Last Wednesday, it was my great pleasure to testify at a Senate Commerce Committee hearing entitled, “The Connected World: Examining the Internet of Things.” The hearing focused “on how devices… will be made smarter and more dynamic through Internet technologies. Government agencies like the Federal Trade Commission, however, are already considering possible changes to the law that could have the unintended consequence of slowing innovation.”

But the session went well beyond the Internet of Things and became a much more wide-ranging discussion about how America can maintain its global leadership for the next-generation of Internet-enabled, data-driven innovation. On both sides of the aisle at last week’s hearing, one Senator after another made impassioned remarks about the enormous innovation opportunities that were out there. While doing so, they highlighted not just the opportunities emanating out of the IoT and wearable device space, but also many other areas, such as connected cars, commercial drones, and next-generation spectrum.

I was impressed by the energy and nonpartisan vision that the Senators brought to these issues, but I wanted to single out the passionate statement that Sen. Cory Booker (D-NJ) delivered when it came his turn to speak because he very eloquently articulated what’s at stake in the battle for global innovation supremacy in the modern economy. (Sen. Booker’s remarks were not published, but you can watch them starting at the 1:34:00 mark of the hearing video.)

Embrace the Opportunity

First, Sen. Booker stressed the enormous opportunity with the Internet of Things. “ This is a phenomenal opportunity for a bipartisan, profoundly patriotic approach to an issue that can explode our economy. I think that there are trillions of dollars, creating countless jobs, improving quality of life, [and] democratizing our society,” he said. “We can’t even imagine the future that this portends of, and we should be embracing that.”

Sen. Booker has it exactly right. And for more details about the enormous innovation opportunities associated with the Internet of Things, see Section 2 of my new law review article, “The Internet of Things and Wearable Technology Addressing Privacy and Security Concerns without Derailing Innovation,” which provides concrete evidence.

Protect America’s Competitive Advantage in the Innovation Age

Second, Sen. Booker highlighted the importance of getting our policy vision right to achieve those opportunities. He noted that “a lot of my concerns are what my Republican colleagues also echoed, which is we should be doing everything possible to encourage this and nothing to restrict it.”

“ America right now is the net exporter of technology and innovation in the globe, and we can’t lose that advantage,” he said and “we should continue to be the global innovators on these areas.” He continued on to say:

And so, from copyright issues, security issues, privacy issues… all of these things are worthy of us wrestling and grappling with, but to me we cannot stop human innovation and we can’t give advantages in human innovation to other nations that we don’t have. America should continue to lead.

This is something I have been writing actively about now for many years and I agree with Sen. Booker that America needs to get our policy vision right to ensure we don’t lose ground in the international competition to see who will lead the next wave of Internet-enabled innovation. As I noted in my testimony, “If America hopes to be a global leader in the Internet of Things, as it has been for the Internet more generally over the past two decades, then we first have to get public policy right. America took a commanding lead in the digital economy because, in the mid-1990s, Congress and the Clinton administration crafted a nonpartisan vision for the Internet that protected “permissionless innovation”—the idea that experimentation with new technologies and business models should generally be permitted without prior approval.”

Meanwhile, as I documented in my longer essay, “Why Permissionless Innovation Matters: Why does economic growth occur in some societies & not in others?” our international rivals languished on this front because they strapped their tech sectors with layers of regulatory red tape that thwarted digital innovation.

Reject Fear-Based Policymaking

Third, and perhaps most importantly, Sen. Booker stressed how essential it was that we reject a fear-based approach to public policymaking. As he noted at the hearing about these new information technologies, “ there’s a lot of legitimate fears, but in the same way of every technological era, there must have been incredible fears.”

He cited, for example, the rise of air travel and the onset of humans taking flight. Sen. Booker correctly noted that while that must have been quite jarring at first, we quickly came to realize the benefits of that new innovation. The same will be true for new technologies such as the Internet of Things, connected cars, and private drones, Booker argued. In each case, some early fears about these technologies could lead to overly-precautionary approach to policy. “ But for us to do anything to inhibit that leap in humanity to me seems unfortunate,” he said.

Once again, the Senator has it exactly right. As I noted in my law review article on “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” as well as my recent essay, “Muddling Through: How We Learn to Cope with Technological Change,” humans have exhibited the uncanny ability to adapt to changes in their environment, bounce back from adversity, and learn to be resilient over time. A great deal of wisdom is born of experience, including experiences that involve risk and the possibility of occasional mistakes and failures while both developing new technologies and learning how to live with them. More often than not, citizens have found ways to adapt to technological change by employing a variety of coping mechanisms, new norms, or other creative fixes.

Booker gets that and understands why we need to be patient to allow that process to unfold once again so that we can enjoy the abundance of riches that will accompany a more innovative economy.

Avoiding Global Innovation Arbitrage

Sen. Booker also highlighted how some existing government legal and regulatory barriers could hold back progress. On the wireless spectrum front he noted that “ the government hoards too much spectrum and there is a need for more spectrum out there. Everything we are talking about,” he argued, “is going to necessitate more spectrum.” Again, 100% correct. Although some spectrum reform proposals (licensed vs. unlicensed, for example) will still prove contentious, we can at least all agree that we have to work together to find ways to open up more spectrum since the coming Internet of Things universe of technologies is going to demand lots of it.

