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.

Ian Brown and Christopher T. Marsden’s new book, Regulating Code: Good Governance and Better Regulation in the Information Age, will go down as one of the most important Internet policy books of 2013 for two reasons. First, their book offers an excellent overview of how Internet regulation has unfolded on five different fronts: privacy and data protection; copyright; content censorship; social networks and user-generated content issues; and net neutrality regulation. They craft detailed case studies that incorporate important insights about how countries across the globe are dealing with these issues. Second, the authors endorse a specific normative approach to Net governance that they argue is taking hold across these policy arenas. They call their preferred policy paradigm “prosumer law” and it envisions an active role for governments, which they think should pursue “smarter regulation” of code.

In terms of organization, Brown and Marsden’s book follows the same format found in Milton Mueller’s important 2010 book Networks and States: The Global Politics of Internet Governance; both books feature meaty case studies in the middle bookended by chapters that endorse a specific approach to Internet policymaking. (Incidentally, both books were published by MIT Press.) And, also like Mueller’s book, Brown and Marsden’s Regulating Code does a somewhat better job using case studies to explore the forces shaping Internet policy across the globe than it does making the normative case for their preferred approach to these issues.

Thus, for most readers, the primary benefit of reading either book will be to see how the respective authors develop rich portraits of the institutional political economy surrounding various Internet policy issues over the past 10 to 15 years. In fact, of all the books I have read and reviewed in recent years, I cannot think of two titles that have done a better job developing detailed case studies for such a diverse set of issues. For that reason alone, both texts are important resources for those studying ongoing Internet policy developments.

That’s not to say that both books don’t also make a solid case for their preferred policy paradigms, it’s just that the normative elements of the texts are over-shadowed by the excellent case studies. As a result, readers are left wanting more detail about what their respective policy paradigms would (or should) mean in practice. Regardless, in the remainder of this review, I’ll discuss Brown and Marsden’s normative approach to digital policy and contrast it with Mueller’s since they stand in stark contrast and help frame the policy battles to come on this front.

Governing Cyberspace: Mueller vs. Brown & Marsden

Mueller’s normative goal in Networks and States was to breathe new life into the old cyber-libertarian philosophy that was more prevalent during the Net’s founding era but which has lost favor in recent years. He made the case for a “cyberliberty” movement rooted in what he described as a “denationalized liberalism” vision of Net governance. He argued that “we need to find ways to translate classical liberal rights and freedoms into a governance framework suitable for the global Internet. There can be no cyberliberty without a political movement to define, defend, and institutionalize individual rights and freedoms on a transnational scale.”

I wholeheartedly endorsed that vision in my review of Mueller’s book, even if he was a bit short on the details of how to bring it about. But it is useful to keep Mueller’s paradigm in mind because it provides a nice contrast with the approach Brown and Marsden advocate, which is quite different.

Generally speaking, Brown and Marsden reject most forms of “Internet exceptionalism” and certainly reject the sort of “cyberliberty” ethos that Mueller and I embrace. They instead endorse a fairly broad role for governments in ordering the affairs of cyberspace. In their self-described “prosumer” paradigm, the State is generally viewed as benevolent actor, well-positioned to guide the course of code development toward supposedly more enlightened ends.

Consistent with the strong focus on European policymaking found throughout the book, the authors are quite enamored with the “co-regulatory” models that have become increasing prevalent across the continent. Like many other scholars and policy advocates today, they occasionally call for “multi-stakeholderism” as a solution but they do not necessarily mean the sort of truly voluntary, bottom-up multi-stakeholderism of the Net’s early days. Rather, they are usually thinking of multi-stakeholderism as what is essentially pluralistic politics; it’s the government setting the table, inviting the stakeholders to it, and then guiding (or at least “nudging”) policy along the way. “We are convinced that fudging with nudges needs to be reinforced with the reality of regulation and coregulation, in order to enable prosumers to maximize their potential on the broadband Internet,” they say. (p. 187)

Meet the New Boss, Same as the Old Boss?

Thus, despite the new gloss, their “prosumer law” paradigm ends up sounding quite a bit like a rehash of traditional “public interest” law and common carrier regulation, albeit with a new appreciation of just how dynamics markets built on code can be. Indeed, Brown and Marsden repeatedly acknowledge how often law and regulation fails to keep pace with the rapid evolution of digital technology. “Code changes quickly, user adoption more slowly, legal contracting and judicial adaptation to new technologies slower yet, and regulation through legislation slowest of all,” they correctly note (p. xv). This reflects what Larry Downes refers to as the most fundamental “law of disruption” of the digital age: “technology changes exponentially, but social, economic, and legal systems change incrementally.”

At the end of the day, however, that insight doesn’t seem to inform Brown and Marsden’s policy prescriptions all that much. Theirs is a world in which policy tinkering errors will apparently be corrected promptly and efficiently by still more policy tinkering, or “smarter regulation.” Moreover, like many other Internet policy scholars today, they don’t mind regulatory interventions that come early and often since they believe that will help regulators get out ahead of the technological curve and steer markets in preferred directions. “If regulators fail to address regulatory objects at first, then the regulatory object can grow until its technique overwhelms the regulator,” they say (p. 31).

This is the same mentality that is often on display in Tim Wu’s work, which I have been quite critical of here and elsewhere. For example, Wu has advocated informal “agency threats” and the use of “threat regimes” to accomplish policy goals that prove difficult to steer though the formal democratic rulemaking process. As part of his “defense of regulatory threats in particular contexts,” Wu stresses the importance of regulators taking control of fast-moving tech markets early in their life cycles. “Threat regimes,” Wu argues, “are best justified when the industry is undergoing rapid change — under conditions of ‘high uncertainty.’ Highly informal regimes are most useful, that is, when the agency faces a problem in an environment in which facts are highly unclear and evolving. Examples include periods surrounding a newly invented technology or business model, or a practice about which little is known,” Wu concludes.

This is essentially where most of the “co-regulation” schemes that Brown and Marsden favor would take us: Code regulators would take an active role in shaping the evolution of digital technologies and markets early in its life cycle. What are the preferred regulatory mechanisms? Like Wu and many other cyberlaw professors today, Brown and Marsden favor robust interconnection and interoperability mandates bolstered by antitrust actions as well. And, again, they aren’t willing to wait around and let the courts adjudicate these issues in an ex post fashion. “Essential facilities law is a very poor substitute for the active role of prosumer law that we advocate, especially in its Chicago school minimalist phase” (p. 185). In other words, we shouldn’t wait for someone to bring a case and litigate it through the courts when preemptive, proactive regulatory interventions can sagaciously steer us to a superior end.

More specifically, they propose that “competition authorities should impose ex ante interoperability requirements upon dominant social utilities… to minimize network barriers” (p. 190) and they model this on traditional regulatory schemes such as must-carry obligations, API interface disclosure requirements, and other interconnection mandates (such as those imposed on AOL/Time Warner a decade ago to alleviate fears about instant messaging dominance). They also note that “Effective, scalable state regulation often depends on the recruitment of intermediaries as enforcers” to help achieve various policy objectives (p. 170).

The Problem with Interoperability Über Alles

So, in essence, the Brown-Marsden Internet policy paradigm might be thought of as interoperability über alles. Interoperability and interconnection in pursuit of more “open” and “neutral” systems is generally considered an unalloyed good and most everything else is subservient to this objective.

This is a serious policy error and one that I address in great detail in my absurdly long review of John Palfrey and Urs Gasser’s Interop: The Promise and Perils of Highly Interconnected Systems. I’m not going to repeat all 6,500 words of that critique here when you can just click back and read it, but here’s the high level summary: There is no such thing as “optimal interoperability” that can be determined in an a priori fashion. Ongoing marketplace experimentation with technical standards, modes of information production and dissemination, and interoperable information systems, is almost always preferable to the artificial foreclosure of this dynamic process through state action. The former allows for better learning and coping mechanisms to develop while also incentivizing the spontaneous, natural evolution of the market and market responses. The latter (regulatory foreclosure of experimentation) limits that potential.

More importantly, when interoperability is treated as sacrosanct and forcibly imposed through top-down regulatory schemes, it will often have many unintended consequences and costs. It can even lock in existing market power and market structures by encouraging users and companies to flock to a single platform instead of trying to innovate around it. (Go back and take a look at how the “Kingsbury Commitment” — the interconnection deal from the early days of the U.S. telecom system — actually allowed AT&T to gain greater control over the industry instead of assisting independent operators.)

Citing Palfrey and Gasser, Brown and Marsden do note that “mandated interoperability is neither necessary in all cases nor necessarily desirable” (p. 32), but they don’t spend as much time as Palfrey and Gasser itemizing these trade-offs and the potential downsides of some interoperability mandates. But what frustrates me about both books is the almost quasi-religious reverence accorded to interoperability and open standards when such faith is simply not warranted after historical experience is taken into consideration.

Plenty of the best forms of digital innovation today are due to a lack of interoperability and openness. Proprietary systems have produced some of the most exciting devices (iPhone) and content (video games) of modern times. Then again, voluntary interoperable and “open” services and devices thrive, too. The key point here — and one that I develop in far greater detail in my book chapter, “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters” — is that the market for digital services is working marvelously and providing us with choices of many different flavors. Innovation continues to unfold rapidly in both directions along the “open” vs. “closed” continuum. (Here are 30 more essays I have written on this topic if you need more proof.)

Generally speaking, we should avoid mandatory interop and openness solutions. We should instead push those approaches and solutions in a truly voluntary, bottom-up fashion. And, more importantly, we should be pushing for outside-the-box solutions of the Schumpeterian (creative destruction / disruptive innovation) variety instead of surrendering so quickly on competition through forced sharing mandates.

The Case for Patience & Policy Restraint

But Brown and Marsden clearly do not subscribe to that sort of Schumpeterian thinking. They think most code markets tip and lock into monopoly in fairly short order and that only wise interventions can rectify that. For example, they claim that Facebook’s “monopoly is now durable,” which will certainly come as a big surprise to the millions of us who do not use it all. And the story of MySpace’s rapid rise and equally precipitous fall has little bearing on this story, they argue.

But, no matter how you define the “social networking market,” here are two facts about it: First, it is still very, very young. It’s only about a decade old. Second, in that short period of time, we have already witnessed the entire first generation of players fall by the wayside. While the second generation is currently dominated by Facebook, it is by no means alone. Again, millions like me don’t use it at all and get along just fine with other “social networking” technologies, including Twitter, LinkedIn, Google+, and even older tech like email, SMS, and yes, phone calls! Accusations of “monopoly” in this space strain credulity in the extreme. I invite you to read my Mercatus working paper, “The Perils of Classifying Social Media Platforms as Public Utilities,” for a more thorough debunking of this logic. (Note: The final version of that paper will be published in the CommLaw Conspectus shortly.)

Such facts should have a bearing on the debate about regulatory interventions. We continue to witness the power of Schumpeterian rivalry as new and existing players battle in a race for the prize of market power. Brown and Marsden fear that the race is already over in many sectors and that it is time to throw in the towel and get busy regulating. But when I look around at the information technology marketplace today, I am astonished just how radically different it looks from even just a few years ago, and not just in the social media market. I have written extensively about the smartphone marketplace, where innovation continues at a frantic pace. As I noted in my essay here on “Smartphones & Schumpeter,” it’s hard to remember now, but just 6 short years ago:

• The iPhone and Android had not yet landed.
• Most of the best-selling phones of 2007 were made by Nokia and Motorola.
• Feature phones still dominated the market; smartphones were still a luxury (and a clunky luxury at that).
• There were no app stores and what “apps” did exist were mostly proprietary and device or carrier-specific; and,
• There was no 4G service.

It’s also easy to forget just how many market analysts and policy wonks were making absurd predictions at the time about how the telecom operators at the time had so much market power that they would crush new innovation without regulation. Instead, in very short order, the market was completely upended in a way that mobile providers never saw coming. There was a huge shift in relative market power flowing from the core of these markets to the fringes, especially to Apple, which wasn’t even a player in that space before the launch of the iPhone.

As I noted in concluding that piece last year, these facts should lead us to believe that this is a healthy, dynamic marketplace in action. Not even Schumpeter could have imagined creative destruction on this scale. (Just look as BlackBerry). But much the same could be said of many other sectors of the information economy.  While it is certainly true that many large players exist, we continue to see a healthy amount of churn in these markets and an astonishing amount of technological innovation.

Public Choice Insights: What History Tells Us

One would hope these realities would have a greater bearing on the policy prescriptions suggested by analysts like Brown and Marsden, but they don’t seem to. Instead, the attitude on display here is that governments can, generally speaking, act wisely and nudge efficiently to correct short-term market hiccups and set us on a better course. But there are strong reasons to question that presumption.

Specifically, what I found most regrettable about Brown and Marsden’s book was the way — like all too many books in this field these days — the authors briefly introduce “public choice” insights and concerns only to summarily dismiss them as unfounded or overblown. (See my review of Brett Frischmann’s book, Infrastructure: The Social Value of Shared Resources for a more extended discussion of this problem as it pertains to discussions about not just infrastructure regulation by the regulation of all complex industries and technologies.)

