Ronald J. Deibert is the director of The Citizen Lab at the University of Toronto’s Munk School of Global Affairs and the author of an important new book, Black Code: Inside the Battle for Cyberspace, an in-depth look at the growing insecurity of the Internet. Specifically, Deibert’s book is a meticulous examination of the “malicious threats that are growing from the inside out” and which “threaten to destroy the fragile ecosystem we have come to take for granted.” (p. 14) It is also a remarkably timely book in light of the recent revelations about NSA surveillance and how it is being facilitated with the assistance of various tech and telecom giants.

The clear and colloquial tone that Deibert employs in the text helps make arcane Internet security issues interesting and accessible. Indeed, some chapters of the book almost feel like they were pulled from the pages of techno-thriller, complete with villainous characters, unexpected plot twists, and shocking conclusions. “Cyber crime has become one of the world’s largest growth businesses,” Deibert notes (p. 144) and his chapters focus on many prominent recent examples, including cyber-crime syndicates like Koobface, government cyber-spying schemes like GhostNet, state-sanctioned sabotage like Stuxnet, and the vexing issue of zero-day exploit sales.

Deibert is uniquely qualified to narrate this tale not just because he is a gifted story-teller but also because he has had a front row seat in the unfolding play that we might refer to as “How Cyberspace Grew Less Secure.” Indeed, he and his colleagues at The Citizen Lab have occasionally been major players in this drama as they have researched and uncovered various online vulnerabilities affecting millions of people across the globe. (I have previously reviewed and showered praise on a couple important books that Deibert co-edited with scholars from The Citizen Lab and Harvard’s Berkman Center, including: Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace and Access Denied: The Practice and Policy of Global Internet Filtering. They are truly outstanding resources worthy of your attention.)

Black Code’s Many Meanings

So, what is “black code” and why should we be worried about it? Deibert uses the term as a metaphor for many closely related concerns. Most generally it includes “that which is hidden, obscured from the view of the average Internet user.” (p. 6) More concretely, it refers to “the criminal forces that are increasingly insinuating themselves into cyberspace, gradually subverting it from the inside out.” (p. 7) “Those who take advantage of the Internet’s vulnerabilities today are not just juvenile pranksters or frat house brats,” Deibert notes, “they are organized criminal groups, armed militants, and nation states.” (p. 7-8) Which leads to the final way Deibert uses the term “black code.” It also, he says, “refers to the growing influence of national security agencies, and the expanding network of contractors and companies with whom they work.” (p. 8)

Deibert is worried about the way these forces and factors are working together to undermine online stability and security, and even delegitimize liberal democracy itself. His thesis is probably most succinctly captured in this passage from Chapter 7:

We live in an era of unprecedented access to information, and many political parties campaign on platforms of transparency and openness. And yet, at the same time, we are gradually shifting the policing of cyberspace to a dark world largely free from public accountability and independent oversight. In entrusting more and more information to third parties, we are signing away legal protections that should be guaranteed by those who have our data. Perversely, in liberal democratic countries we are lowering the standards around basic rights to privacy just as the center of cyberspace gravity is shifting to less democratic parts of the world. (p. 130-1)

What Deibert is grappling with in this book is the same fundamental problem that has long plagued the Internet: How do you preserve the benefits associated with the most open and interconnected “network of networks” the world has ever known while also remedying the various vulnerabilities and pathologies created by that same openness and interconnectedness?  Deibert acknowledges this problem, noting:

Ever since the Internet emerged from the world of academia into the world of the rest of us, its growth trajectory has been shadowed by a grey economy that thrives on opportunities for enrichment made possible by an open, globally connected infrastructure. (p. 141)

The Paradox of the Net’s Open, Interconnected Nature

Again, paradoxically, this inherent instability and vulnerability is due precisely to the Net’s open and globally interconnected nature. And many governments are looking to exploit that fact. “These unfortunate by-products of an open, dynamic network are exacerbated by increasing assertions of state power,” Deibert notes. (p. 233)

More generally, this uncomfortable fact—that the Net’s open, interconnected nature leads to both enormous benefits as well as huge vulnerabilities—isn’t just true for criminal online activity or the cyber-espionage activities that various nation-states are pursuing today. It is equally true for everything online today. There is a sort of yin and the yang to the Net that is simply undeniable and completely unavoidable. For one issue after another we find that the Net’s greatest blessing—its open, interconnected nature—is also its greatest curse.

For example, as I noted here recently in my review of Abraham H. Foxman and Christopher Wolf ‘s new book, Viral Hate: Containing Its Spread on the Internet, the open and interconnected Internet gives us “the most widely accessible, unrestricted communications platform the world has ever known” but also  means we have to tolerate a great many imbeciles “who use it to spew insulting, vile, and hateful comments.” The same is true for other types of online speech and content: You have access to an abundance of informational riches, but there’s also no avoiding all the garbage out there now, too.

Similarly, as I noted in my essay, “Privacy as an Information Control Regime: The Challenges Ahead,” the open and interconnected Internet has given us historically unparalleled platforms for social interaction and commerce. But that same openness and interconnectedness has left us with a world of hyper-exposure and a variety of privacy and surveillance threats—not just from governments and large corporations, but also from each other.

And then there’s the never-ending story of digital copyright. On one hand, the open and globally interconnected network or networks has provided us with an amazing platform for sharing knowledge, art, and expression. On the other hand, as I noted in this essay on “The Twilight of Copyright,” creators of expressive works have less security than ever before in terms of how they can control and monetize their artistic and scientific inventions.

I could go on and on—as I did in my essays on “Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges” and “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed”—but the moral of the story is pretty clear: The Internet giveth and the Internet taketh away. Openness and interconnectedness offer us enormous benefits but also force us to confront major risks as the price of admission to this wonderful network.

Will the Whole System Collapse?

The uncomfortable question that Deibert’s book tees up for discussion is: When will this balance get completely out of whack in terms of online security? Or, has it already? In some portions of the text, he hints that may already be the case. Consider this passage in Chapter 11 in which Deibert discusses whether the Chicken Little-ism of digital security worry-warts like Eugene Kaspersky and Richard Clarke is warranted:

Eugene Kaspersky, Richard Clarke, and others may sound like broken records or self-serving fear mongers, but there is no denying the evolving cyberspace ecosystem around us: we are building a digital edifice for the entire planet, and it sits above us like a house of cards. We are wrapping ourselves in expanding layers of digital instructions, protocols, and authentication mechanisms, some them open scrutinized, and regulated, but many closed, amorphous, and poised for abuse, buried in the black arts of espionage, intelligence gathering, and cyber and military affairs. Is it only a matter of time before the whole system collapses? (p. 186)

That sounds horrific, but is it really the case that the entire system really about to collapse? And, if so, what are we going to do about it?

This raises a small problem with Deibert’s book. He does such a nice job itemizing and describing these security vulnerabilities that by the time the reader wades through 230 pages and nears the end of the book, they are left in a highly demoralized state, searching for some hope and a concrete set of practical solutions. Unfortunately, they won’t find an abundance of either in Deibert’s brief closing chapter, “Toward Distributed Security and Stewardship in Cyberspace.”

Don’t get me wrong; I agree with the general thrust of Deibert’s framework, which I describe below. The problem is that it is highly aspirational in nature and lacks specifics. Perhaps that is simply because there are no easy answers here. Digital security is damn hard and, as with most other online pathologies out there, no silver-bullet solutions exist.

Deibert notes that some government officials will seek to exploit those vulnerabilities—many of which they created themselves—to expand their authority over the Internet. “Faced with mounting problems and pressures to do something, too many policy-makers are tempted by extreme solutions,” he notes. (p. 234) He worries about “a movement towards clamp down” that would be “antithetical to the principles of liberal democratic government” by undermining checks and balances and accountability. (p. 235) In turn, this will undermine the “mixed common-pool resource” that is the current Internet.

Deibert’s alternative cyber security strategy to counter the push to “clamp down” is based on three interrelated notions or components:

1. Principles of restraint or “mutual restraint”: “Securing cyberspace requires a reinforcement, rather than a relaxation, of restraint on power, including checks and balances on governments, law enforcement, intelligence agencies, and on the private sector,” he argues. (p. 239)
2. “Distributed security”: “The Internet functions precisely because of the absence of centralized control, because of thousands of loosely coordinated monitoring mechanisms,” Deibert notes. “While these decentralized mechanisms are not perfect and can occasionally fail, they form the basis of a coherent distributed security strategy. Bottom-up, ‘grassroots’ solutions to the Internet’s security problems are consistent with principles of openness, avoid heavy-handedness, and provide checks and balances against the concentrations of power,” he observes. (p. 240)
3. “Stewardship” which Deibert defines as “an ethic of responsible behavior in regard to shared resources” and which, he argues, “would moderate the dangerously escalating exercise of state power in cyberspace by defining limits and setting thresholds of accountability and mutual restraint.” (p. 243)

Again, as an aspirational vision statement this all generally sounds fairly sensible, but the details are lacking. I think Deibert would have been wise to spend a bit more time developing this alternative “bottom-up” vision of how online security should work and bolstering it with case studies.

Digital Security without Top-Down Controls

Luckily, as my Mercatus Center colleague Eli Dourado noted in an important June 2012 white paper, distributed security and stewardship strategies are already working reasonably well today. Dourado’s paper, “Internet Security Without Law: How Service Providers Create Order Online,” documented the many informal institutions that enforce network security norms on the Internet and shows how cooperation among a remarkably varied set of actors improves online security without extensive regulation or punishing legal liability. “These informal institutions carry out the functions of a formal legal system—they establish and enforce rules for the prevention, punishment, and redress of cybersecurity-related harms,” Dourado noted.

For example, a diverse array of computer security incident response teams (CSIRTs) operates around the globe and share their research and coordinate their responses to viruses and other online attacks. Individual Internet service providers (ISPs), domain name registrars, and hosting companies, work with these CSIRTs and other individuals and organizations to address security vulnerabilities. A growing market for private security consultants and software providers also competes to offer increasingly sophisticated suites of security products for businesses, households, and governments.

A great deal of security knowledge is also “crowd-sourced” today via online discussion forums and security blogs that feature contributions from experts and average users alike. University-based computer science and cyberlaw centers (like Citizen Lab) and experts have also helped by creating projects like “Stop Badware,” which originated at Harvard University but then grew into a broader non-profit organization with diverse financial support.

Dourado continues on in his paper to show how these informal, bottom-up efforts to coordinate security responses offer several advantages over top-down government solutions, such as administrative regulation or punishing liability regimes.

Dourado’s description of the ideal approach to online security is entirely consistent with Deibert’s vision in Black Code. In fact, Deibert notes, “It is important to remind ourselves that in spite of the threats, cyberspace runs well and largely without persistent disruption. On a technical level, this efficiency is founded on open and distributed networks of local engineers who share information as peers,” he observes. (p. 240) That is exactly right, but I wish Deibert would have spent more time discussing how this system works in practice today and how it can be tweaked and improved to head off the heavy-handed and very costly top-down solutions that we both dread.

Toward Resiliency

But there’s one other thing I wish Deibert would have explored in the book: resiliency, or how we have adapted to various cyber-vulnerabilities over time.

For example, in another recent Mercatus Center study entitled “Beyond Cyber Doom: Cyber Attack Scenarios and the Evidence of History,” Sean Lawson, an assistant professor in the Department of Communication at the University of Utah, has stressed the importance of resiliency as it pertains to cybersecurity and concerns about “cyberwar.” “Research by historians of technology, military historians, and disaster sociologists has shown consistently that modern technological and social systems are more resilient than military and disaster planners often assume,” he writes. “Just as more resilient technological systems can better respond in the event of failure, so too are strong social systems better able to respond in the event of disaster of any type.”

More generally, as I noted in my recent law review article on “technopanics” and “threat inflation” in information technology policy debates:

while it is certainly true that “more could be done” to secure networks and critical systems, panic is unwarranted because much is already being done to harden systems and educate the public about risks. Various digital attacks will continue, but consumers, companies, and others organizations are learning to cope and become more resilient in the face of those threats.

What Professor Lawson and I are getting at in our respective articles is that the ability of organizations, institutions, and individuals to bounce back from adversity is a frequently unheralded feature of various systems and that it deserves more serious study. (See Andrew Zolli and Ann Marie Healy’s nice book, Resilience: Why Things Bounce Back, for more on this general topic). In the context of online security, what is most remarkable to me is not that the Internet suffers from vulnerabilities due to its open and interconnected nature; it’s that we don’t suffer far more damage as a result.

This gets us back to that very profound question that Deibert poses in Black Code: “Is it only a matter of time before the whole system collapses?” The better question, I think, is: why hasn’t the system already collapsed? Perhaps the answer is, because things haven’t gotten bad enough yet. But I believe that the more realistic answer is that: individuals and institutions often learn how to cope and become resilient in the face of adversity. This is partially the case online because of the stewardship and distributed, decentralized security we already see at work today that makes digital life tolerable.

But it has to be something more than that. After all, many of the security problems that Deibert describes in his book are quite serious and already affect millions of us today. How, then, are we getting by right now? Again, I think the answer has to be that adaptation and resiliency are at work on many different levels of online life.

Consider, for example, how we have learned to deal with spam, viruses, online porn, various online advertising and privacy concerns, and so on. Our adaptation to these threats and annoyances has not been perfectly smooth, of course. No doubt, some people would still like “something to be done” about these things. But isn’t it remarkable how we have, nonetheless, carried on with online commerce and interactive social life even as these problems have persisted?

Conclusion

Going forward, therefore, perhaps there are some reasons for hope. Perhaps the various generic strategies that Deibert outlines in his book, coupled with the remarkable ability of humans to roll with the punches and adapt, will help us come out of this just fine (or at least reasonably well).

Of course, it could also be the case that these security concerns just multiply and that the Internet then morphs into sometime quite different than the interconnected “network of networks” we know today. As I noted in my 2009 essay on “Internet Security Concerns, Online Anonymity, and Splinternets,” we might be moving toward a world with more separate dis­connected digital networks and online “gated communities.” This could take place spontaneously over time and be driven by corporations seeking to satisfy the demand of some consumers for safer and more secure online experiences. As I noted in my review of Jonathan Zittrain’s book, The Future of the Internet, I am actually fine with some of that. I think we can live in a hybrid world of “walled gardens” alongside of the “Wild West” open Internet, so long as this occurs in a spontaneous, organic, bottom-up fashion. [For a more extensive discussion, see my book chapter, “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters.”]

If, however, this “splintering” of the Net is done from the top-down through intentional (or even incidental) government action, then it is far more problematic. We already see signs, for example, that Russia is pushing even more strongly in that direction in the wake of the NSA leaks. (See “N.S.A. Leaks Revive Push in Russia to Control Net,” New York Times, July 14.) The Russians have been using amorphous security concerns to push for greater Internet control for some time now. Of course, China has been there for years. So have many Middle Eastern countries. Of course, there’s no guarantee that their respective “splinternets” are, or would be, any more secure than today’s Internet, but it sure would make those networks far more susceptible to state control and surveillance. If that’s our future, then it certainly is a dismal one.

Anyway, read Ron Deibert’s Black Code for an interesting exploration of these and other issues. It’s an excellent contribution to field of Internet policy studies and a book that I’ll be recommending to others for many years to come.

Additional resources:

• the official website for Black Code
• the Citizen Lab website at the University of Toronto
• follow Ronald Deibert and The Citizen Lab on Twitter
• video of Washington, D.C. book launch for Black Code (held at the National Endowment for Democracy on 6/24/13)

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

• Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace edited by Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain
• Consent of the Networked: The Worldwide Struggle for Internet Freedom , by Rebecca MacKinnon
• Cyber War: The Next Threat to National Security and What to Do About It, by Richard A. Clarke and Robert K. Knake
• Liars & Outliers: Enabling the Trust that Society Needs to Thrive, by Bruce Schneier
• Regulating Code: Good Governance and Better Regulation in the Information Age, by Ian Brown & Christopher T. Marsden
• Networks and States: The Global Politics of Internet Governance, by Milton Mueller
• Resilience: Why Things Bounce Back, by Andrew Zolli & Ann Marie Healy

Here’s a presentation I delivered on “The War on Vertical Integration in the Digital Economy” at the latest meeting of the Southern Economic Association this weekend. It outlines concerns about vertical integration in the tech economy and specifically addresses regulatory proposals set forth by Tim Wu (arguing for a “separations principle” for the tech economy) & Jonathan Zittrain (arguing for “API neutrality” for social media and digital platforms). This presentation is based on two papers published by the Mercatus Center at George Mason University: “Uncreative Destruction: The Misguided War on Vertical Integration in the Information Economy” (with Brent Skorup) & “The Perils of Classifying Social Media Platforms as Public Utilities.”

[UPDATE 4/30/13: This article was subsequently published in Volume 65, Issues 2 of the Federal Communications Law Journal in April 2013. The links below now point to the final FCLJ version.]

The Mercatus Center at George Mason University has just released a new paper by Brent Skorup and me entitled, “Uncreative Destruction: The War on Vertical Integration in the Information Economy.”  Brent, who is the research director for the Information Economy Project at the George Mason University School of Law, and I have been working on this paper since the Spring and we are looking forward to getting it published in a law review shortly. The paper focuses on Tim Wu’s “separations principle” for the digital economy, something I’ve spent some time critiquing here in the past. Here’s the introduction from the 44-page paper that Brent and I just released:

Are information sectors sufficiently different from other sectors of the economy such that more stringent antitrust standards should be applied to them preemptively? Columbia Law School professor Tim Wu responds in the affirmative in his book The Master Switch: The Rise and Fall of Information Empires. Having successfully pushed net-neutrality regulation into the policy spotlight, Wu has turned his attention to what he regards as excessive market concentration and threats to free speech throughout the entire information economy.To support his call for increased antitrust intervention, Wu explains his view of competition in the information economy—a view that deviates substantially from current mainstream antitrust theory. First, Wu contends that “information monopolies” are pervasive in the information economy. Wu’s “monopolists” include Facebook, Apple, Google, and even Twitter. In The Master Switch and essays like “In the Grip of the New Monopolists,” Wu argues that these so-called monopolies are increasing their market power and require more aggressive oversight and regulation.Second, Wu argues that traditional antitrust analysis is not sufficient for information systems because they carry speech. He claims, “Information industries… can never be properly understood as ‘normal’ industries,”and traditional forms of regulation, including antitrust enforcement, “are clearly inadequate for the regulation of information industries.”Wu believes that because information industries “traffic in forms of individual expression” and are “fundamental to democracy,” they should be subject to greater regulatory treatment.Third, in contrast to current competition law’s focus on horizontal relationships, Wu desires a reinvigorated regulatory enforcement that addresses “the corrupting effects of vertically integrated power” in the information sectors.He is particularly concerned about private threats to free speech arising from such vertical integration.The solution, he says, is preventing vertical mergers in the information economy and the mandatory divestiture of vertically integrated companies. To implement this, Wu proposes a Separations Principle for the information economy, which would segregate information providers into three buckets, which we have labeled information creators, information distributors, and hardware makers.This article outlines Wu’s separations proposal, explains why his fears regarding vertical relationships should be rejected by regulatory and antitrust policymakers, and illustrates the legal and practical problems his Separations Principle poses. Wu justifies his Separations Principle by citing monopolies and market power in the information economy. He also advocates using U.S. antitrust authorities to enforce his Principle. We argue that the antitrust harms he fears are not present, and we highlight scholarship on the accepted benefits of vertically integrated firms. We show that Wu’s remedies are policy preferences wrapped in the language of competition law. In fact, the information economy is largely competitive and does not warrant interventionist regulatory enforcement. Since much of American economic vitality flows from the information economy and technology, policymakers should reject a radical antitrust remedy like Wu’s preemptive Separations Principle.

The paper can be downloaded from the Mercatus website, SSRN, or Scribd.