Booker also noted that another area where fear undermines American leadership is the issue of private drone use. He noted that, “ the potential possibilities for drone technology to alleviate burdens on our infrastructure, to empower commerce, innovation, jobs… to really open up unlimited opportunities in this country is pretty incredible to me.”

The problem is that existing government policies, enforced by the Federal Aviation Administration (FAA), have been holding back progress. And that has had consequences in terms of global competitiveness. “As I watch our government go slow in promulgating rules holding back American innovation,” Booker said, “what happened as a result of that is that innovation has spread to other countries that don’t have these rules (or have) put in place sensible regulations. But now we seeing technology exported from America and going other places.”

Correct again! I wrote about this problem in a recent essay on “global innovation arbitrage,” in which I noted how “Capital moves like quicksilver around the globe today as investors and entrepreneurs look for more hospitable tax and regulatory environments. The same is increasingly true for innovation. Innovators can, and increasingly will, move to those countries and continents that provide a legal and regulatory environment more hospitable to entrepreneurial activity.”

That’s already happening with drone innovation, as I documented in that piece. Evidence suggests that the FAA’s heavy-handed and overly-precautionary approach to drones has encouraged some innovators to flock overseas in search of more hospitable regulatory environment.

Luckily, just this weekend, the FAA finally announced its (much-delayed) rules for private drone operations. (Here’s a summary of those rules.) Unfortunately, the rules are a bit of mixed bag, with some greater leeway being provided for very small drones, but the rules will still be too restrictive to allow for other innovative applications, such as widespread drone delivery (which has Amazon angry, among others.)

Bottom line: if our government doesn’t take a more flexible, light-touch approach to these and other cutting-edge technologies, than some of our most creative minds and companies are going to bolt.

I dealt with all of these innovation policy issues in far more detail in my latest little book Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, which I condensed further still into this essay on, “Embracing a Culture of Permissionless Innovation.” But Sen. Booker has offered us an even more concise explanation of just what’s at stake in the battle for innovation leadership in the modern economy. His remarks point the way forward and illustrate, as I have noted before, that innovation policy can and should be a nonpartisan issue.

Additional Reading

• testimony: “My Testimony for Senate Internet of Things Hearing,” February 11, 2015.
• essay: “A Nonpartisan Policy Vision for the Internet of Things,” December 11, 2014.
• law review article: “The Internet of Things and Wearable Technology Addressing Privacy and Security Concerns without Derailing Innovation,” November 2014.
• essay: “Don’t Hit the (Techno-)Panic Button on Connected Car Hacking & IoT Security,” February 10, 2015.
• essay: “Striking a Sensible Balance on the Internet of Things and Privacy,” January 16, 2015.
• essay: “Some Initial Thoughts on the FTC Internet of Things Report,” January 28, 2015.
• slide presentation: “Policy Issues Surrounding the Internet of Things & Wearable Technology,” September 12, 2014.
• essay: “CES 2014 Report: The Internet of Things Arrives, but Will Washington Welcome It?” January 8, 2014.

On Sunday night, 60 Minutes aired a feature with the ominous title, “Nobody’s Safe on the Internet,” that focused on connected car hacking and Internet of Things (IoT) device security. It was followed yesterday morning by the release of a new report from the office of Senator Edward J. Markey (D-Mass) called Tracking & Hacking: Security & Privacy Gaps Put American Drivers at Risk,  which focused on connected car security and privacy issues. Employing more than a bit of techno-panic flare, these reports basically suggest that we’re all doomed.

On 60 Minutes, we meet former game developer turned Department of Defense “cyber warrior” Dan (“call me DARPA Dan”) Kaufman–and learn his fears of the future: “Today, all the devices that are on the Internet [and] the ‘Internet of Things’ are fundamentally insecure. There is no real security going on. Connected homes could be hacked and taken over.”

60 Minutes reporter Lesley Stahl, for her part, is aghast. “So if somebody got into my refrigerator,” she ventures, “through the internet, then they would be able to get into everything, right?” Replies DARPA Dan, “Yeah, that’s the fear.” Prankish hackers could make your milk go bad, or hack into your garage door opener, or even your car.

This segues to a humorous segment wherein Stahl takes a networked car for a spin. DARPA Dan and his multiple research teams have been hard at work remotely programming this vehicle for years. A “hacker” on DARPA Dan’s team proceeded to torment poor Lesley with automatic windshield wiping, rude and random beeps, and other hijinks. “Oh my word!” exclaims Stahl.

Never mind that we are told that the “hackers” who “hacked” into this car had been directly working on its systems for years—a luxury scarcely available to the shadowy malicious hackers about whom DARPA Dan and his team so hoped to frighten us. The careful setup, editing, and Lesley Stahl’s squeals made for convincing theater.

