January 2011

Here’s the first of two essays I’ve recently penned 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 these essays, I identify two schools of Internet pessimism: (1) “Net Skeptics,” who are pessimistic about the Internet improving the lot of mankind; and (2) “Net Lovers,” who appreciate the benefits the Net brings society but who fear those benefits are disappearing, or that the Net or openness are dying.  (Regular readers of this blog will be familiar with these themes since I sketched them out in previous essays here such as, “Are You an Internet Optimist or Pessimist?” and “Two Schools of Internet Pessimism.”) The second essay is here.

This essay focuses on the first variant of Internet pessimism, which is rooted in general skepticism about 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’s personally affecting each of us.  Occasionally, however, this pessimism borders on neo-Ludditism, with some proponents recommending steps to curtail what they feel is the destructive impact of the Net or digital technologies on culture or the economy.  I identify the leading exponents of this view of Internet pessimism and their major works. I trace their technological pessimism back to Plato but argue that their pessimism is largely unwarranted. Humans are more resilient than pessimists care to admit and we learn how to adapt to technological change and assimilate new tools into our lives over time. Moreover, were we really better off in the scarcity era when we were collectively suffering from information poverty?  Generally speaking, despite the challenges it presents society, information abundance is a better dilemma to be facing than information poverty.  Nonetheless, I argue, we should not underestimate or belittle the disruptive impacts associated with the Information Revolution.  But we need to find ways to better cope with turbulent change in a dynamist fashion instead of attempting to roll back the clock on progress or recapture “the good ‘ol days,” which actually weren’t all that good.

Down below, I have embedded the entire chapter in a Scribd reader, but the essay can also be found on the TechFreedom website for the book as well as on SSRN.  I have also includes two updated tables that appeared in my old “optimists vs. pessimists” essay.  The first lists some of the leading Internet optimists and pessimists and their books. The second table outlines some of the major lines of disagreement between these two camps and I divided those disagreements into (1) Cultural / Social beliefs vs. (2) Economic / Business beliefs.

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My essay last week for Slate.com (the title I proposed is above, but it must have been too “punny” for the editors) generated a lot of feedback, for which I’m always grateful, even when it’s hostile and ad hominem.  Which much of it was.

The piece argues generally that when it comes to the Internet, a disruptive technology if ever there was one, the best course of action for traditional, terrestrial governments intent on “saving” or otherwise regulating digital life is to try as much as possible to restrain themselves.  Or as they say to new interns in the operating room, “Don’t just do something.  Stand there.”

This is not an argument in favor of anarchy, or even more generally for social Darwinism.  I have something much more practical in mind.  Disruptive technologies, by definition, do not operate within the “normal science” of those areas of life they impact. Its problems can’t be solved by reference to existing systems and institutions. In the case of the Internet, that’s pretty much all aspects of life, including regulation. Continue reading →

You have to read all the way to the end to get exactly what the New York Times is getting at in its Sunday editorial, “Netizens Gain Some Privacy.”

Congress should require all advertising and tracking companies to offer consumers the choice of whether they want to be followed online to receive tailored ads, and make that option easily chosen on every browser.

That means Congress—or the federal agency it punts to—would tell authors of Internet browsing software how they are allowed to do their jobs. Companies producing browser software that didn’t conform to federal standards would be violating the law.

In addition, any Web site that tailored ads to their users’ interests, or the networks that now generally provide that service, would be subject to federal regulation and enforcement that would of necessity involve investigation of the data they collect and what they do with it.

Along with existing browser capabilities (Tools > Options > Privacy tab > cookie settings), forthcoming amendments to browsers will give users more control over the information they share with the sites they visit. That exercise of control is the ultimate do-not-track. It’s far preferable to the New York Times‘ idea, which has the Web user issuing a request not to be tracked and wondering whether government regulators can produce obedience.

[I got enough push-back to a recent post arguing the existence of market nimbleness in the browser area that I’m unsure of the thesis I expressed there. The better explanation of what’s going on may be that regulatory pressure is moving browser authors and others to meet the peculiar demands of the pro-regulatory community. The reason they have waited to act until now is because they do not perceive consumers’ interests to be met by protections against tailored advertising. The question of what meets consumers’ interests won’t be answered if regulation supplants markets, of course.]

