicians, and parents forget that they, too, were once kids and that their generation was probably also considered hopelessly lost in the “vast wasteland” of whatever the popular technology or content of the day was. The Pessimists Archive podcast has documented dozens of examples of this reoccurring phenomenon. Each generation makes it through the panic du jour, only to turn around and start lambasting newer media or technologies that they worry might be rotting their kids to the core. While these panics come and go, the real danger is that they sometimes result in concrete policy actions that censor content or eliminate choices that the public enjoys. Such regulatory actions can also discourage the emergence of new choices.

Missed Opportunity, or Marvelous Achievement?

Sen. Hawley makes another audacious assertion in his essay when he suggests that social media has not provided any real benefit to American workers or consumers. He says the rise of the Digital Economy has “encouraged a generation of our brightest engineers to enter a field of little productive value,” which he regards as “an opportunity missed for the nation.”

This is an astonishing statement, made more troubling by Hawley’s claim that all these digital innovators could have done far more good by choosing other professions. “What marvels might these bright minds have produced,” Hawley asks, “had they been oriented toward the common good?”

Why is it that Sen. Hawley gets to decide which professions are in “the common good”? This logic is insulting to all those who make a living in these sectors, but there is a deeper hubris in Sen. Hawley’s argument that social media does not serve “the common good.” Had some benevolent philosopher kings in Washington stopped the digital economy from developing over the past quarter century, would all those tech workers really have chosen more noble-minded and worthwhile professions? Could he or others in Congress really have had the foresight to steer us in a better direction?

In reality, U.S. tech companies produce high-quality jobs and affordable, collaborative communications platforms that are popular across the globe. In response to Sen. Hawley’s screed, the Internet Association, which represents America’s leading digital technology companies, noted that, in Sen. Hawley’s home state of Missouri alone, the Internet supports 63,000 jobs at 3,400 companies and contributed $17 billion in GDP to the state’s economy. Presumably, Sen. Hawley would not want to see those benefits “disappear” along with the social media sites that helped give rise to them.

But the Internet and social media have an equally profound impact on the entire U.S. economy, adding over 9,000 jobs and nearly 570 businesses to each metropolitan statistical area. The Digital Economy is a great American success story that is the envy of the world, not something to be lamented and disparaged as Sen. Hawley has.

For someone who believes that Facebook is a “drug” and a “parasite,” it is curious how active Sen. Hawley is on Facebook, as well as on Twitter. If he really believes that “we’d be better off if Facebook disappeared,” then he should lead by example and get off the sites. But that is a decision he will have to make for himself. He should not, however, make it for the rest of us.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Reading:

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

It was my pleasure this week to be invited to deliver some comments at an event hosted by the Information Technology and Innovation Foundation (ITIF) to coincide with the release of their latest study, “The Privacy Panic Cycle: A Guide to Public Fears About New Technologies.” The goal of the new ITIF report, which was co-authored by Daniel Castro and Alan McQuinn, is to highlight the dangers associated with “the cycle of panic that occurs when privacy advocates make outsized claims about the privacy risks associated with new technologies. Those claims then filter through the news media to policymakers and the public, causing frenzies of consternation before cooler heads prevail, people come to understand and appreciate innovative new products and services, and everyone moves on.” (p. 1)

As Castro and McQuinn describe it, the privacy panic cycle “charts how perceived privacy fears about a technology grow rapidly at the beginning, but eventually decline over time.” They divide this cycle into four phases: Trusting Beginnings, Rising Panic, Deflating Fears, and Moving On. Here’s how they depict it in an image:

The report can be seen as an extension of the literature on “moral panics” and “techno-panics.” Some relevant texts in this field include Stanley Cohen’s Folk Devils and Moral Panics, Erich Goode and Nachman Ben-Yehuda’s Moral Panics: The Social Construction of Deviance, Cass Sunstein’s Laws of Fear, and Barry Glassner’s Culture of Fear. But there’s a rich body of academic writing on this topic and I’ve tried to make a small contribution to this literature in recent years, most notably with a lengthy 2013 law review article, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.” In that paper, I try to connect the literature on moral panic theory (which mostly focuses on panics about speech and cultural changes) to other scholarship about how panics and threat inflation are used in many other contexts, including the fields of national security policy, cybersecurity, and more.

I define “technopanic,” as “intense public, political, and academic responses to the emergence or use of media or technologies, especially by the young.”  “Threat inflation” has been defined by national security policy experts Jane K. Cramer and A. Trevor Thrall as “the attempt by elites to create concern for a threat that goes beyond the scope and urgency that a disinterested analysis would justify.”

Castro and McQuinn’s new study on privacy panic cycles fits neatly within this analytical framework and makes an important contribution to the literature. They warn of the real dangers associated with these privacy panics, especially in terms of lost opportunities for innovation. “Policymakers should not get caught up in the panics that follow in the wake of new technologies,” they argue, “and they should not allow hypothetical, speculative, or unverified claims to color the policies they put in place. Similarly, they should not allow unsubstantiated claims put forth by privacy fundamentalists to derail legitimate public sector efforts to use technology to improve society,” they say. (p. 28)

I think one of the most important takeaways from the study is that, as Castro and McQuinn note, “history has shown, many of the overinflated claims about loss of privacy have never materialized.” (p. 28) They identify many reasons why that may be the case but, most notably, they explain how societal attitudes often quickly adjust and also that “social norms dissuade many practices that are feasible but undesirable.” (p. 28) I have spent a lot of time thinking through this process of individual and social acclimation to new technologies and, most recently, wrote an essay on this topic entitled, “Muddling Through: How We Learn to Cope with Technological Change.”

Castro and McQuinn highlight several historical case studies that illustrate how privacy panics play out in practice. They include studies of photography, the transistor, and RFID tags. They also continue on to map out how various new technologies are currently—or might soon be—experiencing a privacy panic. Those include drones, facial recognition, connected cars, behavioral advertising, the Internet of Things and wearable tech. Here’s where Castro and McQuinn believe each of those technologies falls currently on the privacy panic curve.

One problem with the ITIF report, however, is that it avoids the question of what constitutes a serious enough privacy “harm” that might be worth actually panicking over. Certainly there must be something that deserves special concern – perhaps even a little bit of panic. Of course, as I noted in my remarks at the event, this is problem with a great deal of literature in this field due to the challenge associated with defining what we even mean by “privacy” or “privacy harm.” Nonetheless, while some privacy fundamentalists are far too aggressive in using amorphous conceptions of privacy harms to fuel privacy panics, it can also be the case that others (like Castro, McQuinn, and myself) don’t do enough to specify when extremely serious privacy problems exist that warrant heightened concern.