Then there’s the Markey report. On the surface, the findings appear grim. For instance, we are warned that “Nearly 100% of cars on the market include wireless technologies that could pose vulnerabilities to hacking or privacy intrusions.” Nearly 100%? We’re practically naked out there! But digging through the report, we learn that the basis for this claim is that most of the 16 manufacturers surveyed responded that 100% of their vehicles are equipped with wireless entry points (WEPs)—like Bluetooth, Wi-Fi, navigation, and anti-theft features. Because these features “could pose vulnerabilities,” they are listed as a threat—one that lurks in nearly 100% of the cars on the market, at that.

Much of the report is similarly panicky and sometimes humorous (complaint #3: “many manufacturers did not seem to understand the questions posed by Senator Markey.”) The report concludes that the “alarmingly inconsistent and incomplete state of industry security and privacy practice,” warrants recommendations that federal regulators — led by the National Highway Traffic Safety Administration (NHTSA) and the Federal Trade Commission (FTC) — “promulgate new standards that will protect the data, security and privacy of drivers in the modern age of increasingly connected vehicles.”

Take a Deep Breath

As we face an uncertain future full of rapidly-evolving technologies, it’s only natural that some might feel a little anxiety about how these new machines and devices operate. Despite the exaggerated and sometimes silly nature of techno-panic reports like these, they reflect many people’s real and understandable concerns about new technologies.

But the problem with these reports is that they embody a “panic-first” approach to digital security and privacy issues. It is certainly true that our cars are become rolling computers, complete with an arsenal of sensors and networking technologies, and the rise of the Internet of Things means almost everything we own or come into contact with will possess networking capabilities. Consequently, just as our current generation of computing and communications technologies are vulnerable to some forms of hacking, it is likely that our cars and IoT devices will be as well.

But don’t you think that automakers and IoT developers know that? Are we really to believe that journalists, congressmen, and DARPA Dan have a greater incentive to understand these issues than the manufacturers whose companies and livelihoods are on the line? And wouldn’t these manufacturers only take on these risks if consumer demand and expected value supported them? Watching the 60 Minutes spot and reading through the Markey report, one is led to think that innovators in this space are completely oblivious to these threats, simply don’t care enough to address them, and don’t have any plans in motion. But that is lunacy.

No Mention of Liability?

To begin, neither report even mentions the possibility of massive liability for future hacking attacks on connected cars or IoT devices. That is amazing considering how the auto industry already attracts an absolutely astonishing amount of litigation activity. (Ambulance-chasing is a full-time legal profession, after all.) Thus, to the extent that some automakers don’t want to talk about everything they are doing to address security issues, it’s likely because they are still figuring out how to address the various vulnerabilities out there without attracting the attention of either enterprising hackers or trial lawyers.

Nonetheless, contrary to the absurd statement by Mr. Kaufman that “There is no real security going on” for connected cars or the Internet of Things, the reality is that these are issues that developers are actively studying and trying to address. Manufacturers of connected devices know that: (1) nobody wants to own or use devices that are fundamentally insecure or dangerous; and (2) if they sell such devices to the public, they are in for a world of hurt once the trial lawyers see the first headlines about it.

It also still quite unclear how big the threat is here. Writing over at Forbes yesterday, Doug Newcomb notes that “the threat of car hacking has largely been overblown by the media – there’s been only one case of a malicious car hack, and that was an inside job by a disgruntled former car dealer employee. But it’s a surefire way to get the attention of the public and policymakers,” he correctly observes. Newcomb also interviewed Damon McCoy, an assistant professor of computer science at George Mason University and a car security researcher, who noted that car hacking hasn’t become prevalent and that “Given the [monetary] motivation of most hackers, the chance of [automotive hacking] is very low.”

Security is a Dynamic, Evolving Process

Regardless, the notion that we can just clean this whole device security situation up with a single set of federal standards, as the Markey report suggests, is appealing but fanciful. “Security threats are constantly changing and can never be holistically accounted for through even the most sophisticated flowcharts,” observed my Mercatus Center colleagues Eli Dourado and Andrea Castillo in their recent white paper on “Why the Cybersecurity Framework Will Make Us Less Secure.” “By prioritizing a set of rigid, centrally designed standards, policymakers are neglecting potent threats that are not yet on their radar,” Dourado and Castillo note elsewhere.

We are at the beginning of a long process. There is no final destination when it comes to security; it’s a never-ending process of devising and refining policies to address vulnerabilities on the fly. The complex problem of cybersecurity readiness requires dynamic solutions that properly align incentives, improve communication and collaboration, and encourage good personal and organizational stewardship of connected systems. Implementing the brittle bureaucratic standards that Markey and others propose could have the tragic unintended consequence of rendering our devices even less secure.

Standards Are Developing Rapidly

Meanwhile, the auto industry has already come up with privacy standards that go above and beyond what most other digital innovators apply to their own products today. Here are the Auto Alliance’s “Consumer Privacy Protection Principles: Privacy Principles for Vehicle Technologies and Services,” which 23 major automobile manufacturers agreed to abide by. And, according to a press release yesterday, “automakers are currently working to establish an Information Sharing Analysis Center (or “Auto-ISAC”) for sharing vehicle cybersecurity information among industry stakeholders.”