The Mercatus Center at George Mason University has just released my new white paper, “The Perils of Classifying Social Media Platforms as Public Utilities.” [PDF] I first presented a draft of this paper last November at a Michigan State University conference on “The Governance of Social Media.” [Video of my panel here.]

In this paper, I note that to the extent public utility-style regulation has been debated within the Internet policy arena over the past decade, the focus has been almost entirely on the physical layer of the Internet. The question has been whether Internet service providers should be considered “essential facilities” or “natural monopolies” and regulated as public utilities. The debate over “net neutrality” regulation has been animated by such concerns.

While that debate still rages, the rhetoric of public utilities and essential facilities is increasingly creeping into policy discussions about other layers of the Internet, such as the search layer. More recently, there have been rumblings within academic and public policy circles regarding whether social media platforms, especially social networking sites, might also possess public utility characteristics. Presumably, such a classification would entail greater regulation of those sites’ structures and business practices.

Proponents of treating social media platforms as public utilities offer a variety of justifications for regulation. Amorphous “fairness” concerns animate many of these calls, but privacy and reputational concerns are also frequently mentioned as rationales for regulation. Proponents of regulation also sometimes invoke “social utility” or “social commons” arguments in defense of increased government oversight, even though these notions lack clear definition.

Social media platforms do not resemble traditional public utilities, however, and there are good reasons why policymakers should avoid a rush to regulate them as such. Treating these nascent digital services as regulated utilities would harm consumer welfare because public utility regulation has traditionally been the archenemy of innovation and competition. Furthermore, treating today’s leading social media providers as digital essential facilities threatens to convert “natural monopoly” or “essential facility” claims into self-fulfilling prophecies. Related proposals to mandate “API neutrality” or enforce a “Separations Principle” on integrated information platforms would be particularly problematic. Such regulation also threatens innovation and investment. Marketplace experimentation in search of sustainable business models should not be made illegal.

Remedies less onerous than regulation are available. Transparency and data-portability policies would solve many of the problems that concern critics, and numerous private empowerment solutions exist for those users concerned about their privacy on social media sites.

Finally, because social media are fundamentally tied up with the production and dissemination of speech and expression, First Amendment values are at stake, warranting heightened constitutional scrutiny of proposals for regulation. Social media providers should possess the editorial discretion to determine how their platforms are configured and what can appear on them.

This 63-page paper can be found on the Mercatus site here, on SSRN, or on Scribd.  I’ve also embedded it below in a Scribd reader. Eventually, a shorter version of this paper will appear as a chapter in a MIT Press book.

Social Networks as Public Utilities [Adam Thierer]

In my work critiquing the Lessig-Zittrain-Wu school of thinking–which fears the decline and fall of online “openness” and digital  “generativity”–I have argued that, while there is no such thing as perfect “openness,” things are actually getting more open and generative all the time. All that really counts from my perspective is that we are witnessing healthy innovation across the generativity continuum.

Will some devices and platforms continue to be “closed”? Sure. Think Apple and cable set-top boxes. But (a) there’s a ton of innovation taking place on top of those supposedly “closed” platforms and (b) there are other options consumers can exercise if they don’t like those content /information delivery methods. [See this chapter from the Next Digital Decade book for my fuller critique.]

And, even if one adopts a rigid Zittrainian view of openness and generativity, each day seems to bring more good news. From that perspective it’s hard to find a better headline than this one: ” Smartphone Makers Bow to Demands for More Openness.” That’s from ArsTechnica today and it refers to the fact that smartphone giant HTC just announced it would no longer attempt to lock the bootloader on its smartphones, meaning geeks like me can root and hack their devices to their heart’s content. As the Ars story notes:

HTC has long been seen as a relatively modder-friendly phone manufacturer. Although many of their phones have had locked bootloaders, workarounds were easy enough for software developers to spot in order to gain superuser access to their phones. That changed recently, however, when modders discovered that two new Android phones—the HTC Sensation and Evo 3D—would come with software that prohibited bypassing locked bootloaders. “The system was locked but exploitable before,” Android enthusiast Irwin Proud told Wired.com in an interview. “Suddenly they required signature checks,” or digital verification of software that allows it to load. An Android activist, Proud has organized online campaigns to fight against locked-down phone releases. After hearing this, the modding community wasn’t happy. Users launched WakeUpHTC.com, a website which gave upset modders all of HTC’s contact info, encouraging them to bombard the company with requests for a change in its bootloader policy. On Thursday, the company relented.

Here’s specifically what HTC’s CEO Peter Chou had to say in a Facebook post:

“There has been overwhelmingly customer feedback that people want access to open bootloaders on HTC phones. I want you to know that we’ve listened. Today, I’m confirming we will no longer be locking the bootloaders on our devices. Thanks for your passion, support and patience.”

Now that’s what I call a Zittrainian success story! Markets and public pressure prevailed and led to more openness and generativity in the purest sense of the terms.

I suppose that some will still worry and retort that “well, the carriers might still try to lock down the devices.” That story might have been more believable five years ago but the new reality of the smartphone world today is that the OS and app makers now hold most of the cards. Carriers are practically giving away the store (literally!) as they rush to get the latest and greatest phones and operating systems from the likes of Apple, Google, Microsoft, HTC, Motorola, LG, and so on.  This is amazingly dynamic ecosystem with multiple layers of innovation and competition.

I don’t think there’s any way the generativity genie could be put back in the bottle at this point. Too many people want tinker-friendly devices and more “open” platforms.  Of course, it’s also true that some devices will remain somewhat more locked-down to ensure “stability” or simplicity for those users who desire it. But what’s wrong with that? Shouldn’t they have that choice? Again, it’s the innovation across the full range of devices and platforms that is so important and impressive in this case. That’s all we should really care about. Finally, if goes without saying that even the most heavily fortified security can be broken when determined people try hard enough.

I hope Zittrain, Wu, and Lessig appreciate this and that they and others acknowledge these beneficial developments so that we can avoid foolish calls to regulate this healthy information ecosystem. These guys should declare victory and pop the champagne. The vision they favor is prevailing.

Hanno F. Kaiser, a U.S. and EU antitrust lawyer and partner with Latham & Watkins LLP, has just released an important essay on a topic I have devoted much time to here over the years: the debate over the relative advantages of “open” vs. “closed” technological systems and the Lessig-Zittrain-Wu school of thinking about these issues.

Kaiser’s essay is entitled, ” Are Closed Systems an Antitrust Problem?” and it appears in the latest edition of Competition Policy International.  This essay is not to be missed. Kaiser’s terrific paper helps us better understand and debunk many of the myths and misperceptions that continue to riddle this debate. Here’s Kaiser’s key insight:

At bottom, the bad reputation of closed systems or walled gardens in the “open versus closed” debate is quite undeserved. Walled gardens generally benefit their environments—both in the real world and the digital realm. The primary purpose of a garden wall, after all, is to shelter plants from wind and frost, not to keep intruders out. In the protected space of the garden, flowers can grow that would not otherwise survive in the wild. Walled gardens thus deliberately create a microcosm that is different from the surrounding ecosystem. Therefore, as long as the garden does not take over the entire ecosystem, walled gardens increase, not reduce, overall diversity. From a competition policy perspective, enjoying the fruits of a walled garden is generally not a guilty pleasure.

Therefore, “as a policy matter, ‘open’ is not necessarily better than ‘closed’,” Kaiser argues, and elaborates as follows:

Our initial question whether “closed” systems are inherently anticompetitive can be restated as follows: “Is there a reason to believe that intra-platform restraints imposed by the platform sponsor on various contributors are commonly exclusionary?” To that question, the answer is no. Is it possible that such restraints can lead to anticompetitive exclusion? Yes, but not unless the platform has significant market power vis-à-vis rival platforms.

In other words, it is foolish to over-simplify the debate as many scholars do when they imply that “open”=good and “closed=bad. (For a recent example, see my essay here earlier this month about Cory Doctorow’s misguided effort to equate open systems with “techno-optimism.”)

In my work, I’ve tried to focus on the happy balance and healthy competition that exists today between such systems. Shouldn’t that be what counts most? Scholars like Lessig, Zittrain, Wu, and Doctorow sometimes seem to want to force a false ‘open-or-nothing-else’ choice upon us. Such thinking is troubling from a policy perspective since it means law might force many consumers to use systems that may not be to their liking.  Moreover, such thinking reveals an ironic insecurity among these “Openness Evangelicals,” as I have called them: they seem to have very little faith in the open systems and technologies they trumpet. If such systems really are superior, shouldn’t they win out in the end?

Importantly, however, Kaiser also debunks the simplistic notion that “open” and “closed” systems are easily defined:

As an analytical tool the labels “open” and “closed” are of limited utility, because they cannot adequately capture the complexity of selective openness at various layers of a system within their single binary distinction.  Addressing the central antitrust issue requires that we move past the “ready labels” and focus on whether specific vertical restraints at all levels result in anticompetitive exclusion and foreclosure.

Quite right. I also appreciated Kaiser’s thought’s on Tim Wu’s “Separations Principle,” which would rigidly segregate all information services into three buckets–content, conduit, and devices–and keep them there. Kaiser says:

The Separations Principle amounts to a general rule against vertical integration in the information sector irrespective of market power, foreclosure, and efficiencies. Such a sweeping rule requires extraordinarily strong justifications, which Wu fails to provide. In fact, our analysis of the competitive effects of open and closed systems does not suggest that closed systems pose anywhere near the level of concern that would justify such a radical expansion of antitrust market regulation.

Kaiser is actually being too generous. Wu’s radical prescription for the information sectors flies in the face of decades of antitrust scholarship and would have devastating ramifications for the Digital Economy in practice, as I noted in part 6 of my multi-part review of his book The Master Switch.

Anyway, read Hanno Kaiser’s terrific paper. It’s a major contribution to the literature in this arena and a real breath of fresh air compared to what I regard as the hopelessly pessimistic (and usually overly-simplistic) literature on “open” vs. “closed” technological systems.

P.S … I put together a separate page here at the TLF to house my 30 or so essays addressing “Problems with the Lessig-Zittrain-Wu Thesis.”  Also, this chapter from the Next Digital Decade book on the case for Internet optimism ties together all my various critiques into one essay.

I’ve spent a great deal of time here defending “techno-optimism” or “Internet optimism” against various attacks through the years, so I was interested to see Cory Doctorow, a novelist and Net activist, take on the issue in a new essay at Locus Online.  I summarized my own views on this issue in two recent book chapters. Both chapters appear in The Next Digital Decade and are labeled “The Case for Internet Optimism.” Part 1 is sub-titled “Saving the Net From Its Detractors” and Part 2 is called “Saving the Net From Its Supporters.” More on my own thoughts in a moment. But let’s begin with Doctorow’s conception of the term.

Doctorow defines “techno-optimism” as follows:

In order to be an activist, you have to be… pessimistic enough to believe that things will get worse if left unchecked, optimistic enough to believe that if you take action, the worst can be prevented. […] Techno-optimism is an ideology that embodies the pessimism and the optimism above: the concern that technology could be used to make the world worse, the hope that it can be steered to make the world better.

What this definition suggests is that Doctorow has a very clear vision of what constitutes “good” vs. “bad” technology or technological developments. He turns to that dichotomy next as he seeks to essentially marry “techno-optimism” to a devotion to the free/open software movement and a rejection of “proprietary technology”:

There are many motivations for contributing to free/open software, but the movement’s roots are in this two-sided optimism/pessimism: pessimistic enough to believe that closed, proprietary technology will win the approval of users who don’t appreciate the dangers down the line (such as lock-in, loss of privacy, and losing work when proprietary technologies are orphaned); optimistic enough to believe that a core of programmers and users can both create polished alternatives and win over support for them by demonstrating their superiority and by helping people understand the risks of closed systems.

In other words, recalling his definition of techno-optimism, Doctorow is basically saying that the way we “steer” technology to “make the world better” is by taking steps to foster or favor “open” technologies over “closed” ones:

It falls to techno-optimists to do two things: first, improve the alternatives and; second, to better articulate the risks of using unsuitable tools in hostile environments. … Herein lies the difference between a ‘‘technology activist’’ and ‘‘an activist who uses technology’’ — the former prioritizes tools that are safe for their users; the latter prioritizes tools that accomplish some activist goal. The trick for technology activists is to help activists who use technology to appreciate the hidden risks and help them find or make better tools. That is, to be pessimists and optimists: without expert collaboration, activists might put themselves at risk with poor technology choices; with collaboration, activists can use technology to outmaneuver autocrats, totalitarians, and thugs.

I have no problem with Doctorow issuing a clarion call to programmers to “find or make better tools.” Power to him and the developers who take him up on the request. But I do have a problem with the sort of ‘you’re-either-with-us-or-against-us’ sort of attitude Doctorow adopts here and in much of his past writing, which attempts to force a false choice upon us regarding “open” vs. “closed” digital technologies.

The irony of Doctorow’s definition of “techno-optimism” is that, as he notes, it’s actually rooted in the fairly pessimistic belief that unless we do something to affect the balance between “open vs. closed” technology then “technology could be used to make the world worse,” he says. I think that view is myopic and misguided for several reasons.

First, I think it’s a mistake to tether “techno-optimism” to overly binary conceptions of “good vs. bad” / “open vs. closed” technology. I spent a great deal of time in the second of my two “Case for Internet Optimism” chapters addressing the group of thinkers that I refer to as “Openness Evangelicals,” or those who believe that “Openness” is almost always The Good; anything “closed” (restricted or proprietary) in nature is The Bad. In a sense, it’s tantamount to picking (or at least favoring) technological winners and losers regardless of what others prefer and voluntarily choose to use because it gives them greater satisfaction.

Second, there are no clear definitions of “openness” or “closedness” (if that’s even a word); both are matters of degree. You can call Apple and Facebook “closed” — and they certainly are in many senses of the term — but they are not nearly as “closed” or “proprietary” as the communications devices or platforms of the past. To put it in Zittrainian parlance, “generativity” continues to thrive even in environments or on platforms that are “closed” is some ways. Almost all modern digital devices and networks feature some generative and “non-generative” attributes. “No one has ever created, and no one will ever create, a system that allows any user to create anything he or she wants.  Instead, every system designer makes innumerable tradeoffs and imposes countless constraints,” note James Grimmelmann and Paul Ohm.“Every generative technology faces … tradeoffs.  Good system designers always restrict generativity of some kinds in order to encourage generativity of other kinds.  The trick is in striking the balance,” they argue.

And most companies now have stronger incentives to strike a better balance between “open” vs. “closed.” Attempting to completely lock-down digital innovation or “generativity” on any platform these days would be a kiss of death. Netizens have come to expect a fair degree of freedom to tinker with and to configure digital technologies in unique ways. That’s why the general progression of things is increasingly toward more “openness,” even if it’s not the perfect openness that Doctorow and others seem to demand.

In this regard, I find it interesting that Doctorow never mentions Twitter in his essay. After all, it’s a somewhat closed system, and seems to be growing more closed in some ways as it searches for a sustainable business model. And yet Twitter — which Doctorow uses aggressively himself — allows for an amazingly “open” channel of constant, instantaneous human communication. By most accounts, it has been a true “technology of freedom” and helped advance importance causes of various sorts.

Will Twitter’s proprietary API make it easier for the company to eventuate manipulate users, or for governments to co-opt for their own nefarious ends?  That seems to be the horror story the Openness Evangelicals want us to believe when they protest proprietary code or private systems. But such manipulation is much easier said than done. And when it is attempted, it is usually unearthed and made visible to us in fairly short order, which spawns the search for, and use of, alternative systems. People and platforms don’t sit still long. Evolution continues at a breakneck pace in the digital arena.

Moreover, say what you will about “proprietary” or “closed” devices and platforms like Twitter, Facebook, Apple, Microsoft, and others, but the reality is this: Part of the reason they have been able to “scale up” and become major communications platforms in the first place is because they are focused on developing a sustainable business model.  Yes, I know this will be absolutely heresy to some of the Openness Evangelicals (how dare these companies seek to make money!), but the reality is that the reach of many platforms like these is fundamentally tied up with their success as good old fashion capitalist entrepreneurs. By contrast, the perfectly “free” and “open” technologies and platforms that Doctorow clearly favors have not been able to achieve similar scale.  I suppose he would claim that’s because proprietary technologies have crowded-out his favored systems and platforms, or that consumers have been duped into making bad choices.

But this raises a third issue: Just how far should we go to advance Doctorow’s vision and “steer” technology in a better direction? Again, I wholeheartedly applaud Doctorow’s call to programmers to “find or make better tools” and I should make it clear that my strong preference is for many of the same tools that he tends to favor. I bet I hate Apple and Facebook even more than Doctorow, for example. I don’t own a single Apple device and I only have a Facebook account as a cyber-traffic sign to direct people to find me elsewhere online. Meanwhile, I love hacking and cracking my devices until I have tweaked them to death — usually quite literally since I end up “bricking” a lot of my devices. (My Dad is still pretty angry about the Commodore 128 computer that my brother and I hacked and destroyed in the early 1980s!) So, at heart, I’m with Doctorow and the “openness-is-better” crowd.

But these are my personal choices. I don’t attempt to impress my values upon others or suggest that there is only One True Way when it comes to digital technology. And I would never be so arrogant as to suggest that my preferred technologies were the “good” ones and those chosen by the cyber-hoi polloi were “bad,” even if they were more “closed” or “proprietary.”

Which raises my ultimate concern with the mindset of Openness Evangelicals: If one is so wedded to bringing about the results they desire, ironically, it becomes significantly more likely that the “openness” they advocate will inevitably devolve into expanded government control of cyberspace and digital systems. If you run around all day lamenting that proprietary, unregulated systems will — as the Openness Evangelicals fear — become subject to “perfect control” by the private sector (as Lawrence Lessig claimed) or lead to a diminution of cyber-freedom (as Jonathan Zittrain and Tim Wu claim), then you shouldn’t be at all surprised when the code cops come knocking and insisting that they’re just there to help.

In closing, I remain perplexed that Doctorow and the Openness Evangelicals have so little faith in the “open” systems and technologies they trumpet. If such systems really are superior, shouldn’t they win out in the end? Regardless, what separates them from me is that I’m far more willing to allow things to run their course within digital markets, even if that means some “closed” devices and platforms remain or even thrive at times.

Thus, when it comes to “techno-optimism,” the better disposition is technological agnosticism and a real “openness” to technological evolution. Here’s how I summarized it in my recent book chapter:

History counsels patience and humility in the face of radical uncertainty and unprecedented change. More generally, it counsels what we might call “technological agnosticism.” We should avoid declaring “openness” a sacrosanct principle and making everything else subservient to it without regard to cost or consumer desires. As Chris Anderson has noted, “there are many Web triumphalists who still believe that there is only One True Way, and will fight to the death to preserve the open, searchable common platform that the Web represented for most of its first two decades (before Apple and Facebook, to name two, decided that there were Other Ways).” The better position is one based on a general agnosticism regarding the nature of technological platforms and change.  In this view, the spontaneous evolution of markets has value in its own right, and continued experimentation with new models—be they “open” or “closed,” “generative” or “tethered”—should be permitted.

Moreover, the real “techno-optimist” doesn’t express the sort of fear and loathing we see in Doctorow’s essay or the work of other digital doomsayers like Wu, Lessig, or Zittrain. [See my critiques of all their works here.] Instead, the real “techno-optimist” embraces change, uncertainty, experimentation, evolution, and does not automatic reject alternative conceptions of “good” technologies or platforms as determined by others who may not share our own preferences.

On numerous occasions here and elsewhere I have cited the enormous influence that Virginia Postrel’s 1998 book, The Future and Its Enemies, has had on me.  Her “dynamist” versus “stasis” paradigm helps us frame and better understand almost all debates about technological progress. I cannot recommend that book highly enough.