The ITIF report rightly singles out the many groups that all too often use fear tactics and threat inflation to advance their own agendas. In the academic literature on moral panics, these people or groups are referred to as “fear entrepreneurs.” They hope to create and then take advantage of a state of fear to demand that “something must be done” about supposed problems that are often either greatly overstated or which will be solved (or just go away) over time. (For more on “fear entrepreneurs,” see Frank Furedi’s outstanding 2009 article on “Precautionary Culture and the Rise of Probabilistic Risk Assessment.”) These individuals and groups often end up having a disproportionate impact on policy debates and, through their vociferous activism, threaten to achieve a sort of “heckler’s veto” over digital innovation.

However, as I stressed in my remarks at ITIF’s launch event for the study, I believe that Castro and McQuinn were wrong to single out the International Association of Privacy Professionals (IAPP) as one of these troublemakers. Castro and McQuinn claim that “there is now a professional class of people whose job is to manage privacy risks and promote the idea that technology is becoming more invasive. These privacy professionals have a vested interest in inflating the perceived privacy risk of new technologies as their livelihood depends on businesses’ willingness to pay them to address these concerns.” (8)

I think that mischaracterizes the role that most IAPP-trained privacy professionals play today. I have done a lot of work with IAPP itself and many of the privacy professionals they have trained. In my experience, these folks aren’t trying to fan the flames of “privacy panics.” To the contrary, many (perhaps most) IAPP professionals are actively involved in putting out those fires or making sure that they do not start raging in the first place. This is particularly true of the huge number of IAPP-trained privacy professionals who work for major technology companies and who work hard every day to find practical solutions to real-world privacy and security-related concerns.

Of course, as with any large membership organization, one can find some IAPP-trained privacy professionals who may indeed be guilty of fueling privacy panics for personal or organizational purposes. After all, some IAPP-trained folks work for privacy advocacy organizations which could be classified as “privacy fundamentalists” in their philosophical orientation. But just because some IAPP-trained people play techno-panic games, it certainly doesn’t mean that most of them do.

Relatedly, another small nitpick I have with the ITIF study is that it groups together a large number of privacy and security-focused tech policy groups and implies that they are all equally guilty of fueling privacy panics. In reality, there is a small core group of individuals and advocacy organizations who are far more vociferous and extreme in their privacy panic rhetoric. Others may be guilty of that at times, but not nearly to the same extent as the most panicky Chicken Littles.

The only other problem I had with the study, and this is really quite a small matter, is that I would have liked to have seen some discussion about some strategies we might be able to employ to help counter privacy panics, or lessen the likelihood that they develop at all. In my own work, I have tried to develop constructive solutions to privacy and security-related concerns that might give rise to panics. Those solutions include things like education and tech literacy efforts, empowerment tools, transparency efforts, and so on. It’s also worth reminding concerned critics that there exists a broad range of existing legal remedies that can help address privacy concerns after the fact. These include torts and common law solutions, contractual remedies, class actions, other targeted legal solutions, and enforcement of “unfair and deceptive practices” by the Federal Trade Commission or state attorneys general. And there’s also important industry self-regulatory efforts and best practices that can help alleviate many of these privacy concerns. I would have liked to have seen the ITIF study address these or other potential solutions to privacy panics.

Overall, however, I thought that the ITIF report makes an important contribution to the literature in this field and provides us with a useful analytic framework to help us evaluate and critique privacy-related technopanics in the future.

The video of the launch event is below and the full paper can be found here. Also, for further reading on technopanics, see my compendium of 40 essays I have written on the topic.

I’ve spent a lot of time here through the years trying to identify the factors that fuel moral panics and “technopanics.” (Here’s a compendium of the dozens of essays I’ve written here on this topic.) I brought all this thinking together in a big law review article (“Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle”) and then also in my new booklet, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.”

One factor I identify as contributing to panics is the fact that “bad news sells.” As I noted in the book, “Many media outlets and sensationalist authors sometimes use fear-based tactics to gain influence or sell books. Fear mongering and prophecies of doom are always effective media tactics; alarmism helps break through all the noise and get heard.”

In line with that, I want to highly recommend you check out this excellent new oped by John Stossel of Fox Business Network on “Good News vs. ‘Pessimism Porn‘.”  Stossel correctly notes that “the media win by selling pessimism porn.” He says:

Are you worried about the future? It’s hard not to be. If you watch the news, you mostly see violence, disasters, danger. Some in my business call it “fear porn” or “pessimism porn.” People like the stuff; it makes them feel alive and informed. Of course, it’s our job to tell you about problems. If a plane crashes — or disappears — that’s news. The fact that millions of planes arrive safely is a miracle, but it’s not news. So we soak in disasters — and warnings about the next one: bird flu, global warming, potential terrorism. I won Emmys hyping risks but stopped winning them when I wised up and started reporting on the overhyping of risks. My colleagues didn’t like that as much.

He continues on to note how, even though all the data clearly proves that humanity’s lot is improving, the press relentlessly push the “pessimism porn.” He argues that “time and again, humanity survived doomsday. Not just survived, we flourish.” But that doesn’t stop the doomsayers from predicting that the sky is always set to fall. In particular, the press knows they can easily gin up more readers and viewers by amping up the fear-mongering and featuring loonies who will be all too happy to play the roles of pessimism porn stars. Of course, plenty of academics, activists, non-profit organizations and even companies are all too eager to contribute to this gloom-and-doom game since they benefit from the exposure or money it generates.

The problem with all this, of course, is that it perpetuates societal fears and distrust. It also sometimes leads to misguided policies based on hypothetical worst-case thinking. As I argue in my new book, which Stossel was kind enough to cite in his essay, if we spend all our time living in constant fear of worst-case scenarios—and premising public policy upon them—it means that best-case scenarios will never come about.

Facts, not fear, should guide our thinking about the future.

______________________

Related Reading:

• Journalists, Technopanics & the Risk Response Continuum (July 15, 2012)
• How & Why the Press Sometimes “Sells Digital Fear” (April 8, 2012)
• danah boyd’s “Culture of Fear” Talk (March 26, 2012)
• Prophecies of Doom & the Politics of Fear in Cybersecurity Debates (Aug. 8., 2011)
• Cybersecurity Threat Inflation Watch: Blood-Sucking Weapons! (March 22, 2012)

What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]

by Adam Thierer & Berin Szoka The Progress & Freedom Foundation, Progress on Point No. 16.19

Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:

1. People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
2. All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.

While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”^[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.

That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families.