Again, progress continues and standards are evolving. This needs to be a flexible, evolutionary process, instead of a static, top-down, one-size-fits-all bureaucratic political proceeding.

We can’t set down security and privacy standards in stone for fast-moving technologies like these for another reason, and one I am constantly stressing in my work on “Why Permissionless Innovation Matters.” If we spend all our time worrying about hypothetical worst-case scenarios — and basing our policy interventions on a parade of hypothetical horribles — then we run the risk that best-case scenarios will never come about.  As analysts at the Center for Data Innovation correctly argue, policymakers should only intervene to address specific, demonstrated harms. “Attempting to erect precautionary regulatory barriers for purely speculative concerns is not only unproductive, but it can discourage future beneficial applications of the Internet of Things.” And the same is true for connected cars.

Trade-Offs Matter

Technopanic indulgence isn’t always merely silly or annoying—it can be deadly.

“During the four deadliest wars the United States fought in the 20th century, 39 percent more Americans were dying in motor vehicles” than on the battlefield. So writes Washington Post reporter Matt McFarland in a powerful new post today. The ongoing toll associated with human error behind the wheel is falling but remains absolutely staggering, with almost 100 people losing their lives and almost 6,500 people injured every day.

We must never fail to appreciate the trade-offs at work when we are pondering precautionary regulation. Ryan Hagemann and I wrote about these issues in our recent Mercatus Center working paper, “Removing Roadblocks to Intelligent Vehicles and Driverless Cars.” That paper, which has been accepted for publication in a forthcoming edition of the Wake Forest Journal of Law & Policy, outlines the many benefits of autonomous or semi-autonomous systems and discusses the potential cost of delaying their widespread adoption.

When it comes to the various security, privacy, and ethical considerations related to intelligent vehicles, Hagemann and I argue that they “need to be evaluated against the backdrop of the current state of affairs, in which tens of thousands of people die each year in auto-related accidents due to human error.” We continue on later in the paper:

Autonomous vehicles are unlikely to create 100 percent safe, crash-free roadways, but if they significantly decrease the number of people killed or injured as a result of human error, then we can comfortably suggest that the implications of the technology, as a whole, are a boon to society. The ethical underpinnings of what makes for good software design and computer-generated responses are a difficult and philosophically robust space for discussion. Given the abstract nature of the intersection of ethics and robotics, a more detailed consideration and analysis of this space must be left for future research. Important work is currently being done on this subject. But those ethical considerations must not derail ongoing experimentation with intelligent-vehicle technology, which could save many lives and have many other benefits, as already noted. Only through ongoing experimentation and feedback mechanisms can we expect to see constant improvement in how autonomous vehicles respond in these situations to further minimize the potential for accidents and harms. (p. 42-3)

As I noted here in another recent essay, “anything we can do to reduce it significantly is something we need to be pursuing with great vigor, even while we continue to sort through some of those challenging ethical issues associated with automated systems and algorithms.”

No Mention of Alternative Solutions

Finally, it is troubling that neither the 60 Minutes segment nor the Markey report spend any time on alternative solutions to these problems. In my forthcoming law review article, “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation,” I devote the second half of the 90-page paper to constructive solutions to the sort of complex challenges raised in the 60 Minutes segment and the Markey report.

Many of the solutions I discuss in that paper — such as education and awareness-building efforts, empowerment solutions, the development of new social norms, and so on – aren’t even touched on by the reports. That’s a real shame because those methods could go a long way toward helping to alleviate many of the issues the reports identify.

We need a better public dialogue than this about the future of connected cars and Internet of Things security. Political scare tactics and techno-panic journalism are not going to help make the world a safer place. In fact, by whipping up a panic and potentially discouraging innovation, reports such as these can actually serve to prevent critical, life-saving technologies that could change society for the better.

Additional Reading

• Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation, January 15, 2015.
• Muddling Through: How We Learn to Cope with Technological Change, June 30, 2014
• Law review article: “Removing Roadblocks to Intelligent Vehicles and Driverless Cars,” September 17, 2014.
• Law review article: “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation.”
• Ongoing blog series: Moral Panics & Technopanics
• Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom (2014)
• Slide Presentation: Policy Issues Surrounding the Internet of Things & Wearable Technology, September 12, 2014
• [Video] Cap Hill Briefing on Emerging Tech Policy Issues (June 2014)
• The Growing Conflict of Visions over the Internet of Things & Privacy, January 14, 2012
• Can We Adapt to the Internet of Things? IAPP Privacy Perspectives, June 19, 2013
• My Filing to the FTC in its ‘Internet of Things’ Proceeding, May 31, 2013

C-SPAN is really quite incredible when you think about it.  When I was growing up in the 70s, there was nothing like it. Like most other Americans, my informational inputs about national news and politics were limited to what a couple of old white dudes in bad suits delivered each night around 6:30 on the three VHF channels I had access to. And no national newspapers were delivered to my small town in rural Illinois, so I had to rely on crummy local papers to fill the void via whatever national reporting they offered, which wasn’t much.

