With renewed interest in the failings of the Computer Fraud and Abuse Act and the role of prosecutorial discretion in its application in light of the tragic outcome in the Aaron Swartz case, I went back to what I wrote about the law in 2009.

Back then, the victim of both the poorly-drafted amendments to CFAA that expanded its scope from government to private computer networks and the politically-motivated zeal of federal prosecutors reaching for something—anything—with which to punish otherwise legal but disfavored behavior was trained on Lori Drew, a far less sympathetic defendant.

But the dangers lurking in the CFAA were just as visible in 2009 as they are today.  Those who have recently picked up the banner calling for reform of the law might ask themselves where they were back then, and why the ultimately unsuccessful Drew prosecution didn’t raise their hackles at the time.

The law was just as bad in 2009, and just as dangerously twisted by the government.  Indeed, the Drew case, as I wrote at the time, gave all the notice anyone needed of what was to come later. Continue reading →

With Bitcoin enjoying a spike in price against government currencies, there is lots of talk about it on the Interwebs, including Jerry’s typically thoughtful post from earlier today. If you’re not familiar with it yet, here’s a good Bitcoin primer, which also counsels reading a lot more before you acquire Bitcoin, as Bitcoin may fail. If you like Bitcoin and want to buy some, don’t go all goofy. Do your homework. As if you need to be told, be careful with your money.

Much of the commentary in the popular press declares a Bitcoin bubble for one reason or another. It might be a bubble, but nobody actually knows. A way of guessing is to compare Bitcoin’s qualities as a currency and payment network to the alternatives. Like any service or good, there are many dimensions to value storage and transfer.

I may not capture them all, and they certainly don’t predict the correct price against the dollar or other currencies. That depends on the ultimate viscosity of Bitcoin. But Bitcoin certainly has value of a different kind: it may discipline fiat currencies and the states that control them.

Intrinsic Value: If you’re just starting to think about money, this is where you’ll find Bitcoin an obvious failure. These evanescent strings of code have no intrinsic value whatsoever! Anyone relying on them as a store of value is a volunteer victim. Smart people stick with U.S. dollars and other major currencies, thin sheets of cloth or plastic with special printing on them…

No major currency has intrinsic value. Indeed, there isn’t much of anything that has intrinsic value. The value of a thing depends on other people’s demand for it. This is as true of Bitcoin as it is of dollars, sandwiches, and sand. So the intrinsic value question, which seems to cut in favor of traditional currencies, is actually a wash.

Transferability: Bitcoin is good with transferability–far better than any physical currency and quite a bit better than most payment systems. Not only is it fast, with transactions “settling” fairly quickly, but it is borderless. The genius of PayPal (after it gave up on being a replacement monetary system itself) was quick transfer to most places that rich people want to send money. Bitcoin allows quick transfer anywhere the Internet goes.

Acceptance: Bitcoin bombs badly in the area of acceptance. Try buying a sandwich with Bitcoin today and you’ll go hungry because few people and businesses accept it. This is a real problem, but it’s nothing intrinsic to Bitcoin. When Hank Aaron broke Babe Ruth’s home run record, people didn’t understand that credit cards were like money. (Watch the video at the link two or three times if you need to. It’s not only a great moment in sports.) Acceptance of different form-factors for value and payments can change.

Cost: How many billions of dollars per year do we pay for storage and transfer of money? Bitcoin is free.

Inflation-Resistance: Assuming the algorithms work as advertised, the quantity of Bitcoin will rise to a pre-established level of about 21 million over the next couple of decades and will never increase after that. This compares favorably to fiat currencies, the quantity of which are amended by their managers, sometimes quite dramatically, to undercut their value. If you want to hold money, holding Bitcoin is a better deal than holding dollars. Which brings us to…

Deflation-Resistance: Without central planners around to carefully debase its value, Bitcoin might go deflationary, with people refusing to spend it while it rises against all other stores of value and goods. Arguably, that’s what’s happening in the current Bitcoin price-spike. People are buying it in anticipation of its future increase in value.

Deflation can theoretically cause an economy to seize up, with everyone refusing to buy in anticipation of their money gaining in value over the short term. There is room for discussion about whether hyper-deflation can actually occur, how long a hyper-deflation can persist, and whether the avoidance of deflation is worth the risk of having centrally managed currency. I have a hard time being concerned that excessive savings could occur. However, whatever the case with those related issues, Bitcoin is probably deflation-prone compared to dollars and other managed currencies.