A headline in the USA Today earlier this week screamed, “Hello, Big Brother: Digital Sensors Are Watching Us.”  It opens with an all too typical techno-panic tone, replete with tales of impending doom:

Odds are you will be monitored today — many times over. Surveillance cameras at airports, subways, banks and other public venues are not the only devices tracking you. Inexpensive, ever-watchful digital sensors are now ubiquitous.

They are in laptop webcams, video-game motion sensors, smartphone cameras, utility meters, passports and employee ID cards. Step out your front door and you could be captured in a high-resolution photograph taken from the air or street by Google or Microsoft, as they update their respective mapping services. Drive down a city thoroughfare, cross a toll bridge, or park at certain shopping malls and your license plate will be recorded and time-stamped.

Several developments have converged to push the monitoring of human activity far beyond what George Orwell imagined. Low-cost digital cameras, motion sensors and biometric readers are proliferating just as the cost of storing digital data is decreasing. The result: the explosion of sensor data collection and storage.

Oh my God! Dust off you copies of the Unabomber Manifesto and run for your shack in the hills!

No, wait, don’t. Let’s instead step back, take a deep breath and think about this. As the article goes on to note, there will certainly be many benefits to our increasing “sensor society.”  Advertising and retail activity will become more personalized and offer consumers more customized good and services.  I wrote about that here at greater length in my essay on “Smart-Sign Technology: Retail Marketing Gets Sophisticated, But Will Regulation Kill It First?”  More importantly, ubiquitous digital sensors and data collection/storage will also increase our knowledge of the world around us exponentially and do wonders for scientific, environmental, and medical research.

But that won’t soothe the fears of those who fear the loss of their privacy and the rise of a surveillance society in which our every move is watched or tracked. So, let’s talk about what those of you who feel that way want to do about it.

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Have we technophiles utterly deluded ourselves? Worse, instead of enjoying an Age of Innovation, are we actually stuck in a technological Dark Age? One that explains our stagnating living standards and general economic “disarray”? This is the possibility economist Tyler Cowen (George Mason, Marginal Rev, Mercatus) raises in The Great Stagnation, a pithy and provocative  new e-book essay. Here is my Forbes column on the topic: “Tyler Cowen’s Techno Slump.” I don’t know how much I agree with Cowen, but I think he’s given a big boost to an important conversation.

In response to civil unrest, the Egyptian government appears to have ordered service providers to shut down all international connections to the Internet. According to the blog post at the link just above, Egypt’s four main ISPs have cut off their connections to the outside world. Specifically, their “BGP routes were withdrawn.” The Border Gateway Protocol is what most Internet service providers use to establish routing between one another, so that Internet traffic flows among them. I anticipate we might have comments here that dig deeper into specifics.

An attack on BGP is one of few potential sources of global shock cited by an OECD report I noted recently. The report almost certainly imagined a technical attack by rogue actors but, assuming current reporting to be true, the source of this attack is a government exercising coercion over Internet service providers within its jurisdiction.

That is far from an impossibility in the United States. The U.S. government has proposed both directly and indirectly to centralize control over U.S. Internet service providers. C|Net’s Declan McCullagh reports that an “Internet kill switch” proposal championed by by Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine) will be reintroduced in the new Congress very soon. The idea is to give “kill switch” authority to the government for use in responding to some kind of “cyberemergency.” We see here that a government with use “kill switch” power will use it when the “emergency” is a challenge to its authority.

When done in good faith, flipping an Internet “kill switch” would be stupid and self-destructive, tantamount to an auto-immune reaction that compounds the damage from a cybersecurity incident. The more likely use of “kill switch” authority would be bad faith, as the Egyptian government illustrates, to suppress speech and assembly rights.

In the person of the Federal Communications Commission, the U.S. government has also proposed to bring Internet service providers under a regulatory umbrella that it could turn to censorship or protest suppression in the future. Larry Downes has a five-part analysis of the government’s regulatory plan here on TLF (1, 2, 3, 4, 5). The intention of its proponents is in no way to give the government this kind of authority, but government power is not always used as intended, and there is plenty of scholarship to show that government agencies use their power to achieve goals that are non-statutory and even unconstitutional.