And then came C-SPAN.  C-SPAN alone covers more political and civic-minded activity in the course of a week than most of us probably came into contact with in our entire lives just 30 years ago. Consider these data points, which Peter Kiley, Vice President of C-SPAN Networks was kind enough to help me aggregate. In the 2009 calendar year, C-SPAN provided the following amount of first run programming across their three channels:

• 8,438 overall hours of programming;
• 2,709 hours of House & Senate floor activity; and,
• 1,222 hours of House & Senate committee hearings.

Moreover, C-SPAN recently created the C-SPAN Video Library, which archives 23 years worth (1987-on) of fully searchable (and free) video content, including:

• 161,000 overall hours of programming;
• 56,600 hours of House & Senate floor activity; and,
• 20,152 of House & Senate committee hearings.

That’s incredible. But here’s what’s more impressive: Many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million. That’s what brings you this amazing, unprecedented civic resource.

OK, let me step back and explain why I started thinking about C-SPAN.  I’ve been invited to testify at a Federal Communications Commission hearing this Thursday on “Serving the Public Interest in the Digital Era.” I suspect that one of the laments we’ll hear from some of the participants is the old “deliberative democracy is dead” line. Debates about public interest regulation often take on a mythical tone as regulatory advocates wax nostalgic about some supposedly Golden Era of Civic Engagement when we were all better informed and publicly active. It’s pure rubbish, as I showed in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership. (See chapter 4, “Democracy, Civic Discourse, and the ‘Public Interest.'”)

Nonetheless, the myth persists and often leads to calls for aggressive regulation of media markets in the name of serving “the public interest.” Regulatory advocates typically claim that government must intervene and layer on regulatory mandates if citizens are to have access to the requisite amount of political programming or civic-minded content necessary for deliberative democracy to survive.

But is there really any shortage political programming or civic-minded content from which to choose today? C-SPAN’s existence alone seems to prove the contrary, but it’s hardly the only platform through which such content is available. Let’s not forget about what the Internet has made available to us. It has given us unprecedented access to public affairs information—local, state, national, and international.

But here’s the thing that a lot of “public interest” advocates always seem to ignore: Regardless of how much beneficial civic content is out there, you can’t make people watch, listen, or read it if they don’t want to. “Today, the scarce resource is attention, not programming,” notes Ellen P. Goodman of the Rutgers-Camden School of Law. “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” [Ellen P. Goodman, “Proactive Media Policy in an Age of Content Abundance,” in Philip M. Napoli, ed., Media Diversity and Localism: Meaning and Metrics (2007) at 370, 374.]

And there is no reason to believe this situation has ever been different or will ever change. Writing in 1922, famed journalist Walter Lippmann noted that, “it is possible to make a rough estimate only of the amount of attention people give each day to informing themselves about public affairs,” but “the time each day is small when any of us is directly exposed to information from our unseen environment.” [Walter Lippmann, Public Opinion (1922), p. 53, 57.]  Of course, in Lippmann’s day, one could have reasonable argued that was because such content simply wasn’t available to the masses. Today, by contrast, the content is available, it’s just that we have a lot of other informational and entertainment outputs vying for our attention.

Absent truly repressive measures to limit choices or forcibly alter consumer media consumption patterns, it will be impossible for policymakers to force the masses to pay attention to what they want them to see or hear in an age of abundant media content and unrestricted choice. “[R]egulation cannot, in a liberal democracy, force viewers to consumer media products they do not think they want in the name of the public interest,” argues Goodman.

Luckily, public officials need not resort to such repressive steps. Even if we only access C-SPAN on rare occasions, or browse political information on the Net at random intervals in the days leading up to an election, that’s more information than we ever had at our disposal in those mythical “good ‘ol days.” We should be celebrating this fact, but I suspect a lot of people at the FCC’s hearing on Thursday will be bemoaning it instead.

The Senate Commerce Committee held a hearing yesterday where a number of Senators as well as Julius Genachowski, the new Chairman of the Federal Communications Commission, did a lot of fretting about the state of the modern children’s television programming marketplace.  According to the Wall Street Journal, Senate Commerce Committee Chairman Jay Rockefeller (D-WV):

suggested that a “little red button” be required on TVs so that a child could push the button to find out how a show is rated. Democratic Sen. Mark Pryor of Arkansas agreed that a red button might help since parents often have difficulties figuring out which shows are appropriate for their children to watch.

Well, I have some good news for the Senators: There are already quite a few little buttons on every remote control made today, and at least one of those buttons can pull up an on-screen guide to get more program info! (Another of them can turn the TV off!) Moreover, the ratings for just about every program already appear at the beginning of each show, and sometimes in between. And you can find out plenty more online about every TV show under the sun if you care to look.  So, I’m not sure what that fuss is all about, and we certainly don’t need to mandate “little red buttons” on every TV set when program information can be found in so many other ways.