I. The Elitism of Speech Regulation

First, consider how those two elitist beliefs identified above are on display when lawmakers or regulatory advocates make efforts to control speech or content.^[2] Calls to regulate free speech are often premised on the belief that something must be done to “protect The Children.”^[3] Personal and parental responsibility ^[4] are regarded as inadequate safeguards ^[5] since some parents will inevitably fall down on the job by not adequately shielding their children’s eyes and ears from potentially objectionable (or supposedly harmful) speech. Therefore, government must regulate content that is indecent, profane, excessively violent, and so on. The definition of those things is then left to unelected bureaucrats and judges to make on our behalf.

But it’s not just about “The Children.” Some regulatory advocates believe that even the choices made by consenting adults must be disregarded because some people fail to understand the supposedly destructive nature of the speech they are consuming. Government must act to protect people from making what some regulatory advocates regard as destructive or even immoral choices that could bring harm to them or their loved ones.

In sum, regulatory advocates are essentially saying that people cannot be trusted or left to their own devices and, therefore, government must intervene and establish a baseline “community standard” on behalf of the entire citizenry to tell them what‘s best for them.^[6] Even if those citizens have tools and information at their disposal to make sensible decisions about objectionable content, that’s not good enough because they might not do the job properly. Government must do it for them!

II. The Elitism of Privacy Regulation

This same mentality motivates calls for privacy regulations. Those who call for government interventions to “protect privacy” often claim that people too willingly surrender personal information about themselves and that they don’t understand the adverse consequences of those actions.^[7] Alternatively, regulatory advocates claim that advertising and marketing efforts are inherently “manipulative” and that people do not realize they are being duped into surrendering personal information or into buying products or services they supposedly don’t need.^[8] Of course, those regulatory advocates rarely pause to explain to us how it is that they were not also duped and manipulated by the same things—again revealing their deeply-rooted elitism! (As discussed below, this makes it clear how the psychological phenomenon of “third-person effect hypothesis” is driving much of this debate.)

“Protecting The Children” is also used as a rhetorical cover for regulation here, but not as often in debates over speech controls.^[9] Instead, regulatory advocates mostly focus on adults who are presumed not to know what is in their own best interest—necessitating paternalistic government intervention on their behalf.

III. Intellectual Schizophrenia on Both the Left & Right

What is particularly interesting about all this is the way these two issues expose a sort of intellectual schizophrenia at work on both the Left and Right of the political spectrum. Left-leaning policymakers and intellectuals typically decry censorship efforts (except where “commercial speech,” “hate speech” and “bias” are at issue), but are quick to rally around proposals to layer privacy regulations on the Internet. The opposite is often true of many on the Right of the political spectrum: They typically declare privacy regulations to be paternalistic and antithetical to free enterprise (or perhaps just erosive of efforts to legislate morality),^[10] but in the next breath advocate controls on content they find objectionable.

Few on either side stop to consider the relationship between speech and privacy. In fact, they are but two sides of the same coin. After all, what is your “right to privacy” but a right to stop me from observing you and speaking about you?^[11] “Protecting privacy,” therefore, typically means restricting speech rights in the process. Advocates of privacy regulation often insist that the use, processing and collection of information are “conduct” unprotected by the First Amendment, but in fact, the First Amendment broadly protects the gathering and distribution of information as part of the process of communication (“speech”).^[12] Similarly, attempts to “clean up” speech or “protect The Children,” often require regulations that would betray the privacy of adults by expanding the role of government, and impose serious burdens on businesses and markets—such as age verification mandates ^[13] or extensive data retention requirements.^[14]

IV. Common Tactics & Regulatory Mechanisms

The two movements also share common political tactics and regulatory approaches. Privacy advocates generally favor “opt-in” mandates as the federal “baseline standard” for any website collecting information about users, especially their browsing habits (regardless of whether the information is “personally identifiable”). In other words, the law would create a property right in such “personal information” (ironically, many advocates of this approach criticize or reject intellectual property.) In a similar vein, many advocates of speech controls push for mandatory parental control tools or restrictive default settings.^[15] That is, if government won’t censor speech outright, regulatory advocates want lawmakers to at least (1) require that media, computing and communications devices be shipped to market with parental controls embedded or included (as proposed in Australia and with China’s “Green Dam” filter),^[16] and possibly, (2) that such controls be defaulted to their most restrictive position—forcing users to opt-out of the controls later if they want to consume media rated above a certain threshold.

More sophisticated advocates of speech controls and privacy regulation will likely argue that their paternalism is less elitist or intrusive because they merely want to “nudge” the public into making “better” decisions. Economist Richard Thaler and legal scholar Cass Sunstein (director of President Obama’s Office of Information and Regulatory Affairs, responsible for analyzing most new federal regulations) popularized this approach with their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness. Based on behavioral economics studies, they argue that both government and private actors must inevitably make decisions about “choice architecture” and that, by setting defaults, incentives and rules smartly, “choice architects” can and should improve decision-making without blocking, fencing-off or significantly burdening choices.^[17]

In this regard, Sunstein and Thaler’s approach parallels the work of Lawrence Lessig, one of the most influential Internet policy thinkers. Lessig has argued that the “architecture” of “code” (how software is written) “regulates” all online activities and requires government oversight and intervention to keep in check. Otherwise, he warned ominously a decade ago, “Left to itself, cyberspace will become a perfect tool of control.”^[18] Lessig’s hyper-pessimistic predictions have proven unwarranted, however. Far from fostering a world of “perfect control,” code and cyberspace have proven remarkably difficult to regulate, but nonetheless has generally benefited consumers and citizens without centralized direction.^[19] Still, Lessig, Sunstein, and others of this ilk persist in their advocacy of “nudges” of many varieties to impose their will on cyberspace through mandates from above.