In her latest Wall Street Journal column, Postrel considers what makes the iPad such a “magical” device and in doing so, she takes on the logical set forth in Jonathan Zittrain 2009 book, The Future of the Internet and How to Stop It, although she doesn’t cite the book by name in her column. You will recall that in that book and his subsequent essays, Prof. Zittrain made Steve Jobs and his iPhone out to be the great enemy of digital innovation — at least as Zittrain defined it. How did Zittrain reach this astonishing conclusion and manage to turn Jobs into a pariah and his devices into the supposed enemy of innovation? It came down to “generativity,” Zittrain said, by which he meant technologies or networks that invite or allow tinkering and all sorts of creative uses. Zittrain worships general-purpose personal computers and the traditional “best efforts” Internet. By contrast, he decried “sterile, tethered” digital “appliances” like the iPhone, which he claimed limited generativity and innovation, mostly because of their generally closed architecture.

In her column, Postrel agrees that the iPad is every bit as closed as Zittrain feared iPhone successor devices would be. She notes: “customers haven’t the foggiest idea how the machine works. The iPad is completely opaque. It is a sealed box. You can’t see the circuitry or read the software code. You can’t even change the battery.” But Postrel continues on to explain why the hand-wringing about perfect openness is generally overblown and, indeed, more than a bit elitist:

A closed box offends geeks’ tinkering impulse, which demands swappable components and visible source code. But most of us aren’t looking to hack our own computers. In fact, the very characteristics that empower enthusiasts tend to frustrate and infantilize ordinary users, making them dependent on the occult knowledge of experts. The techies who so often dismiss Apple products as toys take understandable pride in their own knowledge. They go wrong in expecting everyone to share the same expertise.

It also comes down to specialization, she argues:

Even the “maker ethic” of do-it-yourself hobbyists depends on having the right ingredients and tools, from computers, lasers and video cameras to plywood, snaps and glue. Extraordinarily rare even among the most accomplished seamstresses, chefs and carpenters are those who spin their own fibers, thresh their own wheat or trim their own lumber—all once common skills. Rarer still is the Linux hacker who makes his own chips. Who among us can reproduce from scratch every component of a pencil or a pencil skirt? We don’t notice their magic—or the wonder of electricity or eyeglasses, anesthesia or aspirin—only because we’re used to them.

This is similar to the point I was making in my original review of Zittrain’s book when I asked:

Why can’t we all just get along? Isn’t it a sign of progress that we now have different models that appeal to different types of users? After all, those supposedly “sterile” applications like the iPhone and Tivo are loved by millions. Even calling them “sterile” seems a bit silly to me. After all, those devices have “fostered innovation and disruption” just like PCs and the Net have, just in a different way. Regardless, does Jonathan think all those people would really be better off if they were forced to fend for themselves with completely open iPhones and TiVos? Should the iPhone be shipped to market with no apps loaded on the main screen, forcing everyone to get them for on their own? Should TiVos have no interactive menus out-of-the-box, forcing you to go online and find some homebrew that someone whipped up to give you an open source guide in all its blocky ugliness?

And, like Postrel, I stressed that we have nothing to fear from the “mere mortals” who actually prefer “closed” digital “appliances” like the iPhone or iPad. Even if I generally side with Zittrain regarding which devices are best — the more “open” and tinkerable, the better — this should not be the standard for everyone else:

I fear that Jonathan has spent a little too much time in the ivory tower surrounded by countless people like me who are almost part cyborg in that they use so much technology that they are practically at one with their devices. (If I don’t have a laptop in my backpack and a mobile phone in my pocket I start to experience phantom pains, like I am missing appendages). If one finds themselves stuck in an echo chamber with enough of these other cyborg-humans, they can start to fear the consequences of what might happen when the mere mortals start walking in the front door and asking asinine questions about how to boot up their devices or log on to certain websites. But we have nothing to fear from these aliens. They can have their closed systems and we can have our open systems. We can tinker; they can just play with what they are given. We can be highly interactive cyber-goobers; they can be utterly passive couch potatoes. And so on.

Of course, there are many other reasons to question the Zittrain thesis and the other gloomy theories set forth by the group of scholars I have called “Openness Evangelicals.” As I pointed out in my recent book chapter making “The Case for Internet Optimism, Part 2 — Saving the Net from Its Supporters,” despite all the cyber-Chicken Little-ism coming out of the Ivory Tower these days about the supposed death of “openness,” the reality is that things have never been more open, innovative, or “generative” than they are right now.

Additional Reading:

• Review of Zittrain’s “Future of the Internet” (3/23/08)
• Zittrain’s Pessimistic Predictions and Problematic Prescriptions for the Net (7/20/09)
• On Defining Generativity, Openness, and Code Failure (9/9/10)
• The Internet, “Openness” & Commercialization (12/22/10)
• The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters (2/11/11)
• Code, Pessimism, and the Illusion of “Perfect Control” (5/8/09)
• “Cyber-Collectivism,” “Cyber-Progressivism,” or What? (2/14/11)

Twitter could be in for a world of potential pain. Regulatory pain, that is. The company’s announcement on Friday that it would soon be cracking down on the uses of its API by third parties is raising eyebrows in cyberspace and, if recent regulatory history is any indicator, this high-tech innovator could soon face some heat from regulatory advocates and public policy makers. If this thing goes down as I describe it below, it will be one hell of a fight that once again features warring conceptions of “Internet freedom” butting heads over the question of whether Twitter should be forced to share its API with rivals via some sort of “open access” regulatory regime or “API neutrality,” in particular. I’ll explore that possibility in this essay. First, a bit of background.

Understanding Forced Access Regulation

In the field of communications law, the dominant public policy fight of the past 15 years has been the battle over “open access” and “neutrality” regulation. Generally speaking, open access regulations demand that a company share its property (networks, systems, devices, or code) with rivals on terms established by law. Neutrality regulation is a variant of open access regulation, which also requires that systems be used in ways specified by law, but usually without the physical sharing requirements. Both forms of regulation derive from traditional common carriage principles / regulatory regimes. Critics of such regulation, which would most definitely include me, decry the inefficiencies associated with such “forced access” regimes, as we prefer to label them. Forced access regulation also raises certain constitutional issues related to First and Fifth Amendment rights of speech and property.

The Telecommunications Act of 1996 got this ball rolling with its mandated access provisions for local phone service. To make a very long and tortured history much shorter, this was a battle over how far law should go to force local telephone companies to share their phone lines with rivals at regulated rates. (Check this old piece of mine for a flavor of how well that turned out.) The advocates of open access regulation eventually turned their attention to cable systems and tried (but failed) to apply similar sharing / access rules there. Following those fights, which involved many nasty court skirmishes, the Net neutrality wars broke out. Net neutrality is a type of forced access regime for broadband platforms. Although Net neutrality regulation would not necessarily require carriers to share networks with rivals, it would at least require that platform providers play by special access and interconnection rules set by federal regulators.

Forced access provisions have been used in other contexts. We might think of the provisions we saw at work in the Microsoft antitrust case as a form of forced access regulation. Some may also recall the interconnection provisions that governed AOL’s instant messaging service following its merger with Time Warner (discussed more below). There are other examples, but I think you get the point.

New Frontiers for Forced Access Regulation?

All this history is well known to all readers of this blog and followers of communications policy. The reason I repeat it here is because this fight is now spreading to new sectors, platforms, and technologies.

For example, “search neutrality” is one of those new frontiers of the forced access fight. Some academics and regulatory advocates are pushing for rules that would govern how search results are shown or for special requirements on search providers to eliminate supposed “search bias” or to ensure search “fairness” of various sorts. Make sure to read James Grimmelmann’s terrific treatment of the concept from his chapter in TechFreedom’s book, The Next Digital Decade, and then also listen to this podcast featuring Danny Sullivan dissecting the issue.

Some critics also want to treat search engines (and Google in particular) as “essential facilities.” In another essay from The Next Digital Decade, Geoff Manne has done a good job pointing out why that’s such a misguided idea.

Similarly, some folks (such as danah boyd) are already calling for Facebook to be regulated as a public utility or essential facility. I responded in my essay, “Facebook Isn’t a “Utility” & You Certainly Shouldn’t Want it to Be Regulated As Such,” in which I pointed out that Facebook isn’t exactly a “life-essential” service that is gouging customers, who have plenty of other choices in social networking services.

Adverse Possession & API Neutrality for Twitter?

An equally interesting battle is now set to unfold for Twitter following Friday’s announced changes. To get a flavor for what might lie ahead for the company, we might begin by taking a second look at what Harvard University’s Jonathan Zittrain proposed in his 2008 book, The Future of the Internet and How to Stop It. In that book, Zittrain suggested that “API neutrality” might be needed to ensure fair access to certain cyber-services or digital platforms to ensure “generativity” was not imperiled. On pg. 181 of the book, Zittrain argued 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.”

After engaging in some hand-wringing about “walled gardens” and “mediated experiences,” Zittrain went on to ask: “So when 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. 184)

This might be a fine generic principle, but Zittrain implies that this should be a legal standard to which online providers are held. At one point, 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.” But he doesn’t make it clear when it would be triggered as it pertains to digital platforms or APIs.

As I noted in the first of my many reviews of his book, there are many problems with the logic of API neutrality or the application of adverse possession in these contexts. Here’s my critique of the “API neutrality” notion (again, this is from 2008):

First, most developers who offer open APIs aren’t likely to close them later precisely because they don’t want to incur the wrath of “those who built on top of their interface.” But, second, for the sake of argument, let’s say they did want to abandoned previously open APIs and move to some sort of walled garden. So what? Isn’t that called marketplace experimentation? Are we really going to make that illegal? Finally, if they were so foolish as to engage in such games, it might be the best thing that ever happened to the market and consumers since it could encourage more entry and innovation as people seek out more open, pro-generative alternatives. Consider this example: Now that Apple has opened to door to third-party iPhone development a bit with the SDK, does that mean that under Jonathan’s proposed paradigm we should treat the iPhone as the equivalent of commoditized common carriage device? That seems incredibly misguided to me. If Steve Jobs opens the development door just a little bit only to slam it shut a short time later, he will pay dearly for that mistake in the marketplace. For God’s sake, just spend a few minutes over on the Howard Forums or the PPC Geeks forum if you want to get a taste for the insane amount of tinkering going on out there in the mobile world right now on other systems. If Apple tries to roll back the clock, Microsoft and others will be all too happy to take their business by offering a wealth of devices that allow you to tinker to your heart’s content. We should let such experiments continue and let the future of the Internet be determined by market choices, not regulatory choices such as forced API neutrality.

I think the same critique would apply to efforts to impose API neutrality on Twitter. But before going into more detail, we need to first ask another question: Does Twitter possess “market power” such that their actions warrant antitrust or regulatory scrutiny at all?

But Isn’t Twitter a “Monopoly”?

Savvy readers will recall that influential Columbia Law School cyberlaw professor Tim Wu has already labeled Twitter a “monopoly,” although he has not yet bothered telling us what the relevant market is here. As I pointed out in an essay critiquing the way Prof. Wu flippantly assigns the label “monopoly” to just about any big tech provider, it’s very much unclear what to call the market Twitter serves. After all, the service is only a few years old and competes with many other forms of communication and information dissemination. For me, Twitter is a partial substitute for blogging, IMs, email, phone calls, and my RSS feed. Yet, like most others, I continue to use all those other technologies and those technologies continue to pressure Twitter to innovate.

Regardless, Prof. Wu is now in a position to put his ideas into action since he is currently serving a short tenure as special advisor to the Federal Trade Commission (FTC).  Might he act on his instincts, therefore, and advise the agency to take action against Twitter? It is unlikely that Prof Wu will be around the FTC long enough to help them bring any sort of formal action against Twitter, but he could help lay the groundwork for a creative interpretation of our nation’s antitrust laws such that Twitter somehow comes to be labeled a “monopoly” or what he refers to as an “information empire” in his new book The Master Switch. (See my last review of the book here.)

But I think he’d have a very hard time convincing the folks in the FTC’s Economics Bureau that Twitter is really worth worrying about or that it has anything approximating a “monopoly” in this emerging market, whatever that market is. But Wu has the ear of key people in government right now and could be lobbying for more expansive constructions of “information monopoly” since he made it very clear in his book that traditional antitrust analysis was not sufficient for information sectors. “[I]nformation industries… can never be properly understood as ‘normal’ industries,” Wu claimed, and even traditional forms of regulation, including antitrust, “are clearly inadequate for the regulation of information industries,” he says. (p. 303)

The Principle of the Matter

So here’s my take on the issue. Twitter is an amazing innovator. It created the space it now plays in and that market is still so new and unique that we don’t even have a name for it yet. In America, we should – and usually do – celebrate such entrepreneurialism. But sometimes certain Ivory Tower elites, regulatory-minded advocates, paternalistic policymakers, or even disgruntled competitors, claim that such innovators “owe” the rest of us something because they got rich or powerful thanks to that innovation. “Forced access” or “neutrality” mandates becomes a convenient regulatory prescription to achieve that end even though the motivating principle behind such regulation is, essentially, “what’s yours is mine.”

Indeed, from my perspective, the entire notion of forced access to the Twitter API could be dismissed by noting that, technically speaking, Twitter’s API is its private property and they should be free to do as they wish with it. That’s why I’m particularly concerned with Zittrain’s notion that we might consider applying adverse possession principles to any digital platform with enough users; at root, it’s a call to limit or even abolish property rights for digital platforms once they gain popularity or have a large number of users. As noted below, that has extremely dangerous ramifications for digital innovation but, more profoundly in my opinion, it is an unjust and unconstitutional taking of an innovator’s property. Of course, I understand that property rights aren’t exactly in vogue in America anymore and that this isn’t really a satisfying answer from the consumer’s perspective, so let’s continue on and consider a few other reasons why forced access regulation of Twitter via API neutrality would be a mistake.

First, we should not forget that Twitter has yet to find a way to turn its service into a serious revenue-generator. The most obvious reason for that is that Twitter (a) doesn’t charge anything for the service it provides and (b) doesn’t lock down its platform / API such that they might be able to earn a return on their investment by monetizing eyeballs via advertising on their own platform. That’s why Twitter’s announcement on Friday won’t come to a shock to anyone with a whiff of business sense in their heads. At some point, Twitter probably had to do something like this if they wanted to find a way to monetize and grow their business.

I can hear some out there screaming out “but it’s not fair!” as if there was cosmic sense of cyber-justice that has been betrayed because Twitter had the audacity to lock-down their platform. Of course, it is certainly true that some third-party app providers may suffer because of Twitter’s move here.  I’m not going to lie to you; if Twitter’s move to exert greater control over its API somehow destroys the beauty that is the TweetDeck desktop interface, I am going to be screaming mad myself! I do not think there has ever been a slicker, more user-friendly interface for any web service in Internet history than what TweetDeck offers consumers. For my money – which means nothing since TweetDeck is free! – TweetDeck is digital perfection defined. And, incidentally, I’d be happy to pay for it if they asked.

But despite my gushing love for it, let’s be clear about something: TweetDeck has no inherent right to exist. Indeed, TweetDeck owes its very existence to the fact that Twitter offered its API to the world on a completely free, unlicensed, unrestricted basis. The same holds true for all those other third-party platforms that depend upon the Twitter API. What Twitter giveth, Twitter can taketh away.

Stated differently, Twitter has thus far had a voluntary open access policy in place for the first few years of its existence but now wants to partially abandon that policy. This policy reversal will, no doubt, lead to claims that the company is acting like one of 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 it as a “bait-and-switch” and cited back to the provisions of his book that I outlined above. I believe that foreshadows what’s to come: more pressure from the Ivory Tower and then, potentially, from public policy makers that will first encourage and then push to force Twitter to grant access to its platform on terms set by others.  It’s a potential first step toward the forced commoditization of the Twitter API and the involuntary surrender of its property rights to some collective authority who will manage it as a “collective good,” “common carrier,” or “essential facility.”

But Consider This… (on API Neutrality and Disincentives)

Of course, the people at Twitter certain realize how important all those third-party apps and platforms have been to growing the Twitter information empire. Thus, an overly-zealous move to crush third parities by denying them the API or any incidental use of the Twitter name / branding could backfire in two ways: it could lead to a major consumer backlash which in turn spurs the development of alternative platforms and entirely new types of competing services.

Vertical integration might be one way to partially alleviate those problems. Twitter could start cutting deals with existing third-party platforms that rely upon its API such that they were brought under the Twitter corporate umbrella, where more standardization could occur. But Twitter doesn’t have the money to buy them all out. Moreover, Twitter doesn’t want to see dozens of interfaces under its corporate umbrella. For them, this is about “a consistent user experience.” In other words, they’d obviously prefer a more standardized platform / interface that simply got rid of some of those third-party apps and platforms altogether.

As a result, in the short term, I think we’ll likely end up with a market dominated by Twitter’s proprietary platform(s) but with a couple of other leading existing third-party providers being tolerated by the company so as not to rock the boat too much. And that’s not a bad thing. Here’s the key principle to keep in mind: If we apply API neutrality or adverse possession principles forcibly, it sends a horrible signal to entrepreneurs that basically says their platforms are theirs in name only and will be forcibly commoditized once they are popular enough. That’s a horrible disincentive to future innovation and investment. However, it means we must sometimes tolerate short term spells of “market power” when we allow entrepreneurs to realize the benefits of their past innovations and investments if we hope to get more of them in the future.

Avoiding Static Snapshots

But wait, you say, isn’t this all quite horrible for the consumers and competition? Isn’t this just Wu’s “information empire” fear manifesting itself such that antitrust or API neutrality really is required?

Here’s where those warring conceptions of “Internet freedom” come into play. As I’ve noted here many times before in my work on the “conflict of visions” about Internet freedom today, it is during what some might regard as a market’s darkest hour when some of the most exciting disruptive technologies and innovations develop. People don’t sit still; they respond to incentives, including short spells of apparently excessive private power.

By contrast, the “static snapshot” crowd gets so worked up about short term spells of “market power” – which usually don’t represent serious market power at all – that they call for the reordering of markets to suit their tastes.  Sadly, they sometimes do this under the banner of “Internet freedom,” claiming that we can “free” consumers from the supposed tyranny of the marketplace. In reality, that vision wraps markets in chains and ultimately leaves consumers worse off by stifling innovation and inviting in ham-handed regulatory edits and bureaucracies to plan this fast-paced sector of our economy.

“Splitting the Root”

And innovation is possible. Is it really that unthinkable that a Twitter competitor might come along? In a sense, TweetDeck shows the way forward.  TweetDeck has already bucked Twitter’s 140-character limit by offering “Deck.ly,” an exclusive service that allows TweetDeck users to type Twitter messages longer than 140 characters, but which will only be visible via TweetDeck platforms. What if TweetDeck took the next bold step and offered an entirely separate API in direct competition to Twitter? It would be the tweeting equivalent of “splitting the root,” to borrow a concept from the domain name space.

Some would decry the potential lack of interoperability at first. But I bet some sharp folks out there would quickly find work-arounds. Has everyone forgotten the hand-wringing that took place over instant message interoperability just a decade ago (and the resulting restrictions placed on the company following its merger with Time Warner)? Big bad AOL was going to eat everyone’s lunch in the IM space, don’t you remember? But all the hand-wringing about AOL’s looming monopolization of instant messaging seems particularly silly now since anyone can download a free chat client like Digsby or Adium to manage IM services from AOL, Yahoo!, Google, Facebook and just about anyone else, all within a single interface — essentially making it irrelevant which chat service your friends use.

Again, people respond to incentives, and sometimes it takes bone-headed moves by market leaders to really get people off their butts and motivate them to code work-arounds and superior solutions. Is it so hard to imagine that a similar response might follow Twitter’s move this week? After all, we are not talking about replicating a massive physical network of pipes or towers here. We are talking about pure code, for God’s sake! Competition to Twitter is more than possible and it’s likely to come from sources and platforms we cannot currently imagine (just as few of us could have imagined something like Twitter developing just five years ago).

