I am pleased to announce the release of my latest book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.” It’s a short manifesto (just under 100 pages) that condenses — and attempts to make more accessible — arguments that I have developed in various law review articles, working papers, and blog posts over the past few years. I have two goals with this book.
First, I attempt to show how the central fault line in almost all modern technology policy debates revolves around “the permission question,” which asks:
Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions. Two conflicting attitudes are evident.
One disposition is known as the “precautionary principle.” Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.
The other vision can be labeled “permissionless innovation.” It refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if they develop at all, can be addressed later.
I argue that we are witnessing a grand clash of visions between these two mindsets today in almost all major technology policy discussions today. Continue reading →
Last week, it was my great pleasure to be invited on NPR’s “On Point with Tom Ashbrook,” to debate Jeffrey Rosen, a leading privacy scholar and the president and chief executive of the National Constitution Center. In an editorial in the previous Sunday’s New York Times (“Madison’s Privacy Blind Spot”), Rosen proposed “constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.” He said his proposed amendment would limit “outrageous and unreasonable” collection practices and would even disallow consumers from sharing their personal information with private actors even if they saw an advantage in doing so.
I responded to Rosen’s proposal in an essay posted on the IAPP
Privacy Perspectives blog, “Do We Need A Constitutional Amendment Restricting Private-Sector Data Collection?” In my essay, I argued that there are several legal, economic, and practical problems with Rosen’s proposal. You can head over to the IAPP blog to read my entire response but the gist of it is that “a constitutional amendment [governing private data collection] would be too sweeping in effect and that better alternatives exist to deal with the privacy concerns he identifies.” There are very good reasons we treat public and private actors differently under the law and there “are all far more practical and less-restrictive steps that can be taken without resorting to the sort of constitutional sledgehammer that Jeff Rosen favors. We can protect privacy without rewriting the Constitution or upending the information economy,” I concluded.
But I wanted to elaborate on one particular thing I found particularly interesting about Rosen’s comments when we were on NPR together. During the show, Rosen kept stressing how we needed to adopt a more European construction of privacy as “dignity rights” and he even said his proposed privacy amendment would even disallow individuals from surrendering their private data or their privacy because he viewed these rights as “unalienable.” In other words, from Rosen’s perspective, privacy pretty much trumps
everything, even if you want to trade it off against other values. Continue reading →
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:
- People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
- 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. Continue reading →
As Jim has mentioned, Google stands accused of violating a California law that requires a website operator to “conspicuously post” a link to its privacy policy on its “home page or first significant page after entering the Web site” with the word “Privacy” in a larger font than the rest of the page’s text.
Are we not fortunate to have state laws that make it possible for customers to actually find website privacy policies? With all the billions of documents floating out there in the dark and mysterious pipes and tubes of the so-called “Internet,” how on earth would any simple user ever find the Google privacy policy if Google were not required by law to include an obvious link to that policy on its homepage? Some modern-day da Vinci would have to invent a technology that could magically index every single webpage in existence and let users find—or “search,” to use a classic science-fiction term—for that particular webpage by typing the words “Google privacy policy” and clicking a button.
Until such fantastic Jules Verne-style technologies are developed in some distant century, it is obviouslyvital that each and every state government develop its own requirement as to how website operators—especially those that purport to offer fantastic-but-as-yet-clearly-impossible “search” services—must clutter their websites’ homepages with links to information that no user could ever possibly find on his or her own with today’s crude technology.
Of course, even if such “search engines” (to coin an unlikely phrase) actually existed, the burden on consumers of typing seventeen (17!) letters—plus two (2) spaces and perhaps even two (2) more quotation marks for a total of up to twenty-one (21!) agonizing-to-type characters—would have to be reduced dramatically through some additional innovation or Esperanto-like simplification of the English language before we could reasonably expect that average consumers might be able to find privacy policies on their own without the benefit of California’s enlightened net-paternalism. Continue reading →
Cass Sunstein has another new book out. The University of Chicago law school professor is so insanely prolific that it seems every time I finish reading one of his new books, a new title by him lands in my inbox. Seriously, either this man does not sleep or he is a robot. Anyway, his latest book is entitled, Nudge: Improving Decisions About Health, Wealth, and Happiness
, and it was co-authored with Richard Thaler, an economist also residing at Univ. of Chicago.
Their thesis is that people sometimes make bad choices (no duh, right?), but that with a little helpful prodding (i.e., “the nudge”) we mere mortals might make better decisions. The way we get there is through what they call “libertarian paternalism.” Here’s how their official book page describes it: Continue reading →
I am pleased to announce the release of my latest book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.” It’s a short manifesto (just under 100 pages) that condenses — and attempts to make more accessible — arguments that I have developed in various law review articles, working papers, and blog posts over the past few years. I have two goals with this book.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.