But while it might be possible to define “better decisions” and argue that poor choice architecture leads people to choose things they clearly don’t want in contexts like investment decisions and mortgages, how can elites know what other people really want in highly subjective contexts like privacy and speech? Should they rely on opinion polls—the highly subjective results of which depend heavily on “choice architecture” of question-crafting—to guess what the right default should be?^[20] Was the Chinese proposal to mandate deployment of “Green Dam” just a harmless “nudge” because users weren’t barred from uninstalling the filtering software that must accompany their computers (i.e., “opting-out”)? The problem becomes even more difficult where trade-offs among competing values are inevitable. For example, data collection about Internet users raises privacy concerns for some but benefits all, creating more funding for “free” content (i.e., speech) and services users prefer by making more valuable the advertising that supports online publishers. In short, regulations of speech and privacy are likely to be pure paternalism, even when billed as “libertarian paternalism as Thaler and Sunstein label their approach.^[21]

What might be called “regulatory blackmail” is also a time-honored tradition among both advocates of speech controls and privacy regulation. When censorship advocates have previously been impeded by the First Amendment, they have worked behind the scenes with lawmakers or regulatory agencies to use indirect pressure and strong-arming tactics to extract “voluntary concessions” from companies or others.^[22] For example, in 2004, the FCC strong-armed radio giant Clear Channel into agreeing to a “voluntary” consent decree that involved taking Howard Stern off the air.^[23] Similarly, in 2008, XM and Sirius Satellite Radio finally agreed to set aside 4% of their system capacity for use by politically favored racial minorities (a kind of speech control) as a “voluntary condition” of their merger—after the FCC had sat on their application for nearly 16 months.^[24] This race-based preference would have been unconstitutional if the FCC had imposed it directly.^[25] While the FTC has been far less prone to such abuse and actually plays a key role in holding companies to their promises, its current Chairman, Jon Leibowitz, has hung the “regulatory sword of Damocles” over the heads of the online advertising industry, threatening them with a “day of reckoning” if he doesn’t get what he wants from industry self-regulatory efforts.”^[26] The sword could actually fall if the FTC turns self-regulation into the European model of “co-regulation,” where the government steers and industry simply rows.^[27]

V. The Crisis Mentality that Drives Regulation

Speech and privacy regulatory advocates share another trait in common: an affinity for the use of a crisis mentality as a method of spurring political action. In his 1995 book The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, political philosopher and economist Thomas Sowell formulated a model that he argued drives ideological crusades to expand government power over our lives and economy. “The great ideological crusades of the twentieth-century intellectuals have ranged across the most disparate fields,” noted Sowell. But what they all had in common, he argued, was “their moral exaltation of the anointed above others, who are to have their different views nullified and superseded by the views of the anointed, imposed via the power of government.”^[28] These government-expanding crusades shared several key elements, which Sowell identified as follows:

1. Assertion of a great danger to the whole society, a danger to which the masses of people are oblivious.
2. An urgent need for government action to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.

We see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but the model is equally applicable to debates over speech controls and privacy regulation. In particular, the various “technopanics”^[29] we have witnessed in recent years fit this model. For example, consider how this model plays out in the debate over online social networking:

1. Assertion of a great danger to the whole society [online sexual predators], a danger to which the masses of people are oblivious.
2. An urgent need for government action [such as mandatory online age verification ^[30] or the Deleting Online Predators Act ^[31]] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [must stop kids and adults from being online together on same sites], in response to the prescient conclusions of the few [some state Attorneys General].^[32]
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [child safety researchers and others are told that their research is meaningless or offbase].^[33]

We also see this model in play in other debates, such as efforts to regulate “excessively violent” video games and television programming.^[34] And consider how this model plays out on the privacy front:

1. Assertion of a great danger to the whole society [amorphous privacy violations], a danger to which the masses of people are oblivious.
2. An urgent need for government action [“baseline federal privacy regulation”] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [anyone who shares information online], in response to the prescient conclusions of the few [a handful of privacy advocacy groups].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [any suggestion that privacy concerns are being overblown and that most information-sharing is socially beneficial is dismissed out-of-hand].

Worse yet, regulatory intervention in these cases simply begets more and more intervention to correct the inevitable failures of, or dissatisfaction with, previous interventions.^[35] Thus, the “crisis” cycle never ends.

VI. Third-Person Effect Hypothesis as an Explanation

Something more profound than simple political elitism seems to be at work here, however. A phenomenon psychologists refer to as the “third-person effect hypothesis” can explain many calls for government intervention, especially in the media world.^[36] Simply stated, speech and privacy critics sometimes seem to only see and hear in media or communications what they want to see and hear—or what they don’t want to see or hear. When they encounter perspectives or preferences that are at odds with their own, they are more likely to be concerned about the impact of those things on others throughout society and come to believe that government must “do something” to correct those perspectives. Many people desire regulation because they think it will be good for others, not necessarily for themselves. The regulation they desire has a very specific purpose in mind: “re-tilting” speech or market behavior in their desired direction.

The third-person effect hypothesis was first formulated by W. Phillips Davison in a seminal 1983 article:

In its broadest formulation, this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.^[37]

Davison used this hypothesis to explain how media critics on both the Left and Right seemed to simultaneously find “bias” in the same content or reports when they couldn’t possibly both be correct. In reality, their own personal preferences were biasing their ability to fairly evaluate that content. Davison’s article prompted further research by many other psychologists, social scientists, and public opinion experts to test just how powerful this phenomenon was in explaining calls for censorship and other social phenomena.^[38] In these studies, third-person effect has been shown to be the primary explanation for why many people fear—or even want to ban—various types of speech or expression, including news,^[39] misogynistic rap lyrics,^[40] television violence,^[41] video games,^[42] and pornography.^[43] In each case, the subjects surveyed expressed strong misgivings about allowing others to see or hear too much of the speech or expression in question, but greatly discounted the impact of that speech on themselves. Such studies thus reveal the strong paternalistic instinct behind proposals to regulate speech. As Davison notes:

Insofar as faith and morals are concerned… it is difficult to find a censor who will admit to having been adversely affected by the information whose dissemination is to be prohibited. Even the censor’s friends are usually safe from the pollution. It is the general public that must be protected. Or else, it is youthful members of the general public, or those with impressionable minds.^[44]

It’s easy to see how this same phenomenon is at work in debates about privacy. Regulatory advocates imagine their preferences are “correct” (right for everyone) and that the masses are being duped by external forces beyond their control or comprehension, even though the advocates themselves are somehow immune from the brain-washing and privy to some higher truth that the hoi polloi simply cannot fathom. Again, this is Sowell’s “Vision of the Anointed” at work.