Surveillance-Resistance: Where you put your money is a reflection of your values. Payment systems and governments today are definitely gawking through that window into our souls.

Bitcoin, on the other hand, allows payments to be made with very little chance of their being tracked. I say “little chance” because there is some chance of tracking payments on the network. Sophisticated efforts to mask payments will be met by sophisticated efforts to track them. Relatively speaking, though, payments through traditional payment systems like checks, credit cards, and online transfer are super-easy to track. Cash is pretty darn hard to track. So Bitcoin stacks up well against our formal payment systems, but equally or perhaps poorly to cash.

Seizure-Resistance: The digital, distributed nature of Bitcoin makes it resistant to official seizure. Are you in a country that exercises capital controls? (What a euphemism, “capital controls.” It’s seizure.) Put your money into Bitcoin and you can email it to yourself. Carve your Bitcoin code into the inner lip of your frisbee before heading out on that Black Sea vacation. Chances are they won’t catch it at the border.

Traditional currencies either exist in physical form or they’re held and transferred by institutions that are more obediant to the state than they are loyal to their customers. (If Cyprus has anything to do with the current price-spike of Bitcoin, it’s as a lesson to others. Cypriots apparently did not move into Bitcoin in significant numbers.)

Because Bitcoin transactions are relatively hard to track, many can be conducted–how to put this?–independent of one’s tax obligations. In relation to the weight of the tax burden, Bitcoin may grow underground economies. Indeed, it flourishes where transactions (in drugs, for example) are outright illegal. Bitcoin probably moves the Laffer curve to the left.

Security: The tough one for Bitcoin is security. Most people don’t know how to store computer code reliably and how to prevent others from accessing it. Individuals have lost Bitcoin because of hard-drive crashes. (This will cause small losses in the total quantity of Bitcoin over time.) Bitcoin exchanges have collapsed because hackers broke in. And there’s a genuine risk that viruses might camp on your computer, waiting for you to open your (otherwise encrypted) wallet file. They’ll send your Bitcoin to heaven-knows-where the moment you do.

When a Bitcoin transaction has happened, it is final. Like a cash expenditure or loss, there is no reversability and nobody to complain to if you don’t have access to the person on the other side of the transaction. The downside of a currency that costs nothing to transfer is the lack of a 1-800 number to call.

So Bitcoin lags traditional currencies along the security dimension. But this is not intrinsic to Bitcoin. Security will get better as people learn and technology advances. (How ’bout a mega-firewall that requires approval of all outbound Internet traffic while the wallet is open?)

There may be Bitcoin-based payment services, banks, and lenders that provide reversibility, security, that pay interest, and all the other goodies associated with dollars today. To the extent they can stay clear of the regulatory morass, they may be less expensive, more innovative, and, in the early going, more risky.

So what’s the right price for Bitcoin? Only a fool can say. (No offense, all of you declaring a Bitcoin bubble.) I think it depends on the ultimate “viscosity” of Bitcoin.

Let’s say Bitcoin’s exclusive use becomes a momentary medium of exchange: Every buyer converts currency to Bitcoin for transfer, and every seller immediately converts it to her local currency. There’s not much need to hold Bitcoin, so there’s not that much demand for Bitcoin. Its equilibrium price ends up pretty low.

On the other hand, say everybody in the world keeps a little Bitcoin on hand for quick, costless transactions once there’s a handy, reliable, and secure Bitcoin payment system downloadable to our phones. If lots of people hold Bitcoin just because, that highly viscous environment suggests a high price for Bitcoin relative to other currencies and things.

Whatever the case, people are now buying Bitcoin because they think others are going to buy it in the future. Whether they’re “speculators” trying to buy in ahead of other speculators, or if they’re buying Bitcoin as a hedge against the varied weaknesses of fiat currencies and state-controlled payment systems, it doesn’t matter.

What does matter, I think, is having this outlet. The availability of Bitcoin is a small, but growing and important security against fiat currencies and state-controlled payments. It is a competitor to state money.

Bitcoin’s existence makes central bankers slightly less free to inflate the money they control, states will have slightly less success with seizing money, and surveillance of traditional payment systems will be decreasingly useful for law enforcement, taxation, and control.

I don’t think Bitcoin delivers us to libertarian “Shangri-la” or anarcho-capitalism, but it’s a technology that fetters government some. It’s a protection for people, their hard-earned wealth, and their privacy. That’s the value of Bitcoin, in my mind, no matter its current price.