Conclusion

So, Twitter’s move is not an end but rather a new beginning. Personally, I think it could spawn another amazing round of innovation in this space. Again, we must not forget that we are dealing with a space that is still so new that we do not know what to call it. For that reason alone, we should be skeptical of calls for a preemptive regulatory strike. We need to have a little faith in the entrepreneurial spirit and the dynamic nature of markets built upon code, which have the uncanny ability to morph and upend themselves seemingly every few years. In the short term, Twitter will continue to possess a dominant position in whatever we call this market that it serves. But the short term is just that; it’s not the end of the story.

Now excuse me while I get back to Tweeting!

Writing over at Forbes, Bret Swanson notes that the progression of information technology history isn’t going so well for those Net pessimists who, not so long ago, predicted that the sky was set to fall on consumers and that digital innovation was dying. Specifically, Swanson addresses the theories set forth by cyberlaw professors Lessig, Zittrain, and Wu (among others), whose theories about “perfect control,” the death of “generativity,” and the rise of the “master switch,” I have addressed here many time before.  [See this compendium of TLF essays discussing “Problems with the Lessig-Zittrain-Wu Thesis.”] Swanson summarizes what went wrong with their gloomy Chicken Little theories and their predictions of the coming cyber end-times:

As the cloud wars roar, the cyber lawyers simmer. This wasn’t how it was supposed to be. The technology law triad of Harvard’s Lawrence Lessig and Jonathan Zittrain and Columbia’s Tim Wu had a vision. They saw an arts and crafts commune of cyber-togetherness. Homemade Web pages with flashing sirens and tacky text were more authentic. “Generativity” was Zittrain’s watchword, a vague aesthetic whose only definition came from its opposition to the ominous “perfect control” imposed by corporations dictating “code” and throwing the “master switch.” In their straw world of “open” heros and “closed” monsters, AOL’s “walled garden” of the 1990s was the first sign of trouble. Microsoft was an obvious villain. The broadband service providers were  of course dangerous gatekeepers, the iPhone was too sleek and integrated, and now even Facebook threatens their ideal of uncurated chaos. These were just a few of the many companies that were supposed to kill the Internet. The triad’s perfect world would be mostly broke organic farmers and struggling artists. Instead, we got Apple’s beautifully beveled apps and Google’s intergalactic ubiquity. Worst of all, the Web started making money.

Swanson goes on to argue that, despite all the hang-wringing we’re heard from this triumvirate and their many, many disciples in the academic and regulatory activist world, things just keep getting more innovative, more generative, and yes, even more “open.”  As I noted in my book chapter on “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters” as well as my recent Reason magazine essay on “The Rise of Cybercollectivism,” scholars like Lessig, Zittrain, and Wu:

seem trapped in what Virginia Postrel labeled the “stasis mentality” in her 1998 book The Future and Its Enemies. They want an engineered world that promises certain outcomes. They are prone to taking snapshots of market activity and suggesting that those temporary patterns are permanent disasters requiring immediate correction. (Recall Lessig’s fear of AOL, which once had 25 million subscribers who were willing to pay $20 a month to get a guided tour of the Internet, but which ignored the rise of search and social networks at its own peril. It didn’t help that the company’s disastrous merger with Time Warner ended with over $100 billion in shareholders losses and an eventual divorce.) The better approach is what Postrel termed dynamism: “a world of constant creation, discovery, and competition.” Dynamism places heavy stress on the heuristic and believes there is inherent value in an experimental, evolutionary process, no matter how messy it can be in practice.

Moreover, I think these scholars fail to appreciate a point I tried to make in my essay earlier this week on “Techno-Panic Cycles“:

many people overlook the importance of human adaptability and resiliency.  The amazing thing about humans is that we adapt so much better than other creatures. When it comes to technological change, resiliency is hard-wired into our genes.  … We learn how to use the new tools given to us and make them part of our lives and culture.

Just as that is true for social or speech-related technology developments, so too for economic developments. People don’t sit still — consumers, coders, new companies, etc. — they respond to marketplace developments and incentives. They seek out new ways of doing things.  They hack. They crack. They code. They are always looking to build or buy a better mousetrap. And when they find them, they don’t just settle for the state-of-the-art ; they expect everything to be reworked and re-launched constantly with revisions and improvements at every level. For example, the original Verizon Droid 1 that I got just 15 months ago now feels like an antique compared to the latest devices on the market. I am dying to upgrade to a new model, which will give me more processing power, more storage, more high-speed access, more apps, more of everything. I am so pampered by the pace of progress that expect and demand it!

No doubt, the ivory tower worrywarts will continue to grumble about how their techno-cratic philosopher king approach would supposedly make the world even more innovative and consumer-friendly, if only we adopted a healthy dose of top-down planning and centralized direction. But we need to ask ourselves whether their prescription for planning can really beat the track record that is unfolding on a daily basis right before our eyes.

The folks at Reason magazine were kind enough to invite me to submit a review of Tim Wu’s new book, The Master Switch: The Rise and Fall of Information Empires based on my 6-part series on the book that I posted here on the TLF late last year. (Parts 1, 2, 3, 4, 5, 6)  My new essay, which is entitled “The Rise of Cybercollectivism,” has now been posted on the Reason website.

I realize that title will give some readers heartburn, even those who are inclined to agree with me much the time.  After all, “collectivism” is a term that packs some rhetorical punch and leads to quick accusations of red-baiting. I addressed that concern in a Cato Unbound debate with Lawrence Lessig a couple of years ago after he strenuously objected to my use of that term to describe his worldview (and that of Tim Wu, Jonathan Zittrain, and their many colleagues and followers). As I noted then, however, the “collectivism” of which I speak is a more generic type, not the hard-edged Marxist brand of collectivism of modern times. For example, I do not believe that Professors Lessig, Zittrain, or Wu are out to socialize all the information means of production and send us all to digital gulags or anything silly like that. Rather, their “collectivism” is rooted in a more general desire to have–as Declan McCullagh eloquently stated in a critique of Lessig’s Code–rule by “technocratic philosopher kings.” Here’s a passage from my Reason review of Wu’s Master Switch in which I expand upon that notion:

What’s perhaps most troubling about The Master Switch is something it shares with Lessig’s book: a concerted effort to redefine “Internet freedom.” In the Lessig-Zittrain-Wu construction of Internet freedom, technocrats liberate us from the supposed tyranny of the marketplace and what Lessig calls “code failure.” High-tech entrepreneurs are cast as villains; their innovations are viewed as threats to our liberties. When challenged, Wu, Lessig, and Zittrain all vehemently reject the notion that their outlook is pessimistic. They occasionally insist that they are actually libertarians at heart. But a plain reading of Lessig, Zittrain, and Wu provides little cause for optimism. Unless someone or something—usually the state—intervenes, they warn, the Net and all things digital are doomed. “Not only can the government take these steps to reassert its power to regulate, but…it should,” argues Lessig. “Government should push the architecture of the Net to facilitate its regulation, or else it will suffer what can only be described as a loss of sovereignty.”

Wu’s book has a very concrete regulatory vision in this regard (even though, strangely, he insists it really isn’t regulation at all). As I noted in my essay last week following his appointment as a senior advisor to the Federal Trade Commission, Wu wants a so-called “Separations Principle” to govern our modern information economy. It would require that all information providers be segregated into three buckets–creators, distributors, and hardware makers–and then kept strictly compartmentalized. He proposes this in the name of keeping private power in check, which he regards as the primary threat to the information economy, not the government. This is very much in line with the thinking we see in Lessig and Zittrain’s work.  Here’s how I summarize this thinking in my Reason piece:

Wu and other progressives don’t always come right out and say it, but they often suggest that private power, however defined, is so persistently insidious that the only way to counteract it is by greatly amplifying state power. We see that yearning for a stronger state in Wu’s suggestion that “the disposition of firms and industries is, if anything, more critical than the actions of the state in controlling who gets heard” and in his audacious regulatory solutions, which would greatly enhance the government’s power over the information economy.

For these reasons, I believe the “cyber-collectivism” label is appropriate. They want to collectivize (or politicize) decisions that some of us believe are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses and evolving social norms.

At this point, some might ask: Do we need such labels at all? As a philosophy junkie, I think such labels and classifications play a useful didactic role. After all, something quite profound separates these different camps and leads to endless squabbles about nearly every aspect of technology policy. Consequently, my attempt to identify leading schools of thinking about Internet policy issues is not an effort to disparage but, rather, simply an exercise in philosophical classification to help us frame ongoing investigations of these issues in a more rational manner.

I am certainly open to other classification suggestions.”Cyber-progressive” might be one option that packs less of a perceived punch than “cyber-collectivist.” I’ve also used the term “cyber social Democrat” and “openness evangelicals” to describe this movement, although both labels have serious shortcomings.

As for myself, I have made no bones about my affiliation with what might be labeled the “cyber-libertarian” school of thought. Clearly, we’re a small band of brothers, and we are currently being utterly crushed in these intellectual debates by the cyber-progressives, who dominate almost all major university cyberlaw and Internet policy programs. Nonetheless, despite having so few adherents, I still think it is fair to identify cyber-libertarianism as a distinct school of thinking.

I think we’re also seeing the emergence of a clear school of thinking that we’ll eventually label “cyber-conservative,” as Jerry Brito alluded to in his post about “What Cablegate Tells Us about Cyber-Conservatism.” I think the defining characteristics for the cyber-conservative, as with conservatism more generally, can be boiled down to security, stability, moderation, and a healthy respect for tradition.  Conservatives occasionally place a high value on liberty in certain economic contexts, but when it conflicts too violently with those other principles, liberty typically gives way to planning. We see this in debates over many national security matters, some privacy discussions, and certain “faith and family” issues. Interestingly, however, conservative principles have never really taken hold in a unified or coherent way within the realm of technology policy, and it’s difficult to point to many scholars who would clearly fit under the “cyber-conservative” banner.  But I think that is changing today because of rising concerns about state secrets, cyber war, the ubiquity of content considered morally objectionable by many, fears about declining  “social order,” and so on. [See my comments on Rob Atkinson’s Who’s Who in Internet Politics for more discussion about cyber-conservatism.]

Do you have better labels for these philosophical schools of thinking about Internet policy matters? If so, I’m all ears.

Additional Reading:

• Cyber-Libertarianism: The Case for Real Internet Freedom
• The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters
• Thoughts on Wu, Part 5: What Ultimately Separates the Cyber-Libertarian & Cyber-Collectivist
• Cato Unbound debate with Lessig, Part 1: Code, Pessimism, and the Illusion of “Perfect Control” & Part 2: “Our Conflict of Visions.”

This is the second of two essays making “The Case for Internet Optimism.” This essay was included in the book, The Next Digital Decade: Essays on the Future of the Internet (2011), which was edited by Berin Szoka and Adam Marcus of TechFreedom. In my previous essay, which I discussed here yesterday, I examined the first variant of Internet pessimism: “Net Skeptics,” who are pessimistic about the Internet improving the lot of mankind. In this second essay, I take on a very different breed of Net pessimists:  “Net Lovers” who, though they embrace the Net and digital technologies, argue that they are “dying” due to a lack of sufficient care or collective oversight.  In particular, they fear that the “open” Internet and “generative” digital systems are giving way to closed, proprietary systems, typically run by villainous corporations out to erect walled gardens and quash our digital liberties.  Thus, they are pessimistic about the long-term survival of the Internet that we currently know and love.

Leading exponents of this theory include noted cyberlaw scholars Lawrence Lessig, Jonathan Zittrain, and Tim Wu.  I argue that these scholars tend to significantly overstate the severity of this problem (the supposed decline of openness or generativity, that is) and seem to have very little faith in the ability of such systems to win out in a free market. Moreover, there’s nothing wrong with a hybrid world in which some “closed” devices and platforms remain (or even thrive) alongside “open” ones. Importantly, “openness” is a highly subjective term, and a constantly evolving one.  And many “open” systems or devices are as perfectly open as these advocates suggest.

Finally, I argue that it’s likely that the “openness” advocated by these advocates will devolve into expanded government control of cyberspace and digital systems than that unregulated systems will become subject to “perfect control” by the private sector, as they fear.  Indeed, the implicit message in the work of all these hyper-pessimistic critics is that markets must be steered in a more sensible direction by those technocratic philosopher kings (although the details of their blueprint for digital salvation are often scarce).   Thus, I conclude that the dour, depressing “the-Net-is-about-to-die” fear that seems to fuel this worldview is almost completely unfounded and should be rejected before serious damage is done to the evolutionary Internet through misguided government action.

I’ve embedded the entire essay down below in Scribd reader, but it can also be found on TechFreedom’s Next Digital Decade book website and SSRN.

The Case for Internet Optimism Part 2 – Saving the Net From Its Supporters (Adam Thierer) http://d1.scribdassets.com/ScribdViewer.swf

Tim Wu was kind enough to comment on my general overview and critique of his new book, The Master Switch: The Rise and Fall of Information Empires.  That essay will be the first of many I plan to pen about Wu’s important book.  I appreciate Prof. Wu being willing to engage me in a debate over some of these issues since I’m sure he has better things to do with his time. Some of the points he raised in his comment will be addressed in subsequent posts.

In this post, I want to respond briefly to his assertion that I was “missing the point of the book” which is “to describe the world we live in.” He says that his book, “suggests that we tend to go through open and closed cycles in the Information Industries, and that, roughly, both have their strengths and weaknesses, and both become popular at different times for various reasons.”  But he fears there are “greater risks in the closed periods.”

Contrary to what he suggests, I certainly understand that’s the point of his book, it’s just that I don’t fully agree with his analysis or conclusions. Let me be clear about a crucial point, however: I accept that almost every industry goes through “cycles” of some sort and that, typically, after a “Wild West” period of greater “openness” and more atomistic competition, some degree of “consolidation” or more “closed” (or proprietary) models often sets in.  (A somewhat different and far more descriptive interpretation of such cycles can be found in Deborah Spar’s 2001 book, Ruling the Waves: Cycles of Discovery, Chaos, and Wealth from Compass to the Internet. She outlines a more refined 4-part cycle of: Innovation, Commercialization, Creative Anarchy, and Rules.)

My primary beef with Prof. Wu is that, contrary to his assertion yesterday in commenting on my post, his book seems to regard the progression of “the Cycle” as mostly linear and one-directional: straight down toward a perfectly closed, corporate-controlled, anti-consumer Hell.  By my reading of his book – much like Lessig and Zittrain’s work – Wu is painting an overly pessimistic portrait of technologies being subjected to the “perfect control” of largely unfettered markets.

I believe history – especially recent history — teaches us something very different.  While information technology markets certainly go through cycles, they tend to oscillate between open and closed more fluidly than Wu suggests – and that dynamic is accelerating today.  Moreover, during periods which Wu regards as more “closed,” things aren’t always as closed as he suggests.  Or, more importantly, the “closed” models typically spawn more innovation than Wu and others bother acknowledging. It’s during what some regard as a market’s darkest hour when some of the most exciting forms of disruptive technologies and innovation are developing.  Finally, to the extent some markets are completely locked-down for a time, it’s more often than not due to public policies that facilitate that lockdown or the “closing” of systems.

I spent a great deal of time making these points in the second essay I submitted to the recent Concurring Opinions symposium about Jonathan Zittrain’s The Future of the Internet. In my essay, “On Defining Generativity, Openness, and Code Failure,” I argued that what separates our worldviews primarily comes down to the more static (or “stasis”) mindset that Lessig, Zittrain, and Wu adopt in their work.  They take static snapshots of markets at what seems to be their darkest hour and then suggest there’s little chance of escaping that Hell.

Of course, how one defines Hell is important. What Wu does in his book, following the lead set by Lessig and Zittrain, is to “define-down” market failure.  If you regard proprietary business models, property rights, or the success of a small handful of companies as the enemy of “openness” and innovation, then it’s easy to see why you might buy into the notion that market failure is ubiquitous and that “steps must be taken” to correct it.   If, on the other hand, you understand that markets are in a constant state of flux, and that those other variables listed above are not necessarily at odds with openness and innovation, then, like me, you’re more cautious about calling in the Code Cops to steer markets and outcomes in other directions.

But the really important point here is that markets evolve. Moreover, that evolution takes place at a much faster clip in the digital arena than it does in other markets. Innovators don’t sit still. People innovate around “failure.” Indeed, “market failure” is really just the glass-is-half-empty view of a golden opportunity for innovation. Markets evolve. New ideas, innovations, and companies are born.  And things generally change for the better—and do so rapidly.

Consider my two favorite case studies from recent times: the AOL-Time Warner merger and the supposed Microsoft monopoly.

The AOL Case Study

When Lessig penned Code a decade ago, it was AOL that was set to become the corporate enslaver of cyberspace. For a time, it was easy to see why Lessig and others might have been worried.  25 million subscribers were willing to pay $20 per month to get a guided tour of AOL’s walled garden version of the Internet.  Then AOL and Time Warner announced a historic mega-merger that had some predicting the rise of “new totalitarianisms” and corporate “Big Brother.”

But the deal quickly went off the rails. By April 2002, just two years after the deal was struck, AOL-Time Warner had already reported a staggering $54 billion loss. By January 2003, losses had grown to $99 billion. By September 2003, Time Warner decided to drop AOL from its name altogether and the deal continued to slowly unravel from there.  In a 2006 interview with the Wall Street Journal, Time Warner President Jeffrey Bewkes famously declared the death of “synergy” and went so far as to call synergy “bullsh*t”!  In early 2008, Time Warner decided to shed AOL’s dial-up service and then to spin off AOL entirely.  Looking back at the deal, Fortune magazine senior editor at large Allan Sloan called it the “turkey of the decade.” The formal divorce between the two firms took place in 2008. Further deconsolidation followed for Time Warner, which spun off its cable TV unit and various other properties.

(The hysteria about AOL’s looming monopolization of instant messaging—and with it, the rest of the web—seems particularly silly: Today, anyone can download a free chat client like Digsby or Adium to manage multiple IM services from AOL, Yahoo!, Google, Facebook and just about anyone else, all within a single interface, essentially making it irrelevant which chat service your friends use.)

In the larger scheme of things, AOL’s story has already become an afterthought in our chaotic cyber-history. But we shouldn’t let those old critics forget about their lugubrious lamentations.  To recap: the big, bad corporate villain of Lessig’s Code attempted to construct the largest walled garden ever, and partner with a titan of the media sector in doing so—and this dastardly plot failed miserably.

To Wu’s credit, he acknowledges that AOL-Time Warner was “a surprising wreck” and that “AOL was [a] dinosaur limping into the new age” before the mass Internet. (p. 262-3) [Of course, there’s no mention in the book of the dire prognostications some of his academic compatriots made a decade ago about AOL or its deal with Time Warner.]  Surprisingly, however, Wu suggests that what ultimately undermined the deal was Net neutrality! He argues that, in order for the merger to achieve the perfect Hell of a giant corporate walled garden, AOL Time Warner would have needed to “subdue Google, Yahoo! and their many cousins. In short, to be viable, the firm would have needed to overturn the net neutrality principles at the core of the Internet’s design.” (p. 267)

Now, isn’t that interesting since, quite obviously, there have been no Net neutrality laws on the books despite the fact that critics like Wu have been hollering for their supposed need!  In a similar vein, Wu recently told Forbes magazine “If there were no net neutrality, Skype would have already been suppressed.”  Again, there is no formal Net neutrality law in place today, so what Wu is essentially saying is that market norms, not regulatory edicts, ensured that new applications came online and that market power was checked.

