May 2008

Upcoming Event: See South Carolina Governor Mark Sanford Make Sense of the REAL ID Act

by on May 1, 2008 · 4 comments

Last week, Minnesota Governor Tim Pawlenty (R) vetoed a transportation bill that included a provision objecting to the federal REAL ID Act. The bill would have required the federal government to pay 95 percent of the cost of issuing national IDs before Minnesota would participate. Claiming political machinations were afoot, Pawlenty said that he preferred “something more reasonable like 50 or 60 percent.” One wonders what principle of federalism, liberty, or privacy could possibly support his willingness to accept a 50% unfunded surveillance mandate.

A much clearer vision will be on display next week when Governor Mark Sanford (R-SC) joins Senator Jon Tester (D-MT) here at the Cato Institute to discuss the REAL ID Act. South Carolina has barred itself from participating in the national ID system created by the Act, and Governor Sanford defiantly refused to ask the Department of Homeland Security for an extension of the compliance deadline earlier this year.

Senator Tester represents a state that has been similarly defiant. He is an original cosponsor of legislation that would repeal the REAL ID Act and restore the identification security provisions of the Intelligence Reform and Terrorism Protection Act, which REAL ID repealed.

The event is called The REAL ID Rebellion: Whither the National ID Law?, next Wednesday, May 7th, at noon, and it will be Webcast.

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End-to-end and the Price Mechanism

by on May 1, 2008 · 24 comments

One of the more positive consequences of the whole Sydnor/Lessig debate is that it’s enticed the always-interesting David Friedman to weigh in on tech policy issues, giving me the opportunity to quote him in his entirety:

I’ve been trying for years to persuade Larry to admit to libertarian leanings. I’m not sure from comments here whether he actually did it while I wasn’t looking or is merely being accused of it. My interpretation of his attitude, long ago, was libertarian instincts hindered by a leftist self-image.

Consider his basic argument, a book or two back, for treating the net as a commons–by which he actually meant a commodity, since he wasn’t proposing zero cost access. It was that if the people in the middle, the ones transmitting the bits, got a veto over what sorts of bits they transmitted, that would make innovation very hard, since there would be too many people whose agreement you needed before doing anything.

I think he acknowledged–certainly he knew–that the counter argument was that what was being transmitted varied in ways that were relevant to the cost of transmitting it–burst vs steady stream, material where very low lag was important (real time games, distance surgery) vs material where it wasn’t (downloading), etc. So requiring the same cost for everything, or even specifying the cost structure, meant that some people were free to impose external costs on others without their consent. His conclusion depended on the judgment that the inefficiencies due to permitting that were less important than the inefficiencies due to the high transaction costs of innovation with the alternative system.

What didn’t seem to occur to him was that he had just sketched the argument against zoning. There too, the individual’s decisions–what sort of house to build, whether to use his land for residence or commerce, and the like–can impose external costs on others. There too, requiring the permission of those others, whether directly or via variances in zoning, makes innovation hard. The same argument Larry was making for the net as a commodity, applied to land use, is an argument for strong individual property rights and against land use control. Once you take seriously the point that forcing people to take account of all effects of their acts on others means nobody ever gets to do anything, you undercut a lot of the arguments for a wide variety of government interventions.

Quite so. I’ve said before that network neutrality (the technical principle, not the proposed legal regime) is the division of labor. The end-to-end principle allows decentralized decision-making on the Internet in precisely the same way that the price mechanism allows decentralized decision-making in the broader economy: by giving people a simple, predictable interface to the rest of the world that isn’t dependent on the whim of any central decision-maker.

ISPs that try to implement discriminatory network policies create the same kinds of problems as government officials that enact regulations: they often cause unintended consequences (like blocking Lotus Notes) and they cause people to waste resources evading the restrictions (as with BitTorrent header encryption).

Now, I should hasten to add that as I’ve written before, the fact that neutral networks have good properties doesn’t mean that mandating them is good public policy. Because of course a network neutrality rule would itself have unintended consequences and lead people (in this case ISPs) to waste resources trying to evade the rules. But if we’re talking about network design, rather than government regulation, it seems to me that libertarians ought to look favorably on decentralized networks mediated by the end-to-end principle for all the same reasons we look favorably on decentralized economies mediated by the price mechanism.

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Insulting Our Intelligence

by on May 1, 2008 · 38 comments

I was planning to leave the Lessig/Sydnor thing alone because I feel like we’ve beat it to death, but Tom’s really pissing me off. For those who haven’t been following the now-voluminous comments (and I don’t blame you), Mike Masnick recently wrote the following:

[Lessig] wasn’t praising communism in the slightest — but pointing out how regulatory regimes in the US can impact someone’s day-to-day life quite strongly, while for certain aspects of life in Vietnam those similar regulations do not impact them. That doesn’t mean communism is good or that life is great in Vietnam. In fact, Lessig pointed out that neither point is true. But he was pointing out what the factual situation was concerning certain aspects of day-to-day life.