Bitcoin on front page of the Financial TimesOver the past few days, interest in bitcoin has exploded as its valuation has reached stratospheric levels. Most of the media attention has been focused on that valuation and on bitcoin’s viability as money. For example, the Financial Times had the run-up in bitcoin’s price on its front page yesterday, emphasizing its volatility and its commodity-like qualities. It quoted one analyst saying, “It’s gold for computer nerds.” For many folks, this is how they will be introduced to bitcoin, and it’s a shame because it misses what’s really interesting about the crypto-currency.

It’s no secret that bitcoin excites libertarians above all others. What’s less understood is that there are two distinct reasons driving this enthusiasm. The first is that bitcoin is not issued by any authority, so there’s no central banker to monkey the money supply. This attracts what we can affectionately call the “gold bugs” or “audit the Fed” types. They are interested in bitcoin as a new, more moral form of money. And bitcoin as money is what’s been getting all the attention given it’s rising valuation.

But there is a second reason libertarians should be excited about bitcoin, and it’s the reason I am an enthusiast: bitcoin as a payments system. As the world’s first completely decentralized digital currency, there is not only no central banker, there is no intermediary of any kind needed for two parties to make a transaction. Today we rely on third parties to transact online, and when government wants to restrict how we can spend money online, it’s these intermediaries they turn to. PayPal, Visa, MasterCard and other traditional payment processors don’t let you transmit money to WikiLeaks, or to UK gambling sites, or to people in Iran, or to buy illegal goods and services on anonymous black markets. Bitcoin disrupts the ability of governments and intermediaries to control your transactions, and because there is no bitcoin company or bitcoin building anywhere, it can’t be shut down.

Tim Lee gets this when he writes that bitcoin is no competition for the dollar as a currency,

Rather, the future demand for Bitcoins will largely come from applications where conventional currencies don’t perform that well. Bitcoins have some unique properties that no other financial instrument has. They combine the irreversibility of cash transactions with the convenience of electronic transactions. And, the lack of middlemen and regulations greatly reduces the barrier to entry. You don’t need to get permission from big banks or financial regulators to create a Bitcoin-based financial service. All of this means it makes sense to think of Bitcoin less as an alternative currency than as a new platform for financial innovation.

One objection to this view comes from Felix Salmon in a very thoughtful and nuanced essay. He recognizes that bitcoin is “in many ways the best and cleanest payments mechanism the world has ever seen,” but he laments that it is “an uncomfortable combination of commodity and currency.” He goes on to ask rhetorically, “If the currency of a country ever fluctuated as much as bitcoins did, it would never be taken seriously as a medium of exchange: how are you meant to do business in a place where an item costing one unit of currency is worth $10 one day and $20 the next?”

The answer is that bitcoin doesn’t need to be a good unit of account or a good store of value to be a good medium of exchange. Indeed, the prices of products and services being sold for bitcoin online today are denominated in dollars and are converted at the market rate for bitcoin when the transaction happens. This is how WordPress, one of the most prominent companies accepting bitcoin, does it. In fact, WordPress never even handles bitcoin. They employ the services of a very interesting company called Bitpay that manages bitcoin payment processing for them.

When you check out at WordPress using bitcoin, Bitpay quotes you the total of your dollar-denominated shopping cart in bitcoin at the current exchange rate, takes your bitcoin payment, and then deposits dollars in WordPress’s account. This allows WordPress to sell to persons in Iran or Haiti or anyone of the dozens of other countries where PayPal, Visa and MasterCard are not available. It also highlights bitcoin’s true disruptive quality as a payments system—one that is unstoppable, largely anonymous, and incredibly cheap to boot.

To answer Salmon more directly: It doesn’t matter what the price of bitcoin is for it to operate as the amazing payments system that it is. It doesn’t matter if it is very volatile. Dollars go in and dollars come out and the fact that some folks are (probably unwisely) treating it as a store of value doesn’t really matter.

That all said, there are some caveats to point out. Bitcoin will work as a seamless payment system so long as you can get in and out of it quick enough to mitigate volatility. That is largely a technical consideration, but it could also depend on the market’s liquidity, which conceivably could be hurt by speculative hoarding. I haven’t given this much thought yet, but given that bitcoin can be denominated down to eight decimal places, I’m not sure it will be a big problem anytime soon.