Even more interesting is the fact that Wu continues on to essentially make the libertarian case against formal Net neutrality regulation when he argues:

The only entity that has so far really succeeded in such a mission [of overturning the net neutrality principles at the core of the Internet’s design] is the government of mainland China, as we saw in 2010, when it drove an exasperated Google out of its sovereign territory by demanding extensive control over what Google let users find.  Indeed, the feat requires such power and resources as belong uniquely to the state: access to the very choke points of a nation’s communications infrastructure, its Master Switch. AOL Time Warner, however vast, did not have police power—it could not imprison Google’s executives for failing to block Wikipedia or Disney content. (p. 267)

Exactly right; it really does come down to that profound difference between who has coercive police power (the State) and who does not (corporations).  It’s not just a difference of degree but a difference of kind.   So, welcome to libertarian movement, Tim Wu!  I plan on citing that block quote in every paper I write from now on regarding why we don’t need preemptive Net neutrality regulation!

The Microsoft Case Study

I want to also briefly mention the Microsoft case study since it is quite instructive in this regard.

It’s suddenly quite easy to forget just how much hand-wringing took place in the late 1990s and early 2000s over Microsoft’s dominance of the web browser market.  Dour predictions of perpetual Internet Explorer lock-in followed.  For a short time, there was some truth to this.  But, yet again, innovators weren’t just sitting still; exciting things were happening.  In particular, the seeds were being planted for the rise of Firefox and Chrome as robust challengers to IE’s dominance—not to mention mobile browsers.

Of course, it’s true that roughly half of all websurfers still use a version of IE today.  But IE’s share of the market is falling rapidly as viable, impressive alternatives now exist and innovation among these competitors is more vibrant than ever.  That’s all that counts. The world changed, and for the better, despite all the doomsday predictions we heard less than a decade ago about Microsoft’s potential dominance of cyberspace.  Moreover, all the innovation taking place at the browser layer today certainly undercuts the gloomy “death of the Net” or “death of openness” thesis set forth by Zittrain and Wu.

Indeed, as Tim O’Reilly argues, this case study illustrates the power of markets to evolve and “route around” market failure or excessively closed systems even during what appears to be a certain sector’s darkest hour:

Just as Microsoft appeared to have everything locked down in the PC industry, the open Internet restarted the game, away from what everyone thought was the main action. I guarantee that if anyone gets a lock on the mobile Internet, the same thing will happen. We’ll be surprised by the innovation that starts happening somewhere else, out on the free edges. And that free edge will eventually become the new center, because open is where innovation happens. […] it’s far too early to call the open web dead, just because some big media companies are excited about the app ecosystem. I predict that those same big media companies are going to get their clocks cleaned by small innovators, just as they did on the web.

Lessons Learned – Or Ignored?

From these case studies, one would hope that the Openness Evangelicals would have gained a newfound appreciation for the evolutionary and dynamic nature of markets and come to understand that, especially in markets built upon information and digital code, the pace and nature of change is unrelenting and utterly unpredictable.  Indeed, contra Lessig’s lament in Code that “Left to itself, cyberspace will become a perfect tool of control,” cyberspace has proven far more difficult to “control” or regulate than any of us ever imagined.  The volume and pace of technological innovation we have witnessed in information sectors over the past decade has been nothing short of stunning.

Critics like Zittrain and Wu, however, wants to keep beating the cyber-sourpuss drum.  So, the face of corporate evil has to change. Today, Steve Jobs has become the supposed apotheosis of all this closed-system evil instead of AOL.  Jobs serves as a prime villain in the books of Zittrain and Wu and in many of the essays they and other Openness Evangelicals pen. But their enemies list is growing longer.  Today, according to the narratives in Zittrain and Wu’s books, it’s not just one of two corporate titans we need to worry about, but just about every major player in the high-tech ecosystem—telcos, cable companies, wireless operators, entertainment providers, Facebook, and others.

Even Google — Silicon Valley’s supposed savior of Internet openness — is not spared their scorn.  “Google is the Internet’s switch,” Wu argues. “In fact, it’s the world’s most popular Internet switch, and as such, it might even be described as the current custodian of the Master Switch.” More ominously, he warns, “it is the switch that transformed mere communications into networking—that ultimately decides who reached what or whom.” (p. 280)

It seems, then, that the face of “closed” evil is constantly morphing.  But shouldn’t that tell us something about how dynamic these markets are?!  I look forward to reading the next edition of Tim’s book to see who the new villains are and whether he’s drawn any lessons from the constantly changing cast of characters.

Conclusion

In sum, history counsels patience and humility instead of Chicken Little-ism and incessant calls for preemptive regulation to serve some amorphous, politically-defined “public interest.”  More generally, history counsels what we might call “technological agnosticism.” In particular, we should avoid declaring “openness” – especially of the mandated variety — a sacrosanct principle and making everything else subservient to it without regard to cost or consumer desires.  As Wired’s Chris Anderson notes, “there are many Web triumphalists who still believe that there is only One True Way, and will fight to the death to preserve the open, searchable common platform that the Web represented for most of its first two decades (before Apple and Facebook, to name two, decided that there were Other Ways).”  The better position is one based on a general agnosticism regarding the nature of technological platforms and change.  In this view, the spontaneous evolution of markets has value in its own right, and continued experimentation with new models—be they “open” or “closed,” “generative” or “tethered”—should be permitted.

Importantly, one need not believe that the markets are “perfectly competitive” to accept that they are “competitive enough” compared to the alternatives—especially those re-shaped by the sort of regulation Wu and others advocate.  “Market failures” or “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions.  Moreover, the decisive advantage of the market-driven, evolutionary approach lies in the rapidity and nimbleness of those responses compared to regulatory alternatives.

Thus, in closing, Tim Wu’s assertion yesterday that I was “missing the point of the book… [which is] to describe the world we live in,” is based on his belief that he has accurately described our world, its history, and the forces that move it.  As I’ve suggested here, there’s a very different way of looking at things.  In my opinion, Wu’s Master Switch is just too hung up on the static snapshot mindset and a bit too obsessed with the supposed One True Way of doing things.

[ Note: In the next installment, I will address Wu’s mistaken claim that purely free markets have guided America’s communications and media sectors over the past century and his assertion that “the purely economic laissez-faire approach… is no longer feasible.”]

Tim Wu’s new book, The Master Switch: The Rise and Fall of Information Empires, will be released next week and it promises to make quite a splash in cyberlaw circles.  It will almost certainly go down as one of the most important info-tech policy books of 2010 and will probably win the top slot in my next end-of-year list.

Of course, that doesn’t mean I agree with everything in it.  In fact, I disagree vehemently with Wu’s general worldview and recommendations, and even much of his retelling of the history of information sectors and policy.  Nonetheless, for reasons I will discuss in this first of many critiques, the book’s impact will be significant because Wu is a rock star in this academic arena as well as a committed activist in his role as chair of the radical regulatory activist group, Free Press. Through his work at Free Press as well as the New America Foundation, Professor Wu is attempting to craft a plan of action to reshape the Internet and cyberspace.

I stand in opposition to almost everything that Wu and those groups stand for, thus, I will be spending quite a bit of time addressing his perspectives and proposals here in coming months, just as I did when Jonathan Zittrain’s hugely important The Future of the Internet & How to Stop It was released two years ago (my first review is here and my latest critique is here).  In today’s essay, I’ll provide a general overview and foreshadow my critiques to come.  (Note: Tim was kind enough to have his publisher send me an advance uncorrected proof of the book a few months ago, so I’ll be using that version to construct these critiques. Please consult the final version for cited material and page numbers.)

The Master Switch & the Cyber-Collectivist Trilogy of Terror

As I noted in my essay on “Two Schools of Internet Pessimism,” what I find most lamentable about the state of cyberlaw and high-tech policy debates today is the foreboding sense of gloom and doom that haunts so many narratives.  To crack open most Net policy books these days is to step into a world of corporate conspiracies, nefarious industry schemers, closed systems, “kill switches,” squashed consumer rights, and so on.  Let’s face it, Chicken Little doesn’t need an agent; pessimism sells. The world loves a good tale of villainy and misery, and that’s exactly what Columbia Law School professor Tim Wu delivers in his new book, The Master Switch: The Rise and Fall of Information Empires.

Wu’s book is important if for no other reason than he is considered one of the intellectual godfathers of modern cyberlaw and The Master Switch is best understood as the final installment in an important trilogy that began with the publication of Lawrence Lessig’s seminal 1999 book, Code and Other Laws of Cyberspace and then was continued on in Jonathan Zittrain’s much-discussed 2008 book, The Future of the Internet & How to Stop It.

To better understand where Wu wants to take us in The Master Switch, we must first return to the central tenant of Lessig’s Code:  “Left to itself,” Lessig predicted, “cyberspace will become a perfect tool of control.” (pg 5-6)  Code quickly became a sort of cyber-collectivist Bible and today Lessig’s many disciples in academia and a wide variety of public policy regulatory advocacy organizations continue to preach this gloomy gospel of impending digital doom and “perfect control.”  Zittrain and Wu are Lessig’s most notable intellectual descendants; the Peter and Paul of the Church of Cyber-Doom that he founded.  And despite their insistence that they really aren’t all that pessimistic—or, more humorously, that they are actually libertarians in disguise—this crew persists with frightful tales and lugubrious warnings that unless someone or something—quite often, the State—intervenes to set us on a better course or protect those things that they regard as sacred.

Zittrain’s Future of the Internet, for example, brought Lessig’s Code up date by giving us a fresh set of villains.  Gone was Lessig’s old foil AOL and its worrisome walled gardens. Instead, the new face of evil became Apple, Facebook, and TiVo.  Zittrain worries about “sterile and tethered” digital “appliances” that foreclose digital generativity and the rise of “a handful of gated cloud communities whose proprietors control the availability of new code.”

Wu simply extends this narrative in The Master Switch when he ominously warns that there are “forces threatening the Internet as we know it” (p. 7) and then goes on to craft an enemies list that reads like a “Who’s Who” of high-tech corporate America. No one, it seems, can be trusted—at least not if that someone has a “.com” behind their name.  Wu hopes to convince us that history proves that concentrations of private power in information industries are inevitably follow a period of openness and competition.  He refers to this as “The Cycle.” Thus, he trots out the old collectivist saw that freedom is really slavery — slavery to The Man:

If the stories in this book tell us anything… it is that the free market can also lead to situations of reduced freedom. Markets are born free, yet no sooner are they born than some would-be emperor is forging chains.  Paradoxically, it sometimes happens that the only way to preserve freedom is through judicious controls on the exercise of private power.  If we believe in liberty, it must be freedom from both private and public coercion. (p. 310)

This is the heart of Wu’s critique in The Master Switch: The real threat is not Big Brother but Big Corporate Brother. It’s certainly not a new critique. Wu is simply steering the Lessig-ite, cyber-collectivism school of cyberlaw in line with traditional “progressive” perspectives and recommendations.  Indeed, although he and other so-called progressives don’t always come right out and say it, they often suggest that private power – however defined – is so insidious and threatening that greatly amplified State power to counter it becomes essential, even a good.

The cyber-collectivist movement that Lessig began with Code and Zittrain and Wu continue in their books, is fueled by that dour, depressing “the-Net-is-about-to-die” fear. Again and again their message comes down to this: “Enjoy the good old days of the open Internet while you can, because any minute now it will be crushed and closed-off by corporate marauders!”  This crowd want us to believe that the corporate big boys are — someday very soon — going to toss the proverbial “master switch,” suffocating Internet innovation and digital freedom, and making us all cyber-slaves within their commercialized walled gardens.

We might think of this fear as “The Great Closing,” or the notion that, unless radical interventions are pursued — usually of a regulatory nature – a veritable Digital Dark Age of Closed Systems will soon unfold, complete with myriad AOL-like walled gardens, “sterile and tethered devices,” corporate censorship, and consumer gouging. Again, it’s really just a restatement of the old Lessig vision of an unfettered cyberspace leading to “perfect (corporate) control.”  In other words, most information systems, networks and devices will be bottled up by corporate “gatekeepers” if markets aren’t steered in a better direction by wise philosopher-regulators.  And these “Openness Evangelicals,” as I will call them, believe they are the sagacious chosen few who will serve as the self-appointed janissary of the supposed dying order of openness.

My critique of this cyber-collectivist thinking and “Great Closing” thesis was more fully developed in these two essays [1, 2] and will be more robustly developed in a chapter for an upcoming book that will be published shortly.  Much of what I’ll have to say in response to Wu’s new book will be drawn from those essays as well as my two-part exchange [1, 2] with Lessig upon the 10^th anniversary of the publication of Code. Basically, I do not buy – not for one minute – the notion that “the Internet is dying” or that “openness” is evaporating.  The Internet has never been more vibrant or open.  Again, please read those previous essays for my completely response.  I’ll be teasing out some of those themes in future essays here.

More specifically, my response to Wu’s new book comes down to this:

1. Rarely is there any discussion of the nature of the respective forms of “power” or the coercive nature of State power, in particular.  The fact that the State has a monopoly on force in society and, thus, can penalize or even imprison, is either ignored or treated as irrelevant compared to the supposed “power” of private actors.
2. Rarely in their analysis — and never in Wu’s book — is there a serious cost-benefit analysis of the trade-off associated with an aggrandizement of State power in the name of countering the supposed evils of private power.  The solutions offered – to the extent they rise above amorphous calls to “do something” – are presented as cost-free options.
3. There isn’t enough focus on the dangers of “regulatory capture” or the massive inefficiencies associated with the sort of regulatory regimes that progressives and modern cyber-collectivists like Wu would substitute for market mechanisms.

In my next installment, I’ll take on Wu’s critique of the fictional “purely economic laissez-faire approach” he derides – an approach that has never existed in American communications or media markets.  In a forthcoming installment, I’ll also be challenging Tim to a Simon-Ehrlich wager on this front and ask him to put his money where his mouth is to see just how serious he is about his dour worldview and extreme technological pessimism!  So, stay tuned.

[Jump to Part 2 in the series.]

TLF readers will definitely want to check out the online symposium underway over at the Concurring Opinions blog debating the thesis set forth in Jonathan Zittrain’s important 2008 book, The Future of the Internet and How to Stop It. The symposium will feature a terrific cast of thinkers, including: Steven Bellovin, Ryan Calo, Laura DeNardis, James Grimmelmann, Orin Kerr, Lawrence Lessig, Harry Lewis,Daithí Mac Síthigh, Betsy Masiello, Salil Mehra, Quinn Norton, Alejandro Pisanty, Joel Reidenberg, Barbara van Schewick and me!  Regular contributors to the Concurring Opinions blog, such as Frank Pasquale, are also taking part.

Faithful readers will recall that I named Zittrain’s book the most important Internet policy book of 2008 and one of the most important books of the past decade.  It’s impact has already been enormous. But I’ve also been unrelenting in my criticism of the book and Zittrain’s dour forecast for the future of Internet “openness” and digital “generativity.” Down below I have reproduced my contribution to the Concurring Opinions symposium, but I encourage you to hop over there to check out all the essays that are pouring in on this topic.

In his opening essay in this symposium, Jonathan Zittrain ensures us that he is “not exactly a pessimist.” “I recognize, and celebrate,” he says, “the fact that the digital environment of 2010 is the coolest, most interesting, most option-filled it’s ever been.” Terrific! I am glad to hear that because the crux of my repeated critiques of his book, The Future of the Internet, over the past two years has been focused on its unrelenting – and largely unwarranted – pessimism about our possible cyber-futures. Alas, his essay on these pages still displays much of that underlying techno-pessimism and begs me to ask: Will the real Jonathan Zittrain please stand up?

Regardless of whether Zittrain is more optimistic now than when he penned his book two years ago, others are seemingly taking its pessimist message to heart. Indeed, “the Death of the Internet” is a hot meme in the Internet policy world these days. Much as a famous 1966 cover of Time magazine asked “Is God Dead?” Wired magazine, the magazine for the modern digerati, proclaimed in a recent cover story that “The Web is Dead.” And just this past week, The Economist magazine ran a cover story fretting about “The Web’s New Walls,” wondering “how the threats to the Internet’s openness can be averted.” Like Zittrain’s book, the primary fear expressed in both essays was that the wide-open Internet experience of the past decade is giving way to a new regime of corporate control and walled gardens.

Before addressing this concern in more detail, let’s consider the origins of Zittrain’s pessimism. Zittrain’s Future of the Internet, as well as Tim Wu’s soon-to-be-released The Master Switch: The Rise and Fall of Information Empires, might best be understood as the second and third installments in a trilogy that began with the publication of Lawrence Lessig’s seminal 1999 book, Code and Other Laws of Cyberspace.

Lessig’s book gave birth to cyberlaw and the study of Internet policy as we all know and discuss it today. More important, from my perspective, is that Code spawned a bona fide philosophical movement within those circles. Code was both a polemic against both cyber-libertarianism and Internet exceptionalism as well as a sort of call-to-arms for a new Net activist movement. The book gave this movement its central operating principle: Code and cyberspace can be bent to the will of the collective, and it often must be if we are to avoid any number of impending disasters brought on by nefarious-minded (or just plain incompetent) folks in corporate America.

It’s hard to know what to label this school of thinking, and Prof. Lessig has taken offense at my calling it “cyber-collectivism.” But the collectivism of which I speak is a more generic type, not the hard-edged Marxist brand of collectivism of modern times. Instead, it’s the belief that markets, property rights, and private decision-making about the future course of the Net must yield to supposedly more enlightened top-down actors and mechanisms. Their central rallying cry – to the extent it can be boiled down to a single term – is “openness!” “Openness” is almost always treated as The Good; anything that is “closed” (or proprietary) in nature is treated as The Bad.

My primary beef with these “Openness Evangelicals” is not that openness isn’t a fine generic principle around which to organize cyberspace. It’s that (a) I‘m more willing to allow evolutionary dynamism to run its course within digital markets, even if that means some “closed” devices and platforms remain (or even thrive); and, (b) the “openness” they advocate inevitably devolves into expanded government control of cyberspace.

My other problem with this movement, and Zittrain’s book in particular, comes down to that dour, depressing “the-Net-is-about-to-die” fear that seems to fuel this worldview. The message seems to be: “Enjoy the good old days of the open Internet while you can, because any minute now it will be crushed and closed-off by corporate marauders!” The Openness Evangelicals want us to believe that the corporate big boys are — someday very soon — going to toss the proverbial “master switch,” suffocating Internet innovation and digital freedom, and making us all cyber-slaves within their commercialized walled gardens.

We might think of this fear as “The Great Closing,” or the notion that, unless radical interventions are pursued – usually of a regulatory nature – a Digital Dark Age of Closed Systems will soon unfold, complete with myriad AOL-like walled gardens, “sterile and tethered devices,” corporate censorship, and consumer gouging. Again, it’s really just a restatement of the old Lessig view that “Left to itself, cyberspace will become a perfect tool of control.” In other words, most information systems, networks and devices will be bottled up by corporate “gatekeepers” if markets aren’t steered in a better direction by wise philosopher-regulators.

But there are serious problems with “The Great Closing” thesis as set forth in the work of Lessig, Zittrain, and Wu:

1)
There isn’t a clear definition of “open” vs. “closed” systems, and there never will be, and supposedly “closed” networks or “sterile” devices aren’t nearly as closed or sterile as critics claim. Zittrain praises the supposedly more “open” nature of PCs and praises the openness to innovation that Microsoft’s Windows operating system offers in particular, but others have blasted Windows for years as the Great Satan of closed code. Meanwhile, Zittrain makes Steve Jobs and Apple’s iPhone and iPad out to be “sterile,” closed appliances, but the company’s App Store has offered millions of innovators the opportunity to produce almost every conceivable type of mobile application the human mind could imagine. Moreover, those Apple devices don’t block completely “open” communications applications or interfaces, such as web browsers, email and SMS clients, or Twitter. And certainly no one is forced to spend hundreds of dollars on these Apple products. There are many alternatives. It’s never been easier to create or find information or applications on multiple platforms – not just via your PC as Zittrain seems to suggest.