You don’t dispute those points — you can’t, because they’re true. You merely take those statements and pretend they’re an endorsement of communism. It’s not even remotely a defense of communism. It’s showing the problems with US regulations, something I would think you would endorse.

And Tom responds:

I must distance myself from Mike’s claim that the admittedly deregulatory effect of terrorizing civilians “is something I would think you would endorse.”

And I had to pick my jaw up off the floor.

In case English isn’t your first language, let me dissect this a little bit. Scholars have a basic obligation to represent their opponents’ words accurately. If you put a phrase in quotes, you have an obligation for the quoted phrase to be a faithful representation of what the person being quoted actually said. That obligation counts double if you precede the quote by a phrase like “Mike’s claim” that unambiguously attributes the entire sentence to the person you’re criticizing. And in particular, if you quote half of a sentence, say the verb and direct object, you have an obligation not to change the subject to be something totally different. I if I write “Ice cream is great,” it would be dishonest for you to write “I must distance myself from Tim’s claim that the Holocaust ‘is great.'” Yes, I literally wrote the phrase “is great,” but the subject of that phrase wasn’t “the Holocaust,” and implying that it was is just as dishonest as writing “Tim claimed ‘the Holocaust is great.'”

What Tom did here is identical. In Mike’s comment, the subject of the phrase “something I would think you would endorse” is “showing the problems with US regulations.” Tom’s response plainly implies that the subject of the phase “something I would think you would endorse” was “the admittedly deregulatory effect of terrorizing civilians.” This, of course, is a totally different proposition, and something that Mike never said. Yet Tom has the audacity to precede the sentence with “Mike’s claim” plainly attributing the whole sentence to Mike.

This is, quite simply, a lie. And a stupid, transparent lie at that. I’m really confused about what Tom thinks he’s accomplishing. Surely he doesn’t believe the readership of TLF is so dumb that we’ll be persuaded by these kinds of grade-school rhetorical sleights of hand.

Update: Now that I’ve posted this, it occurs to me that I’ll probably see a post on IPCentral in a few minutes with the headline “Lessig supporter endorses the Holocaust.”

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Are the threats to online free speech real?

by on May 1, 2008 · 11 comments

Luis Villa posed a good question in response to my essay yesterday wondering why Yale’s tech agenda for the next administration does not include anything about online free speech. I had noted that “I found it intriguing… that protecting free speech doesn’t make their radar screen, which seems both sad and puzzling since it will continue to be under attack regardless of who is in charge next year.” In response, Luis noted:

I guess I’m failing to see the significant speech problems in the modern internet, Adam- care to elaborate? Do you mean the kinds of problems Open Net Initiative has been working on, or something else? I strongly agree with you that free speech should be a core value for the internet, but at least inside the US, the internet seems to be clearly the most vibrant and free platform for speech that there is, with no significant threats to it that I’m aware of, which maybe is why it fell off this particular list.

This is a fair question. But as evidence of what I regard as the continuing threats to free speech–both online (new, interactive media) and off (old, passive media)–I would draw everyone’s attention to this compendium of Online Child Protection & Online Content Regulation Bills that CDT and PFF jointly complied. It documents the dozens of measures pending currently in Congress, and we are about to add more to the list. Importantly, if we would have included state and local measures, the index would have been much, much longer. John Morris and I each published commentaries discussing why these threats to speech should be taken seriously. (Here’s John’s; here’s mine.)

Now, one could argue that because none of these measures have yet passed into law, we have nothing to worry about. But I believe such a position would be quite short-sighted. Eventually, when policymakers throw enough stuff at the wall, something will likely stick. [Moreover, sometimes the sheer volume and nature of legislative activity can have a chilling effect on speech without every becoming law.]

One might then respond, “So what? If something passes, we’ll knock it down in court with the First Amendment like we have done for the past 10 years!” A fair point, but that’s always a risky gamble. We’ve been fortunate so far that the courts have upheld speech rights in most new media cases, but there’s a storm on the horizon that will hit when the courts are finally force to deal with this mess of asymmetrical First Amendment media standards (i.e, the differential treatment of speech on various media platforms). The key question is: How will speech be regulated as those platforms converge and speech becomes one big bucket of digital bits? If you are interested, I dealt with this dilemna in far more detail in my recent Catholic University Law School law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” As you might imagine, I favor setting the bar quite high by rejecting the old broadcast “public interest” approach to speech regulation and I instead favor the application of the print / Internet / video game standard (i.e., strict scrutiny of all speech-related regulatory efforts).

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