Brown and Marsden make it clear that their intentions are pure and that their methods would incorporate the lessons of the past, but they aren’t very interested in dwelling on the long, lamentable history of regulatory failures and capture in the communications and media policy sectors. They do note the dangers of a growing “security-industrial complex” and argue that “commercial actors dominate technical actors in policy debates.” They also say that the “potential for capture by regulated interests, especially large corporate lobbies, is an essential insight” that informs their approach. The problem is that it really doesn’t. They largely ignore those insights and instead imply that, to the extent this is a problem at all, we can build a better breed of bureaucrats going forward who will craft “smarter regulation” that is immune from such pressures. Or, they claim that “multi-stakeholderism” — again, the new, more activist and government-influenced conception of it — can overcome these public choice problems.

A better understanding of power politics that is informed by the wisdom of the ages would instead counsel that minimizing the scope of politicization of technology markets is the better remedy. Capture and cronyism in communications and media markets has always grown in direct proportion to the overall scope of law governing those sectors. (I invite you to read all the troubling examples of this that Brent Skorup and I have documented in our new 72-page working paper, “A History of Cronyism and Capture in the Information Technology Sector.” Warning: It makes for miserable reading but proves beyond any doubt that there is something to public choice concerns.)

To be clear, it’s not that I believe that “market failures” or “code failures” never occur, rather, as I noted in this debate with Larry Lessig, it’s that such problems are typically “better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).” It’s not just that traditional regulatory remedies cannot keep pace with code markets, it’s that those attempting to craft the remedies do not possess the requisite knowledge needed to know how to steer us down a superior path. (See my essay, “Antitrust & Innovation in the New Economy: The Problem with the Static Equilibrium Mindset,” for more on that point.)

Regardless, at a minimum, I expect scholars to take seriously the very real public choice problems at work in this arena. You cannot talk about the history of these sectors without acknowledging the horrifically anti-consumer policies that were often put in place at the request of one industry or another to shield themselves from disruptive innovation. No amount of wishful thinking about “prosumer” policies will change these grim political realities. Only by minimizing chances to politicize technology markets and decisions can we overcome these problems.

Conclusion

For those of us who prefer to focus on freeing code, Brown and Marsden’s Regulating Code is another reminder that liberty is increasingly a loser in Internet policy circles these days. Milton Mueller’s dream of decentralized, denationalized liberalism seems more and more unlikely as armies of policymakers, regulators, special interests, regulatory advocates, academics, and others all line up and plead for their pet interest or cause to be satisfied through pure power politics. No matter what you call it — fudging, nudging, coregulation, smart regulation, multistakeholderism, prosumer law, or whatever else, — there is no escaping the fact that we are witnessing the complete politicization of almost every facet of code creation and digital decisionmaking today.

Despite my deep reservations about a more politicized cyberspace, Brown and Marsden’s book is an important text because it is one of the most sophisticated articulations and defenses of it to date. Their book also helps us better understand the rapidly developing institutional political economy of Internet regulation in both broad and narrow policy contexts. Thus, it is worth your time and attention even if, like me, you are disheartened to be reading yet another Net policy book that ultimately endorses mandates over of markets as the primary modus operandi of the information age.

Additional Resources about the book:

• the official MIT Press website for Regulating Code
• shorter Brown & Marsden paper on “Prosumer Law” (via SSRN)
• Little Atoms podcast featuring Brown & Marsden discussing Regulating Code
• Ian Brown edited this beefy Research Handbook On Governance Of The Internet, which makes a nice complement to Regulating Code. It offers even more detailed case studies on the major issues featured in the book. A terrific resource (if you can afford it!)
• a video of Brown & Marsden discussing the book at the Oxford Internet Institute (also embedded below):

Other books you should read alongside “Regulating Code” (links are for my reviews of each):

• Milton Mueller’s Networks and States: The Global Politics of Internet Governance
• John Palfrey & Urs Gasser’s Interop: The Promise and Perils of Highly Interconnected Systems
• Rebecca MacKinnon’s Consent of the Networked: The Worldwide Struggle for Internet Freedom
• David G. Post’s In Search of Jefferson’s Moose: Notes on the State of Cyberspace
• Christopher Yoo’s The Dynamic Internet: How Technology, Users, and Businesses are Transforming the Network
• Larry Lessig’s Code (my 2-part exchange with Lessig upon Code’s 10^th anniversary: Part 1, Part 2)

The Internet’s greatest blessing — its general openness to all speech and speakers — is also sometimes its biggest curse. That is, you cannot expect to have the most widely accessible, unrestricted communications platform the world has ever known and not also have some imbeciles who use it to spew insulting, vile, and hateful comments.

It is important to put things in perspective, however. Hate speech is not the norm online. The louts who spew hatred represent a small minority of all online speakers. The vast majority of online speech is of a socially acceptable — even beneficial — nature.

Still, the problem of hate speech remains very real and a diverse array of strategies are needed to deal with it. The sensible path forward in this regard is charted by Abraham H. Foxman and Christopher Wolf in their new book, Viral Hate: Containing Its Spread on the Internet. Their book explains why the best approach to online hate is a combination of education, digital literacy, user empowerment, industry best practices and self-regulation, increased watchdog / press oversight, social pressure and, most importantly, counter-speech. Foxman and Wolf also explain why — no matter how well-intentioned — legal solutions aimed at eradicating online hate will not work and would raise serious unintended consequences if imposed.

In striking this sensible balance, Foxman and Wolf have penned the definitive book on how to constructively combat viral hate in an age of ubiquitous information flows.

Definitional Challenges & Free Speech Concerns

Defining “hate speech” is a classic eye-of-the-beholder problem: At what point does heated speech become hate speech and who should be in charge of drawing the line between the two? “The notion of a single definition of hate speech that everyone can agree on is probably illusory,” Foxman and Wolf note, especially because of “the continually evolving and morphing nature of online hate.” (p. 52, 103)  “Like every other form of human communication, bigoted or hateful speech is always evolving, changing its vocabulary and style, adjusting to social and demographic trends, and reaching out in new ways to potentially receptive new audiences.” (p. 92)

Many free speech advocates (including me) argue that the government should not be in the business of ensuring that people never have their feelings hurt. Censorial solutions are particularly problematic here in the United States since they would likely run afoul of the protections secured by the First Amendment of the U.S. Constitution.

The clear trajectory of the Supreme Court’s free speech jurisprudence over the past half-century has been in the direction of constantly expanding protection for freedom of expression, even of the most repugnant, hateful varieties. Most recently, in Snyder v. Phelps, for example, the Court ruled that the Westboro Baptist Church could engage in hateful protests near the funerals of soldiers. “[T]his Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled,” ruled Chief Justice John Roberts for the Court’s 8-1 majority. The Court has also recently held that the First Amendment protects lying about military honors (United States v. Alvarez, 2012), animal cruelty videos (United States v. Stevens, 2010), computer-generated depictions of child pornography (Ashcroft v. Free Speech Coalition, 2002), and the sale of violent video games to minors (Brown v. EMA, 2011). This comes on top of over 15 years of Internet-related jurisprudence in which courts have struck down every effort to regulate online expression.

Some will celebrate this jurisprudential revolution; others with lament it. Regardless, it is likely to remain the constitutional standard here in the U.S. As a result, there is almost no chance that courts here would allow restrictions on hate speech to stand. That means alternative approaches will continue to be relied upon to address it.

Foxman and Wolf acknowledge these constitutional hurdles but also point out that there are other reasons why “laws attempting to prohibit hate speech are probably one of the weakest tools we can use against bigotry.” (p. 171) Most notably, there is the scope and volume problem: “the sheer vastness of the challenge” (p. 103) which means “it’s simply impossible to monitor and police the vast proliferation of bigoted content being distributed through Web 2.0 technologies.” (p. 81) “The borderless nature of the Internet means that, like chasing cockroaches, squashing on offending website, page, or service provider does not solve the problem; there are many more waiting behind the walls — or across the border.” (p. 82) That’s exactly right and it also explains why solutions of a more technical nature aren’t likely to work very well either.

Foxman and Wolf also point out how hate speech laws could backfire and have profound unintended consequences. Beyond targeted laws that address true threats, harassment, and direct incitements to violence, Foxman and Wolf argue that “broader regulation of hate speech may send an ‘educational message’ that actually weakens rather than strengthens our system of democratic values.” (p. 171) That’s because such censorial laws and regulations undermine the very essence of deliberative democracy — robust exchange of potential controversial views — and leads to potential untrammeled majoritarianism. Worse yet, legalistic attempts to shut down hate speech can end up creating martyrs for fringe movements and, paradoxically, end up fueling conspiracy theories. (p. 80)

The Essential Role of Counter-speech & Education

Yet, “the challenge of defining hate speech shouldn’t lead us to give up on solving the problem,” argue Foxman and Woff. (p. 53) We must, they argue, refocus our efforts around “education as a bulwark of freedom.” (p. 170)  Digital literacy — teaching citizens respectful online behavior — is the key to those education efforts.

A vital part of digital literacy efforts is the encouragement of counter-speech solutions to online hate. “[T]he best anecdote to hate speech is counter-speech – exposing hate speech for its deceitful and false content, setting the record straight, and promoting the values of respect and diversity,” note Foxman and Wolf. (p. 129)  Or, as the old saying goes, the best response to bad speech is better speech. This principle has infused countless Supreme Court free speech decisions over the past century and it continues to make good sense. But we could do more through education and digital literacy efforts to encourage more and better forms of counter-speech going forward.

“Counter-speech isn’t only or even primarily about debating hate-mongers,” they note. “It’s about helping to create a climate of tolerance and openness for people of all kinds, not just on the Internet but in every aspect of local, community, and national life.” (p. 146) This is how digital literacy becomes digital citizenship. It’s about forming smart norms and personal best practices regarding beneficial online interactions.

Intermediary Policing

What more can be done beyond education and counter-speech efforts? Foxman and Wolf envision a broad and growing role for intermediaries to help to police viral hate. “We are convinced that if much of the time and energy spent advocating legal action against hate speech was used in collaborating and uniting with the online industry to fight the scourge of online hate, we would be making more gains in this fight,” they say. (p. 121) Among the steps they would like to see online operators take:

• Establishing clear hate speech policies in their Terms of Service and mechanisms for enforcing them;
• Making it easier for users to flag hate speech and to speak out against it;
• Facilitating industry-wide education and best practices via multi-stakeholder approaches; and
• Limiting anonymity and moving to “real-name” policies to identify speakers.

De-anonymization / Real-name policies

Most of these are imminently sensible solutions that should serve as best practices for online service providers and social media platform operators. But their last suggestion for sites to consider limiting anonymous speech will be controversial, especially at a time when many feel that privacy is already at serious risk online and when some critics argue that intermediaries already “censor” too much content as it is. (See, for example, this Jeff Rosen essay on “The Delete Squad: Google, Twitter, Facebook and the New Global Battle over the Future of Free Speech” and this Evgeny Morozov editorial, “You Can’t Say That on the Internet”).

Anonymous online speech certainly facilitates plenty of nasty online comments. There’s plenty of evidence — both scholarly and anecdotal — that “deindividuation” occurs when people can post anonymously.  As Foxman and Wolf explain it: “People who are able to post anonymously (or pseudonymously) are far more likely to say awful things, sometimes with awful effects. Speaking from behind a blank wall that shields a person from responsibility encourages recklessness – it’s far easier to hit the ‘send’ button without a second thought under those circumstances.” (p. 114)

On the other hand, there needs to be a sense of balance here. We protect anonymous speech for the same reason we protect all other forms of speech, no matter how odious: With the bad comes a lot of good. Forcing all users to identify themselves to get at handful of troublemakers is overkill and it would result in the chilling of a huge amount of legitimate speech.

Nonetheless, many governments across the globe are pushing for restrictions on anonymous speech. As Cole Stryker noted in his recent book, Hacking the Future: Privacy, Identity, and Anonymity on the Web, “we are seeing is an all-out war on anonymity, and thus free speech, waged by a variety of armies with widely diverse motivations, often for compelling reasons.” (p. 229). Stryker is right. In fact, less than two weeks ago, a French court ordered Twitter to produce the names of the people behind anti-Semitic tweets that appeared on the site last year.  Meanwhile, plenty of academics, including many here in the U.S., have stepped up their efforts to ban or limit online anonymity. If you don’t believe me, I suggest you read a few of the chapters of The Offensive Internet: Speech, Privacy, and Reputation (Saul Levmore & Martha C. Nussbaum, eds.). It’s a veritable fusillade against anonymity as well as Section 230, the U.S. law that limits liability for intermediaries who post materials by others.

In Viral Hate, Foxman and Wolf stop short of suggesting legal restrictions on anonymity, preferring to stick with experimentation among private intermediaries. One of the book’s authors (Wolf) penned an essay in The New York Times last November (“Anonymity and Incivility on the Internet”) suggesting that while “this is not a matter for government… it is time for Internet intermediaries voluntarily to consider requiring either the use of real names (or registration with the online service) in circumstances, such as the comments section for news articles, where the benefits of anonymous posting are outweighed by the need for greater online civility.” Specifically, Wolf wants the rest of the Net to follow Facebook’s lead: “It is time to consider Facebook’s real-name policy as an Internet norm because online identification demonstrably leads to accountability and promotes civility.”

