May 2009

As faithful readers no doubt know, I’m a big fan of Section 230 and believe it has been the foundation of a great many of the online freedoms we enjoy (dare I say, take for granted?) today. That’s why I’m increasingly concerned about some of the emerging thinking and case law I am seeing on this front, which takes a decidedly anti-230 tone.

Consider, for example, how some might weaken Sec. 230 in the name of “child safety.”  You will recall the friendly debate about the future of Sec. 230 that I engaged in with Harvard’s John Palfrey.  Prof. Palfrey has argued that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.”  Similarly, Andrew LaVallee of The Wall Street Journal reported from a conference this week that Sec. 230 became everyone’s favorite whipping boy, with several participants suggesting that the law needs to be re-opened and altered to somehow solve online “cyber-bullying” problems.

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Building on this week’s Cato Unbound online debate over the impact of Lawrence Lessig’s Code ten years after it’s release, Tim Lee has posted a terrific essay over at the Freedom to Tinker BlogSizing Up “Code” with 20/20 Hindsight.”  Tim concludes:

It seems to me that the Internet is rather less malleable than Lessig imagined a decade ago. We would have gotten more or less the Internet we got regardless of what Congress or the FCC did over the last decade. And therefore, Lessig’s urgent call to action — his argument that we must act in 1999 to ensure that we have the kind of Internet we want in 2009 — was misguided. In general, it works pretty well to wait until new technologies emerge and then debate whether to regulate them after the fact, rather than trying to regulate preemptively to shape the kinds of technologies that are developed.

As I wrote a few months back, I think Jonathan Zittrain’s The Future of the Internet and How to Stop It makes the same kind of mistake Lessig made a decade ago: overestimating regulators’ ability to shape the evolution of new technologies and underestimating the robustness of open platforms. The evolution of technology is mostly shaped by engineering and economic constraints. Government policies can sometimes force new technologies underground, but regulators rarely have the kind of fine-grained control they would need to promote “generative” technologies over sterile ones, any more than they could have stopped the emergence of cookies or DPI if they’d made different policy choices a decade ago.

I agree whole-heartedly, of course, and this is the point I was trying to make in my in my first essay in the Cato debate when I argued:

Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code. Cyberspace has proven far more difficult to “control” or regulate than any of us ever imagined. More importantly, the volume and pace of technological innovation we have witnessed over the past decade has been nothing short of stunning.

Anyway, read Tim’s entire essay.

I’ve posted another response in the Cato Unbound online debate over the impact of Lawrence Lessig’s Code and Other Laws of Cyberspace upon the book’s 10th anniversary.  You will recall that I went fairly hard on Prof. Lessig in my essay, “Code, Pessimism, and the Illusion of ‘Perfect Control,’” and Lessig responded with a counter-punch that went after me for it.  I respond in a new essay about “Our Conflict of Cyber-Visions.” In the piece, I address Lessig’s assertion that I just didn’t understand the central teachings of Code, as well as his reluctance to accept the “cyber-collectivism” label that I affixed to his book and life’s work.  Again, please hop over to Cato Unbound for my complete response.

But one thing from the essay that I thought worth reproducing here is my effort to better define the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking.  I argue that it comes down to this:

The cyber-libertarian believes that “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 approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).

Of course, another key difference relates to how quickly one jumps to the conclusion that “code failures” are actually occurring at all. I argue:

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Today the European Union issued the opinion explaining its decision to fine Intel $1.45 billion for offering discounts to large purchasers (see thisthis and this).

Although antitrust originated in the U.S., antitrust enforcement has become more active in other parts of the world where awareness of the limitations and dangers of overly-aggressive antitrust enforcement is still in the embryonic stages.  This has created regrettable forum-shopping opportunities for less-successful U.S. and foreign competitors.

Many smaller companies complaining of abusive practices by their larger rivals were so frustrated that they went overseas to the European Commission and to Asian authorities to find receptive enforcement officials.

Does this just sound awful, or not?

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The European Commission is a loose cannon when it comes to antitrust and competition law. It’s record $1.45 billion fine is emblematic of what the Commission just doesn’t get:  there’s a difference, a difference that matters, between consumer and competitor harm.

EU Commissioner for Competition Neelie Kroes said otherwise:  Intel had “used illegal anticompetitive practices to exclude its only competitor and reduce consumers’ choice — and the whole story is about consumers.”

No, the whole story is not about consumers, Ms. Kroes. It’s clear that the only harm that Intel has carried out is on it’s main rival AMD–and that’s called competition. Over at the ACT blog, my colleague Mark Blafkin has a good post that details the lack of consumer harm.

Here’s the main point–competition shouldn’t be illegal. But according to EU law, companies with a dominant position in the market have  a legal duty to not eliminate competition, while in the U.S. only monopoly power imparts this duty. U.S. culture, reflected (partially) in antitrust law, holds that the competitive process of driving other companies out of business makes an economy efficient and innovative.

The week-long Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with Prof. Lessig’s response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” Jonathan Zittrain’s follow-up essay, and my essay on, “Code, Pessimism, and the Illusion of ‘Perfect Control.’”  Needless to say, Prof. Lessig isn’t too happy with my response. You should jump over to the Cato site to read the entire thing, but here are a couple of excerpts and my response.