The D.C. area’s surfeit of recent weather caused the cancellation yesterday of a book event I was to participate in, discussing Evgeny Morozov’s The Net Delusion: The Dark Side of Internet Freedom. I don’t know that he makes the case overwhelmingly, but Morozov argues that governments are ably using the Internet to stifle freedom movements. (See Adam’s review, hear Jerry’s podcast.)

Events going on here in the United States right now could position the U.S. government to exercise the kind of authority we might look down our noses at Egypt for practicing. The lesson from the Egypt story—what we know of it so far—is that eternal vigilance is the price of freedom.

Data Privacy Day is January 28. And as Steve DelBianco writes at the NetChoice blog, now is an opportune time for it as Congress, the Commerce Department, and the Federal Trade Commission each have proposed new rights and rules for data privacy.

To appreciate Data Privacy Day you must first ignore the Euro-babble description of what is Data Privacy Day (“an international celebration of the dignity of the individual expressed through personal information”) and take it for what it really is: a prodding for Internet users to take a critical look at how they share and communicate information online.

Importantly, this is not a day for governments, but for users. As Steve writes, “the role for government should be in areas where users and business cannot act alone, including law enforcement, international data flows, and pre-empting a patchwork of state laws. Government should use is powers to pursue online fraud and criminal misuse of data, not to create rules that narrowly prescribe what and how data should be used.”

Also, check out the tech-friendly quotes from Obama’s State of the Union in Steve’s post.

(Follow the links for Part I, Part II, Part III and Part IV.)

In this final post on the FCC’s Dev. 23, 2010 Open Internet Report and Order, I’ll look briefly at the problematic legal foundation on which the FCC has built its new regulations on broadband Internet access.  That discussion need only be brief largely because the extended legal analysis has already been admirably detailed by FCC Commissioner Robert McDowell.  His dissent (see pages 145-177 of the Report and Order) calmly and systematically dismantles the case made by the majority (See ¶¶ 115-150).

This is no theoretical discussion of statutory interpretation.  Even before the rules have been published on the Federal Register, two broadband providers—Verizon and then MetroPCS—have already filed lawsuits in the D.C. Circuit Court of Appeals challenging the FCC’s authority to regulate.  (See Jim DeLong’s definitive deciphering of Verizon’s efforts to secure exclusive jurisdiction in the D.C. Circuit)  The arguments sketched out in Commissioner McDowell’s dissent are likely to mirror the complainants’ briefs in these and likely other Petitions for Review of the Order.

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Hosted by SMU’s Guildhall video game law graduate program, the Game::Business::Law summit is the leading conference in the field. Follow the discussion on the #GBL2011 hashtag. Here’s the make-up of my privacy panel:


Professor Xuan-Thao Nguyen, SMU Dedman School of Law

Jennifer Archie, Partner, Latham & Watkins LLP

Andrew S. Ehmke, Partner, Haynes and Boone, LLP

Dr. Joshua Fairfield, Washington & Lee School of Law

Berin Szoka, Founder, TechFreedom

This is an all-star cast. Prof. Nguyen is a big name in video game law field; I had the privilege to work with Jennifer Archie on Internet law when I practiced at Latham; and Josh Fairfield is one of the few law professors I find myself in perfect philosophical harmony with. Check out this summary of his excellent 2009 paper Virtual Parentalism. I only met Andy last night at the reception, but he’s a solid thinker on the law of gaming. As they say on postcards: Wish you were here!

Last week, it was my great honor to speak at the 2011 State of the Net 2011 event, where I participated in a panel discussion about the future of the online video marketplace.  In an earlier essay, I mentioned how some of the discussion that day revolved around the Comcast-NBCU merger, which had just been approved by the FCC, but with unprecedented strings being attached.  The heart of the panel discussion, however, was a debate about the future of online video and regulation of the video marketplace more generally. Also joining me on the panel were Susan Crawford of Cardozo Law School, William Lehr of MIT, Marvin Ammori of Nebraska Law School, and Richard Bennett of ITIF.

During my response time on the panel, which begins around 28:45 of the video, I made a couple of key points: Continue reading →