These proposals prompted strong responses from some academics and average readers who decried the implications of such a move for both privacy and free speech. But, again, it is worth reiterating that Foxman and Wolf do not call for government mandates to achieve this. “[T]his notion of promulgating a new standard of accountability online is not a matter for government intervention, given the strictures of the First Amendment,” they argue. (p. 117)

However, Foxman and Wolf do suggest one innovative alternative that merits attention: premium placement for registered commenters. The New York Times and some other major content providers have experimented with premium placement, whereby those registered on the site have their comments pushed up in the queue while other comments appear down below them. On the other hand, I don’t like the idea of having to register for every news or content site I visit, so I would hope such approaches are used selectively. Another useful approach involves letting users of various social media sites and content services to determine whether they wish to allow comments on their user-generated content at all. Of course, many sites and services (such as YouTube, Facebook, and most blogging services) already allow that.

Conclusion

There are times in the book when Foxman and Wolf push their cause with a bit too much rhetorical flair, as when they claim that “Hitler and the Nazis could never have dreamed of such an engine of hate (as the Internet”). (p. 10)  Perhaps there is something to that, but it is also true that Hitler and the Nazis could have never of dreamed of a platform for individual empowerment, transparency, and counter-speech such as the Internet. It was precisely because they were able to control the very limited media and communications platforms of their age that the Nazis were about to exert total control over the information systems and create a propaganda hate machine that had no serious challenge from the public or other nations. Just ask Arab dictators which age they’d prefer to rule in! It is certainly much harder for today’s totalitarian thugs to keep secrets bottled up and it is equally hard for them to spread lies and hateful propaganda without being met with a forceful response from the general citizenry as well as those in other nations. So the “Hitler-would-have-loved-the-Net” talk is unwarranted.

I’m also a bit skeptical of some of the metrics used to measure this problem. While there is clearly plenty of online hate to be found across the Net today, efforts to quantify it inevitably run right back into the same subjective definition problems that Foxman and Wolf do such a nice job explaining throughout the text. So, if we have such a profound ‘eye-of-the-beholder’ problem at work here, how is it that we can be sure that quantitative counts are accurate?  That doesn’t mean I’m opposed to efforts to quantify online hate, rather, we just need to take such measures with a grain of salt.

Finally, I wish the authors would have developed more detailed case studies of how companies outside the mainstream are dealing with these issues today. Foxman and Wolf focus on big players like Google, Facebook, and Twitter for obvious reasons, but plenty of other online providers and social media operators have policies and procedures in place today to deal with online hate speech. A more thorough survey of those differing approaches might have helped us gain a better understanding of which policies make the most sense going forward.

Despite those small nitpicks, Foxman and Wolf have done a great service here by offering us a penetrating examination of the problem of online hate speech while simultaneously explaining the practical solutions necessary to combat it. Some will be dissatisfied with their pragmatic approach to the issue, feeling on one hand that the authors have not gone far enough in bringing in the law to solve these problems, while others will desire a more forceful call for freedom of speech and just growing a thicker skin in response to viral hate.  But I believe Foxman and Wolf have struck exactly the right balance here and given us a constructive blueprint for addressing these vexing issues going forward.

Earlier today on Twitter, I listed what I thought were the Top 5 “Biggest Internet Policy Issues of 2012.” In case you don’t follow me on Twitter — and shame on you if you don’t! — here were my choices:

1. Copyright wars reinvigorated post-SOPA; tide starting to turn in favor of copyright reform. [TLF posts on copyright.]
2. Privacy still red-hot w ECPA reform, online advertising regs & kids’ privacy issues all pending. [TLF posts on privacy.]
3. WCIT makes Internet governance / NetFreedom a major issue worldwide. [TLF posts on Net governance.]
4. Antitrust threat looms larger w pending Google case + Apple books investigation. [TLF posts on antitrust.]
5. Cybersecurity regulatory push continues in both legislative (CISPA) & executive branch. [TLF posts on cybersecurity.]

Lists like these are entirely subjective, of course, but I am basing my list on the general amount of chatter I tended to see and hear about each topic over the course of the year.

What do you think the top tech policy issues of the year were?

I’ve been hearing more rumblings about “API neutrality” lately. This idea, which originated with Jonathan Zittrain’s book, The Future of the Internet–And How to Stop It, proposes to apply Net neutrality to the code/application layer of the Internet. A blog called “The API Rating Agency,” which appears to be written by Mehdi Medjaoui, posted an essay last week endorsing Zittrain’s proposal and adding some meat to the bones of it. (My thanks to CNet’s Declan McCullagh for bringing it to my attention).

Medjaoui is particularly worried about some of Twitter’s recent moves to crack down on 3rd party API uses. Twitter is trying to figure out how to monetize its platform and, in a digital environment where advertising seems to be the only business model that works, the company has decided to establish more restrictive guidelines for API use. In essence, Twitter believes it can no longer be a perfectly open platform if it hopes to find a way to make money. The company apparently believes that some restrictions will need to be placed on 3rd party uses of its API if the firm hopes to be able to attract and monetize enough eyeballs.

While no one is sure whether that strategy will work, Medjaoui doesn’t even want the experiment to go forward. Building on Zittrain, he proposes the following approach to API neutrality:

• Absolute data to 3rd party non-discrimination : all content, data, and views equally distributed on the third party ecosystem. Even a competitor could use an API in the same conditions than all others, with not restricted re-use of the data.
• Limited discrimination without tiering : If you don’t pay specific fees for quality of service, you cannot have a better quality of service, as rate limit, quotas, SLA than someone else in the API ecosystem.If you pay for a high level Quality of service, so you’ll benefit of this high level quality of service, but in the same condition than an other customer paying the same fee.
• First come first served : No enqueuing API calls from paying third party applications, as the free 3rd-party are in the rate limits.

Before I critique this, let’s go back and recall why Zittrain suggested we might need API neutrality for certain online services or digital platforms. Although Zittrain does not label it as such, API neutrality assumes the platform or device in question is a sort of public utility or common carrier. Zittrain is concerned that the absence of API neutrality could imperil “generativity,” technologies or networks that invite or allow tinkering and all sorts of creative secondary uses. Primary examples include general-purpose personal computers (PCs) and the traditional “best efforts” Internet. By contrast, Zittrain contemptuously refers to “tethered, sterile appliances,” or digital technologies or networks that discourage or disallow tinkering. Zittrain’s primary examples are proprietary devices like Apple’s iPhone or the TiVo, or online walled gardens like the old AOL and current cell phone networks. Such “take it or leave it” devices or platforms earn Zittrain’s wrath. He argues that we run the risk of seeing the glorious days of generative devices and the open Internet give way to those tethered appliances and closed networks. He fears most users will flock to tethered appliances in search of stability or security, and worries because those tethered appliances are less “open” and more “regulable,” thus allowing easier control by either large corporate intermediaries or government officials. In other words, the “future of the Internet” Zittrain is hoping to “stop” is a world dominated by tethered digital appliances and walled gardens, because they are too easily controlled by other actors. He argues:

If there is a present worldwide threat to neutrality in the movement of bits, it comes not from restrictions on traditional Internet access that can be evaded using generative PCs, but from enhancements to traditional and emerging appliancized services that are not open to third-party tinkering.

Because he fears the rise of “walled gardens” and “mediated experiences,” Zittrain goes on to wonder, “Should we consider network neutrality-style mandates for appliancized systems?” He responds to his own question as follows:

The answer lies in that subset of appliancized systems that seeks to gain the benefits of third-party contributions while reserving the right to exclude it later. . . . Those who offer open APIs on the Net in an attempt to harness the generative cycle ought to remain application-neutral after their efforts have succeeded, so all those who built on top of their interface can continue to do so on equal terms. (p. 183-4)

While many would agree that API neutrality represents a fine generic norm for online commerce and interactions, Zittrain implies it should be a legal standard to which online providers are held. He even alludes to the possibility of applying the common law principle of adverse possession more broadly in these contexts. He notes that adverse possession “dictates that people who openly occupy another’s private property without the owner’s explicit objection (or, for that matter, permission) can, after a lengthy period of time, come to legitimately acquire it.” (p. 183) He does not make it clear when that principle would be triggered as it pertains to digital platforms or social media APIs. But it would seem clear that his API neutrality rule would eventually regulate the major information providers and platforms of our day, including: Apple, Google, Twitter, Facebook, and many others.

As I argued in my paper, “The Perils of Classifying Social Media Platforms as Public Utilities,” API neutrality regulation is a dangerous notion. There are many problems with the logic of Zittrain’s API neutrality proposal and with the application of adverse possession to social media platforms or digital applications. What follows below is my critique of the notion that appeared in that paper, and it also explains why Medjaoui’s new formulation and clarification of the principle is equally problematic.

First, most developers who offer open APIs are unlikely to close them later because they do not want to incur the wrath of “those who built on top of their interfaces,” to use Zittrain’s parlance. Social media services make themselves more attractive to users and advertisers by providing platforms with plentiful opportunities for diverse interactions and innovations. The “walled gardens” of the Internet’s first generation are largely things of the past. Thus, a powerful self-correcting mechanism is at work in this space. If social media operators were to lock down their platforms or applications in a highly restrictive fashion, both application developers and average users would likely revolt. Moreover, a move to foreclose or limit generative opportunities could spur more entry and innovation as other application (“app”) developers and users seek out more open, pro-generative alternatives.

Consider an example involving Apple and the iPhone. Shortly after the iPhone’s release, Apple reversed itself and opened its iPhone platform to third-party app developers. The result was an outpouring of innovation. Customers in more than 123 countries had downloaded more than eighteen billion apps from Apple’s App Store at a rate of more than 1 billion apps per month as of late 2011.

But what if Apple decides to suddenly shut its App Store and prohibit all third-party contributions, after initially allowing them? There is no obvious incentive for Apple to do so, and there are plenty of competitive reasons for Apple not to close off third-party development, especially as its application dominance is a key element of Apple’s success in the smartphone and tablet sectors. Under Zittrain’s proposed paradigm, regulators would treat the iPhone as the equivalent of a commoditized common carriage device and force the App Store to operate on regulated, public utility–like terms without editorial or technological (and perhaps interoperability) control by Apple itself. But if Apple were to open the door to developers only to slam it shut a short time later, the company would likely lose those developers and customers to alternative platforms. Google, Amazon, Microsoft, and others would be only too happy to take Apple’s business by offering a wealth of stores and devices that allow users greater freedom. Market choices, not regulatory edicts such as mandatory API neutrality, should determine the future of the Internet.

The same logic indicates the likely counterproductive effects of efforts to impose API neutrality on Twitter. Until recently, Twitter had a voluntary open access policy in that it allowed nearly unlimited third-party reuse and modification of its API. It is now partially abandoning that policy by taking greater control over the uses of its API. This policy reversal will, no doubt, lead to claims that the company is acting like one of Tim Wu’s proverbial “information empires” and that perhaps Zittrain’s API neutrality regime should be put in place as a remedy. Indeed, Zittrain has already referred to Twitter’s move as a “bait-and-switch” and recommended an API neutrality remedy. Zittrain’s actions could foreshadow more pressure from academics and policymakers that will first encourage Twitter to continue open access, but then potentially force the company to grant nondiscriminatory access to its platform on regulated terms. Nondiscriminatory access would represent a step toward the forced commoditization of the Twitter API and the involuntary surrender of the company’s property rights to some collective authority that will manage the platform as a common carrier or essential facility.

Yet again, innovation and competitive entry remain possible in this arena. There is nothing stopping other microblogging or short-messaging services from offering alternatives to Twitter. Some people would decry the potential lack of interoperability among competing services at first, but innovators would quickly find work-arounds. A decade ago, similar angst surrounded AOL’s growing power in the instant-messaging (IM) marketplace. Many feared AOL would monopolize the market and exclude competitors by denying interconnection. Markets evolved quickly, however. Today, anyone can download a free chat client like Digsby or Adium to manage IM services from AOL, Yahoo!, Google, Facebook, and just about any other company, all within a single interface, essentially making it irrelevant which chat service your friends use. These innovations occurred despite a mandate in the conditions of Time Warner’s acquisition of AOL that the post-merger firm provide for IM interoperability. The provision was quietly sunset as irrelevant a short three years later.

A similar market response could follow Twitter’s to exert excessive control over its APIs. In web 2.0 markets—that is, markets built on pure code—the fixed costs of investment are orders of magnitude less than they were with the massive physical networks of pipes and towers from the era of analog broadcasting and communications. Thus, major competition for Twitter is more than possible, and it is likely to come from sources and platforms we cannot currently imagine, just as few of us could have imagined something like Twitter developing.

Even if some social media platform owners did want to abandon previously open APIs and move to a sort of walled garden, there is no reason to classify such a move as anticompetitive foreclosure or leveraging of the platform. Marketplace experimentation in search of a sustainable business model should not be made illegal. Since most social media sites such as Twitter do not charge for the services they provide, some limited steps to lock down their platforms or APIs might help them earn a return on their investments by monetizing traffic on their own platforms. If a social media provider had to live under a strict version of Zittrain’s API neutrality principle, however, it might be extremely difficult to monetize traffic and increase businesses since the company would be forced to share its only valuable intellectual property.

In sum, if the government were to forcibly apply API neutrality or adverse possession principles through utility-like regulation, it would send a signal to social media entrepreneurs that their platforms are theirs in name only and could be coercively commoditized once they are popular enough. Such a move would constitute a serious disincentive to future innovation and investment. “API neutrality” would upend the way much of the modern digital economy operates and cripple many of America’s most innovative companies and sectors. In the long run, such changes could sacrifice America’s current role as a global information technology leader. For these reasons, API neutrality mandates should be rejected.