Consider the flare-up in 2004 over the introduction of Gmail, Google’s free email service. At a time when Yahoo! mail (then as now the leading webmail provider) offered customers less than 10 megabytes of email storage, Gmail offered an astounding gigabyte of storage that would grow over time (now over 7 GB). Rather than charging some users for more storage or special features, Google paid for the service by showing advertisements next to each email “contextually” targeted to keywords in that email—a far more profitable form of advertising than “dumb banner” ads previously used by other webmail providers.^[45] Self-appointed (or, to extend Sowell’s framework, “self-anointed”) privacy advocates howled that Google was going to “read users’ email,” and led a crusade to ban such algorithmic contextual targeting.^[46] Thierer responded to these critics by pointing out that the service was purely voluntary and noted:

you don’t speak for me and a lot of other people in this world who will be more than happy to cut this deal with Google. So do us a favor and don’t ask the government to shut down a service just because you don’t like it. Privacy is a subjective condition and your value preferences are not representative of everyone else’s values in our diverse nation. Stop trying to coercively force your values and choices on others. We can decide these things on our own, thank you very much.^[47]

Interestingly, however, the frenzy of hysterical indignation about Gmail was followed by a collective cyber-yawn: Users increasingly understood that algorithms, not humans, were doing the “reading” and that, if they didn’t like it, they didn’t have to use it. Today, nearly 150 million of people around the world use Gmail, and it has a steadily growing share of the webmail market. Even though cyber-consumers have embraced the service, some privacy advocates persist in their effort to shut down Gmail. They appear determined to stop at nothing to impose their will on others—the essence of political elitism—even if that means cutting off free email service for 150 million people!^[48]

A similar debate has played out more recently regarding targeted online advertising in general. Advertising on search engines is, much like Gmail, targeted “contextually” based on search terms entered by users and most advertising on other websites is based on the nature of content on a site or page. But certain data is collected about users as they browse to make that advertising more effective—by measuring its performance, reducing fraud, preventing over-exposure, etc. Some privacy advocates have insisted that industry self-regulation of such practices (even if enforced by the FTC) is inadequate and have called for preemptive regulation. They are even more offended by “behavioral advertising” which allows publishers whose content would have little value as the basis for contextually targeting advertising on their own sites to compete for more highly valued advertising by showing ads to users based on other sites they’ve visited. In both cases, data collection can increase the funding available to publishers to produce more of the content and services preferred by users, thus conferring an enormous indirect benefit on users, but also directly benefits users by increasing the relevance of the advertising they see.^[49] For some of the more extreme advocates of privacy regulation, however, there are no trade-offs, only absolutist “solutions:” To them, privacy is so obviously desirable that they feel at ease in deciding what’s best for everyone else. Such absolutists often respond with righteous indignation and conspiratorial fulmination when challenged to identify the harm against which they’re protecting consumers, while disdainfully dismissing all talk of the benefits of online advertising as self-serving industry propaganda.^[50]

VII. The Principled Alternative: Trust People & Empower Them

There is an alternative to this elitist mentality: freedom and personal responsibility. Individuals should be permitted to live a life of their own, even if they sometimes make mistakes or choices that are at odds with what elites think is best for them. ^[51]

Of course, the world isn’t perfect. In an ideal world, adults would be fully empowered to tailor speech and privacy decisions to their own values and preferences. Specifically, in an ideal world, adults (and parents) would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block the things they don’t like—objectionable content, annoying ads or the collection of data about them—while also finding the things they want.

Achieving that ideal is likely impossible, but the good news is that we are moving closer to it with each passing day. Citizens have more tools and methods at their disposal than ever before which enable them to make decisions for themselves and their families. And this is true for both parental controls ^[52] and privacy controls.^[53]

Of course, some speech and privacy elitists will argue that we can’t trust empowerment tools ( e.g., filters, rating systems, or other controls) that are created by companies or other affected parties. But rather than trying to enhance those tools and educate users about how to use them, these elitists skip right past user empowerment and channel their energies into regulations that would impose a top-down, one-size-fits all standard on all adults and families—or even into trying to craft the perfect “nudge” that will help users make what elites believe to be the “right” decisions. Of course, these tools can, and should, be improved. Those groups worried about speech/content and privacy issues should focus on how we might drive such protections from the bottom-up by empowering individuals instead of government bureaucrats. The goal in both cases should be a “let-a-thousand-flowers-bloom” approach, which offers diverse tools and strategies for our diverse citizenry.^[54] We need not accept “one-size-fits” all approaches, whether they be regulatory mandates or “nudges,” based on the presumption that elites know best.

Finally, it is vital not to lose sight of what’s ultimately at stake here. If regulatory approaches trump the empowerment agenda we have described, the future of a free and open Internet—indeed, as technology converges, the future of all media—is at risk.^[55] By imposing technological solutions from the top-down that can never keep pace with technological change, regulation necessarily forecloses freedom and innovation.^[56] By contrast, individual empowerment allows innovation to flourish. The better approach across the board is education, not regulation.^[57] Empowerment, not elitism, is the path forward. The digital elite should be leading this effort by developing and promoting technologies of empowerment, not crafting regulatory mandates to force their will upon us.^[58]

#

Adam Thierer is a Senior Fellow with The Progress & Freedom Foundation and the director of its Center for Digital Media Freedom. Berin Szoka  is a Senior Fellow with PFF and the Director of PFF’s Center for Internet Freedom.

[1] . William A. Henry, In Defense of Elitism (1995) at 2-3.

[2] . See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html. Like American courts, we use the term “speech” as a broad catch-all for communications, including both actual speaking as well as other forms of transmitting, as well as receiving, information (“content”).

[3] . See generally Adam Thierer, Don’t Scapegoat Media, USA Today, Dec. 4, 2008, www.pff.org/issues-pubs/ps/2008/ps4.24scapegoatmedia.html; Marjorie Heins, Not in Front of the Children, “Indecency,” Censorship, and the Innocence of Youth (2001); Karen Sternheimer, It’s Not the Media: The Truth about Pop Culture’s Influence on Children (2003); Karen Sternheimer, Kids These Days: Facts and Fictions about Today’s Youth (2006).

[4] . See Adam Thierer, The Progress & Freedom Foundation, FCC Violence Report Concludes that Parenting Doesn’t Work, PFF Blog, Apr. 26, 2007, http://blog.pff.org/archives/2007/04/fcc_violence_re.html.

[5] . See Adam Thierer, The Progress & Freedom Foundation, Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing, PFF Blog, June 26, 2007, blog.pff.org/archives/2007/06/sen_rockefeller_1.html.

[6] . Adam Thierer, Conservatives, Porn, and “Community Standards,” The Technology Liberation Front, March 2, 2009, http://techliberation.com/2009/03/02/conservatives-porn-and-community-standards.

[7] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Online Advertising & User Privacy: Principles to Guide the Debate, Progress Snapshot 4.19, Sept. 2008, www.pff.org/issues-pubs/ps/2008/ps4.19onlinetargeting.html.

[8] . Jeff Chester, for decades the great gadfly of American advertising, has decried “the system … developed to track each and every one of us and our behavior for one-on-one marketing efforts” as “manipulative, intrusive and un-democratic.” Wendy Melillo, Q&A: Chester Writes the Book on Privacy, Dec. 11, 2007, www.gfem.org/node/227. For instance, Chester and other leading “privacy advocates” ridicule the idea of smart phones as a “liberating technology” and insist that,

Despite the glowing words about customization and personalized service, what marketers and advertisers are increasingly offering consumers is merely the illusion of free choice. Mobile operators offer their various options and services, not on an individual basis, but preconfigured according to segmented demographic profiles.