Technologies of FreedomThis year marks the 30th anniversary of the publication of Technologies of Freedom: On Free Speech in an Electronic Age by the late communications theorist Ithiel de Sola Pool. It was, and remains, a remarkable book that is well worth your time whether you read it long ago or are just hearing about it for the first time. It was the book that inspired me when I first read in 1994 to abandon my chosen field of study (trade policy) and do a deep dive into the then uncharted waters of information technology policy.

A Technological Nostradamus

Long before most of the world had heard about this thing called “the Internet” or using terms like “cyberspace” or even “electronic superhighway,” Pool was describing this emerging medium, thinking about its ramifications, and articulating the optimal policies that should govern it. In Technologies of Freedom, Pool set forth both a predictive vision of future communications and “electronic publishing” markets as well as a policy vision for how those markets should be governed. “Networked computers will be the printing presses of the twenty-first century,” Pool argued in a remarkably prescient chapter on the future of electronic publishing. “Soon most published information will disseminated electronically,” and “there will be networks on networks on networks,” he predicted. “A panoply of electronic devices puts at everyone’s hands capacities far beyond anything that the printing press could offer.” As if staring into a crystal ball, Pool predicted: Continue reading →

Joshua Gans, professor of Strategic Management at the University of Toronto’s Rotman School of Management and author of the new book Information Wants to be Shared, discusses modern media economics, including how books, movies, music, and news will be supported in the future.

Gans argues that sharing enhances most information’s value. He also explains that the business models of traditional media companies, gatekeepers who have relied on scarcity and control, have collapsed in the face of new technologies. Equally important, he argues that sharing can revive moribund, threatened industries even as he examines platforms that have, almost accidentally, thrived in this new environment.

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Defining “privacy” is a legal and philosophical nightmare. Few concepts engender more definitional controversies and catfights. As someone who is passionate about his own personal privacy — but also highly skeptical of top-down governmental attempts to regulate and/or protect it — I continue to be captivated by the intellectual wrangling that has taken place over the definition of privacy. Here are some thoughts from a wide variety of scholars that make it clear just how frustrating this endeavor can be:

  • Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is.” – Judith Jarvis Thomson, “The Right to Privacy,” in Philosophical Dimensions of Privacy: An Anthology, 272, 272 (Ferdinand David Schoeman ed., 1984).
  • privacy is “exasperatingly vague and evanescent.” – Arthur Miller, The Assault on Privacy: Computers, Data Banks, and Dossiers, 25 (1971).
  • [T]he concept of privacy is infected with pernicious ambiguities.” – Hyman Gross,  The Concept of Privacy, 42 N.Y.U. L. REV. 34, 35 (1967).
  • Attempts to define the concept of ‘privacy’ have generally not met with any success.” – Colin Bennett, Regulating Privacy: Data Protection and Public Policy In Europe and the United States,  25 (1992).
  • When it comes to privacy, there are many inductive rules, but very few universally accepted axioms.” – David Brin, The Transparent Society: Will Technology Force Us To Choose Between Privacy and Freedom? 77 (1998).
  • Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.” – Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2087 (2001).
  • [privacy] can mean almost anything to anybody.” – Fred H. Cate & Robert Litan, Constitutional Issues in Information Privacy, 9 Mich. Telecomm. & Tech. L. Rev. 35, 37 (2002).
  • privacy has long been a “conceptual jungle” and a “concept in disarray.” “[T]he attempt to locate the ‘essential’ or ‘core’ characteristics of privacy has led to failure.” – Daniel J. Solove, Understanding Privacy 196, 8 (2008).
  • Privacy has really ceased to be helpful as a term to guide policy in the United States.” – Woodrow Hartzog, quoted in Cord Jefferson, Spies Like Us: We’re All Big Brother Now, Gizmodo, Sept. 27, 2012.
  • for most consumers and policymakers, privacy is not a rational topic. It’s a visceral subject, one on which logical arguments are largely wasted.” – Larry Downes,  A Rational Response to the Privacy “Crisis,” Cato Institute, Policy Analysis No. 716 (Jan. 7, 2013), at 6.

In my new Harvard Journal of Law & Public Policy article, “The Pursuit of Privacy in a World Where Information Control is Failing” I build on these insights to argue that: Continue reading →

ARIN is the Internet numbers registry for the North American region. It likes to present itself as a paragon of multistakeholder governance and a staunch opponent of the International Telecommunication Union’s encroachments into Internet governance. Surely, if anyone wants to keep the ITU out of Internet addressing and routing policy, it would be ARIN. And conversely, in past years the ITU has sought to carve away some of the authority over IP addressing from ARIN and other RIRs.