Additional Reading

• Twitter, the Monopolist? Is this Tim Wu’s “Threat Regime” In Action?
• A Vision of (Regulatory) Things to Come for Twitter?
• review of Zittrain’s “Future of the Internet”

On Monday it was my great pleasure to participate in a Cato Institute briefing on Capitol Hill about “Internet Taxation: Should States Be Allowed to Tax outside Their Borders?” Also speaking was my old friend Dan Mitchell, a senior fellow with Cato. From the event description: “State officials have spent the last 15 years attempting to devise a regime so they can force out-of-state vendors to collect sales taxes, but the Supreme Court has ruled that such a cartel is not permissible without congressional approval. Congress is currently considering the Main Street Fairness Act, a bill that would authorize a multistate tax compact and force many Internet retailers to collect sales taxes for the first time. Is this sensible? Are there alternative ways to address tax “fairness” concerns in this context?”

Watch the video for our answers. Also, here’s the big Cato paper that Veronique de Rugy and I penned for Cato on this back in 2003 and here’s a shorter recent piece we did for Mercatus.

By Berin Szoka & Adam Thierer

We learned from The Wall Street Journal yesterday that “Federal Communications Commission Chairman Julius Genachowski gets a little peeved when people suggests that he wants to regulate the Internet.” He told a group of Journal reporters and editors today that: “I don’t see any circumstances where we’d take steps to regulate the Internet itself,” and “I’ve been clear repeatedly that we’re not going to regulate the Internet.”

We’re thankful to hear Chairman Julius Genachowski to make that promise. We’ll certainly hold him to it. But you will pardon us if we remain skeptical (and, in advance, if you hear a constant stream of “I told you so” from us in the months and years to come). If the Chairman is “peeved” at the suggestion that the FCC might be angling to extend its reach to include the Internet and new media platforms and content, perhaps he should start taking a closer look at what his own agency is doing—and think about the precedents he’s setting for future Chairmen who might not share his professed commitment not to regulate the ‘net. Allow us to cite just a few examples:

Net Neutrality Notice of Proposed Rulemaking

We’re certainly aware of the argument that the FCC’s proposed net neutrality regime is not tantamount to Internet regulation—but we just don’t buy it. Not for one minute.

First, Chairman Genachowski seems to believe that “the Internet” is entirely distinct from the physical infrastructure that brings “cyberspace” to our homes, offices and mobile devices. The WSJ notes, “when pressed, [Genachowski] admitted he was referring to regulating Internet content rather than regulating Internet lines.” OK, so let’s just make sure we have this straight: The FCC is going to enshrine in law the principle that “gatekeepers” that control the “bottleneck” of broadband service can only be checked by having the government enforce “neutrality” principles in the same basic model of “common carrier” regulation that once applied to canals, railroads, the telegraph and telephone. But when it comes to accusations of “gatekeeper” power at the content/services/applications “layers” of the Internet, the FCC is just going to step back and let markets sort things out? Sorry, we’re just not buying it.

Chairman Genachowski may sincerely believe that a clear, bright line can be drawn between the “infrastructure layer” (which he’s certainly going to regulate) and what he likes to think of as “the Internet” (which he promises not to regulate). But as we warned last October, the day after the FCC launched this NPRM:

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. The reality is that regulation always spreads. The march of regulation can sometimes be glacial, but it is, sadly, almost inevitable: Regulatory regimes grow but almost never contract… The basic premise of neutrality regulation is already being proposed for other layers of the Internet….  whatever the FCC might say today, any large online intermediary with a popular platform potentially faces the threat of “network neutrality” mandates—because every platform is essentially a “network,” too. We’re not just talking about “search neutrality” (Google as well as Microsoft) but also about “device neutrality” (mobile handsets), “app neutrality” (Apple’s iTunes store, Facebook’s developers and Google’s Android mobile OS) and so on for social networking, email, instant messaging, online advertising, etc.

We explained how the intellectual foundations for this regulatory creep have already been laid by groups like Free Press and Public Knowledge and law professors like Columbia’s Tim Wu (father of “Net Neutrality”), Harvard’s Jonathan Zittrain (father of “API/device Neutrality”), and Seton Hall’s Frank Pasquale (father of “Search Neutrality”). Joining this intellectual vanguard of Internet regulation is George Washington law school professor Dawn Nunziato, whose new book, Virtual Freedom: Net Neutrality and Free Speech in the Internet Age, is a veritable manifesto for expansive neutrality regulation (especially of Google)—and how the First Amendment (“Congress shall make no law…”) should be twisted not just to allow such regulation of speech platforms, but to require it! Even Wu, whose work blazed a trail for these others, is pretty clear about the breadth of his original vision for “neutrality” regulation, as his popular Net Neutrality FAQ makes clear:

The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short-term interests of the owner do not prevent the best products or applications becoming available to end-users.

Zittrain, Pasquale, and Nunziato don’t pull any punches either: They don’t shy away from flirting with nebulous neutrality definitions and wide-ranging government powers to regulate. So we don’t have to imagine what the “slippery slope” might look like: There are plenty of very smart and highly influential legal academics out there hard at work sketching out precisely where the path Chairman Genachowski has started us down will ultimately lead.

It’s no less clear why we’ll wind up marching down that path, no matter what the current FCC leadership intends.

1. The current net neutrality rulemaking sets a profoundly dangerous legal precedent of essentially unlimited claims of “ancillary jurisdiction”: As our friends at the Electronic Frontier Foundation (who have a soft spot for net neutrality in theory) put it, “If ‘ancillary jurisdiction’ is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like).” Our PFF colleague Barbara Esbin carefully dissected this issue for the Commission in her recent filing in this proceeding.
2. As explained above, the general regulatory principle of controlling “gatekeepers” doesn’t end with infrastructure.
3. As EFF notes, “Experience shows that the FCC is particularly vulnerable to regulatory capture.”
4. Now that FCC has opened the door to micro-managing online business practices in the name of “neutrality,” the companies that have made America the leader in the Digital Revolution are already turning on each other in a dangerous game of brinksmanship, escalating demands for regulation and playing right into the hands of those who want to bring the entire high-tech sector under the thumb of government—under an Orwellian conception of “Internet Freedom” that makes corporations the real “Big Brother,” and government, our savior.

This strategy of political escalation will thus quickly steamroll over whatever promises made today to narrowly cabin the principle of neutrality regulation—and end in “Mutually Assured Destruction.” That’s why we referred to the day the FCC started down this path back in September as “The Day Internet Freedom Died.”

If that title sounds melodramatic, take a step back and consider that, back in 1996, Congress decided to enshrine in law the principle that the Internet is different from traditional media: Apart from an ill-considered effort to censor online indecency and obscenity (which was quickly struck down by the Supreme Court as unconstitutional) and the enforcement of intellectual property and criminal laws, Congress decided to take a purely laissez-faire approach to the Internet.  As Barbara reminded the Commission in her net neutrality filing, “Section 230(b)(2) flatly declares that it is the policy of the United States ― to preserve the vibrant competitive free market that presently exits for the Internet and other interactive computer services, unfettered by Federal or State regulation.”

So Chairman Genachowski’s decision to revert to the common carrier model of the railroad era marks a fundamental break with the approach Congress decided we would take to the Internet. The DC Circuit will likely soon rule that the FCC has vastly overstepped its authority in trying to set Internet policy without any clear grant of authority from Congress to do so.

Wireless Innovation & Investment Notice of Inquiry

In fact, the same kind of thinking is already being extended by this FCC in a number of other arenas using a flurry of innocuous-seeming “Notices of Inquiry.” While these notices purport only to ask questions, they either:

1. Foreshadow where the Commission intends to go in proposing new regulations based on its nearly limitless conception of its own regulatory authority;
2. Are intended to pressure Congress to give the agency more statutory authority; or
3. Are intended to intimidate industry into “playing ball” so the FCC won’t actually have to stick its neck out by trying to write rules to regulate Internet activities that are clearly beyond its existing authority and might well be unconstitutional even if Congress ever did expand that authority.

Exhibit A is the language in the Commission’s August 2009 Wireless Innovation and Investment Notice of Inquiry, (paragraph 60, pg. 21) that suggests the FCC is angling to become the Federal Cloud Commission:

As other approaches, such as cloud computing, evolve, will established standards or de facto standards become more important to the applications development process? For example, can a dominant cloud computing position raise the same competitive issues that are now being discussed in the context of network neutrality? Will it be necessary to modify the existing balance between regulatory and market forces to promote further innovation in the development and deployment of new applications and services?

Good morning, Google!  Hello, Facebook! Is anyone out there in the cloud listening to the rumbling thunder of federal regulation? What began as academic theory in a law school ivory tower is coming soon to a regulatory agency near you! But wait… there’s more!

National Broadband Plan Public Notice #21 (Cloud Computing)

Last November, as part of the Commission’s ongoing effort to develop a National Broadband Plan, the FCC released a request for information “on data portability and its relationship to broadband.”  (NBP Public Notice #21) “The Commission seeks tailored comment on broadband and portability of data and their relation to cloud computing, transparency, identity, and privacy,” the notice says.  Here was the second item on the list of things the Commission said it was investigating (p. 2):

When considering the portability of data, we also consider the processes through which data are moved. In this context, we seek comment on how to identify and understand cloud computing as a model for technology provisioning…. What types of cloud computing exist (e.g., public, hybrid, and internal) and what are the legal and regulatory implications of their use? … To what extent are consumers protected by industry self-regulation (e.g., the Cloud Computing Manifesto), and to what extent might additional protections be needed? … What specific privacy concerns are there with user data and cloud computing? What precautions should government agencies take to prevent disclosure of personal information when providing data? Is the use of cloud computing a net positive to the environment? Are there specific studies that quantify the environmental impact of cloud computing?

We suppose some might claim there’s nothing wrong with the FCC looking into these issues, and that the agency’s interest in cloud computing is entirely benign. (Never mind the fact that the Federal Trade Commission already enforces the privacy policies of cloud computing providers and is looking hard at online privacy.)  Seeing all these open-ended questions about something so obviously beyond the scope of the FCC’s authority just makes the potential for—and perhaps even inevitability of—regulatory creep hard to miss.  Eventually, when a regulatory agency asks enough questions, especially the sort of questions highlighted above… well, to paraphrase Master Yoda:

Open-ended inquiries about new regulations are the path to the Dark side. Inquiries lead to agency oversight. Agency oversight leads to regulation. Regulation leads to suffering for innovators and consumers alike.

Again, we’re not just inventing bogeymen here. It’s quite clear that regulatory advocates want to take neutrality regulation into “the Cloud.” As Jason Lanier, author of the popular book You Are Not a Gadget summarizes one of his key themes:

While there is a lot of talk about networks and emergence from the top American technologists, in truth, most of them are hoping to thrive by controlling the network that everyone else is forced to pass through. Everyone wants to be a “Lord of a Computing Cloud.”

In Lanier’s dystopia of techno-feudalism, the Lords oppressing the poor digital “peasants” certainly aren’t just those running broadband service providers. It’s the Google, Facebooks, and Twitters of the world. It’s similar to the “sharecropper” concern raised by Nick Carr in his book The Big Switch. Complaints like those will only grow in the years to come, and few will buy—or even pause to remember—the distinction Chairman Genachowski seems to stand on now between infrastructure and “the Internet.”

National Broadband Plan Public Notice #29 (Privacy)

The “Recovery Act” passed in January 2009 tasked the FCC with formulating “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure and service by the public.” The FCC seized this as an opportunity to solicit suggestions as to how regulate the use and collection of data by the private sector on the grounds that concerns about privacy might somehow be slowing broadband adoption.

Chairman Genachowski’s flurry of open-ended inquiries about new regulation are clearly intended to give a bully pulpit to regulatory advocates to demand that the FCC issue the very sort of Internet regulations the Chairman purports to abhor (or that Congress give the agency authority to do so). But most of these notices at least appear to be objective requests for comments written independently of the groups the Commission seems so eager to hear beg for Internet regulation. But in this case, the Commission dispensed with that tedious formality and just outsourced the writing of the inquiry itself to one of the outside groups clamoring the loudest for data regulation in the name of “privacy”: our friends at the Center for Democracy & Technology, with whom PFF has worked closely on many free speech issues in the past.

CDT is on to something when they write that “Consumers will not embrace broadband if they have a sense that everything they do online will be watched by government officials.” We’ll join with them in the fight to protect consumers’ privacy from the Real Big Brother—government!—but once again, as with net neutrality, advocates of regulation see government as the protector of our digital liberties (if only we can forever make sure noble civil-libertarians are in charge of the regulatory apparatus of the state!). So CDT has it exactly backwards when they say: “Consumer privacy concerns encompass not only what companies do with their data, but also the extent to which the government accesses it.” And instead of just suggesting that the FCC’s National Broadband Plan include a recommendation that Congress clean up the antiquated laws intended to limit government surveillance, CDT pushes for sweeping regulations that would affect the ability of most online services and sites to collect and use the data they need to improve their services, innovate, and maybe even try to make some money on advertising to support all the free content and services they give away.