Center for Digital Democracy and U.S. Public Interest Research Group, Complaint and Request for Inquiry and Injunctive Relief Concerning Unfair and Deceptive Mobile Marketing Practices, Jan. 13, 2009 (emphasis original), www.democraticmedia.org/files/FTCmobile_complaint0109.pdf. See generally Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Progress on Point 16.2, Feb. 2009, www.pff.org/issues-pubs/pops/2009/pop16.2targetonlinead.pdf.

[9] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech, Progress on Point 16.11, May 2009, www.pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf.

[10] . The Supreme Court has used a “right to privacy” to strike down laws against the use of contraception by married couples, Griswold v Connecticut, 381 U.S. 479 (1965), and abortion, Roe v. Wade, 410 U.S. 113 (1973).

[11] . Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000), available at www.pff.org/issues-pubs/pops/pop7.15freedomofspeech.pdf.

[12] . See , Amicus Brief for Association Of National Advertisers, Cato Institute, Coalition For Healthcare Communication, Pacific Legal Foundation And The Progress & Freedom Foundation In Support Of Appellants, IMS Health v. Sorrell, No. 09-1913-cv(L), 09-2056-cv(CON) (2nd Cir. 2009), available at www.pff.org/issues-pubs/filings/2009/071309-Brief-Amici-Curiae-ANA-et-al-Second-Circuit-(09-1913-cv).pdf.

[13] . See Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, March 2007, www.pff.org/issues-pubs/ pops/pop14.8ageverificationtranscript.pdf; www.pff.org/issues-pubs/pops/pop14.5ageverification.pdfAdam Thierer, The Progress & Freedom Foundation, Statement Regarding the Internet Safety Technical Task Force’s Final Report to the Attorneys General, Jan. 14, 2008, www.pff.org/issues-pubs/other/090114ISTTFthiererclosingstatement.pdf; Nancy Willard, Why Age and Identity Verification Will Not Work—And is a Really Bad Idea, Jan. 26, 2009, www.csriu.org/PDFs/digitalidnot.pdf; Jeff Schmidt, Online Child Safety: A Security Professional’s Take, The Guardian, Spring 2007, www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf.

[14] . Adam Thierer, The Progress & Freedom Foundation, Mandatory Data Retention: How Much is Appropriate, PFF Blog, June 26, 2006, http://blog.pff.org/archives/2006/06/mandatory_data.html

[15] . Adam Thierer, The Progress & Freedom Foundation, The Perils of Mandatory Parental Controls and Restrictive Defaults, Progress on Point 14.4, Apr. 11, 2008, www.pff.org/issues-pubs/pops/2008/pop15.4defaultdanger.pdf.

[16] . Adam Thierer, China’s Green Dam Filter and the Threat of Rising Global Censorship, PFF Blog, June 17, 2009, http://blog.pff.org/archives/2009/06/chinas_green_dam_filter_and_threat_of_rising_globa.html

[17] . They define choice architecture as follows: “A structure designed by a choice architect(s) to improve the quality of decisions made by homo sapiens. Often invisible, choice architecture is the specific user-friendly shape of an organization’s policy or physical building when homo sapiens come into contact with it. Examples of choice architecture include a voter ballot, a procedure for handling well-meaning people who forget a deadline, or a skyscraper.” Nudge Glossary of Terms, www.nudges.org/glossary.cfm.

[18] . Lawrence Lessig, Code and Other Laws of Cyberspace (1999) at 6.

[19] . See Adam Thierer, Code, Pessimism, and the Illusion of “Perfect Control,” Cato Unbound, May 2009, www.cato-unbound.org/2009/05/08/adam-thierer/code-pessimism-and-the-illusion-of-perfect-control

[20] . See Solveig Singleton & Jim Harper, With A Grain of Salt: What Consumer Privacy Surveys Don’t Tell Us, 2001, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299930.

[21] . As Cato Institute scholar Will Wilkinson has argued, the book’s “agreeably banal doctrine of choice-preserving helpfulness” blurs the lines between paternalism and libertarianism, and thus “the thrust of the conceptual renovation behind the term libertarian paternalism is to empower, not limit, political elites.” Why Opting Out Is No “Third Way,” Reason, October 2008, www.reason.com/news/show/128916.html. See also Adam Thierer, The Progress & Freedom Foundation, Sunstein’s “Libertarian Paternalism” is Really Just Paternalism, PFF Blog, April 7, 2008, http://blog.pff.org/archives/2008/04/sunsteins_liber.html.

[22] . See Robert Corn-Revere, “’Voluntary’ Self-Regulation and the Triumph of Euphemism,” in Rationales & Rationalizations: Regulating the Electronic Media (Robert Corn-Revere, ed., 1997), at 183-208.

[23] . Telecom Policy Report, Commission Settles Indecency Charges, But At What Cost?, June 30, 2004, http://findarticles.com/p/articles/mi_m0PJR/is_25_2/ai_n6091525.

[24] . See Adam Thierer, XM-Sirius, Regulatory Blackmail, and Diversity, June 17, 2008, http://blog.pff.org/archives/2008/06/xmsirius_regula.html.

[25] . See Comments of W. Kenneth Ferree on Implementation of Sirius-XM Merger Condition, The Progress & Freedom Foundation, MB Docket No. 07-57, March 30, 2009, www.pff.org/issues-pubs/filings/2009/033009siriusXMconditionfiling.pdf.

[26] . See Szoka & Adam Thierer, supra note 8 at 3.

[27] . See id. at 2.

[28] . Thomas Sowell, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy (1995) at 5.

[29] . Alice Marwick, To Catch a Predator? The MySpace Moral Panic, First Monday, Vol. 13, No. 6-2, June 2008, www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2152/1966; Wade Roush, The Moral Panic over Social Networking Sites, Technology Review, Aug. 7, 2006, www.technologyreview.com/communications/17266; Anne Collier, Why Techopanics are Bad, Net Family News, April 23, 2009, www.netfamilynews.org/2009/04/why-technopanics-are-bad.html; Adam Thierer, Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics,’ Inside ALEC, July 2009, at 16-17, www.alec.org/am/pdf/Inside_July09.pdf; Adam Thierer, Progress & Freedom Foundation, Technopanics and the Great Social Networking Scare, PFF Blog, June 10, 2008, http://techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare.

[30] . Supra note 13.

