Senior Fellow in Technology & Innovation at the R Street Institute in Washington, DC. Formerly a senior research fellow at the Mercatus Center at George Mason University, President of the Progress & Freedom Foundation, Director of Telecommunications Studies at the Cato Institute, and a Fellow in Economic Policy at the Heritage Foundation.
We learned today that Robert M. McDowell, who has served as a Commissioner at the Federal Communications Commission for almost seven years, will be leaving the agency shortly. I’m sad to hear it. Commissioner McDowell has been a great champion of freedom across the board, from traditional communications and media reform to cutting-edge Internet policy issues. On one issue after another, fans of liberty could count on Rob McDowell to perfectly articulate and defend the pro-freedom position on high-tech policy matters whenever and wherever he wrote or spoke.
I can’t even begin to list all the things we’ve written here over the years at the TLF about McDowell and his excellent body of work while he served at the FCC, but a quick custom search of this blog yields dozens of columns all gushing with praise for the seemingly endless string of outstanding speeches and statements that he made since joining the agency in 2006. But I just want to highlight two of McDowell’s most eloquent speeches and strongly encourage you to go read or re-read them because they will inspire you to keep up the good fight to expand the sphere of liberty in this field:
Last week on his personal blog, Peter Fleischer, Global Privacy Counsel for Google, posted an interesting essay entitled “We Need a Better, Simpler Narrative of US Privacy Laws.” Fleischer says that Europe has done a better job marketing its privacy regime to the world than the United States and argues that “The US has to figure out how to explain its privacy laws on the global stage” since “Europe is convincing many countries around the world to implement privacy laws that follow the European model.” He notes that “in the last year alone, a dozen countries in Latin America and Asia have adopted euro-style privacy laws [while] not a single country, anywhere, has followed the US model.” Fleischer argues that this has ramifications for long-term trade policy and global Internet regulation more generally.
I found this essay very interesting because I deal with some of these issues in my latest law review article, “The Pursuit of Privacy in a World Where Information Control is Failing” (Harvard Journal of Law & Public Policy, vol. 36, no. 2, Spring 2013). In the article, I suggest that the U.S. does have a unique privacy regime and it is one that is very similar in character to the regime that governs online child safety issues. Whether we are talking about online safety or digital privacy, the defining characteristics of the U.S. regime are that it is bottom-up, evolutionary, education-based, empowerment-focused, and resiliency-centered. It focuses on responding to safety and privacy harms after exhausting other alternatives, including market responses and the evolution of societal norms.
The EU regime, by contrast, is more top-down in character and takes a more static, inflexible view of privacy rights. It tries to impose a one-size-fits-all model on a diverse citizenry and it attempts to do so through heavy-handed data directives and ongoing “agency threats.” It is a regime that makes more sweeping pronouncements about rights and harms and generally recommends a “precautionary principle” approach to technological change in which digital innovation is more “permissioned.”
Put simply, the U.S. regime is reactive in character while the E.U. regime is more preemptive. The U.S. system focuses on responding to safety and privacy problems using a more diverse toolbox of solutions, some of which are governmental in character while others are based on evolving social and market norms and responses. To be clear, law does enter the picture here in the U.S., but it does so in a very different way than it does in the E.U. Continue reading →
I’m excited to announce the release of my latest law review article, “The Pursuit of Privacy in a World Where Information Control is Failing,” which appears in the next edition (vol. 36) of the Harvard Journal of Law & Public Policy. This is the first of two complimentary law review articles that I will be releasing this year dealing with privacy policy. The second, which will be published later this summer by the George Mason University Law Review, is entitled, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” (FYI: Both articles focus on privacy claims made against private actors — namely, efforts to limit private data collection — and not on privacy rights against governments.)
The new Harvard Journal article is divided into three major sections. Part I focuses on some of normative challenges we face when discussing privacy and argues that there may never be a widely accepted, coherent legal standard for privacy rights or harms here in the United States. It also explores the tensions between expanded privacy regulation and online free speech. Part II turns to the many enforcement challenges that are often ignored when privacy policies are being proposed or formulated and argues that legislative and regulatory efforts aimed at protecting privacy must now be seen as an increasingly intractable information control problem. Most of the problems policymakers and average individuals face when it comes to controlling the flow of private information online are similar to the challenges they face when trying to control the free flow of digitalized bits in other information policy contexts, such as online safety, cybersecurity, and digital copyright.