Thus, instead of focusing on the clear harm from government, the FCC’s outsourced inquiry goes after online operators as “privacy proxies” for concerns about government action. At least Congress actually asked for the FCC’s recommendations in this case, unlike all the other inquiries the agency has launched sua sponte. But as Berin noted in his comments on this inquiry, the Recovery Act allowed the FCC to “recommend only those policies that it concludes will, on net, help achieve “affordability” and ‘maximum utilization’ of broadband.” That means the Commission would actually have to consider the many trade-offs inherent in the private sector use of data before recommending regulation: If the Internet ecosystem is impoverished by government intervention, however well-intentioned it may be, users will have that much less reason to adopt and “utilize broadband.” So the FCC would have a lot of cost-benefit analysis to do before it could actually make the kinds of regulatory recommendations CDT wants. And we suspect that, on the whole, that analysis wouldn’t turn out the way CDT thinks it would.

Child Safe Viewing Act Notice of Inquiry

In a somewhat similar vein, Congress last year asked the agency to examine how well parental control technologies work to allow parents to filter objectionable content online. So while the FCC may have had, for once, the authority to ask broad questions, it’s startling just how broad those questions were. The Commission obviously has no authority over video games or virtual worlds, online video distribution networks or video hosting sites, mobile web content, MP3 players or iPods, P2P networks, VCRs or DVD players, PVRs or TiVo, Internet filters, safe search tools, laptops, and so on. And yet, all these things (and much more) were mentioned in the Commission’s Child Safe Viewing Act Notice of Inquiry.

The proceeding raises the prospect of what Adam has called “convergence era content regulation” since it opens the doors to FCC meddling on a number of new fronts in the name of “protecting children.” Although the Commission’s final report to Congress stopped short of calling for an substantive expansion of the agency’s content regulatory regime, it teed up another proceeding, discussed next. (And if Congress hasn’t moved more quickly to grant the FCC new power in this area, it’s probably because they’re busy trying to figure out how to get around a line of First Amendment cases that consistently require government regulation to yield to “less restrictive” alternatives like parental control tools and education.)

Empowering Parents & Protecting Children Notice of Inquiry

This wide-ranging inquiry reads like the ultimate “fishing expedition” by a regulatory agency—fishing for new jurisdictional authority to regulate, that is!  The questions asked are too broad, far-flung and various to catalog here (we’ll have a big filing coming in the matter soon), but the Commission asks about extending to Internet media the model of the 1990 Children’s Television Act, which imposes “public interest” obligations on broadcasters and cable operators to offer “education” content while also strictly limiting how much advertising may be shown during children’s TV. The Commission also alludes, ominously, to the V-chip model for requiring universal ratings for television and hints that it would really like for “current laws [to] be updated to reflect this convergence and to keep pace with changes in technology” (¶ 41).

The Commission mentions only in passing at the very end of the Inquiry that it “has varying degrees of statutory authority with respect to different media. We ask commenters, in proposing any action, to discuss the source and extent of the Commission’s authority to take the action, or whether new legislation would be needed to authorize such action” (¶ 58). Translation: “Uh, yeah… so… we know we don’t have a statutory leg to stand on here, but we think it’d be really cool if we did, so let’s just all, you know, kinda brainstorm about what kind of regulation we could be imposing here and what kind of law we’d need get Congress to pass to make it all legal. Or if you have any creative ideas on how we could get away with just making up the jurisdiction thing on our own, that’d be even better!”

YouTube, you’re first on the list of targets for the kind of online video regulation the FCC is hinting at here—and none too subtly. But why stop there? The FCC’s laundry list of complaints aren’t limited just to video, but could apply to essentially all online media. But this is all in the name of “protecting the children,” and Chairman Genachowski doesn’t want to regulate the Internet, so we really don’t need to worry—right?

Future of Media Notice of Inquiry

Most recently, in late January, the Commission launched the ambitiously-named “Examination of the Future of Media and Information Needs of Communities in a Digital Age.” The FCC asks a number of good questions about how government could get out of the way of media struggling to reinvent themselves in the digital era by scrapping outdated regulations. The inquiry also tips its hat to the vital importance of advertising in supporting media. But it’s otherwise pretty bad news as a harbinger of a “Chill Wind” for the future of a free press in this country, as Ken Ferree, PFF’s former president and current board member noted.

In particular, the Commission comes right out with a “trial balloon” about imposing public interest obligations on online operators—the very thing it hinted at slightly more delicately in the “Empowering Parents” inquiry mentioned above:

Broadcasters have certain public interest obligations, including that they provide programming responsive to the needs and issues of their communities and comply with the Commission’s children’s programming requirements. Cable and satellite operators have their own responsibilities…  Should such obligations be applied to a broader range of media or technology companies, or be limited in scope?

OK, so we’re not going to “regulate” online content operators; we’re just going to impose “public interest” obligations on them to provide certain kinds of content preferred by politicians. Right… and if Google News or YouTube don’t do enough to “serve the public interest,” what then? Will the Federal Search Commission take away Google’s search license or cloud computing license?

Of course, we don’t mean to suggest that even the “Federal Cloud Commission” would ever be so unsubtle as to create a formal licensing system when they can probably achieve the same ends with far less obvious regulation. But how is this all going to work, exactly? Again, this is exactly the kind of hopelessly vague regulatory morass Congress had in mind when it declared that the federal government would avoid “fettering” the “vibrant competitive free market … for the Internet and other interactive computer services” with regulation.

The FCC goes on to revive the kinds of broad net neutrality ideas discussed above in asking:

How would policies related to “open Internet” or “universal broadband” or other FCC policies about communications infrastructure affect the likelihood that the Internet will meet the information needs of communities? Are there search engine practices that might positively or negatively affect web-based efforts to provide news or information?

In other words, “Tell us why and precisely how we should start regulating search engines in order to help ‘save  news.'” Google, here’s looking at you, kid! You want to keep your search license, dontcha? Well, just do what the nice men from Washington want and there won’t be any trouble.

Finally, the Commission opens the door to the noxious proposal for a “public option” for media, which Adam has lambasted. Here’s what the Commission says:

In general, what categories of journalism are most in jeopardy in the digital era? What categories are likely to flourish? While much is still to be determined as media companies test various business models and payment approaches in the coming years, based on what is known now, are there news and information needs that commercial market mechanisms alone are unlikely to serve adequately?

Don’t worry, it’s not as if government will exercise control over the media companies it funds if the media-socialist fantasies of the neo-Marxist Robert McChesney and his ironically-named “Free Press” group actually come true. Nope, government’s just here to help!

We’d all do well to remember that subsidies always come with strings attached—namely, regulation. That’s the Golden Rule: “He who has the gold, makes the rules!”

Conclusion

Chairman Genachowski, with all due respect, if you don’t like people suggesting that the FCC may be positioning itself to regulate the Internet and digital media platforms, then you might want to take a careful look at what your agency has been doing. You should think hard both about the precedents that will be set by “neutrality” regulation for online content and services, and also about the quasi-regulatory effect that your agency’s flurry of open-ended inquiries will have on the operators you claim not to want to regulate.

What will future Chairmen do with these precedents? What will emerge from every “Pandora’s Box” you’ve opened with each new sweeping inquiry? The answer, we fear, is an endless parade of new Internet regulations—and the death by a thousand cuts of real Internet freedom.

Harvard Berkman Center professor Jonathan Zittrain has published another pessimistic, Steve-Jobs-is-Taking-Us-Straight-To-Cyber-Hell editorial building on the gloomy thesis he set forth in his 2008 book, The Future of the Internet and How to Stop It. His latest piece appears in the Financial Times and it’s entitled, “A Fight over Freedom at Apple’s Core. Concerning the recent Apple iPad announcement, Zittrain warns: “Mr Jobs ushered in the personal computer era and now he is trying to usher it out.”

I’m not going to go into yet another lengthy dissertation about what it so misguided about his thesis that cyberspace is becoming more “regulable” and that digital “generativity” is dying because of the rise of devices like the iPhone & iPad, or sites like Facebook.  Instead, I will just point you to the many things I’ve written before explaining just how far off the mark Prof. Zittrain is on this point. [See the complete list down below + video of our debate.]

But let me just say this… Ignoring that fact that he is an iPhone user himself — which makes no sense considering that he thinks of Apple as the font of all cyber-evil — he can’t muster any substantive empirical evidence proving that the Net and digital devices are being more “closed, sterile, and tethered,” as he repeatedly claims in his book and editorials.  And that’s not surprising because the reality is that the digital world is more open and generative than ever, and even if there are some “closed” devices and systems out there, they are actually quite innovative and not perfectly closed as Zittrain suggests. The spectrum of “open vs. closed” systems and devices is incredible diverse and nothing is perfectly “open” or “closed.”  We can have the best of both worlds: many open systems with some partial “walled gardens” here and there (or hybrid systems combining both). Regardless, we are witnessing greater digital “generativity” and innovation with each passing year. Until Zittrain can prove the opposite, his thesis must be considered a failure.

Finally, I want to associate myself with this excellent critique of the Zittrain thesis by Prof. Ed Felten, who points out that Zittrain’s argument doesn’t even work for the iPad, which I would agree is a fairly “closed appliance” in the Zittrainian scheme of the things:

For the iPad to become a Zittrain-type appliance, two things must happen. First, Apple must remain picky about which apps are available in the App Store. Second, Apple must limit the device’s browser so that it lacks the features that make today’s browsers viable application platforms. Will Apple be able to limit their product in this way, despite competition from other, more general-purpose tablets? I doubt it. But even this — even an appliance-style iPad — would not be enough to prove Zittrain’s thesis. Zittrain argued not just that appliances would exist, but that they would replace general purpose computers. Amazon’s kindle is an appliance, but it doesn’t prove Zittrain’s thesis because nobody is ditching their laptop in favor of a Kindle. Instead, the Kindle is an extra device which is used for its purpose, while the general-purpose device is used for everything else. If the iPad ends up like the Kindle — a complement to the laptop or netbook, rather than a replacement for it — this will not prove Zittrain’s thesis. It seems unlikely, then, that the iPad, even if it succeeds, will provide strong support for Zittrain’s thesis. General-purpose computers are so useful that we’re not likely to abandon them.

Exactly right. And here’s a few more things you might want to read to see why Zittrain’s thesis doesn’t add up (the first and the last one probably provide the best overview):

• Review of Zittrain’s “Future of the Internet” (3/23/08)
• Apple, Openness, and the Zittrain Thesis (3/30/08)
• Another Problem for the Zittrain Thesis — Old People! (4/12/08)
• [AUDIO] NPR “On Point” Debate over The Future of the Internet (5/13/08)
• iPhone 2.0 Cracked in Hours… What Was that Zittrain Thesis Again? (7/10/08)
• Enough anti-iPhone rants… just get another phone! (8/11/08)
• Another Review of Zittrain’s “Future of the Internet” (9/20/08)
• [VIDEO] My Debate with Jonathan Zittrain at New America Foundation (11/6/08)
• Zittrain’s Pessimistic Predictions and Problematic Prescriptions for the Net (7/20/09)
• Code, Pessimism, and the Illusion of “Perfect Control” (5/8/09)[1st part of Cato Unbound Debate “Ten Years of Code“ (featuring Lessig, Zittrain, Declan McCullagh, and me]
• Our Conflict of Cyber-Visions (5/14/09) [part 2 of the Cato Unbound debate]
• Cyber-Libertarianism: The Case for Real Internet Freedom (8/12/09)
• You’d Have to Be Smoking Dope to Believe the Zittrain-Lessig Thesis (9/15/09)
• Oh Farts! The Droid, the iPhone & the Lessig-Zittrain Thesis (11/12/09)

The PBS documentary series Frontline aired a new program last night called “Digital Nation: Life on the Virtual Frontier.” [You can watch it online at that link.] Produced by Rachel Dretzin and Douglas Rushkoff, the 90-minute special touched on several themes we have debated here through the years including:

1. concerns about information overload and multitasking;
2. the role of computers and digital technology in education & learning; and,
3. the nature and impact of virtual reality and virtual worlds on real-world life and culture.

As a student of information history, I’m particularly interested in these subjects because I’ve written frequently about the lively debates between techno-optimists and techno-pessimists throughout history. (See my latest essay: “Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society.“) I thought Dretzin and Rushkoff did a nice job covering a lot of ground in a very short amount of time and providing balance from folks on both sides of the optimist/pessimist spectrum. Below I’ll just summarize a few notes I took while watching “Digital Nation” and offer a few thoughts on these controversial topics. Mostly, I’ll just discuss the first two, interrelated issues. (My thoughts on the third issue — virtual worlds and virtual reality, can be found in these videos from my recent speech in Second Life).

The Pessimistic Take on the Impact of Digital Technologies

The program opens on a pessimistic note with interviews and survey data suggesting that digital multitasking strains attention spans, especially among students.  We hear of studies suggesting that brain scans suggest a 2-fold increase in brain activity when individuals multitask. And a trip by Rushkoff to South Korea discusses how that early-adopting nation is trying to deal with Internet and gaming addiction among youth. “Causalities of the digital revolution,” Rushkoff calls these kids. He visits addict camps and clinics that focus on re-connecting such kids with the outside world and the simple life.