2)
There are powerful counter-incentives that discourage companies from “closing” their systems in ways that would negatively impact consumer welfare. Social and economic influences help ensure the scales won’t be tipped completely in the closed direction. The Web is built on powerful feedback mechanisms and possesses an extraordinary level of transparency in terms of its operations. Moreover, the breaking news cycle for tech developments can be measured in milliseconds. Every boneheaded move is subjected to immediate and intense scrutiny by bloggers, tech press, pundits, gadget sites, etc. Never has the white-hot spotlight of public attention been so intense in terms of helping to shine light on corporate missteps. Reputation is perhaps the greatest asset possessed by any tech company, and they work hard to safeguard it.

3)
Most evidence suggests everything is getting increasingly “open” all the time regardless of what any corporation might want. Most corporate attempts to bottle up information or close-off their systems end badly. The walled gardens of the past failed miserably, for example. In critiquing Zittrain’s book, Ann Bartow has noted that “if Zittrain is correct that CompuServe and AOL exemplify the evils of tethering, it’s pretty clear the market punished those entities pretty harshly without Internet governance-style interventions.” Indeed, let’s not forget that AOL was the big, bad corporate boogeyman of Lessig’s Code and yet, just a decade later, it has been relegated to an also-ran. (Has everyone forgotten the hysteria over AOL-Time Warner merger? Or the fear that AOL would dominate the Instant Messaging world? Someone will need to remind AOL-TW shareholders, who lost hundreds of billions on the deal, what all the fuss was about.) There are few reasons to believe that modern efforts to impose “corporate control” or create walled gardens will end any differently.

4)
The critics greatly overstate the case regarding the supposed evils of closed systems, anyway. They fail to appreciate how there was a need/demand for some closed or “sterile” devices. Why shouldn’t people who want a simpler or more secure digital experience have such options? Zittrain seems to fear that the devices of the hoi polloi will drive out those favored by tinker-happy tech geeks (of which I count myself a proud member). But we need not fear such foreclosure for the reasons I discuss next.

5)
Innovation continues rapidly in both directions along the “open” vs. “closed” continuum. The presence of “closed” systems or devices on the market doesn’t mean innovation has been foreclosed among more “open” systems or platforms. In other words, a hybrid future is both desirable and possible. We can have the best of both worlds: a world full of some closed systems or even “tethered appliances,” but also plenty of generativity and openness. Think iPhone vs. Android vs. Windows Mobile vs. the many other mobile operating systems. Some are more closed, others are quite open. Zittrain says Android, which is open source, is “a sort of canary in the coal mine” but ignores the fact that it is growing at a frantic pace, now accounting for one-quarter of mobile web traffic just three years after its inception. Not only does he ignore that fact, but Zittrain then reverts to the “kill switch” boogeyman and warns us that any day now Google could change its mind, close the platform, and “kill an app, or the entire phone” remotely. But where’s the business sense in that? What’s the incentive for companies to pursue such a diabolical course of action? Is Google going to start making all those millions of apps on their own which independents developers produce today? It seems unlikely and unpopular, and can you imagine the lawsuits that would fly if they did try it! Meanwhile, how many times has Apple thrown the dreaded “kill switch” on apps? There are tens of millions of apps in the App Store and hundreds of billions of downloads. If Steve Jobs is supposed to be the great villain of independent innovation, he seems to be doing a pretty bad job at it! Again, today’s supposed “walled gardens” are less “walled” than ever before.

6) And oh, by the way… the old Internet that Zittrain and others like to wax nostalgic about was never quite as open and generative as they suggest. Let’s face it, the good ol’ days weren’t really so glorious. Seriously, were you online back in 1994? Did you enjoy Trumpet Winsock, noisy 14.4 baud modems, and narrowband dial-up? Did you like loading up multiple 5 ¼ floppy disks to get an OS running so that you could even use your machine? Yeah, me neither.

But here’s the other forgotten factor: Until the Net was commercialized during that period, it had been an extremely closed system. As Geert Lovink reminds us, “The first decades the Internet was a closed world, only accessible to (Western) academics and the U.S. military. In order to access the Internet one had to be an academic computer scientist or a physicist. Until the early nineties it was not possible for ordinary citizens, artists, business or activists, in the USA or elsewhere, to obtain an email address and make use of the rudimentary UNIX-based applications. [..] It was a network of networks — but still a closed one.” Moreover, it was only because Lessig and Zittrain’s much-dreaded AOL and CompuServe came along that many folks were even able to experience and enjoy this strange new place called cyber-space. “The fact that millions of Americans for the first time experienced the Internet through services like AOL (and continue to do so) is a reality that Zittrain simply overlooks,” notes Lovink. Could it be that those glorious “good ol’ days” Zittrain longs for were really due to the way closed “walled gardens” like AOL and CompuServe held our hands to some extent and gave many folks (not me!) a guided tour of cyberspace? Regardless, we need not revisit that ancient history. Again, those walled gardens came crumbling down.

7) Finally, there’s remarkably little said about possible solutions or an acknowledgment that alternative approaches can have costs or entail significant trade-offs. At the end of the day, when you peel away all the techno-talk and worry-wart hand-wringing, what Zittrain doesn’t seem to like is that some people are making choices that he doesn’t approve of. To be generous, perhaps it’s because he feels that they don’t fully understand the supposed dangers of the choices they are making. But what, exactly, is it that Zittrain wants done, and who or what should make it happen? Remarkably, he doesn’t offer many specifics in his book or in his essay. Should consumers be discouraged from purchasing iPads, video game consoles, or TiVos because they are “too closed”? Or should the creators of such gadgets be forced to “open them up,” even if it means that might discourage their development in the first place? Zittrain really never makes it clear, although he hints that once developers do open their previously closed systems a bit, they should not be allowed to close them back up. But wouldn’t that discourage the developer from opening things up more in the first place? Again, no answer from him.

Regardless, to reiterate and close, my contention here and elsewhere has been: (a) that things just aren’t as bad as Zittrain makes them out to be; (b) that the evolutionary “open vs. closed” process itself has value; and, (c) who is he to say those choices are irrational or that this spontaneous, experimental process should be interrupted? If some mere mortals choose more “closed” devices or platforms, then so what? It isn’t the end of the world. Again, those devices or platforms aren’t really as closed as he suggests – in fact, they are far more open in some ways than the earlier technologies and platforms he glorifies. In sum: We can have the best of both worlds — a world full of plenty of “tethered” appliances, but also plenty of generativity and openness. We need not make a choice between the two, and we certainly shouldn’t be demanding someone else make it for us.

One final point that didn’t really fit anywhere above.. Zittrain worries about “The famously ungovernable Internet suddenly becom[ing] much more governable, an outcome most libertarian types would be concerned about.” He’s referring to a concern addressed in more detail in his book (and Lessig’s Code) that the Net could become more “regulable” because of changes in code and architecture over time. To the extent this is a problem at all – and I have my doubts for the reasons noted above – this is a problem we should handle by putting more constraints on our government(s), not by imposing more regulations on code or coders. Consider privacy and data collection concerns. While, as a general principle, I think it wise for companies to minimize the amount of data they collect about consumers or websurfers, we need not, and ought not, force that by law, given the huge benefits of data collection and use for innovation and, yes, the openness if the Internet ecosystem! We should certainly hold companies to high standards when it comes to data security and breach (including by FTC enforcement). But, again, the way to deal with the “regulability” threat that Lessig and Zittrain raise is to tightly limit the powers of government to access private information through intermediaries in the first place.

[I am currently helping Berin Szoka edit a collection of essays from various Internet policy scholars for a new PFF book called “The Next Digital Decade: Essays about the Internet’s Future.”  I plan on including two chapters of my own in the book responding to the two distinct flavors of Internet pessimism that I increasingly find are dominating discussions about Internet policy. Below you will see how the first of these two chapters begins. I welcome input as I refine this draft. ]

Surveying the prevailing mood surrounding cyberlaw and Internet policy circa 2010, one is struck by the overwhelming sense of pessimism about our long-term prospects for a better future.   “Internet pessimism,” however, comes in two very distinct flavors:

1. Net Skeptics, Pessimistic about the Internet Improving the Lot of Mankind: The first variant of Internet pessimism is rooted in general skepticism regarding the supposed benefits of cyberspace, digital technologies, and information abundance. The proponents of this pessimistic view often wax nostalgic about some supposed “good ‘ol days” when life was much better (although they can’t seem to agree when those were). At a minimum, they want us to slow down and think twice about life in the Information Age and how it is personally affecting each of us.  Other times, however, their pessimism borders on neo-Ludditism, with proponents recommending steps be taken to curtail what they feel is the destructive impact of the Net or digital technologies on culture or the economy. Leading proponents of this variant of Internet pessimism include:  Neil Postman (Technopoly: The Surrender of Culture to Technology), Andrew Keen, (The Cult of the Amateur: How Today’s Internet is Killing our Culture), Lee Siegel, (Against the Machine: Being Human in the Age of the Electronic Mob), Mark Helprin, (Digital Barbarism) and, to a lesser degree, Jaron Lanier (You Are Not a Gadget) and Nicholas Carr (The Big Switch and The Shallows).
2. Net Lovers, Pessimistic about the Future of Openness: A different type of Internet pessimism is on display in the work of many leading cyberlaw scholars today.  Noted academics such as Lawrence Lessig, (Code and Other Laws of Cyberspace), Jonathan Zittrain (The Future of the Internet & How to Stop It), and Tim Wu (The Master Switch The Rise and Fall of Information Empires), embrace the Internet and digital technologies, but argue that they are “dying” due to a lack of sufficient care or collective oversight.  In particular, they fear that the “open” Internet and “generative” digital systems are giving way to closed, proprietary systems, typically run by villainous corporations out to erect walled gardens and quash our digital liberties.  Thus, they are pessimistic about the long-term survival of the wondrous Internet that we currently know and love.

Despite their different concerns, two things unite these two schools of techno-pessimism.  First, there is an elitist air to their pronouncements; a veritable “the-rest-of-you-just-don’t-get-it” attitude pervades their work.  In the case of the Net Skeptics, it’s the supposed decline of culture, tradition, and economy that the rest of us are supposedly blind to, but which they see perfectly—and know how to rectify.  For the Net Loving Pessimists, by contrast, we see this attitude on display when they imply that a Digital Dark Age of Closed Systems is unfolding since nefarious schemers in high-tech corporate America are out to suffocate Internet innovation and digital freedom more generally.  The Net Loving Pessimists apparently see this plot unfolding, but paint the rest of us out to be robotic sheep being led to the cyber-slaughter since we are unwittingly using services (AOL in the old days; Facebook today) or devices (the iPhone and iPad) that play right into the hands of those corporate schemers who are out to erect high and tight walled gardens all around us.

Unsurprisingly, this elitist attitude leads to the second thing uniting these two variants of Net pessimism: An underlying belief that someone or something—most often, the State—must intervene to set us on a better course or protect those things that they regard as sacred.  They either fancy themselves as the philosopher kings who can set things back on a better course, or they imagine that such creatures exist in government today and can be tapped to save us from our impending digital doom—whatever it may be.

In both cases, I will argue that today’s Internet pessimists have over-stated the severity of the respective problems they have identified.  In doing so, I will argue that they both have failed to appreciate the benefits of evolutionary dynamism.  I borrow the term dynamism from Virginia Postrel, who contrasted the conflicting worldviews of dynamism and stasis so eloquently in her 1998 masterpiece, The Future and Its Enemies.  Postrel argued that:

The future we face at the dawn of the twenty-first century is, like all futures left to themselves, “emergent, complex messiness.” Its “messiness” lies not in disorder, but in an order that is unpredictable, spontaneous, and ever shifting, a pattern created by millions of uncoordinated, independent decisions.

However, because “these actions shape a future no one can see, a future that is dynamic and inherently unstable,” Postrel noted.  But that inherent instability and the uncomfortable realization that the future is, by its very nature, unknowable, leads to exactly the sort of anxieties we see on display in the works of both varieties of Internet pessimists today.  Postrel contrasts the two visions of stasis and dynamism and makes the case for embracing dynamism as follows:

How we feel about the evolving future tells us who we are as individuals and as a civilization: Do we search for stasis—a regulated, engineered world? Or do we embrace dynamism—a world of constant creation, discovery, and competition? Do we value stability and control, or evolution and learning? Do we declare with [Tim] Appelo that “we’re scared of the future” and join [Judith ] Adams in decrying technology as “a killing thing”? Or do we see technology as an expression of human creativity and the future as inviting? Do we think that progress requires a central blueprint, or do we see it as a decentralized, evolutionary process? Do we consider mistakes permanent disasters, or the correctable by-products of experimentation? Do we crave predictability, or relish surprise?  These two poles, stasis and dynamism, increasingly define our political, intellectual, and cultural landscape. The central question of our time is what to do about the future.  And that question creates a deep divide.

Indeed it does, and that divide is growing deeper as the two schools of Internet pessimism—unwittingly, of course—work together to concoct a lugubrious narrative of impending techno-apocalypse.  It makes little difference whether the two schools agree on the root cause(s) of all our problems; in the end, it’s their unified call for a more “regulated, engineered world” that makes them both suffer from the same stasis sickness.

In this chapter, I will take on the first variant of Internet pessimism (the Net Skeptics) and make the dynamist case for what I call “pragmatic optimism.”  I will argue that the Internet and digital technologies are reshaping our culture, economy and society in most ways for the better, but not without some serious heartburn along the way.  My bottom line comes down to a simple cost-benefit analysis: Were we really better off in the scarcity era when we were collectively suffering from information poverty? Generally speaking, I’ll take information overload over information poverty any day.  But we should not underestimate or belittle the disruptive impacts associated with the Information Revolution.  We need to find ways to better cope with those changes in a dynamist fashion instead of embracing the stasis notion that we can roll back the clock on progress and recapture “the good ‘ol days”—which actually weren’t all that good.

In another chapter in the book, I will address the second variant of Internet pessimism (the Net Loving Pessimists) and show how reports of the Internet’s death have been greatly exaggerated.  Although the Net Loving Pessimists will likely recoil at the suggestion that they are not dynamists, the reality is that their attitudes and recommendations are decided stasisist in nature. They fret about a cyber-future in which the Internet might not as closely resemble its opening epoch.  Worse yet, many of them agree with what Lawrence Lessig said in his seminal—by highly pessimistic—1999 book, Code and Other Laws of Cyberspace, that “Left to itself, cyberspace will become a perfect tool of control.”  Lessig and his intellectual disciples—especially Zittrain and Wu—have continued to forecast a gloomy digital future unless something is done to address the Great Digital Closing we are supposedly experiencing.  I will argue that while many of us share their appreciation of the Internet’s current nature and its early history, their embrace of the stasis mentality is unfortunate since it forecloses the spontaneous evolution of cyberspace and invites government intervention to create a more “regulated, engineered world” that will, ironically, undermine much of what they hope to preserve about the current Internet.

[ I’ll then go on to finish this chapter, basically by finally completing my essay, “ Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society.” In the second chapter addressing the pessimism of the “Net Lovers,” I will build on my review of Zittrain’s “Future of the Internet,” my two–part debate with Lawrence Lessig on the occasion of the 10th anniversary of “ Code and Other Laws of Cyberspace,” and my forthcoming review of Tim Wu’s soon-to-be-released book, “The Master Switch The Rise and Fall of Information Empires.”  I will then eagerly await the hate mail from all the affected parties.]

Faithful readers know of my geeky love for tech policy books. I read lots of ’em. There’s a steady stream of Amazon.com boxes that piles up on my doorstop some days because my mailman can’t fit them all in my mailbox.  But I go pretty hard on all the books I review. It’s rare for me pen a glowing review. Occasionally, however, a book will come along that I think is both worthy of your time and which demands a place on your bookshelf because it is such an indispensable resource.  Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace is one of those books.

Smartly organized and edited by Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain, Access Controlled is essential reading for anyone studying the methods governments are using globally to stifle online expression and dissent. As I noted of their previous edition, Access Denied: The Practice and Policy of Global Internet Filtering, there is simply no other resource out there like this; it should be required reading in every cyberlaw or information policy program.

The book, which is a project of the OpenNet Initiative (ONI), is divided into two parts. Part 1 of the book includes six chapters on “Theory and Analysis.”  They are terrifically informative essays, and the editors have made them all available online here (I’ve listed them down below with links embedded). The beefy second part of the book provides a whopping 480 pages(!) of detailed regional and country-by-country overviews of the global state of online speech controls and discuss the long-term ramifications of increasing government meddling with online networks.

In their interesting chapter on “Control and Subversion in Russian Cyberspace,” Deibert and Rohozinski create a useful taxonomy to illustrate the three general types of speech and information controls that states are deploying today. What I find most interesting is how, throughout the book, various authors document the increasing movement away from “first generation controls,” which are epitomized by “Great Firewall of China”-like filtering methods, and toward second- and third-generation controls, which are more refined and difficult to monitor. Here’s how Deibert and Rohozinski define those three classes (or “generations”) of controls:

• First-generation controls focus on denying access to specific Internet resources by directly blocking access to servers, domains, keywords, and IP addresses. This type of filtering is typically achieved by the use of specialized software or by implementing instructions manually into routers at key Internet choke points. First-generation filtering is found throughout the world, in particular among authoritarian countries, and is the phenomenon targeted for monitoring by the ONI’s methodology. In some countries, compliance with first-generation filtering is checked manually by security forces, who physically police cybercafes and ISPs. (p. 22)
• Second-generation controls aim to create a legal and normative environment and technical capabilities that enable state actors to deny access to information resources as and when needed, while reducing the possibility of blowback or discovery. Second-generation controls have an overt and a covert track. The overt track aims to legalize content controls by specifying the conditions under which access can be denied. Instruments here include the doctrine of information security as well as the application of existent laws, such as slander and defamation, to the online environment. The covert track establishes procedures and technical capabilities that allow content controls to be applied ‘‘just in time,’’ when the information being targeted has the highest value (e.g., during elections or public demonstrations), and to be applied in ways that assure plausible deniability. (p. 24)
• Unlike the first two generations of content controls, third-generation controls take a highly sophisticated, multidimensional approach to enhancing state control over national cyberspace and building capabilities for competing in informational space with potential adversaries and competitors. The key characteristic of third-generation controls is that the focus is less on denying access than successfully competing with potential threats through effective counter-information campaigns that overwhelm, discredit, or demoralize opponents. Third-generation controls also focus on the active use of surveillance and data mining as means to confuse and entrap opponents. (p. 27)

Again, the country-by-country discussions contained in Part 2 of the book document how several nations are moving toward those more sophisticated second- and third-generation information control efforts, although it appears that CIS states are on the cutting edge so far. As Deibert and Rohozinski note in their opening overview chapter: “the center of gravity of practices aimed at managing cyberspace has shifted subtly from policies and practices aimed at denying access to content to methods that seek to normalize control and the exercise of power in cyberspace through a variety of means.” (p. 6)  They also note that, just in the short time since their previous volume was published (in 2008):

a sea change has occurred in the policies and practices of Internet controls. States no longer fear pariah status by openly declaring their intent to regulate and control cyberspace. The convenient rubric of terrorism, child pornography, and cyber-security has contributed to a growing expectation that states should enforce order in cyberspace, including policing unwanted content. (p. 4)

I don’t agree with all the conclusions in the book, of course. In particular, I don’t share the somewhat lugubrious outlook most of the contributors seem to hold toward the long-term prospects for “technologies of freedom” relative to “technologies of control.” I think it’s vital to put things in some historical context in this regard. It’s important to recall that, as a communications medium, the Net is still quite young.  So, is the Net really more susceptible to State control and manipulation than previous communications technologies and platforms?  I’m not so sure, although it’s hard to find a metric to compare them in an analytically rigorous fashion. However, I’m still quite bullish on the prospect for the “technologies of freedom” that are already out there (and those yet to be developed) to help people evade many of the technologies of control being utilized by States across the globe today.