What is more troubling about all the hand-wringing taking place at the hearing, as well as the talk of reopening the Children’s Television Act of 1990 to potentially impose more content mandates on video programmers and distributors, is that: (1) there doesn’t seem to be much appreciation for just how much wonderful children’s programming is out there today compared to the past, and (2) there doesn’t seem to be much recognition of the serious First Amendment issues at stake when government gets involved in the messy business of regulating video programming.

On that first point, let me just reiterate what I have found after conducting an exhaustive survey of the market for children’s programming in my ongoing PFF special report, Parental Controls & Online Child Protection: A Survey of Tools & Methods.  I found that the overall market for family and children’s programming options continues to expand quite rapidly. Thirty years ago, families had a limited number of children’s television programming options at their disposal on broadcast TV.  Today, by contrast, there exists a broad and growing diversity of children’s television options from which families can choose. The list below highlights just some of the more popular family- or child-oriented networks available on cable, telco, and satellite television today. And this list continues to grow rapidly.

• ABC Family Channel (http://abcfamily.go.com)
• Animal Planet (http://animal.discovery.com)
• Anime Network (www.theanimenetwork.com)
• Black Family Channel (www.blackfamilychannel.com)
• Boomerang (www.cartoonnetwork.com/tv_shows/boomerang)
• Cartoon Network (www.cartoonnetwork.com)
• Discovery Channel (www.discovery.com)
• Discovery Kids (http://kids.discovery.com)
• Disney Channel (www.disney.go.com/disneychannel)
• Encore WAM!
• Familyland Television Network (www.familyland.org/content/Content.aspx?CategoryID=51)
• FUNimation (www.funimation.com)
• Hallmark Channel (www.hallmarkchannel.com)
• Hallmark Movie Channel (www.hallmarkmoviechannel.com)
• HBO Family (www.hbofamily.com)
• History Channel (www.history.com)
• KTV – Kids & Teens Television (www.ktvzone.com)
• Learning Channel (http://tlc.discovery.com)
• National Geographic Channel (http://channel.nationalgeographic.com/channel)
• Nickelodeon (www.nick.com)
• Nick 2
• Nick Toons (http://nicktoonsnetwork.nick.com/home.html)
• Noggin (www.noggin.com)
• N Channel (www.the-n.com)
• PBS (www.pbs.org)
• PBS Kids (http://pbskids.org/go)
• Science Channel (http://science.discovery.com)
• Showtime Family Zone
• Sprout (www.sproutonline.com)
• Starz! Kids and Family (http://www.starz.com/appmanager/seg/s?_nfpb=true&_pageLabel=starz_kids_family)
• Toon Disney (http://psc.disney.go.com/abcnetworks/toondisney)
• Varsity World (www.varsityworld.com)

Importantly, this list does not include the growing universe of religious / spiritual television networks. Nor does it include the many family or educational programs that traditional TV broadcasters offer. Finally, the list does not include the massive market for interactive computer software or websites for children.  All of this begs the obvious question: What more is it that policymakers want?

More offerings are always welcome, of course.  But, on a personal note, as the parents of two young kids (ages 5 and 7), my wife and I regularly struggle to sort through all the wonderful video programming options at our disposal.  We often find ourselves swimming through an ocean of choices available from our local broadcasters and multichannel video provider. Moreover, our kids are spending an increasing amount of time watching snippets of video via kid-oriented online search portals like KidZui and Glubble. Such online walled gardens offer a safe place for parents to find terrific online content for their kids.

I have to admit, all the choices my kids have today have left me a bit jealous!  I grew up in small central Illinois town with a couple of crummy (Iowa-based!) broadcast stations that were barely visible on our TV (and usually only when my Dad made me hold the antenna and stick my arms up in the air to get reception!) There was also one local cinema in town that usually showed old movies from the ‘50s and ‘60s that few kids cared to see.  And that was generally the extent of video choices for kids in our town.  Sure, the 1970s brought us Sesame Street as well as Mister Rogers (if that was your cup of tea).  Today, however, we still have those shows and much, much more.  Our kids now enjoy an unprecedented cornucopia of media alternatives and, contrary to what some policymakers would have us believe, many of them are extremely high-quality in nature.  My parents would have likely given anything to just have even one network as incredibly enriching as Noggin at their disposal in the ‘60s and ‘70s.  Instead, on the occasions that the TV had to become a babysitter and nothing worthwhile was on the tube, I usually ended up watching trashy soap operas.  (Don’t even get me started on “Days of Our Lives.” I could write a short history of the show’s 1975-1982 seasons!)

Speaking of trashy shows, there was a lot of talk at yesterday’s hearing about the “need to protect our children from harmful content,” as Sen. Rockefeller began the hearing by arguing.  But as I have shown in my parental controls report, not only are there more and better quality options to steer your kids toward today, but it is easier than ever before to steer them right to those preferred options and lock down everything else in sight.  As I concluded in that report:

there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. […] parents now have [many tools and techniques] at their disposal to better control media content and raise their children as they see fit. That is not to say that media and communications technologies don’t continue to play a major role in our society and culture. But… parents have been empowered with tools, controls, strategies, and information, that can help them devise and then enforce a media plan for their families that is in line with their own values.

So, again, it must be asked: What is the problem here?