Similarly, when the program turns to the question of whether the Net and digital technologies help kids learn, we hear from several educators and parents who express concern that the Internet and digital technologies are “dumbing down” this latest generation of kids / students. We hear from critics such as Todd Oppenheimer, author of The Flickering Mind: Saving Education from the False Promise of Technology, Mark Bauerlein, The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (Or, Don’t Trust Anyone Under 30), and Clifford Nass of Stanford University, author of the forthcoming book, The Man Who Lied to His Laptop: What Computers Can Teach Us About Human Interactions.

They question whether technology is helping improve learning & culture, or even suggest that it is destroying opportunities to learn. We here them and others claiming that “kids don’t read anymore” or that youngsters just “think in paragraphs” and can’t write at length or put ideas together in a coherent fashion without getting distracted. They and others express concern that, unless steps are taken, it could have a permanent impact on how future generations think or behave, although they never really get concrete about the actual ramifications or what steps should be taken to avoid them.

The Optimistic Take: Things Are Getting Better

Dretzin and Rushkoff interview others, however, who have a decidedly different view of things. First, they talk to students themselves to get their take and, unsurprisingly, most consider themselves master multitaskers and think information overload is really no big deal.  We also hear from some experts who wonder aloud how much of this “problem” is really just an old-young divide.  They point out that “digital natives” (those who came of age in the digital era) and “digital immigrants” (analog era folks) view these concerns quite differently, and the older digital immigrants who are having a hard time adjusting themselves are often overly concerned about the impact of digital technologies on the younger generation.

Dretzin and Rushkoff also highlight some schools that have successfully integrated digital technologies into their programs with great result. “Technology is like oxygen” we hear one school administrator note when he stresses how important is is for educators accept the reality of digital technology in the lives of students and find ways to make it work for them. While some educators continue to worry about students being driven to distraction by all the things vying for their attention today, others seem willing to embrace this as an opportunity to teach kids about new subjects using new methods of interactive instruction.

Professors James Paul Gee and Henry Jenkins, both experts on new media and its impact on youth and culture, stress that we’ve been here before to some extent. “There are always gains and losses,” Gee notes, since every new technology giveth and taketh away something simultaneously. We suffered loss of memory capability after writing and print came on the scene since we no longer needed to remember and recite long stories. Was that a Net loss for society and culture? Plato thought so.  But as Jenkins notes, concerns about technology-as-distraction is not a new issue, yet humans have survived and adapted over time. [Update: Here are some of Henry’s thoughts about the documentary from his blog.]

My Thoughts: We Are Adapting & Learning to Cope, But Not Without Some Heartburn Along the Way

As I pointed out in my recent “Net Optimists vs. Pessimists” essay, this is actually a very, very old debate. From the time of Plato on down, experts have been engaged in raging debate about the impact of new technologies or methods of communications on human existence.  The hyper-pessimists worry deeply about the impact of technological change on culture, learning, and morality, while various techno-pollyannas proclaim that the new technology in question is improving the general lot of mankind and bringing about a better order.

But there are people on either side of these debates who are closer to reasonable middle ground position. There are skeptics who understand technology brings disruptive change but rightly caution humility in the face of  that change. And there are optimists who welcome change but also are willing to acknowledge the short-term growing pains associated with new technologies.

I’m generally more sympathetic to the latter position, which I have labeled “pragmatic optimism.” As I argued in a previous essay, “Can Humans Cope with Information Overload?”:

I guess I have have a bit more faith in humans than the pessimists do. We humans adapt. We learn to cope. We’re actually pretty good at it, too. It’s not like this is the first social or technological revolution we’ve lived through, after all.  In fact, one could make a good case that many previous revolutions were far more jarring than our modern Digital Revolution.

On the other hand, there is absolutely no denying that technological change can force gut-wrenching changes upon culture, institutions, businesses and individuals.  Digital distraction is real problem and we’d be fools to dismiss the skeptics who fear that kids (and many adults) are finding it more difficult to concentrate on specific tasks or digest long tracts. (Nick Carr penned a controversial article on this topic — “Is Google Making Us Stupid?” — and has a book coming out this year, The Shallows: What the Internet is Doing to Our Brains, that will expand upon it. John Freeman’s recent book, The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox, also touches on these issues.)

We also can’t ignore evidence pointing to the very real physical toll that too much screen time takes on our eyes, ears, and body. I have seen it myself — quite literally — with the rapid deterioration of my eyesight in recent years and the increasing pains in my fingers from all these endless hammering on keyboards, which (like screens) just keep getting smaller and smaller.

And then there are concerns about how digital life is affecting real life and living — sociability and manners, in particular. I’ve noted here before how I’ve tried “push the pause button” increasingly by working mini-“digital sabbaticals” into my life. I try to find specific moments each day to shut the lid on my laptop, toss my smartphone in the drawer, and turn off all my other digital gizmos and gadgets and just go do something terribly old-fashion and non-techie in character.  But the struggle continues.

At the end of the day, however, I continue to believe that we are better off in an age of information abundance that our past eras of information poverty. You don’t need to think that far back to recall a time when the sum of our informational and entertainment experiences were so limited that you could count them on one hand. When I watch my 8 year old daughter and 5 year old son sit in front of a computer today and explore the world, I simply cannot express how joyful I am for the world that lies at their fingertips — and how envious I am that I had none of that when I was growing up!  Sure, when I was growing up in rural Illinois and Indiana back in the ’70s , I had a great collection of books, a nice National Geographic collection, 3 or 4 broadcast TV channels, and a local movie theater. But today my kids have all that plus much, much more at their disposal.  The challenge is figuring out how to make sense of it all and assimilate all these new technologies and new informational inputs into their lives.  But that’s a wonderful dilemma for me (and society) to face!  I’ll take that problem over the previous one of information scarcity any day of the week.

Anyway, make sure to check out “Digital Nation.” [watch it here] It’s a terrific overview of this incredibly interesting ongoing debate. And here are some additional reactions to the program from my friends Stephen Balkam, Larry Magid, and Anne Collier. Finally, Stephen Balkam’s Family Online Safety Institute (FOSI) will be hosting a screening of “Digital Nation” here in DC on February 25th.  Rachel Dretzin will be on hand to discuss the program and I’ve been asked to provide some thoughts afterward. Looking forward to that and hope those of you in the DC area will join us.

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by Berin Szoka & Adam Thierer, Progress Snapshot 5.11 (PDF)

Ten years ago, Nobel Prize-winning economist Milton Friedman lamented the “Business Community’s Suicidal Impulse:” the persistent propensity to persecute one’s competitors through regulation or the threat thereof. Friedman asked: “Is it really in the self-interest of Silicon Valley to set the government on Microsoft?” After yesterday’s FCC vote’s to open a formal “Net Neutrality” rule-making, we must ask whether the high-tech industry—or consumers—will benefit from inviting government regulation of the Internet under the mantra of “neutrality.”

The hatred directed at Microsoft in the 1990s has more recently been focused on the industry that has brought broadband to Americans’ homes (Internet Service Providers) and the company that has done more than any other to make the web useful (Google). Both have been attacked for exercising supposed “gatekeeper” control over the Internet in one fashion or another. They are now turning their guns on each other—the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates. Unless we find a way to achieve “Digital Détente,” the consequences of this increasing regulatory brinkmanship will be “mutually assured destruction” (MAD) for industry and consumers.

New Fronts in the Neutrality Wars

The FCC’s proposed rules would apply to all broadband providers, including wireless, but not to Google or many other players operating in other layers of the Net who favor such broadband-specific rules. With this rulemaking looming, AT&T came after Google with letters to the FCC in late September and then another last week accusing the company of violating neutrality principles in their business practices and arguing that any neutrality rules that apply to ISPs should apply equally to Google’s panoply of popular services. In particular, AT&T accused Google of “search engine bias,” suggesting that only government-enforced neutrality mandates could protect consumers from Google’s supposed “monopolist” control.

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. The reality is that regulation always spreads. The march of regulation can sometimes be glacial, but it is, sadly, almost inevitable: Regulatory regimes grow but almost never contract. Indeed, in some ways, the prediction we made just three weeks ago is already coming true: The basic premise of neutrality regulation is already being proposed for other layers of the Internet—and not just by AT&T in retaliation. One need not agree with all of AT&T’s accusations to recognize that, whatever the FCC might say today, any large online intermediary with a popular platform potentially faces the threat of “network neutrality” mandates—because every platform is essentially a “network,” too. We’re not just talking about “search neutrality” (Google as well as Microsoft) but also about “device neutrality” (mobile handsets), “app neutrality” (Apple’s iTunes store, Facebook’s developers and Google’s Android mobile OS) and so on for social networking, email, instant messaging, online advertising, etc.

An open letter sent to FCC Chairman Julius Genachowski this week by 28 founders and CEOs of leading application providers—including Amazon, Google, Facebook, Netflix, Craigslist, Sony and Twitter—speaks generally about the need for the FCC to enforce a “guarantee of neutral, nondiscriminatory access by users.” While many of these signatories may have in mind ISPs as the network “gatekeepers” that need to be reined in by the FCC, the more successful among them are likely to find this letter used against them in the future—perhaps even by co-signatories—to advance a broad conception of what the government must do to ensure “openness” and “access” for platforms at all layers of the Internet.

Dumb Networks, Dumb Devices

The intellectual foundations for this regulatory creep have already been laid by groups like Free Press and Public Knowledge and law professors like Columbia’s Tim Wu, Harvard’s Jonathan Zittrain and Seton Hall’s Frank Pasquale. As originally conceived by Tim Wu in 2003, “network neutrality” is not unique to broadband networks: “the basic economic problem found in the network neutrality debate (a form of ‘platform exclusion’ or ‘vertical foreclosure’) can be found in many other markets.” Indeed, Wu’s popular Net Neutrality FAQ declares:

The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short-term interests of the owner do not prevent the best products or applications becoming available to end-users.

Zittrain picked up where Wu left off in The Future of the Internet and How to Stop It—attacking, as the enemies of innovation, not ISPs but the supposedly “closed” platforms of Apple, TiVo and Microsoft’s Xbox. Zittrain warns that:

If there is a present worldwide threat to neutrality in the movement of bits, it comes not from restrictions on traditional Internet access that can be evaded using generative PCs, but from enhancements to traditional and emerging appliancized services that are not open to third-party tinkering.

Zittrain’s general solution is “API [Applications Programming Interface] neutrality:” If you create a platform (whether hardware or software) and begin allowing third-party contributions (“generativity”), you will lose all control over devices or applications that can run on that platform.

Those who offer open APIs on the Net in an attempt to harness the generative cycle ought to remain application-neutral after their efforts have succeeded, so all those who built on top of their interface can continue to do so on equal terms…. [N]etwork neutrality ought to be applied to the new platforms of Web services that, in turn, depend on Internet connectivity to function.

Clearly, if Zittrain and his allies have their way, the sort of neutrality mandates envisioned by the FCC or some Congressmen for ISPs will eventually cover companies such as Apple, Google, Facebook, Myspace, Twitter and Amazon—all singled out by Zittrain in a New York Times op-ed in July:

If the market settles into a handful of gated cloud communities whose proprietors control the availability of new code, the time may come to ensure that their platforms do not discriminate. Such a demand could take many forms, from an outright regulatory requirement to a more subtle set of incentives — tax breaks or liability relief — that nudge companies to maintain the kind of openness that earlier allowed them a level playing field on which they could lure users from competing, mighty incumbents.

Frank Pasquale agrees on the need to restrain all “the dominant players at all layers of online life,” but focuses on his demand for a Federal Search Commission to control supposedly “biased” search results. While the FCC wrings its hands over “managed services” offered by ISPs, search engines are increasingly offering their own value-added services by “blending” algorithmically-derived results with special features like maps, videos, books or music depending on what the search term suggests the user is interested in. “Artificially” ensuring that these features appear on the first page of search results is clearly non-neutral, and necessarily involves search engines making ”managed” decisions as to whose features to include. Yet such features also clearly benefit users—dramatically improving the usefulness of search engines and helping to sustain struggling business models like music retailing.

But one need not resort to the works of “ivory tower” academics to see the slippery slope we’re already tumbling down with the infinitely elastic principle of “neutrality.” The prospect of the FCC gradually transforming into a “Federal Information Commission” becomes more apparent when one reads the Wireless Innovation and Investment Notice of Inquiry recently released by the FCC:

As other approaches, such as cloud computing, evolve, will established standards or de facto standards become more important to the applications development process? For example, can a dominant cloud computing position raise the same competitive issues that are now being discussed in the context of network neutrality? Will it be necessary to modify the existing balance between regulatory and market forces to promote further innovation in the development and deployment of new applications and services?

One can imagine how some might use such language to accuse Google of being in “a dominant cloud computing position” such that “the context of network neutrality” will be applied to cloud service (like Google Voice) to “modify the existing balance between regulatory and market forces” through regulation. Indeed, that’s precisely what AT&T has suggested in recent letters (September 25 ^th and October 14 ^th) to the FCC.

AT&T’s partner Apple has already been the subject of such attacks for its decision to block the Google Voice app earlier this summer. The incident marked the beginning of open warfare between Google and AT&T/Apple. The FCC quickly jumped into the mix, first questioning how Apple manages its iTunes apps store for the iPhone, then questioning how Google runs its free Voice application. What legal authority the FCC has over either service is far from clear, but Apple seems to have gotten the message: It recently approved the Spotify music streaming app for the iPhone, which could be a serious competitive threat to the iTunes music store. This small incident highlights how easily regulators can impose their will through informal mechanisms like open-ended investigations even without clear authority to issue rules or bring enforcement actions. Yet none dare call it what it is: regulatory blackmail.