The contributors in Access Controlled don’t really come to any definitive conclusion on this issue, but some of them seem to imply that the Net is more easily manipulated than past technologies. For example, in Chapter 3, Hal Roberts and John Palfrey speak of the Internet as “surveillance-ready technology.” (p. 35).  It’s certainly true that the State has access to more data about its citizens than in the past, but it’s also true that we have more information about the State than ever before, too!  And, again, we also have access to more of those “technologies of freedom” than ever before to at least try to fight back. Compare, for example, the plight of a dissident in a Cold War-era Eastern Bloc communist state to a dissident in China or Iran today. Which one had a better chance of getting their words (or audio and video) out to the local or global community?  But let me be clear about something: I am not one of those quixotic utopians who thinks that the whole world is going to magically become more democratic and free overnight because of the existence of blogs, mobile phones, wireless networks, SMS, Twitter, YouTube, encryption, proxy servers, etc.  Nonetheless, aren’t we citizens of the modern world at least a little better off for having such technologies at our potential disposal?

Moreover, what about the scale and volume problem that would-be censors increasingly face?  Again, let’s remember how young the Net is and how many people aren’t using it aggressively (or at all) yet. The challenge of bottling-up information — or even tracking / monitoring it — is going to grow exponentially more difficult as more people get online, networks expand, digital technologies fall in cost and grow more ubiquitous, and the overall volume of data flows continues to expand.  What sort of armies of censors and surveillance officers are going to be needed going forward to keep up with this pace of change?  Ethan Zuckerman’s chapter on “Intermediary Censorship” in Access Controlled discusses one answer that many nation-states are turning to in an effort to solve that problem: Make the middleman do it. Deputizing the middleman has been used in many contexts before, of course, but the problem for the State is that (a) the middlemen typically resent doing that sort of censoring / surveillance and (b) it is only going to grow more costly and convoluted for those middlemen to carry out the will of the State as the scale and volume problems identified above manifest themselves.

Of course, one could argue that the censoring & surveillance technologies are going to continue to grow more robust, too, and that the middlemen will always fall in line with the State’s desires if the penalties for non-compliance are steep enough.  But I can’t believe that’s how it will play out over the long haul.  At some point, something’s got to give. The technological arms race between the State and its citizens will continue to escalate, but I remain optimistic that we will live not in an “access controlled” world, but more like a “access-sorta-controlled-but-with-lots-of-holes-in-it” kind of world.

Anyway, these are not major reservations that should keep you from reading Access Controlled. Indeed, it may have been for the best that the editors and contributors chose not to go down this line of inquiry since it would have made a long book even longer and forced the contributors to divert from their generally objective positions.

I have only two other little nitpicks with the Access Controlled. First, I do not understand why the editors decided to dump the excellent old chapter from Access Denied on “Tools and Technologies of Net Filtering,” which contained some very useful schematics explaining how technologies of control work. [You can see what I mean here.]  I used to recommend that chapter to students and journalists all the time as the first stop in their investigation of online censorship issues. I hope the editors decide to update that chapter and include it in the next version of the book.  Second, I was quite surprised there wasn’t more discussion of HerdictWeb in the book. Herdict, which I have praised here in the past, “seeks to present a real-time picture of Web site accessibility and inaccessibility… by crowdsourcing data from individuals around the world.”  I think I only saw one mention of Herdict in Access Controlled.  I thought it would figure more prominently in this version of the book.

Those small quibbles aside, I want to congratulate all the editors and contributors to the marvelous volume.  Access Controlled is an indispensable resource that I can wholeheartedly endorse as a “must-have” for your info-tech policy bookshelf.  Buy it now.

Chapter 1

• Beyond Denial: Introducing Next Generation Information Access Controls Ron Deibert and Rafal Rohozinski

Chapter 2

• Control and Subversion in Russian Cyberspace Ron Deibert and Rafal Rohozinski

Chapter 3

• The EU Data Retention Directive in an Era of Internet Surveillance Hal Roberts and John Palfrey

Chapter 4

• Barriers to cooperation: An analysis of the origins of international efforts to protect children online Nart Villeneuve

Chapter 5

• Intermediary Censorship Ethan Zuckerman

Chapter 6

• Protecting Privacy and Expression Online: Can the Global Network Initiative embrace the character of the Net? Colin Maclay

Since Jonathan Zittrain’s ideas about the “generativity” have permeated the intellectual climate of technology policy almost as thoroughly as those of Larry Lessig, scarcely a month passes without a new Chicken Little shouting about how the digital sky is falling in a major publication. The NYT has had not one, but two such articles in the course of a week: first, Brad Stone’s piece about Google, Sure, It’s Big. But Is That Bad? (his answer? an unequivocal yes! as I noted), followed by Virginia Heffernan’s piece “The Death of the Open Web,” which bemoans the growing popularity of smart phone apps—which she analogizes to “white flight” (a stretched analogy that, I suppose, would make Steve Jobs the digital Bull Connor).

What really ticks me off about these arguments (besides the fact that Apple critics like Zittrain use iPhones themselves without a hint of bourgeois irony) is Heffernan’s suggestion that, “By choosing machines that come to life only when tricked out with apps from the App Store, users of Apple’s radical mobile devices increasingly commit themselves to a more remote and inevitably antagonistic relationship with the Web.” To hear people like Heffernan (and others who have complained about Apple’s policies for its app store) talk, you might think that modern smart phones don’t come with a web browser at all, or that browser software is next to useless, so the fact that browsers can access any content on the web (subject to certain specific technical limitations, such as sites that use Flash) is irrelevant, and users are simply at the mercy of the “gatekeepers” that control access to app stores.

In fact, the iPhone and Android mobile browsers are amazingly agile, generally rendering pages originally designed for desktop reading in a way that makes them very easy to read on the phone—such as by wrapping text into a single column maximized to fit either the landscape or portrait view of the phone, depending on which way it’s pointed.  In fact, I do most of my news reading on my Droid, and using its browser rather than through any app—although there are a few good news apps to choose from. In fact, I probably spend about 10 times as much time using my phone’s browser as I spend using all other 3rd party apps (i.e., not counting the phone, e-mail, calendar, camera and map “native” apps). So I can get any content I want using the phone’s browser, I certainly don’t lose any sleep at night over what I can or can’t do in apps I get through the app store. I’d love to see actual statistics on the percent of time that smartphone users spend using their mobile browser, as compared to third-party apps. Do they exist?

But however high that percentage might be, the important thing is that the smartphone browser offers an uncontrolled tool for accessing content, even if apps on that mobile OS do not. And even some of the technical limitations of the browser are being solved, with Android recently announcing that flash is coming soon to Android phones. Yes, Apple may be more reluctant, but then there’s the fact that I just don’t have to use an iPhone. If there was ever a moment when the iPhone held a virtual monopoly on a certain level of functionality in a smart phone, that moment faded quickly with the rise of Android, and will fade even further with the launch of Microsoft’s Windows Mobile 7.

I bought an Android phone in part because I wanted more control over my device. Google leaves its apps store as a nearly (but not entirely) unregulated “wild West,” and if I wanted something that wasn’t available in the official Android marketplace, I can always change the default setting on my phone to allow me to install apps from anywhere on the Internet. Indeed, porn-lovers can install their own porn-app marketplace (MiKandi) to access adult apps that wouldn’t be allowed in the Android marketplace.

Anyway, all this baseless kvetching about the future of the “Open Web” offers a “target-rich environment” to those of us who haven’t drunk the Zittrain Kool-Aid.  Oh, and in case you wondered (as I did) where that wonderful phrase, popularized by the ever-serious Donald Rumsfeld, came from, you can Google that on your mobile device of choice, and find this oh-so-Open-Web-worthy quote on IMDB from the classic 1986 film Top Gun, when our two intrepid heroes walk into a bar:

Maverick: This is what I call a target-rich environment. Goose: You live your life between your legs, Mav. Maverick: Goose, even you could get laid in a place like this. Goose: Hell, I’d be happy to just find a girl that would talk dirty to me.

Faithful readers know of my geeky love of tech policy books [here are my “best of” lists for 2008 & 2009], and the intriguing battle taking place today between Internet optimists and pessimists in particular.  One of the things that I noticed when I was putting together my compendium, “The Digital Decade’s Definitive Reading List: Internet & Info-Tech Policy Books of the 2000s,” is that there are up years and down years. For example, there weren’t a lot of big tech policy titles in 2000 or 2005. By contrast, 2001, 2006 and 2008 were monster years.  I suppose that’s the case with any genre, of course.

Anyway, I was beginning to think that 2010 was shaping up to be one of those slow years, with Jaron Lanier’s You Are Not a Gadget being the only major release so far this year. [See my review of it here.] But there are some very important titles on the way that are worth picking up. I’ve already pre-ordered most of these and am looking forward to reviewing them all soon:

• Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski and Jonathan Zittrain (eds.) – Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace (now out)
• Nick Carr – The Shallows: What the Internet Is Doing to Our Brains (June)
• Clay Shirky – Cognitive Surplus: Creativity and Generosity in a Connected Age (June)
• Tim Wu – The Master Switch: The Rise and Fall of Information Empires (November)
• Siva Vaidhyanathan, The Googlization of Everything
• Evgeny Morozov — How Dictators Learned to Stop Worrying and Love the Web

Please let me know others that I may be missing. [Note: Most of the books I’ve been reading this year have more to do with the future of media, the press, journalism, etc. It’s been a big year for books like that. For example, McChesney & Nichols’ The Death and Life of American Journalism; Lee Bollinger’s Uninhibited, Robust, and Wide-Open: A Free Press for a New Century; and Bob Garfield’s The Chaos Scenario. But it’s not clear any of these books belong in the “info-tech policy” genre, although they all have something to say about the impact of the Internet and digital technology on the media and journalism. So, who knows, maybe I will add them to my end of year list.]

So, do I need to remind everyone of my ongoing rants about Jonathan Zittrain’s misguided theory about the death of digital generativity because of the supposed rise of “sterile, tethered” devices? I hope not, because even I am getting sick of hearing myself talk about it. But here again anyway is the obligatory listing of all my tirades: 1, 2, 3, 4, 5, 6, 7, 8 + video and my 2-part debate with Lessig and him last year.

You will recall that the central villain in Zittrain’s drama The Future of the Internet and How to Stop It is big bad Steve Jobs and his wicked little iPhone. And then, more recently, Jonathan has fretted over those supposed fiends at Facebook. Zittrain’s worries that “we can get locked into these platforms” and that “markets [will] coalesce [around] these tamer gated communities,” making it easier for both corporations and governments to control us.  More generally, Zittrain just doesn’t seem to like that some people don’t always opt for the same wide open general purpose PC experience that he exalts as the ideal. As I noted in my original review of his book, Jonathan doesn’t seem to appreciate that it may be perfectly rational for some people to seek stability and security in digital devices and their networking experiences—even if they find those solutions in the form of “tethered appliances” or “sterile” networks, to use his parlance.

Every once and awhile I find a sharp piece by someone out there who is willing to admit that they see nothing wrong with such “closed” platforms or devices, or they even argue that those approaches can be superior to the more “open” devices and platforms out there. That’s the case with this Harry McCracken rant over at Technologizer today with the entertaining title, “The Verizon Droid is a Loaf of Day-Old Bread.” McCracken goes really hard on the Droid — which hurts because I own one! — and I’m not sure I entirely agree with his complaint about it, but what’s striking is how it represents the antithesis of Zittrainianism: 

Yesterday, Google announced Google Earth for Android. It looks neat–and it requires Android 2.1, so it won’t run on the less-than-four-months-old Droid. That’ll get fixed when Verizon rolls out an update for the Droid, which may happen soon. But it points out frustrating, potentially crippling issues with Android: The platform is splintering, and it’s changing so rapidly that the majority of Android handsets feel stale. Even the Droid–I’m not sure if it’s a coincidence that Amazon is selling it for fifty bucks, or one-quarter of Verizon’s original after-rebate price. Over at InfoWorld, Galen Gruman has a good post with more evidence of Android’s fractured nature. There are multiple, incompatible versions of the OS out there, and I don’t know of any good reason to think the situation’s going to get better rather than worse. Google surely isn’t setting a good example by releasing an Android version of Google Earth which won’t run on most Android phones.

But wait… doesn’t Android represent an example of near Nirvana in terms of Zittrainian generativity? Isn’t this the model we should all be hungry to have dominate all devices? McCracken sure doesn’t think so. He’s all aboard the Steve Jobs “Screw Openness” Express:

Do I need to recap the situation with Apple’s iPhone OS? It gets only one major upgrade a year, instantly available to all owners of existing devices, and all software works on any iPhone OS gizmo that has the proper hardware. Android will never be like that, of course: It’s an open-source product that runs on an array of gadgets with varying hardware specs and capabilities. But how big a bummer is it going to be if it takes a nerdish interest in version numbers to determine if a given app works on your phone? Isn’t it a problem if the hot Android phone of the 2009 holiday season feels stale by February, even if the situation is somewhat temporary? In short, wouldn’t it be healthy for Android if it evolved a little more slowly, and everyone responsible for its fate agreed that compatibility is a key goal?

Now isn’t that interesting! Here, in essence, we have an argument that generativity and openness are bad for us.  McCracken is praising Apple’s “you’ll get your OS upgrades when we let you” model versus the wild west approach of rolling upgrades for Android devices. Are you OK with that? Personally, I’m not. But more on that in a moment.

Part of what McCracken is actually getting at here is something I talked about in an old essay here wondering what constitutes “Too Much Platform Competition.” That is, how many platforms or operating systems are too many? Do we really need dozens of video game consoles? I don’t know about you, but I personally wouldn’t want to buy more than the 3 consoles I have already spent way too much money on. And game developers absolutely hate having to code for multiple platforms. The same is now true for mobile application developers. They are not particularly fond of the sudden proliferation of mobile operating systems and apps stores using competing standards. It’s just more development expense from their perspective.

What the iPhone brings, by contrast, is stability, security, and certainty.  People value that even if Zittrain fears it.

But now for the not so dirty little secret I have whispered here before — I hate Apple for all this!!  I am more of Zittrainian than Zittrain!  Jonathan actually carries an iPhone around in his pocket when I wouldn’t consider owning one in a million years.  I want to hack away at my stuff and tweak it to my heart’s content. And when McCracken talks about that “nerdish interest in version numbers to determine if a given app works on your phone,” well, that’s me, baby!  I am the kind of uber-dork that sits around constantly hitting the refresh button on the Droid’s “About Phone” menu to see if new OS upgrades are ready to roll.  (Yes, sad, I know. Do you believe someone actually married a dork like me?) And as far as security and stability go… well I say screw that. I have bricked several phones trying to hack away at them. It doesn’t help that I almost never know what I am doing, but I do have an healthy spirit of digital adventurism!

Anyway, here’s the really important point: We can have the best of both worlds — a world full of plenty of “tethered” appliances and semi-walled gardens, but also plenty of generativity and openness at the same time. And we can have plenty of hybrid solutions, too.  On the “generative-vs.-sterile appliance” spectrum, the range of devices and platforms just continues to grow and grow in both directions.

Moreover, these “open” vs. “closed” notions are always hopelessly over-simplified in digital technology policy debates. It’s rare to find any device or platform that is perfectly open or closed. Indeed, the very notion that Apple is a “closed’ platform is somewhat misleading. As I mentioned just last night, Apple’s App Store alone has over 100,000 apps in 20 different categories (available in 77 countries) to choose from. So, even though Steve Jobs & Co. keep a tight grip on operating system upgrades and Apps Store policies, the reality is that there’s a whole lot of generativity taking place on top of that OS and within that app store. It’s somewhat reminiscent of what happened when supposedly Big Bad Bill Gates pissed off the whole world in the 90s by building a code empire around a proprietary operating system that he tightly controlled:  Countless exciting innovations developed for that platform even if Bill & Microsoft didn’t hand over the keys to OS to the rest of the world so they could tinker away with it.

Again, I am not saying that generativity and openness are overrated; only that they other side of the story rarely gets told.  And the ideal world, of course, is one in which we have options on both sides of the “open” vs. “closed” spectrum from which to choose. Luckily, that is increasingly the world we live in today.

Oh my, here we go again with bogus accusations of “censorship” flying about a private company’s efforts to self-regulate its own media platform. Yesterday over at Silicon Alley Insider, Nick Saint penned a piece on how, “Apple’s War On Porn Is Just Getting Started.” And then over at TechCrunch, Jason Kincaid wrote about “Why Apple’s New Ban Against Sexy Apps Is Scary.” That yielded a flurry of similarly-titled rants about Apple’s supposedly totalitarian ways for taking away our new-found inalienable human right to unfettered porn and adult entertainment applications via our iPhones.  To Mr. Saint, Mr. Kincaid, and the many others who apparently believe Apple is the reincarnation of Big Brother for self-regulating their own Apps Store, all I can say is: Grow up!

Here are a few things they need to consider:

1. What Apple decides to do with its application store, and what it chooses to provide in it, is Apple’s own business—quite literally. Like a traditional bricks-and-mortar retailer, they can make policies about what types of content might be deemed too sensitive for the broad community of customers they serve. WalMart, for example, doesn’t carry certain types of music in their stores.  If customers don’t like what those retailers are doing, there’s always another place for them to take their business and find what they are looking for.
2. When it comes to the Apple controversy, we are generally talking about porn. Note to Mr. Saint and Mr. Kincaid and other whiners… there are plenty of other places to find porn on the Net! Seriously, have you looked?
3. A private company’s decision to self-censor by not carrying something in their store is not even in the same universe as the sort of censorship we see government officials engage in, which blocks all content from all platforms. There is no escape from that sort of all-encompassing censorship. 
4. Did I mention that there’s plenty of porn on the Net? OK, just checking. (Really, there’s lots.)
5. It’s important to realize that if Apple did not take some steps to self-regulate it’s App Store for the really nasty, envelop-pushing stuff, it would lead to enormous pressure from many parents and regulatory advocates for Congress to step in start regulating the Internet ecosystem. Better that Apple and other retailers choose to self-regulate than to have Congress and the nanny state start controlling online speech.
6. Finally, uh… why do you own an iPhone again? You don’t have to, you know.  I’ve been going round and round with Jonathan Zittrain and his disciples about this point over the past couple of years when they complain about Apple’s heavy-handed control of the App Store or the iPhone itself.  Sorry, but I have little sympathy in light of the fact that (a) Apple’s App Store has over 100,000 apps in 20 different categories to choose from, so it’s not like there’s really any shortage of other stuff to choose from and, (b) there are many other non-Apple options on the market from which to choose if you don’t like Apple’s policies on porn apps.  Get yourself a Android-based phone or something else. (Like Apple, Google bars the use of its apps store, the Android Market, for porn apps. But Google does allow users to install a separate apps store for adult apps, called MiKandi. MiKandi promises Blackberry and Windows Mobile marketplaces soon.)
7. (I can’t resist…) Once more, all this whining is about porn! There’s tons of it online! Go get your rocks off somewhere else besides the Apple Apps Store!  Gheesh.

[P.S. Lest I need to prove my First Amendment credentials to repel the eventual attacks from those who might accuse me of being a prude, please read this and watch this.]

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.

Adam Thierer and I have warned that neutrality regulation, once imposed on broadband providers, will extend to other Internet services wherever “gatekeepers” are alleged to control access to a platform used by others. In short, the slippery slope of creeping common carriage is real and we’re already heading down it, with cyber-collectivist “luminaries” like Jonathan Zittrain and Frank Pasquale demanding neutrality regulation for devices, application platforms like iTunes and Facebook, and search!