If the effectiveness of law and regulation is limited by the normative considerations discussed in Part I and the practical enforcement complications discussed in Part II, what alternatives remain to assist privacy-sensitive individuals? I address that question in Part III of the paper and argue that the approach America has adopted to deal with concerns about objectionable online speech and child safety offers a path forward on the privacy front as well. Continue reading →
I hope that you’ve all been watching the terrific videos on “Economics of the Media” that Tyler Cowen and Alex Tabarrok have put together as part of their Marginal Revolution University online courses. They divide their media economics lessons into four groupings: (1) Basic economics of media; (2) Media bias; (3) Media and government; and (4) Media and economic development. Tyler and Alex asked Jerry Brito and me to contribute two videos on Net neutrality for the project. Jerry’s course offers an overview of Net neutrality as a general engineering principle. My video explores Net neutrality as a regulatory proposal and couches it in a broader discussion of network economics. Each video lasts approximately 6-7 minutes. Here they are:
[Note: I later adapted this essay into a short book, which you can download for free here.]
Let’s talk about “permissionless innovation.” We all believe in it, right? Or do we? What does it really mean? How far are we willing to take it? What are its consequences? What is its opposite? How should we balance them?
What got me thinking about these questions was a recent essay over at The Umlaut by my Mercatus Center colleague Eli Dourado entitled, “‘Permissionless Innovation’ Offline as Well as On.” He opened by describing the notion of permissionless innovation as follows:
In Internet policy circles, one is frequently lectured about the wonders of “permissionless innovation,” that the Internet is a global platform on which college dropouts can try new, unorthodox methods without the need to secure authorization from anyone, and that this freedom to experiment has resulted in the flourishing of innovative online services that we have observed over the last decade.
Eli goes on to ask, “why it is that permissionless innovation should be restricted to the Internet. Can’t we have this kind of dynamism in the real world as well?”
That’s a great question, but let’s ponder an even more fundamental one: Does anyone really believe in the ideal of “permissionless innovation”? Is there anyone out there who makes a consistent case for permissionless innovation across the technological landscape, or is it the case that a fair degree of selective morality is at work here? That is, people love the idea of “permissionless innovation” until they find reasons to hate it — namely, when it somehow conflicts with certain values they hold dear. Continue reading →
I’m excited to announce that the Minnesota Journal of Law, Science & Technology has just published the final version of my 78-page paper on, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.” My thanks to the excellent team at the Journal, who made the final product a much better paper than the one I turned into them! I poured my heart and soul into this article and hope others find it useful. It’s the culmination of all my work on technopanics and threat inflation in information policy debates, much of which I originally developed here in various essays through the years. In coming weeks, I hope to elaborate on themes I develop in the paper in a couple of posts here.
Via a Twitter post this morning, privacy lawyer Stephen Kline (@steph3n) brings to my attention this new California bill that “would require the privacy policy [of a commercial Web site or online
service] to be no more than 100 words, be written in clear and concise language, be written at no greater than an 8th grade reading level, and to include a statement indicating whether the personally identifiable information may be sold or shared with others, and if so, how and with whom the information may be shared.”
I’ve always been interested in efforts — both on the online safety and digital privacy fronts — to push for “simplified” disclosure policies and empowerment tools. Generally speaking, increased notice and simplified transparency in these and others contexts is a good norm that companies should be following. However, as I point out in a forthcoming law review article in the Harvard Journal of Law & Public Policy, we need to ask ourselves whether the highly litigious nature of America’s legal culture will allow for truly “simplified” privacy policies. As I note in the article, by its very nature, “simplification” likely entails less specificity about the legal duties and obligations of either party. Consequently, some companies will rightly fear that a move toward more simplified privacy policies could open them up to greater legal liability. If policymakers persist in the effort to force the simplification of privacy policies, therefore, they may need to extend some sort of safe harbor provision to site operators for a clearly worded privacy policy that is later subject to litigation because of its lack of specificity. If not, site operators will find themselves in a “damned if you do, damned if you don’t” position: Satisfying regulators’ desire for simplicity will open them up to attacks by those eager to exploit the lack of specificity inherent in a simplified privacy policy.