The Inevitability of Regulatory Capture

No doubt, other industry players will cheer on such regulatory harassment of the titans of tech—and maybe even demand more of it. Regulatory creep is driven by more than the self-interests of every bureaucracy to expand its own mission, budget and staff. As the Electronic Frontier Foundation has noted, “Experience shows that the FCC is particularly vulnerable to regulatory capture.” While lobbyists play an important role in defending business from government, all too many businesses naively look at government as a beast that can be tamed, trained, and turned to one’s own advantage, and often try to use the expanding regulatory apparatus to their own advantage or simply throw their competitors under the bus to save themselves. The result is a Hobbesian regulatory “war of all against all” within industry.

As Professor Alfred E. Kahn explained in his 2-volume opus, The Economics of Regulation, all regulation—however high-minded—is inevitably captured by special interests because:

When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition. […] Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.

If Internet regulation follows the same course as other industries, the FCC and/or lawmakers will eventually indulge calls by all sides to bring more providers and technologies “into the regulatory fold.” Clearly, this process has already begun. Even before rules are on the books, the companies that have made America the leader in the Digital Revolution are turning on each other in a dangerous game of brinksmanship, escalating demands for regulation and playing right into the hands of those who want to bring the entire high-tech sector under the thumb of government—under an Orwellian conception of “Internet Freedom” that makes corporations the real Big Brother, and government, our savior.

Toward a Less MAD World: Digital Détente

Sincere defenders of real Internet Freedom—that is, freedom from government techno-meddling—recognize that there will always be disputes over how companies deal with each other online across all layers of the Internet. The question is not whether we need a technical coordinating mechanism for handling such disputes. Someone should mediate conflicts over alleged deviations from abstract neutrality principles. But should that arbitrator be an inherently political body like FCC? Or should we instead look to truly independent, apolitical arbitrators like the Internet Engineering Task Force or collaborative efforts like the Network Neutrality Squad? Such alternative dispute resolution mechanisms and fora need not have the power of law to be effective: The weight of their expert opinion, based on careful investigation of the facts, would likely resolve most disputes, because companies have strong reputational incentives to comply with reasoned rulings by truly neutral experts. And the white hot spotlight of public attention has a way of disciplining marketplace behavior as well.

Government would still have a role to play, of course, in enforcing antitrust laws where anticompetitive harm to consumers can be proven, and in enforcing the promises companies make to consumers. Ultimately, however, certain business models and technologies require non-neutral treatment, and the best remedy for concerns about non-neutrality is competition itself: In the high-tech sector more than any other, disruptive innovation makes it difficult for even the most successful companies to stay on top forever. Competitive entry—or even the threat of new entry—provides a powerful check on the power of so-called “gatekeepers,” but even more important is the prospect that today’s leaders will be tomorrow’s laggards: There’s little reason to think Google (search and advertising), Apple (smart phones and music) and Facebook (social networking) won’t someday find themselves playing catch-up, just as IBM (computers), Microsoft (desktop software and search), Friendster and MySpace (social networking), and Yahoo! and AOL (web portals) have had to do.

“Digital Détente” would require that all parties concede something and work constructively toward a more “peaceful” ( i.e., less regulatory) resolution. And yet, no Internet company wants to disarm unilaterally, foreswearing politics as a continuation of competition by other means. Only through multilateral disarmament could they break out of the current cycle of regulatory one-upmanship: If the companies in the Internet ecosystem could form a united front against increased government regulation and in favor of removing existing regulatory obstacles to competition, they could all return to their core competencies of creativity and innovation.

The alternative is a regulatory “nuclear winter”: high-tech titans turning their political fire on each other, catching innocent third parties in the cross-fire and bringing a dark cloud of government regulation over the entire Internet. Such increased regulation would stifle investment and innovation throughout the Internet ecosystem. Thus, it is consumers who will ultimately suffer most from the tech industry’s suicidal impulse, as their choices and digital lives are impoverished. For their sake, we hope all industry players will step back from the brink to avoid such high-tech mutually assured destruction.

The smell of high-tech regulation is increasingly in the air these days and many lawmakers and some activist groups now have the mobile marketplace in their regulatory cross-hairs. Critics make a variety of claims about the wireless market supposedly lacking competition, choice, innovation, or reasonable pricing. Consequently, they want to wrap America’s wireless sector in a sea of red tape.   Two important new studies thoroughly debunk these assertions and set the record straight regarding the state of wireless competition and innovation in the U.S. today. These reports are must-reading for Washington policymakers and FCC officials who are currently contemplating regulatory action.

First, Gerald Faulhaber and Dave Farber have a new report out entitled “Innovation in the Wireless Ecosystem: A Customer-Centric Framework.”  Here’s what Faulhaber and Farber find:

the three segments of the wireless marketplace (applications, devices, and core network) have exhibited very substantial innovation and investment since its inception. Perhaps more interesting, innovation in each segment is highly dependent upon innovation in the other segments. For example, new applications depend upon both advances in device hardware capabilities and advances in spectral efficiency of the core network to provide the network capacity to serve those applications. Further, we find that the three segments of the industry are also highly competitive. There are many players in each segment, each of which aggressively seeks out customers through new technology and new business methods. The results of this competition are manifest: (i) firms are driven to innovate and invest in order to win in the competitive marketplace; (ii) new business models have emerged that give customers more choice; and (iii) firms have opened new areas such as wireless broadband and laptop wireless in order to expand their strategic options.

They continue on to address the policy issues in play here and discuss the “consumer-centric” approach they recommend that the FCC adopt:

Having found that all three segments are highly competitive, we ask, where is the market failure? If none, then the principle of customer-centric applies: let customers make the key decisions regarding which products, services, open vs. managed business models, net neutrality, et al. will survive in the marketplace. While there is no shortage of pundits, advocates, lobbyists and academics advising the FCC that it, rather than customers, should be making these decisions and advising the FCC what those decisions should be, a customer-centric FCC must leave these decisions to customers in a competitive marketplace. Should the FCC decide to preempt customers and make choices for them, it follows as does night from day that the result will be (i) less customer choice, and therefore reduced customer well-being; (ii) higher costs for producers and therefore customers; (iii) lower incentives to invest and innovate, harming customers, producers and the American economy. In this case, economics and technology are on the same page: economists advise intervention only in the case of demonstrated market failure, and then only if there is evidence that the intervention will do more good than harm. The technologist’s advice is more pithy and down to earth: if it ain’t broke, don’t fix it!

Amen to that.  Let’s hope our lawmakers are listening.

Second, Everett Ehrlich, Jeffrey Eisenach, and Wayne Leighton have a terrific new paper out entitled “The Impact of Regulation on Innovation and Choice in Wireless Communications,” which reaches similar conclusions to those Faulhaber and Farber found in their report. Here’s the executive summary from the Ehrlich-Eisenach-Leighton report:

Proposals to increase regulation of mobile wireless services, for example, by applying “net neutrality” regulation, are often based on claims that such regulation would enhance innovation and increase consumer choice. In fact, they would have the opposite effect. The business practices that would be banned by such regulation are efficient mechanisms for spreading and reducing risk, lowering transactions costs, and enhancing marketing activities, all of which contribute to innovation and choice. Moreover, product differentiation increases competition and thus contributes both directly and indirectly to consumer choice. While some types of exclusive agreements and other “discriminatory” practices can theoretically harm competition, the precondition for such harm to occur – i.e., market power in one or more of the affected markets – generally is not present in wireless markets. Hence, the proposed regulations cannot be justified on grounds of market failure. Rather than increasing innovation and consumer choice, as promised, they would severely disrupt the wireless sector’s highly successful business model and significantly reduce innovation and consumer choice.

Like the Faulhaber-Farber paper, the Ehrlich-Eisenach-Leighton paper examines the major segments of the wireless marketplace — applications, devices, and networks — and shows them all to be vigorously competitive and experiencing significant innovation. Some of the following tables and charts help to illustrate this.

This first table shows how concentration ratios for the U.S. market (as measured by HHI) are among the lowest in the world.

The next two charts show that U.S. carriers have the lowest revenue per minute (60% lower than the average OECD country) even though average minutes per use are more than twice the amount of the next highest ranked country (Canada).

Finally, this final chart from their report offers a snapshot of mobile Internet penetration in 16 countries showing the U.S. on top:

Incidentally, the Faulhaber-Farber study also does a nice job listing the various mobile application stores out there today:

Device Manufacturer App Stores Apple’s App Store BlackBerry’s App World Palm’s App Catalog Nokia’s Ovi Store Samsung’s Application Store Sony’s PlayNow arena LG’s Application Store

Software Developers Google’s Android Market Microsoft’s Windows Mobile

Carriers AT&T’s MEdia Mall Verizon Wireless’ Tools & Applications Sprint’s Software Store US Cellular’s easyedge Cellular South’s Discover Center Cricket’s Downloads

Independent Stores Handango GetJar

And the Ehrlich-Eisenach-Leighton paper provides some addition perspective on innovation in the handset and applications space:

On the metrics that seem to be of greatest concern to regulation advocates – choice and innovation – the data also show the industry is performing well. For example, CTIA reports there are more than 630 different wireless handsets and devices available in the U.S., compared with only 147 in the United Kingdom, and notes that many of the most advanced handsets introduced in recent months have been launched in the U.S., including (among others) the iPhone 3G, the Google G1, and the Blackberry Storm. Amazon’s highly popular Kindle was also launched in the U.S. with connectivity provided by Sprint – while its European launch was delayed for a full year by Amazon’s inability to reach agreement with a mobile carrier there. As noted above, the number and variety of available applications is increasing rapidly: In addition to the Apple Apps Store, application downloads are now available from the Android Market (Google), the Palm Software Store, Blackberry App World and the Nokia Ovi Store, offering a total of more than 60,000 different applications. On July 14, 2009 Apple announced that more than 1.5 billion applications had been downloaded from its iPhone App Store since its launch in July 2008.

Actually, that number is even higher now.  As I noted here recently, in just a little over a year, Apple reports there’s been 2 billion downloads of over 85,000 apps from over 125,000 developers.  It’s just stunning when you think about it.

I encourage everyone to read both reports cover-to-cover.  They provide a comprehensive look at the reality on the ground — or in the air, as the case may be — in America’s mobile marketplace.

Holman Jenkins has a stinging editorial in today’s Wall Street Journal entitled, “Neutering the ‘Net,” which borrows a term that my friend Randy May coined long ago to describe what net neutrality regulation will ultimately accomplish. What I like best about the Jenkins essay was the way he exposed Free Press for their hypocrisy over metering as a possible alternative approach to network management, something I documented in this piece and this piece about their new-found love of Internet price controls.  Here’s how Jenkins puts it in his essay today:

The mask really slipped earlier this year when Time Warner Cable began experimenting with usage-based pricing to protect the average broadband customers from the 20% of users who create 80% of the traffic. A lobby called Free Press, the most extreme of the pro-net neutrality interests, went ballistic, calling metered pricing a “price-gouging scheme” and backing a bill in Congress to ban it. Never mind that Free Press had previously argued just the opposite, saying usage-based pricing was a fairer way to deal with congestion than, say, by selectively slowing down file-sharing sites that gobble up disproportionate broadband capacity. Never mind, too, the irony that the net-neut campaign against the selective slowing of non-urgent traffic has left only differential pricing as a way to bring a modicum of efficiency to network usage.

Indeed.  Of course, we should expect nothing less from the neo-Marxist media reformistas as the UnFree Press.

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/.

I’ve spent a lot of time here deconstructing and criticizing the proposals set forth by the Free Press, the radical media “reformista” group founded by the prolific Marxist media theorist Robert McChesney.  I have been trying to shine more light on their proposals and activities because I believe they are antithetical to freedom of speech and a free society.  That’s because, as media scholar Ben Compaine has noted, “What the hard core reformistas really want, it seems, is not diversity or an open debate but a media that promotes their own vision of society and the world.”  That’s exactly right and, more specifically, as I argued in my 2005 Media Myths book, the media reformistas want to impose this control by taking the fantasy that “the public owns the [broadcast] airwaves” and extending it to ALL media platforms and outlets.  In other words, McChesney and the Free Press want an UnFree Press.  To cast things in neo-Marxist terms that they could appreciate, they want to take control of the information means of production.  And it begins, McChesney argues, by all of us having to give up this “sort of religious attachment to the idea of a ‘free-press'” from which we all suffer.

Some people accuse me of “red-baiting” or “McCarthyite” tactics when I use the “M-word” (Marxism) or the “S-Word” (socialism) to describe McChesney, the Free Press, and the movement they have spawned.  But these are labels with real meaning and ones that McChesney himself embraces in his work. In his 1999 book Rich Media, Poor Media, he says that “Media reform cannot win without widespread support and such support needs to be organized as part of a broad anti-corporate, pro-democracy movement.” He casts everything in “social justice” terms and speaks of the need “to rip the veil off [corporate] power, and to work so that social decision making and power may be made as enlightened and as egalitarian as possible.”  What exactly would all that mean in practice for media? In his 2002 book Our Media, Not Theirs: The Democratic Struggle against Corporate Media with John Nichols of The Nation, McChesney argues that media reform efforts must begin with “the need to promote an understanding of the urgency to assert public control over the media.” They go on to state that, “Our claim is simply that the media system produces vastly less of quality than it would if corporate and commercial pressures were lessened.”