[31] . In the 109th Congress, former Rep. Michael Fitzpatrick (R-PA) introduced the Deleting Online Predators Act (DOPA), which proposed a ban on social networking sites in public schools and libraries. DOPA passed the House of Representatives shortly thereafter by a lopsided 410-15 vote, but failed to pass the Senate. The measure was reintroduced just a few weeks into the 110th Congress by Senator Ted Stevens (R-AK), the ranking minority member and former chairman of the Senate Commerce Committee. It was section 2 of a bill that Sen. Stevens sponsored titled the “Protecting Children in the 21st Century Act” (S. 49), but was later removed from the bill. See Declan McCullagh, Chat Rooms Could Face Expulsion, CNet News.com, July 28, 2006, http://news.com.com/2100-1028_3-6099414.html?part=rss&tag=6099414&subj=news.

[32] . See Emily Steel & Julia Angwin, MySpace Receives More Pressure to Limit Children’s Access to Site, Wall Street Journal, June 23, 2006, online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html; Susan Haigh, Conn. Bill Would Force MySpace Age Check, Yahoo News.com, March 7, 2007, www.msnbc.msn.com/id/17502005.

[33] . See, e.g., Letter of Henry McMaster, Attorney General, South Carolina to Attorney General Richard Blumenthal and Attorney General Roy Cooper Regarding Internet Safety Task Force (“ISTTF”) Report, January 14, 2009, www.scag.gov/newsroom/pdf/2009/internetsafetyreport.pdf

[34] . See Adam Thierer, The Progress & Freedom Foundation, Video Games and “Moral Panic,” PFF Blog, Jan. 23, 2009, http://blog.pff.org/archives/2009/01/video_games_and_moral_panic.html ; Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate over Video Game Regulation, Progress Snapshot 13.7, March 2006, www.pff.org/issues-pubs/pops/pop13.7videogames.pdf.

[35] . “All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which—from the point of view of their authors’ and advocates’ valuations—is less desirable than the previous state affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it.” Ludwig von Mises, Human Action, at 858 (3rd ed. 1963) (1949).

[36] . See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 119-123, www.pff.org/issues-pubs/books/050610mediamyths.pdf (Explaining how the third-person effect serves as a powerful explanation for the heated backlash that followed an FCC effort to moderately liberalize media ownership rules in 2003-04).

[37] . W. Phillips Davison, The Third-Person Effect in Communication, 47 Public Opinion Quarterly 1, Spring 1983, at 3.

[38] . For the best overview of third-person effect research, see Douglas M. McLeod, Benjamin H. Detenber, and William P. Eveland., Jr., Behind the Third-Person Effect: Differentiating Perceptual Processes for Self and Other, 51 Journal of Communication, Vol. 51, No. 4, 2001, at 678-695.

[39] . Vincent Price, David H. Tewksbury & Li-Ning Huang, Third-person Effects of News Coverage: Orientations Toward Media, Journalism & Mass Communications Quarterly, Vol. 74, at 525-540.

[40] . Douglas M. McLeod, William P. Eveland & Amy I. Nathanson, Support for Censorship of Violent and Misogynic Rap Lyrics: And Analysis of the Third-Person Effect, Communications Research, Vol. 24, 1997, at 153-174.

[41] . Hernando Rojas, Dhavan V. Shah, and Ronald J. Faber, For the Good of Others: Censorship and the Third-Person Effect, International Journal of Public Opinion Research, Vol. 8, 1996, at 163-186.

[42] . James D. Ivory, Addictive, But Not For Me: The Third-Person Effect and Electronic Game Players’ Views Toward the Medium’s Potential for Dependency and Addiction, University of North Carolina at Chapel Hill, School of Journalism and Mass Communication, Aug. 2002.

[43] . Albert C. Gunther, Overrating the X-rating: The Third-person Perception and Support for Censorship of Pornography, Journal of Communication, Vol. 45, No. 1, 1995, at 27-38

[44] . Supra note 37 at 14. Along these lines, a December 2004 Washington Post article documented the process by which the Parents Television Council, a vociferous censorship advocacy group, screens various television programming. One of the PTC screeners interviewed for the story talked about the societal dangers of various broadcast and cable programs she rates, but then also noted how much she personally enjoys HBO’s “The Sopranos” and “Sex and the City,” as well as ABC’s “Desperate Housewives.” Apparently, in her opinion, what’s good for the goose is not good for the gander! See Bob Thompson, Fighting Indecency, One Bleep at a Time, The Washington Post, Dec. 9, 2004, at C1, www.washingtonpost.com/wp-dyn/articles/A49907-2004Dec8.html.

[45] . See Chris Anderson, Free: The Future of a Radical Price at 112-118 (2009).

[46] . See Letter from Chris Jay Hoofnagle, Electronic Privacy Information Center, Beth Givens, Privacy Rights Clearinghouse, Pam Dixon, World Privacy Forum, to California Attorney General Lockyer, May 3, 2004, http://epic.org/privacy/gmail/agltr5.3.04.html.

[47] . See email from Adam Thierer to Declan McCullaugh on Politech Email discussion group, April 30, 2004, http://lists.jammed.com/politech/2004/04/0083.html (emphasis added).

[48] . See Complaint and Request for Injunction of the Electronic Privacy Information Center against Google, Inc., March 17, 2009, http://epic.org/privacy/cloudcomputing/google/ftc031709.pdf; see also Ryan Radia, Should the FTC Shut Down Gmail and Google Docs Because of an Already-Fixed Bug?, Technology Liberation Front Blog, March 18, 2009, http://techliberation.com/2009/03/18/should-the-ftc-shut-down-gmail-and-google-docs-because-of-an-already-fixed-bug/.

[49] . See Berin Szoka & Mark Adams, The Progress & Freedom Foundation, The Benefits of Online Advertising & the Costs of Regulation, PFF Working Paper, forthcoming.

[50] . Anti-advertising crusader Jeff Chester often resorts to questioning the motives of those who question whether his regulatory prescriptions would actually benefit consumers, see, e.g., http://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/#comment-11698840. See generally Jeff Chester, Digital Destiny: New Media and the Future of Democracy (2007).

[51] . “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual.” John Stuart Mill, On Liberty (Penguin Classics, 1859, 1986) at 72.

[52] . Adam Thierer, The Progress & Freedom Foundation, Parental Controls & Online Child Protection, Special Report, Version 4.0, Summer 2009, www.pff.org/parentalcontrols.

[53] . Adam Thierer, Berin Szoka & Adam Marcus, The Progress & Freedom Foundation, Privacy Solutions, PFF Blog, Ongoing Series, http://blog.pff.org/archives/ongoing_series/privacy_solutions.