To my suggestion that there is a qualitative difference between law and code, Prof. Lessig says:

I’ve argued that things aren’t quite a simple as some libertarians would suggest. That there’s not just bad law. There’s bad code. That we don’t need to worry just about Mussolini. We also need to worry about DRM or the code AT&T deploys to help the government spy upon users. That public threats to liberty can be complemented by private threats to liberty. And that the libertarian must be focused on both.  […]

Of course, law is law. Who could be oblivious to that? And who would need a book to explain it?  But the fact that “law is law” does not imply that it has a “much greater impact in shaping markets and human behavior.” Sometimes it does — especially when that “law” is delivered by a B1 bomber. But ask the RIAA whether it is law or code that is having a “greater impact in shaping markets” for music. Or ask the makers of Second Life whether the citizens of that space find themselves more constrained by the commercial code of their geo-jurisdiction or by the fact that the software code of Second Life doesn’t permit you simply to walk away (so to speak) with another person’s scepter. Whether and when law is more effective than code is an empirical matter — something to be studied, and considered, not dismissed by banalities spruced up with italics.

Well, I beg the professor’s pardon for excessive use of italics.  [I won’t ask for an apology for misspelling my last name in his piece!] Regardless, it’s obvious that we’ll just never see eye-to-eye on the crucial distinction between law and code. Again, as I stated in my essay: “With code, escape is possible. Law, by contrast, tends to lock in and limit; spontaneous evolution is supplanted by the stagnation of top-down, one-size-fits-all regulatory schemes.”

Lessig largely dismisses much of this with that last line above, suggesting that we just need to keep studying the matter to determine the right mix of what works best.  To be clear, while I’m all for studying the impact of law vs. code as “an empirical matter,” that in turn begs the question of how we define effectiveness or success. I suspect that the professor and I would have a “values clash” over some rather important first principles in that regard.  This is, of course, a conflict of visions that we see throughout the history of philosophy; a conflict between those who put the individual and the individual’s rights at the core of any ethical political system versus those who would place the rights of “the community,” “the public” or some other amorphous grouping(s) at the center of everything.  It’s a classic libertarian vs. communitarian / collectivist debate.

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A few months ago, Adam Thierer penned The Pragmatic (Internet) Optimist’s Creed in response to calls from “Internet pessimists” for increased regulation of the Internet on many fronts. Adam‘s recent 4-way debate with pessimists Larry Lessig and Jonathan Zittrain (as well as optimist Declan McCullagh) inspired me to pen the following cheeky homage to Lessig, the Father of Internet Pessimism, whose work has launched a thousand efforts to increase government control of the Internet in the name, ironically, of “freedom:”

Our Lessig, who art in Harvard,
Hallowed be thy blog.
Thy Free Culture come.
Thy Code be done,
In Washington as it is in thy Ivory Tower.

Give us this day our Net Neutrality.
And forgive us our trespasses against Internet Openness,
As we forgive those who question thy genius,
And lead us not into trusted systems of perfect control,
But deliver us from digital rights management and architectures of identity.

For thine is the wisdom,
and the clairvoyance, and the coolness,
for ever and ever.

Lest I become the Salman Rushdie of pragmatic Internet optimists/regulatory-skeptics, let me emphasize that my techno-blasphemy is meant in good humor.  But then, that’s probably what poor Rushdie said…

Ted Dziuba has penned a humorous and sharp-tongued piece for The Register about last week’s Adblock vs. NoScript fiasco.  For those of you who aren’t Firefox junkies, a nasty public spat broke out between the makers of these two very popular Firefox Browser extensions (they are the #1 and #3 most popular downloads respectively).  To make a long and complicated story much shorter, basically, NoScript didn’t like Adblock placing them on their list of blacklisted sites and so they fought back by tinkering with the NoScript code to evade the prohibition.  Adblock responded by further tinkering with their code to circumvent the circumvention!  And then, as they say, words were exchanged.

Thus, a war of words and code took place.  In the end, however, it had a (generally) happy ending with NoScript backing down and apologizing. Regardless, Mr. Dzuiba doesn’t like the way things played out:

The real cause of this dispute is something I like to call Nerd Law.  Nerd Law is some policy that can only be enforced by a piece of code, a public standard, or terms of service. For example, under no circumstances will a police officer throw you to the ground and introduce you to his friend the Tazer if you crawl a website and disrespect the robots.txt file.

The only way to adjudicate Nerd Law is to write about a transgression on your blog and hope that it gets to the front page of Digg. Nerd Law is the result of the pathological introversion software engineers carry around with them, being too afraid of confrontation after that one time in high school when you stood up to a jock and ended up getting your ass kicked.

Dziuba goes on to suggest that “If you actually talk to people, network, and make agreements, you’ll find that most are reasonable” and, therefore, this confrontation and resulting public fight could have been avoided. They “could have come to a mutually-agreeable solution,” he says.

But no. Sadly, software engineers will do what they were raised to do. And while it may be a really big hullabaloo to a very small subset of people who Twitter and blog their every thought as if anybody cared, to the rest of us, it just reaffirms our knowledge that it’s easy to exploit your average introvert.  After all, what’s he gonna do? Blog about it?

OK, so maybe the developers could have come to some sort of an agreement if they had opened direct channels of communications or, better yet, if someone at the Mozilla Foundation could have intervened early on and mediated the dispute.  At the end of the day, however, that did not happen and a public “Nerd War”  ensued.  But I’d like to say a word in defense of Nerd Law and public fights about “a piece of code, a public standard, or terms of service.”

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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!

If you’re a cyberlaw geek or tech policy wonk who needs to keep close tabs on Sec. 230 developments, here’s a terrific resource from the Citizen Media Law Project up at the Harvard Berkman Center.  The site offers a wealth of background info, including legislative history, all the relevant case law surrounding 230, and breaking news on this front.  Just a phenomenal resource; a big THANK YOU! to the folks at CMLP who put this together.

If you’re interested in these issues, you might also want to check out this friendly debate that Harvard’s John Palfrey and I engaged in over at Ars recently as well as my essay on how Sec. 230 has spawned a “utopia of utopias” online.

CMLP screen