If you want additional proof of his intentions, then I encourage you to read this lengthy interview with McChesney that appears in the new edition of The Bullet, an online newsletter produced by the Canada-based “Socialist Project.”  (If you ask me, there’s something strangely appropriate about a socialist newsletter named “The Bullet” in light of the millions of people who died while living under socialist tyranny!)  Anyway, let’s ignore that and focus on what neo-Marxist media reform entails according to McChesney.  Because never before has he laid his cards on the table as clearly as he does in this interview.

The “Struggle” for “Media Democracy”

In the interview, as in all his work, McChesney speaks repeatedly about the Marxist concept of “struggles,” which  usually refers to class struggles and worker struggles. But McChesney’s work focuses on “media democracy struggles” as part of an overall struggle for “social justice.”  He says:

Instead of waiting for the revolution to happen, we learned that unless you make significant changes in the media, it will be vastly more difficult to have a revolution. While the media is not the single most important issue in the world, it is one of the core issues that any successful Left project needs to integrate into its strategic program.

In other words, media reform is part of The Big Struggle. The Big Struggle is the effort to overthrow free-market capitalism. And the struggle for “media democracy” is crucial to that, you see, because we are all just pawns whose minds are being manipulated by some far-off corporate puppet-masters in New York and L.A., who are, of course, just feeding us nothing but pro-capitalist propaganda 24/7.  Thus, we have to burn the village to save it, McChesney says:

Many say that corporate journalism, based on profit maximization, best serves a free and democratic society. The position is incorrect. The connection of capitalism to journalism, which has always been fraught with problems, has always been unstable. The relationship between capitalism, journalism, and democracy has never been a sure thing. In the U.S, the notion that capitalism is the natural steward of journalism and should be left alone to provide for a free and self-governing society refers to a period that began during the 19th century. This period ended when owners realized they could make a lot of money by turning journalism into big business. Corporations are not in a position to generate and pay for quality journalism. The news is not a commercial product. It is a public good, necessary for a self-governing society.

In other words, down with private media!  McChesney basically declares that the entire history of private media in America to be one gigantic case of market failure and must be abandoned.

Subsidies to “Save Journalism”

But what’s going to replace private media once McChesney and his media reformistas have moved the regulatory wrecking ball in?  In a nutshell, he wants massive state subsidization of the media:

Once we accept this [the supposed “public goods” nature of all media], we can talk about the kind of media policies and subsidies we want. What are the best ones? How should they be implemented? We are now trying to answer those questions and organize around them.

Herein lies one of the great ironies of McChesney’s work: He spends a great deal of time arguing that the entire history of American media has basically been one big government-created construct (monopolies, entry barriers, subsidies, etc), only to turn around and advocate massive state intervention and subsidies as a solution!  McChesney plays revisionist historian and even tries to paint Jefferson and Madison as media socialists because postal rates from the founding period on down have been reduced for print media mailings. Somehow, McChesney reads this to mean that “the U.S. state has always played a direct and indirect role in facilitating and legitimizing the corporate media system.”  Which is rubbish. The idea that postal subsidies have created “the corporate media system” is preposterous. McChesney is on stronger ground in arguing the state has occasionally helped foster and then protect monopolies, but that is a function of the very “public utility” regulatory regime that McChesney favors! [More on this point down below.]

Meanwhile, in true Rahm Emanual-ian “you-never-want-a-crisis-to-go-to-waste” fashion, the Free Press has started a new project to “Save the News” and move America “Toward a National Journalism Strategy” by endorsing a lot of the same regulations, subsidies, and tax credits that McChesney and John Nichols recently advocated in their Nation magazine essay, “The Death and Life of Great American Newspapers.” As I noted in my City Journal response to that essay back in March, you can file this all under “socializing media in order to save it,” complete with Soviet-style 5-year plans dictated by some faceless elite inside a Beltway bureaucracy. Oh, and there’s the little matter of $60 billion price tag that taxpayers will be left footing.  (But hey, what’s another $60 billion these days?)  Even Free Press favorite Dan Rather is on board with his plan to have President Obama give us “The News America Needs” by “form[ing] a commission to address the perilous state of America’s news media.”  Perhaps once the car commission folks get done driving the U.S. auto industry into the ground they can shift gears, so to speak, and see what they can do to steer journalism onto a supposedly better path.

Down with Advertising

If McChesney and Free Press don’t succeed in destroying private media with their regulatory plans, there’s always Plan B… bleed free market media operators and Internet companies dry by taking away their mother’s milk, advertising.  McChesney argues that “the Internet is increasingly hyper-commercialized” and it is “open[ing] our entire lives to 24/7 injections of advertising messages.”  Thus, wouldn’t you know it, yet another “struggle” is in order!

We need to organize against hyper-commercialism. This is an easy-sell for the Left. We understand that advertising is not something done by all people equally, but rather, done by a very small group of people working on behalf of multinational corporations. Advertising is commercial propaganda…  Advertising is the voice of capital. We need to do whatever we can to limit capitalist propaganda, regulate it, minimize it, and perhaps even eliminate it. The fight against hyper-commercialism becomes especially pronounced in the era of digital communications.  […] There is a fundamental crisis when you are in a world that is entirely commercial, in terms of the integrity of speech and thought. We are at the tipping point and we need to struggle directly against it.

Struggle, struggle, struggle!

Of course, McChesney will have plenty of allies in this particular struggle as Washington continues to wage a war against advertising of all sorts. Of course, there really is no free lunch in this world and something will have to pay for serious news-gathering (and entertainment, for that matter). Of course, McChesney and his Free Press allies will, no doubt, respond that still more subsidies are in order!  There is, apparently, always someone else in their world to whom the buck can be passed.  [But I wonder: Who would be left to pay all the taxes needed to support public media if McChesney’s “struggle” to overthrow The Man succeeds??]

Net neutrality & Infrastructure Nationalization

And don’t for one minute think that McChesney and Free Press are only out for the old media operators.  They’re out for private broadband and Internet players as well.

When speaking about the centrality of Net neutrality regulation to this “struggle” and coming “revolution,” McChesney does a nice job reminding some of us why we have been so concerned about politicizing a debate over network engineering when he says: “What we want to have in the U.S. and in every society is an Internet that is not private property, but a public utility.”  Ah yes, because public utilities have been soooo efficient and innovative in other contexts!  Please.

In advocating increased regulation or state-ownership of communications networks or broadband companies and connections, McChesney seems utterly oblivious to the fact that the very state power he advocates on one hand is the same state power that private parties can corrupt on the other.  He says, for example, that “Our struggle to make the Internet into a public utility conflicts with the interests of telephone and cable firms,” because “Their power rests upon their ability to successfully buy off politicians.”  How does he not see the contradiction?  He’s certainly right to fear that public officials can be co-opted by private interests. (Read up on your public choice theory, buddy!)  But I suppose McChesney believes that his perfect socialist state will be immune to these pressures because it will be run by enlightened, public-minded philosopher kings… you know… like himself.  But that’s nonsense.  See my old essay on the fantasy of “Building a Better Bureaucrat” or Tim Lee’s old essay on “Real Regulators” for more details on why it never works out that way in practice. Or, better yet, since I know he would never read anything I penned on the subject, I encourage McChesney to take a hard look at the definitive 2-volume Economics of Regulation by a far more experienced progressive Democrat, Professor Alfred E. Kahn. In Kahn’s masterwork, you will find the following words of wisdom (and caution) from someone who spent a lifetime studying these issues:

When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition. […] Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.

McChesney makes one final point about Net neutrality that is worth highlighting. When asked whether he had any reservations about making short-term alliances with new media companies or Internet operators such as Google, eBay, Amazon, and Microsoft in the push for Net neutrality regulations, McChesney says: “Absolutely.. But I’ve learned, by participating in over a decade of specific media struggles, that when you are in the short-term and you are fighting to win, sometimes you make tactical alliances.” Nonetheless, he notes, ” the ultimate goal is to get rid of the media capitalists in the phone and cable companies and to divest them from control.” And, so, the ends justify the means in terms of striking short-term alliances with those evil, blood-sucking capitalists.  I hope the folks at Google, eBay, Amazon, and Microsoft are reading McChesney’s radical thinking on communications policy and realize that he and his Free Press reformistas will eventually turn their sights on them just as soon as they are finished socializing the infrastructure layer of the Internet.

Conclusion: Against Media Tyranny

In a very strange sense, I admire Robert McChesney.  He is a man of principle.  And he isn’t ashamed to advocate his principles publicly (whereas some of his Free Press disciples do a very nice job disguising their true intentions).

That being said, McChesney’s principles are dangerous ones. Very dangerous.  They are antithetical to a free society, freedom of speech, and technological progress.  At its core, as I noted in my old essay, “Your Soapbox is My Soapbox,” the repugnant morality behind this “media access” movement is that nothing is truly yours.  “Media democracy” means everything is up for grabs.  Here’s how I put it in that old “soapbox” essay:

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox. That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

Indeed, McChesney has taken this old “media access” movement that Jerome Barron, Owen Fiss, Cass Sunstein and others pioneered long ago, and advanced it to a whole new level, and to its logical conclusion.  The aim is not just to co-opt someone else’s soapbox; it is to smash their soapbox into pieces. It is to tear the very fabric of the First Amendment into shreds and rebuild “media democracy” around the principles not of true freedom, but of state servitude.  You only have as much freedom to engage in speech, reporting, or entertaining as your media overlords will allow.  And God help you if any of it proves popular because then they will really want to crush you like an ant!

I’ll close this rant the same way I concluded my earlier “soapbox” rant:

This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant. Freedom doesn’t begin by fettering the press with more chains, it begins by removing those that already exist and then erecting a firm wall between State and Press. The media access crowd has succeeded in breaching that wall with seven decades of misguided and unjust regulation of the press. The movement back toward a truly free press begins by understanding the error in their thinking, rejecting that reasoning, and then embracing, once again, the original vision of the First Amendment as a bulwark against government control of speech and the press.

PFF Adjunct Fellow Mike Palage, who served on the ICANN board from 2003 to 2006, filed these comments (PDF) on the NTIA’s recent Notice of Inquiry regarding ICANN’s future.  Mike’s four key points were as follows:

1. ICANN’s Periodic Review of its internal operations and supporting organizations has failed, and has become nothing more than a “perpetual motion machine of public comments and documentation producing no meaningful results.” Only a second Evolution and Reform Process can solve ICANN’s current deficiencies;
2. ICANN must hardcode into its policies and its contracts the principle that its policies cannot supersede national laws;
3. ICANN must cease any operational role in technical infrastructure as required by its bylaws and focus instead on its mission as a technical coordinator; and
4. Congress must avoid “kicking the JPA can down the road” and instead provide much-needed leadership by creating a solid foundation for ICANN 3.0 in legislation after proper consultation with the Government Accountability Office.

I’ve been quite depressed to witness Bruce Schneier’s ongoing conversion from opponent of government intervention in the high-tech economy (at least on encryption) to vociferous proponent (at least in terms of privacy regulation).  Anyway, his latest cheerleading piece for government privacy regulation in The Wall Street Journal includes lots of fear-mongering about private website data collection for, God forbid, purposes of trying to better target advertising and market us products we might actually want.

Schneier uses the term “deceptive” several times in the piece to refer to privacy policies that don’t make it explicitly clear that some of the information you leave on a site, or that is collected preemptively by them, will be used to craft more targeted marketing efforts.  Like many other would-be privacy regulators, Schneier seemingly wants companies to fly blimps over your desk as you surf the Net with big signs that basically say: ‘Hey stupid, your info may be used to market you stuff.’  It’s hard to be against more disclosure, of course — and most sites spell out what they do with data in their privacy policies — but it never seems to be good enough for most privacy advocates, who paint consumers out to be mindless sheep who cannot be trusted to make wise decisions for themselves.  Sorry, but I just don’t buy it.

Specifically, I think there’s a pretty easy solution to the concern Schneier articulates about cloud computing when he says:

Cloud computing services like Google Docs, and social networking sites like RealAge and Facebook, bring with them significant privacy and security risks over and above traditional computing models. Unlike data on my own computer, which I can protect to whatever level I believe prudent, I have no control over any of theses sites, nor any real knowledge of how these companies protect my privacy and security.  I have to trust them.

Huh?  Why do you just “have to trust them”?  How about just not using those services?!  Or, use privacy self-help solutions when possible to manage your privacy preferences.  And for God’s sake Bruce, you wrote the definitive textbook on cryptography!  How about using encryption if you’re so concerned about who might be collecting your data online??

Meanwhile, Schneier doesn’t bother telling us what economic engine is going to power the Internet economy going forward once the privacy regulations he favors get on the books and make targeted advertising and data collection a federal crime.  Should we expect all these free Internet sites and services to just fall like manna from heaven?  Again, while the supposed harms from private data collection are largely conjectural, the harm to the Internet economy from heavy-handed, top-down privacy regulations would be all too real.  As we always say here, there is no free lunch.