But wait, what is this? March 15 the ITU Secretary-General released a preparatory report for the ITU’s World Telecommunications Policy Forum, which will take place in Geneva May 14-16. The report contains 6 Internet-related policy resolutions “to provide a basis for discussion …focusing on key issues on which it would be desirable to reach conclusions.” Draft Opinion #3 pertains to Internet addressing. Among other things, the draft resolves:

  • “that needs-based address allocation should continue to underpin IP address allocation, irrespective of whether they are IPv6 or IPv4, and in the case of IPv4, irrespective of whether they are legacy or allocated address space;
  • “that all IPv4 transactions be reported to the relevant RIRs, including transactions of legacy addresses that are not necessarily subject to the policies of the RIRs regarding transfers, as supported by the policies developed by the RIR communities;”
  • “that policies of inter-RIR transfer across all RIRs should ensure that such transfers are needs based and be common to all RIRs irrespective of the address space concerned.”

These policy positions thrust the ITU and its intergovernmental machinery directly into the realm of IP addressing policy. But that is quite predictable; the ITU has always wanted to do that. What is unusual about these resolutions is that they bear an uncanny resemblance to the policy positions currently advocated by ARIN and the U.S. Department of Commerce.

Continue reading →

If you haven’t seen Edward Hasbrouck’s talk on government surveillance of travel IT systems, you should.

It’s startling to learn just how much access people other than your airline have to your air travel plans.

Here’s just one image that Hasbrouck put together to illustrate what the system looks like.

He’ll be presenting his travel surveillance talk at the Cato Institute at noon on April 2nd. We’ll also be discussing the new public notice on airport strip-search machines issued by the TSA earlier this week.

Register now for Travel Surveillance, Traveler Intrusion.

travel surveillance

Today Reason has published my policy paper addressing privacy concerns created by search, social networking and Web-based e-commerce in general.

These web sites have been in regulatory crosshairs for some time, although Congress and the Federal Trade Commission have been hesitant to push forward with restrictive legislation such as “Do Not Track” and mandatory opt-in or top-down mandates such as the White House drafted “Privacy Bill of Rights.” An the U.S. seems unwilling to go to the lengths Europe is, contemplating such unworkable rules like demanding an “Internet eraser button”—a sort of online memory hole that would scrub any information about you that is accessible on the Web, even if it is part of the public record.

In my paper, It’s Not Personal: The Dangers of Misapplied Policies to Search, Social Media and Other Web Content, I discuss the difficulty of regulating personal disclosure because different people have different thresholds for privacy. We all know people who refuse to go on Facebook because they are wary of allowing too much information about themselves to circulate. Where it gets dicey is when authority figures take a paternalistic attitude and start deciding what information I will not be allowed to share, for what they claim is my own good.

Top down mandates really don’t work, mainly because popular attitudes are always in flux. Offer me 50 percent off on a hotel room, and I may be willing to tell you where I’m vacationing. Find me interesting books and movies, and I may be happy to let you know my favorite titles.

Instead, ground-up guidelines that arise as users become more comfortable with the medium, and sites work to establish trust, work better. True, Google and Facebook often push the envelope in trying to determine where user boundaries are, but pull back when run into user protest. And when the FTC took up Google’s and Facebook’s practices, while the agency shook a metaphorical finger at both companies’ aggressiveness, it assessed no fines or penalties, essentially finding that no consumer harm was done.

This course has been wise. The willingness of users to exchange information about themselves in return for value is an important element of e-commerce. It is worth considering some likely consequences if the government pushes too hard to prevent sites from gathering information about users.

Continue reading →

Free Press is holding its National Conference for Media Reform next week. The conference agenda describes the Internet as “central” to freedom of expression, which is how all mass media technologies have been described since the invention of the printing press ushered in the mass communications era. Despite recognizing that the Internet is a mass media technology, Free Press does not believe the Internet should be accorded the same constitutional protections as other mass media technologies. Like so many others, Free Press has forgotten that the dangers posed by government control of the Internet are similar to those posed by earlier mass media technologies. In a stunning reversal of the concepts embodied in the Bill of Rights, Free Press believes the executive and legislative branches of government are the source of protection for the freedom of expression. In their view, “Internet freedom means net neutrality.Continue reading →