[54] . Comments of Adam Thierer, The Progress & Freedom Foundation, In the Matter of Implementation of the Child Save Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming; MB Docket No. 09-26, April 16, 2009, www.pff.org/issues-pubs/filings/2009/041509-%5bFCC-FILING%5d-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-(MB-09-26).pdf.

[55] . See Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage, Feb. 20, 2009, www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

[56] . “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.” Friedrich von Hayek, “The Pretence of Knowledge,” in The Essence of Hayek, (Hoover Inst., 1984), at 276.

[57] . Adam Thierer, The Progress & Freedom Foundation, Two Sensible, Education-Based Legislative Approaches to Online Child safety, Progress Snapshot 3.10, Sept. 2007, www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf.

[58] . See, e.g., Berin Szoka, Google, CDT, Online Advertising & Preserving Persistent User Choice Across Ad Networks Through Plug-ins, Technology Liberation Front Blog, March 13, 2009, http://techliberation.com/2009/ 03/13/google-cdt-online-advertising-preserving-persistent-user-choice-across-ad-networks-through-plug-ins/.

My friend Anne Collier of Net Family News, one of America’s great sages on child safety issues, has produced a terrific list of reasons “Why Technopanics are Bad.”  Technopanics and moral panics are topics I’ve spent quite a bit of time commenting on here. (See 1, 2, 3, 4.) Anne is a rare voice of sanity and sensible advice when it comes to online child safety issues and I encourage you to read all her excellent work on the subject, including her book with Larry Magid, MySpace Unraveled: A Parent’s Guide to Teen Social Networking.  Anyway, here’s Anne’s list, and I encourage you to go over to her site and contribute your thoughts and suggestions about what else to add:

Technopanics are bad because they…

• Cause fear, which interferes with parent-child communication, which in turn puts kids at greater risk.
• Cause schools to fear and block digital media when they need to be teaching constructive use, employing social-technology devices and teaching new media literacy and citizenship classes throughout the curriculum.
• Turn schools into barriers rather than contributors to young people’s constructive use.
• Increase the irrelevancy of school to active young social-technology users via the sequestering or banning of educational technology and hamstring some of the most spirited and innovative educators.
• Distract parents, educators, policymakers from real risks – including, for example, child-pornography laws that do not cover situations where minors can simultaneously be victim and “perpetrator” and, tragically, become registered sex offenders in cases where there no criminal intent (e.g., see this).
• Reduce the competitiveness of US education among developed countries already effectively employing educational technology and social media in schools.
• Reduce the competitiveness of US technology and media businesses practicing good corporate citizenship where youth online safety is concerned.
• Lead to bad legislation, which aggravates above outcomes and takes the focus off areas where good laws on the books can be made relevant to current technology use.
• Widen the participation gap for youth – technopanics are barriers for children and teens to full, constructive participation in participatory culture and democracy.

Ben Edelman of the Harvard Business School has just released an interesting new study in the Journal of Economic Perspectives entitled, “Red Light States: Who Buys Online Adult Entertainment?”  Using data he obtained from a top-10 seller of adult entertainment, Edelman examined adult website subscriptions on the zip code level and found that conservatives seem to be every bit as interested in pornography as liberals. In fact, “Subscriptions [to adult entertainment sites] are slightly more prevalent in states that have enacted conservative legislation on sexuality” and “subscriptions are also more prevalent in states where surveys indicate conservative positions on religion, gender roles, and sexuality.”  He also finds that:

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions to this service.  Subscriptions are also more prevalent in states where more people agree that “I have old-fashioned values about family and marriage” and “AIDS might be God’s punishment for immoral sexual behavior.”

On the whole, these adult entertainment subscription patterns show a remarkable consistency: all but eleven states have between two and three subscribers to this service per thousand broadband households, and all but four have between 1.5 and 3.5. With interest in online adult entertainment relatively constant across regions, there’s little sign of a major divide.

But it’s not just Internet porn where we see this trend at work.  As I noted in my law review article, “Why Regulate Broadcasting?” we’ve seen a similar trend at work with television. When you look at some of the TV shows that conservatives and religious groups gripe most about, you might be surprised to know that it is conservatives who make those shows as popular as they are!

As Bill Carter of the New York Times reported in a 2004 article, “Many Who Voted for ‘Values’ Still Like Their Television Sin,” Nielsen ratings data shows that in many Republican-leaning “red state” markets, such programs garner higher ratings than in many Democratic-leaning “blue states.” For example, in the counties that constitute the greater Atlanta television market, ABC’s dramatic comedy “Desperate Housewives” was the top-rated show even though nearly 58 percent of voters in those counties voted for President Bush.  Similarly, in the traditionally conservative Salt Lake City market, where President Bush captured over 72 percent of the vote, the top four shows were “C.S.I.,” “C.S.I. Miami,” “E.R.,” and “Desperate Housewives.”

Likewise, in a 2004 column about “The Great Indecency Hoax,”  NY Times columnist Frank Rich noted that the same trend holds in conservative Oklahoma City, where “Desperate Housewives” is more popular than it is in Los Angeles, as well as Kansas City where the show is bigger than it is in New York City.  Rich quoted sociologist Herbert Gans who explained the phenomenon as follows: “For some people it’s a case of ‘I am moral therefore I can watch the most immoral show.'”

Such findings call into question the logic of traditional “community standards”-based regulatory efforts. Indeed, it is unclear how lawmakers can determine the relevant “community standard” for purposes of speech and content regulation when some of the most conservative communities in America are downloading as much porn as Edelman’s study finds, or when conservatives are watching smutty TV in greater numbers than liberals do.

The better approach, as I’ve argued here before, is to replace “community standards” with “household standards.”  That is, it would be optimal if public policy decisions regarding content took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable programming to them.  That’s especially the case in light of the fact that less than 32% of U.S. households have any children in them, and those homes that do have children have plenty of tools and methods at their disposal to control objectionable content. Let’s empower parents to make decisions for themselves and their families so that Uncle Sam doesn’t need to play the role of national nanny for all of us.

• Edelman’s mention of porn consumption in Utah reminded me of this passage from Jeff Rosen’s 2004 essay on “The End of Obscenity” (which I discussed in greater detail here):

  three years ago, when a local video retailer in Utah was prosecuted for peddling hard-core pornography, he successfully argued that his products were consistent with what his neighbors were watching on pay-per-view: in an age of nationally distributed hotel pornography, there was little difference between the consumption habits of hotel guests in Salt Lake City or Las Vegas. Pornography is everywhere, suggesting that there is no national consensus against it and no vast disparity from one locale to another.

  Seems that those Utah residents are a horny bunch!  Maybe their new motto should be, “What happens in Utah, stays in Utah.”