Finally, it should be noted that any effort by Congress or the FCC to tinker with video programming marketplace will eventually run up against serious First Amendment concerns and eventual court challenges.  In a previous session of Congress, before he became Chairman of the Senate Commerce Committee, Sen. Rockefeller aggressively pushed for expanded content controls, not just for broadcast television, but for cable and satellite platforms as well.  In a 2005 PFF report on Sen. Rockefeller’s “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005,” First Amendment attorney Robert Corn-Revere of the law firm Davis Wright Tremaine argued that efforts to expand the horizons of FCC regulation to cover more content and platforms “would be almost certain to fail a constitutional challenge.”  Likewise, in a 2007 PFF white paper, constitutional law expert Laurence H. Tribe of the Harvard Law School, noted that the old “it’s-for-the-children” rationale for such content regulation is exactly backwards:

the malleability of children—how easy it is to mold their minds and to influence them—counts against and not in favor of centralized governmental controls. One of the arguments that you will often find is, yes, it’s all very well to believe in free speech between consenting adults but we’re talking about kids here and their minds are like plastic and they are being molded and shaped and, therefore, we have greater power to protect them. Therefore, you should keep your hands off them because they are so easy to shape. No, no, no. The argument is not that kids are malleable and therefore, Big Brother should be empowered. The argument is that kids are malleable and, therefore, families should be empowered. Parental authority should be at the center of decision making.

Indeed. And, as already noted, parents have more tools and strategies to exercise that authority than ever before, as well as more programming options to choose from. Policymakers should be celebrating these modern media marketplace developments, not bemoaning them.  We are blessed to be living in the Golden Age of children’s video programming.

When the history books are finally written documenting America’s failed experiment with broadcast industry content regulation, this past week may go down as a critical moment in the story.  The obvious reason this week was so important was the Senate’s 87-11 vote on Thursday to prevent the Federal Communications Commission (FCC) from reinstating the Fairness Doctrine.  But an equally important development this past week was the release of a new white paper by the radical Leftist activist group Free Press.

The Free Press, which was founded by the socialist media theorist Robert McChesney, doesn’t typically publish many things admitting to the failures of coercive government regulation. Nonetheless, in “The Fairness Doctrine Distraction,” a paper by Josh Silver and Marvin Ammori, the media reformistas at Free Press told their Big Government comrades in Congress and academia that it was finally OK to let go of at least this one old pet project of theirs.  In their paper, Silver and Ammori note that, “The Fairness Doctrine put the federal government in the position of judging content and controlling speech” and “Reinstating the Doctrine will not result in greater viewpoint diversity in broadcasting.”  They continue:

The Fairness Doctrine, while originally well-intentioned, is not wise public policy. [T]he Doctrine places the FCC in charge of determining what is fair in political speech — a difficult task in the best of circumstances. Placing the government in the role of monitoring and judging political speech will inevitably produce controversy that is impossible to resolve.

I applaud the Free Press for finally fessing up to the Fairness Doctrine’s many failings.  This First Amendment-violating abomination should have never been allowed to be enforced by the FCC to begin with, but at least we can now all finally agree it should stay off the books for good.

Of course, the radicals at the (Un)Free Press weren’t about to let one of the Left’s old favorite regulations go so away without asking for something in return.  One of the reasons that Silver and Ammori are suddenly willing to give their blessing to the Doctrine’s burial is because they want to get on with the more far-reaching agenda of micro-managing media markets using a variety of less visible regulations.

Indeed, in their paper, Silver and Ammori go to great pains to try to show that the Fairness Doctrine supposedly has nothing to do with all the other regulations that they want Congress and the FCC to continue to enforce, or even expand.  These goals include media ownership restrictions, diversity mandates, local programming regulation, and so on.  Recognizing that the Fairness Doctrine was not only ineffective but also a useful tool for many on the political Right to whip their base into action, the Free Press moved to preemptively divorce their other pet projects from the Fairness Doctrine.

It’s a brilliant tactical move by Free Press; lull Limbaugh and other conservatives into a deep sleep by throwing them the bone of a Fairness Doctrine win, and then push a far more radical regulatory agenda through the back-door once they’ve stopped paying attention.  Of course, these things cannot be as easily divorced as the Free Press radicals want us to believe.  The Fairness Doctrine was just one part of a much grander regulatory paradigm that so-called progressives have pushed for under the banner of “public interest regulation.”

There’s a rich mythology that has built up around “the public interest” efforts of the progressives, but like the Fairness Doctrine, it’s all just arbitrary government abuse of the First Amendment at the end of the day. Indeed, as I’ve noted here before, the public interest standard is not really a “standard” at all since it has no fixed meaning.  The definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.  As such, it represents an utter betrayal of the First Amendment and the rule of law.  And all the regulations that are pursued in the name of “serving the public interest” are really nothing more than crass political thuggery that have no relationship to what the public actually wants to see or hear.  The “public interest” should be what the public says it is, not a handful of unelected bureaucrats who want to spoon feed us nonsense we don’t want and then censor that stuff we actually desire.