TLF Reader Jim Reardon made a particularly astute observation on my post asking whether Americans really want net neutrality regulation:

Regulation of any service, product or industry is preceded by definition. Once defined, it is subject to taxation. [Net Neutrality regulation] is a prelude to taxation of Internet products and services. It will likely start with telephony services and proceed accordingly to financial services, and continue from there. As such, the activity is essentially neutral insofar as technology innovation is concerned — so long as applicable taxes are paid the government will ensure that the service is not disfavored by the network operators.

Absolutely right! One of the greatest barriers to government regulation and taxation of the Internet today is the lack of clear definitions: The FCC rules will tell you precisely what “cable television” or “commercial radio” mean, but the concepts of “social networking,” “Internet video,” “blogging,” and even “search” are indeterminate and constantly evolving.

Ronald Reagan once quipped:

Government’s view of the economy could be summed up in a few short phrases: If it moves, tax it.  If it keeps moving, regulate it.  And if it stops moving, subsidize it.

Fortunately, government’s ability to implement this view depends—to paraphrase President Clinton—”on what the meaning of the word ‘is’ ‘it’ is”: Allowing “it” to remain beautifully amorphous may be the best way to keep government at bay.

Over the past couple of years here, I have relentlessly hammered Harvard’s dynamic duo of digital doom, Jonathan Zittrain (see 1, 2, 3, 4, 5, 6) and Lawrence Lessig (see 1, 2, 3), for their extraordinarily gloomy predictions about the Internet creating a world of “perfect control.”  In the hyper-pessimistic Lessig-Zittrain view of things, cyberspace is perpetually haunted by the specter of nefarious corporate schemers out to suffocate innovation, screw consumers, and quash dissent.  In the 1990s, Lessig’s big-bad-bogeyman was AOL.  Today, Zittrain casts Apple in the lead role of Cyber-Big Brother.  The problem with their thesis? In a word: Reality.  As Tim Lee has pointed out before, “Lessig’s specific predictions in Code turned out to be… spectacularly wrong”:

Lessig was absolutely convinced that a system of robust user authentication would put an end to the Internet’s free-wheeling, decentralized nature. Not only has that not happened, but I suspect that few would seriously defend Lessig’s specific prediction will come to pass.

Absolutely correct, and the same is true of the fears and predictions Zittrain tosses around in The Future of the Internet.  And yet, as we saw most recently during my debate with Lessig and Zittrain over at Cato Unbound upon the occasion of the 10th anniversary of the publication Code, neither of them have relented one bit. Indeed, they have actually been escalating their morose rhetoric recently.

The fact that Zittrain casts Apple as the central villain in his drama is particularly interesting because millions upon millions of people absolutely love the company and its amazingly innovative products — even if I’m not one of them.  And there is absolutely no way Zittrain can continue to sell us this story of Apple quashing innovation when, in just one year’s time, there were 1.5 Billion iPhone Store downloads of over 65,000 free and paid apps by consumers in 77 countries.  I mean, seriously, is there any application you cannot get for the iPhone these days?

Apparently not, because over at the Wall Street Journal “Digits” blog,  Andrew LaVallee writes of the latest innovative application to pop up in the Apple iPhone Store, iPot — a tool to help you find dope shops in California!!

Seeing an untapped opportunity in the growing number of legal California dispensaries and limited advertising outlets, app developer NexStudios launched iPot, an application for Apple’s iPhone that lists nearby stores. .. The free version of the app provides basic location information for nearby stores, while the $2 upgrade adds reviews and ratings and does away with advertising. The two apps have been downloaded nearly 100,000 times since their July launch, with about 80% opting for the free one.

Holy smokes, pot on your iPhone!  Geo-located in real time!  With reviews!  Am I living in a “Cheech & Chong” movie?

OK, seriously, let’s get back to that Zittrain-Lessig thesis.  My point here is that, contrary to their belief that the whole digital world is going to hell in a handbasket because of excessive “control” by corporate actors, in reality, things are getting better all the time.  Does Apple exercise some “control” over the iPhone store? Yes. Do they use that control to bock innovation at every juncture, restrict choice, and screw consumers?  Show me the evidence.

And when I say I want to see evidence, it has to be something more than a random anecdote like this “gem” I have heard Zittrain use many times:

Recently Apple got rid of the “I Am Rich” app, which cost the maximum $999.99, and simply featured a glowing red gem on buyers’ screens. Eight people apparently bought it, with several receiving refunds.  (”Category: Lifestyle.”  Heh.)  The app’s author doesn’t yet know whether he’ll get the money from the rest, minus Apple’s 30% vig.

Come on, seriously?  Is that the best you got? Moreover, Jonathan is willing to acknowledge that at least a certain amount of “gatekeeping might help keep malicious or poor quality apps away.”  Indeed, that’s about all the gatekeeping Apple does.  For God’s sake they are apparently not even trying to keep out the potheads anymore!  And finally, it goes without saying that Apple can’t even keep people from jailbreaking their phones in a matter of hours after release when users want to do even more with them.

How all this adds up to the specter of “perfect control” is beyond me.

Over at the Verizon Policy Blog, Link Hoewing has a sharp piece up entitled, “Of Business Models and Innovation.” He makes a point that I have often stressed in my debates with Zittrain and Lessig, namely, that the whole “open vs. closed” debate is typically greatly overstated or misunderstood.   Hoewing correctly argues that:

The point is not that open or managed models are always better or worse.  The point is that there is no one “right” model for promoting innovation.  There are examples of managed and open business models that have been both good for innovation and bad for it. There are also examples of managed and open models that have both succeeded and failed.  The point is in a competitive market to let companies develop business models they believe will serve consumers best and see how things play out.

Exactly right.  Moreover, the really important point here is that there exists a diverse spectrum of innovative digital alternatives from which to choose. Along the “open vs. closed” spectrum, the range of digital technologies and business models continues to grow and grow in both directions.  Do you want wide-open, tinker-friendly devices, sites, or software? You got it. Do you want a more closed, simple, and safe online experience?  You can have that, too.  And there are plenty of choices in between.

This is called progress!

With the publication of Understanding Privacy (Harvard University Press 2008), George Washington University Law School professor Daniel J. Solove has firmly established himself as one of America’s leading intellectuals in the field of information policy and cyberlaw.  Solove had already made himself a force to be reckoned with in this field with the publication of important books like The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press 2007), The Digital Person: Technology and Privacy in the Information Age (NYU Press 2004) and his treatise on Information Privacy Law with Paul M. Schwartz of the Berkeley School of Law (Aspen Publishing, 2d ed. 2006).  But with Understanding Privacy, Solove has now elevated himself to that rarefied air of “people worth watching” in the cyberlaw field; an intellectual — like Lawrence Lessig or Jonathan Zittrain — whose every publication becomes something of an event in the field to which all eyes turn upon release.

Like those other intellectuals, however, my respect for their stature should not be confused with agreement with their positions.  In fact, my disagreements with Lessig and Zittrain are frequently on display here and, we have been critical of Solove here in the past as well. [Here’s Jim Harper’s review of Solove’s last book, with which I am in wholehearted agreement.]  In a similar vein, although I greatly appreciate what Prof. Solove attempts to accomplish in Understanding Privacy — and I am sure it will change the way we conceptualize and debate privacy policy in the future — I found his approach and conclusions highly problematic.

Let me begin by summarizing Solove’s bold objective in Understanding Privacy. In the book, he attempts “to set forth a theory of privacy that will guide our understanding of privacy issues and the crafting of effective laws and policies to address them.” (p. 2) Solove’s “pragmatic” proposal to rethink privacy requires us to abandon the ways we have traditional thought about it. He begins by rightly noting that privacy has long been a “conceptual jungle” (p. 196) and a “concept in disarray.” (p. 1) “[T]he attempt to locate the ‘essential’ or ‘core’ characteristics of privacy has led to failure,” he says. (pg. 8 )

Consequently — and this is what make’s his approach so unique and important — Solove’s proposal to rethink privacy begins with a call to abandon the entire philosophical exercise of trying to tie privacy rights to some “common denominator” (pg. 8 ) since “Nobody can articulate what it means.” (p. 1) Actually, what he really means to say is that plenty of theorists can articulate what it means, it’s just that there is rarely any strong consensus about what justifies a particular theory of privacy. Indeed, in Chapter 2, he walks the reader through a half-dozen “conceptions of privacy” and illustrates how each has intellectual weaknesses and suffers from over- and under-breadth problems in terms of what it types of privacy it protects.

More importantly, according to Solove, not only has the effort “to locate the ‘essence’ of privacy” failed, but there is never any hope of it succeeding. Instead of continuing the futile search for such a grand, unified theory of privacy, Solove says we should tackle privacy issues from the “bottom up” by looking to “solve certain problems” (p. 75) The key to making it all work, he says, is “balancing”:

Because privacy conflicts with other fundamental values, such as free speech, security, curiosity, and transparency, we should engage in a candid and direct analysis of why privacy interests are important and how they ought to be reconciled with other interests. We cannot ascribe a value to privacy in the abstract. The value of privacy is not uniform across all contexts. We determine the value of privacy when we seek to reconcile privacy with opposing interests in the particular situations. (p. 87)

It is tempting to applaud Solove’s attempt to unhinge privacy from any “common denominator” and instead get more concrete about how to work through the details of practical privacy problems. After all, it is easy to get frustrated with some modern theories of privacy that have been tied up with amorphous, warm-and-fuzzy terms like “personhood” and “intimacy.” The inherent subjectivity of some of those terms makes it challenging to derive bright-line principles and tests to help craft law or resolve privacy disputes when they come before the courts.

But I believe there are serious problems with any attempt to completely divorce privacy policy from a theory of rights or justice. In my opinion, you can’t just dynamite all conceptual frameworks to the ground; value judgments will persist and references to rights theory will always be required. Even Solove’s pragmatic, bottom-up approach is value-laden; he just doesn’t acknowledge it. The majority of privacy controversies he attempts to work through in Chapter 5’s ambitious 16-part “Taxonomy of Privacy” mostly end up coming down in favor of taking stronger steps (i.e., rules, regulations, lawsuits, etc) to enhance privacy rights. He clearly has a bias in favor of enhancing and extending privacy rights relative to many other rights, but he doesn’t bother grounding it in any substantive theory of rights or justice.

Simply stated, even though Solove claims he can construct a new paradigm based strictly on a “pragmatic,” utilitarian, “problem-solving” approach, there is just no getting around the fact that, at some point, you are going to have to provide a more robust theory of rights or justice to explain why one right trumps another.

For example, let’s consider the frequent clash between privacy and free speech rights. As any casual reader of this blog knows, I feel quite passionately about the First Amendment and free speech rights. And, in all but the most extreme cases or circumstances, I will argue that speech rights should trump privacy rights. When would speech rights not trump privacy rights? For me, that would only occur when a clear, quantifiable harm resulted from the speech. But what is “clear, quantifiable harm”?  Reputation, for example, is not something one can easily quantify the loss of. When a company or a government agency loses or sells your personal health records without permission, however, that privacy violation gets a little more quantifiable. And in the case of someone stealing your personal information to engage in identity theft, the harm becomes still more quantifiable. But those cases often involve monetary damages, whereas something like defamation is much more difficult to quantify. However, when considering privacy-vs.-free speech trade-offs, I would first look to identify and quantify to concrete harm to an individual before allowing the state to curtain freedom of speech.

Solove acknowledges these privacy-speech trade-offs and cites the work of scholars like Eugene Volokh, Fred Cate, Virginia Postrel, and Solveig Singleton, who have all discussed these problems in their work. Volokh, for example, wrote an incredibly important 2000 law review article entitled, “Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You.” As he pointed out in that piece:

The difficulty is that the right to information privacy — the right to control other people’s communication of personally identifiable information about you — is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of “fair information practices”) generally bars the government from “control[ling the communication] of information,” either by direct regulation or through the authorization of private lawsuits.

Without reference to some higher set of first principles or theory of rights / justice, I believe it is very difficult to sort through thorny problems like these. We need to know how and when one right trumps another. A theory of rights that focuses on avoiding direct, tangible harm to others — but largely leaves individuals otherwise free to do what they wish — would generally place speech rights above many privacy “rights” (some of which perhaps should not quality be rights at all). Of course, this more libertarian construction of rights remains quite controversial in our modern society, and there are other theories of rights and justice that would minimize the importance of speech rights relative to privacy.

Importantly, there also needs to be some recognition of the qualitative difference between government threats to privacy versus private threats. The harm that can come from government violations of privacy are generally far more troubling (surveillance, taxation, fines, imprisonment, etc) than potential private harms. I don’t think Solove’s framework appreciates that distinction.

Regardless of which approach one adopts — reasoning from first principles, or working from the “bottom up” (a la Solove) — there will always be fair degree of “balancing” undertaken by legislatures and the courts when crafting privacy policies. Indeed, in many ways, I see Solove’s more “pragmatic” approach often getting us to the same point we would find ourselves in if we took a more philosophical, first principles-based approach. It’s just that under his approach, he would often give the nod to privacy concerns over other rights whereas others (like me) would first look to enhance other values, especially free speech.

In sum, I believe that if one attempts to divorce the exercise of “understanding privacy” from any theory of rights, inevitably, you end right back in the same “conceptual jungle” you were in before. In that sense, I regret to say that Solove’s approach in Understanding Privacy ultimately fails. There’s just no escaping a fight over first principles.

But make no doubt about it, Daniel Solove’s book — and his approach to classifying and dealing with privacy problems — will have a profound impact on all future privacy debates. In that sense, it is a vital text; a must read for all who follow, or engage in, privacy debates.

P.S. Prof. Solove contributed an article to this month’s big Scientific American special issue on “The Future of Privacy.” Many articles in that issue worth reading.

As Adam noted last week, he’ll be debating Jonathan Zittrain, author of The Future of the Internet–And How to Stop It, at the New America Foundation this Thursday afternoon at 3:30.  Since it seems like a number of TLF readers and contributors will be attending, we’ve decided to piggyback off the event and continue the discussion afterwards with Alcohol Liberation Front 6.  After the NAF panel is over, we’ll be headed to Gazuza (1629 Connecticut Ave, NW), probably arriving shortly after 5:30 or so.  JZ, Adam, and some of the TLF gang will be joining us, and we hope you will too.

WHAT: Alcohol Liberation Front 7 WHEN: Thursday, November 6 from 5:30pm on WHERE: Gazuza (1629 Connecticut Ave NW) WHO: Adam Thierer, Jonathan Zittrain, TLFers, and you!  See who else is coming at our Facebook event page.

(Special thanks to one-time TLF contributor and libertarian folk hero Brooke Oberwetter for organizing this event.)

If you’re here in D.C. next Thursday, you might want to drop by the New America Foundation to watch Jonathan Zittrain and me go at it about his important new book, The Future of the Internet and How to Stop It.  Our debate will take place on Thursday, November 6th from 3:30 – 5:00 p.m. at New America Foundation headquarters (1630 Connecticut Ave, NW, 7th Floor).  My old friend (but frequent intellectual sparring partner) Michael Calabrese will also be speaking.  Michael is the Director of New America’s “Wireless Future Program” and one of the all-around nicest guys in the world of tech policy.  You can RSVP for the event here.

I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5). We’ve also debated his book on the an NPR-Boston affiliate station if you care to hear a preview of our debate next week.  That show is online here.

I encourage you to join us for what promises to be a very interesting discussion.  As I pointed out in my original review of his book, if you have never had the chance to hear Jonathan speak, you’re in for a real treat.  He is, bar none, the most entertaining tech policy wonk in the world.

Again, RSVP here.

“Hasn’t Steve Jobs learned anything in the last 30 years?” asks Farhad Manjoo of Slate in an interesting piece about “The Cell Phone Wars” currently raging between Apple’s iPhone and the Google’s new G1, Android-based phone. Manjoo wonders if whether Steve Jobs remembers what happen the last time he closed up a platform: “because Apple closed its platform, it was IBM, Dell, HP, and especially Microsoft that reaped the benefits of Apple’s innovations.” Thus, if Jobs didn’t learn his lesson, will he now with the iPhone? Manjoo continues:

Well, maybe he has—and maybe he’s betting that these days, “openness” is overrated. For one thing, an open platform is much more technically complex than a closed one. Your Windows computer crashes more often than your Mac computer because—among many other reasons—Windows has to accommodate a wider variety of hardware. Dell’s machines use different hard drives and graphics cards and memory chips than Gateway’s, and they’re both different from Lenovo’s. The Mac OS, meanwhile, has to work on just a small range of Apple’s rigorously tested internal components—which is part of the reason it can run so smoothly. And why is your PC glutted with viruses and spyware? The same openness that makes a platform attractive to legitimate developers makes it a target for illegitimate ones.

I discussed these issues in greater detail in my essay on”Apple, Openness, and the Zittrain Thesis” and in a follow-up essay about how the Apple iPhone 2.0 was cracked in mere hours. My point in these and other essays is that the whole “open vs. closed” dichotomy is greatly overplayed. Each has its benefits and drawbacks, but there is no reason we need to make a false choice between the two for the sake of “the future of the Net” or anything like that.

In fact, the hybrid world we live in — full of a wide variety of open and proprietary platforms, networks, and solutions — presents us with the best of all worlds. As I argued in my original review of Jonathan Zittrain’s book, “Hybrid solutions often make a great deal of sense. They offer creative opportunities within certain confines in an attempt to balance openness and stability.”  It’s a sign of great progress that we now have different open vs. closed models that appeal to different types of users.  It’s a false choice to imagine that we need to choose between these various models.

Which raises a second point I always stress: There are an infinite number of points along the “open vs. closed” spectrum.  In reality, there are very few products that are perfectly “open” or “closed” out there. These are terms of art, not science.  The iPhone is becoming more “open” with each passing day.  Granted, it’s not as open as the Windows Mobile and certainly not as open as Android, but many people feel those platforms aren’t perfectly open either, or have that they have their own sets of problems.  Bottom line is, you can shop around and find the phone (and level of “openness”) that is right for you. No one is forcing you to buy an iPhone.

Third, efforts to tightly bottle up any technology or business model these days are usually doomed to fail. It’s not just the iPhone that is cracked in mere hours these days; seemingly every new gadget and service has a small army of hackers waiting to pounce when the product doesn’t do everything that consumers want it to. It’s getting harder and harder for product developers to “cripple” or limit functionality out of the gate.  They either offer it immediately or someone else we make sure it is offered for them.

Fourth and final point: The proper policy position with regards to the “open vs. closed” debate should be one of techno-agnosticism.  Lawmakers and courts should not be tilting the balance in one direction or the other.  Let the great experiment (and debate) continue.

So, the new iPhone OS was cracked in mere hours. According to the folks at Gizmodo:

The new iPhone OS 2.0 software has been unlocked and jailbroken. It was released just hours ago and it has already been cracked by the iPhone Dev Team. The first one took a couple of months, but this one was actually unlocked before Apple released it to the public. … Now that the official iPhone OS 2.0 is out, the iPhone Dev Team will release their Pwnage tool for everyone to unlock and jailbreak their iPhones soon.

Shocker, right? Well, anyway, I found this funny because back in March I gave Jonathan Zittrain a lot of grief for making the iPhone out to be some sort of enemy of the people because of its closed, proprietary nature. In his provocative new book “The End of the Internet,” he suggested that iPhone typified a dangerous new emerging business model that would destroy the “generative” nature of the Net by pushing people into closed systems.

My response was basically that Jonathan was making a mountain out of a molehill. Generative technologies weren’t going anywhere, and the Net certainly wasn’t “dying.” Not only is generativity thriving, but there’s just no way to stop people from hacking away at closed devices and networks, as today’s cracking of the iPhone in mere hours proves once again.

So, Jonathan, I hate to pick on you again buddy, but what exactly is the problem? Apple has put another great device on the market and people immediately took steps to open it up and see if they can make it even better. Sounds like progress to me.

The Zittrain thesis is just getting harder and harder for me to take seriously.