Another issue to consider comes down to simple bureaucratic sloth: Continue reading →
I finally got around to reading this interesting little paper by Justus Haucap and Ulrich Heimeshoff published by the Düsseldorf Institute for Competition Economics entitled, “Google, Facebook, Amazon, eBay: Is the Internet Driving Competition or Market Monopolization?” It offers a nice snapshot of the current state of play in several online sectors and surveys much of the relevant economic literature on the issue of antitrust and information technology markets. The authors also familiarize readers with the basic economic concepts that are hotly debated in the field of digital economics, including: network effects, switching costs, multi-homing, and economies of scale.
What I particularly like about their paper is that it struggles with the two competing narratives that dominate debates over digital age economics. Here’s how Haucap and Heimeshoff put it in the introduction:
On the one hand, it is rather obvious that many very successful Internet-based companies are nearly monopolists. Google, Youtube, Facebook, and Skype are typical examples for Internet firms who dominate their relevant markets and who leave only limited space for a relatively small competitive fringe. Furthermore, most of these providers do not generate content themselves, but “only” provide access to different content on the Internet. On the other hand, the crucial question from a competition policy perspective is not so much whether these firms have such a dominant position today, but rather why they have such a large market share and whether this is a temporary or non-temporary phenomenon. Do these Internet monopolies enjoy a dominant position because they are protected from competition though barriers to entry or do they just enjoy the profits of superior technology and innovation? Are we observing some sort of Schumpeterian competition where one temporary monopoly is followed by another, with innovation as the driving competitive force, or are we dealing with monopoly firms that mainly try to foreclose their markets through anticompetitive behavior?
Faithful readers know from my past rantings here on this blog, in Forbes columns, and in various working papers, that I am firmly in the latter (“Schumpeterian competition”) camp. Continue reading →
2013 is shaping up to be another big year for Internet and information technology policy books. Here’s a list of what’s coming out or already on the market. As faithful readers know, I put together end-of-year lists of important info-tech policy books, and here are the lists for 2008, 2009, 2010, 2011 and the most recent one for 2012. And here’s my compendium of all the major tech policy books from the 2000s. So I’ll do my best to get through all these books and whatever else follows throughout the year. Consider this my public service to the Internet policy community: I read nerdy Internet policy books so that you don’t have to!
Let me know what else I may have missed and I will add it to the list.
In an important essay this week entitled “Silicon Valley’s ‘Suicide Impulse’,” Wall Street Journal columnist L. Gordon Crovitz warns that “Silicon Valley has long prided itself on avoiding the lumbering relationship between big government and most industries, but somehow it has become one of the top lobbyists in Washington.” Crovitz is worried that Internet and technology companies are falling prey to what Milton Friedman labeled “The Business Community’s Suicidal Impulse”: the persistent propensity to persecute one’s competitors using regulation or the threat thereof. “Rather than lobby government to go after one another,” Crovitz argues, “Silicon Valley lobbyists should unite to go after overreaching government. Instead of the ‘suicide impulse’ of lobbying for more regulation, Silicon Valley should seek deregulation and a long-overdue freedom to return to its entrepreneurial roots.”
Crovitz’s essay touches upon a dangerous trend I have written about here and elsewhere in the past: the increasing politicization of the Internet and information technology sectors and the gradual rise of rent-seeking (i.e., favor-seeking) over time. I’ve written about this problem in essays like:
These essays have documented how tech companies are increasingly vying for the attention of legislators and regulators in Washington, statehouses, and international capitals across the globe.
Why should we care about the increasing politicization of the information technology sector? Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
We learned today that Robert M. McDowell, who has served as a Commissioner at the Federal Communications Commission for almost seven years, will be leaving the agency shortly. I’m sad to hear it. Commissioner McDowell has been a great champion of freedom across the board, from traditional communications and media reform to cutting-edge Internet policy issues. On one issue after another, fans of liberty could count on Rob McDowell to perfectly articulate and defend the pro-freedom position on high-tech policy matters whenever and wherever he wrote or spoke.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.