The folks at the Free Press can tell us that there is no linkage between the Fairness Doctrine and all these other regulations, but that doesn’t make it so.  At the end of the day, these regulations share many things in common, especially their hopelessly arbitrary, First Amendment-betraying nature.

Thus, the war for true media freedom will continue.  Nonetheless, it is important not to lose sight of the important win this week for that cause with both Congress and the Free Press acknowledging the anti-free speech, diversity-destroying nature of the UnFairness Doctrine.

And so begins another fight over data retention. As Declan summarizes:

Republican politicians on Thursday called for a sweeping new federal law that would require all Internet providers and operators of millions of Wi-Fi access points, even hotels, local coffee shops, and home users, to keep records about users for two years to aid police investigations. The legislation, which echoes a measure proposed by one of their Democratic colleagues three years ago, would impose unprecedented data retention requirements on a broad swath of Internet access providers and is certain to draw fire from businesses and privacy advocates. […] Two bills have been introduced so far — S.436 in the Senate and H.R.1076 in the House. Each of the companion bills is titled “Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act,” or Internet Safety Act.

Julian also has coverage over at Ars and quotes CDT’s Greg Nojeim who says the data retention language is “invasive, risky, unnecessary, and likely to be ineffective.”  I think that’s generally correct.  Moreover, I find it ironic that at a time when so many in Congress seemingly want online providers to collect and retain LESS data about users, this bill proposes that ISPs be required to collect and retain MORE data. One wonders how those two legislative priorities will be reconciled!!

Don’t get me wrong. It’s good that Congress is taking steps to address the scourge of child pornography — especially with stiffer sentences for offenders and greater resources for law enforcement officials. Extensive data retention mandates, however, would be unlikely to help much given the ease with which bad guys will likely circumvent those requirements using alternative access points or proxies.  Finally, retention mandates pose a threat to the privacy of average law-abiding citizens and impose expensive burdens of online intermediaries.

We’ve had more to say about data retention here at the TLF over the years.  Here’s a few things to read:

• Yahoo! Data-Retention Policy vs. The New Justice Department, by Cord Blomquist
• Another Reason to Be Wary of Age Verification & Data Retention Mandates, by Adam Thierer, October 30, 2006.
• Mandatory Data Retention: How Much is Appropriate? by Adam Thierer, June 26, 2006.
• Internet Data Storage Is The Wrong Way To Combat Child Sexual Exploitation, by Hance Haney, Sept. 20, 2006.
• Data Retention on the Move, by Jim Harper, June 1, 2006.

In a City Journal article earlier this year, I wondered “how long some local papers have left when they are barred from restructuring their businesses or partnering with other local media operators to stem the bleeding and reinvent their business models.”  I was responding to the Senate’s smack-down of a half-hearted reform effort that FCC chairman Kevin Martin pushed through in November 2007, which proposed relaxing the FCC’s newspaper/broadcast cross-ownership rule. That rule, unrevised since going into effect in 1975, prohibits a newspaper operator from also owning a radio or television station in the same media market. However, waivers were granted to grandfather in some combined newspaper and broadcast operations that had existed long before the ban took effect. Martin’s proposal was to simply tweak the rule to permit similar combinations in just the nation’s 20 largest media markets.

Martin’s limited liberalization proposal, however, led to howls of disapproval from FCC democrats like Michael Copps and many folks on both side of the aisle in Congress. Supposedly, this was nothing more than a “giveaway” to the newspaper industry, which critics said was doing just fine.  It really makes you wonder if any of those critics even both reading the news about newspapers today.

As I have documented here on many occasions, as well as in my big Media Metrics report, the newspaper industry is in huge trouble with every financial variable of importance rapidly heading south. Alan Mutter does a good job here of summarizing “the secular forces dragging down newspapers: Declining readership, shrinking advertising, high fixed costs and growing online competition that makes it increasingly difficult to charge the premium ad rates that were possible prior to the Internet.”  As a result of these forces, everyday brings another headline like this one today in the New York Times: “The Star-Ledger of Newark Plans 40% Cut,” or this one in the Wall Street Journal: “Some Newspapers Shed Unprofitable Readers.”  The numbers are just miserable, and they just get worse and worse.

Now, you might say, “So what? That’s creative destruction at work.” Indeed it is, and it’s an entirely natural and healthy marketplace phenomenon. The problem, however, is that there’s still a lot of regulating going on.  Specifically, papers remain bound by red tape in the form of artificial market ownership restrictions that disallow the creation of new business models that might save them what appears to be their possible extinction.

I am not at all confident that consolidation or creative ownership arrangements will actually throw them much of a lifeline — it’s probably too little, too late, now that so many readers and advertisers have flocked to the Net and other media platforms.   Nonetheless, they should not be bound by archaic media ownership rules put on the books a quarter century ago in an era of less competition and consumer choice.  Let papers restructure and compete.  It may be their only chance at survival.

Update: Just a few minutes after posting this I came across this NYT article documenting the latest quarterly newspaper circulation numbers and how the numbers just keep getting worse. Sales in the spring and summer fell almost 5 percent from the previous year according to the Audit Bureau of Circulations.