Articles by Jerry Brito

Jerry is a senior research fellow at the Mercatus Center at George Mason University, and director of its Technology Policy Program. He also serves as adjunct professor of law at GMU. His web site is jerrybrito.com.


On the podcast this week, Adam Lashinsky, author and editor-at-large for Fortune, discusses his new book, Inside Apple: How America’s Most Admired–and Secretive–Company Really Works. Lashinsky begins by discussing Apple’s obsession with secrecy to the point that employees do not discuss what they are working on with other employees. According to Lashinsky, secrecy is tied to focus and achievement, so Apple employees obtain a depth and expertise on one area, rather than being exposed to different areas of the company. He then discusses how secrecy impacts employee morale and how employees view accomplishment and achievement as a tradeoff for happiness and morale. Lashinsky then explains how other corporations can emulate Apple’s secretive style and reap the benefits.

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On the podcast this week, Christina Mulligan, Visiting Fellow at the Information Society Project at Yale Law School, discusses Her new paper, co-authored with Tim Lee, entitled, Scaling the Patent System. Mulligan begins by describing the policy behind patents: to give temporary exclusive rights to inventors so they can benefit monetarily for their inventions. She then explains the thesis of the paper, which argues that the patent system is failing because it is too large to scale. Mulligan claims that some industries are ignoring patents when they develop new products because it is nearly impossible to discover whether a new product will infringe on an existing patent. She then highlights industries where patents are effective, like the pharmaceutical and chemical industries. According to Mulligan, these industries rarely infringe on patents because existing patents are “indexable,” meaning they are easy to look up. The discussion concludes with Mulligan offering solutions for the current problem, which includes restricting the subject matter of patents to indexable matters.

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On the podcast this week, Bruce Schneier, internationally renowned security expert and author, discusses his new book entitled, “Liars & Outliers: Enabling the Trust That Society Needs To Thrive.” Schneier starts the discussion by looking at society and trust and explains why he thinks the two are necessary for civilization. According to Schneier, two concepts contribute to a trustful society: first, humans are mostly moral; second, informal reputation systems incentivize trustworthy behavior. The discussion turns to technology and trust, and Schneier talks about how the information society yields greater consequences when trust is breached. He then describes how society deals with technology and trust and why he thinks the system is not perfect but working well overall.

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On the podcast this week, Jason Mazzone, professor of law at Brooklyn Law School, discusses his new book, Copyfraud and Other Abuses of Intellectual Property Law. Copyfruad, according to Mazzone, occurs when intellectual property law is used in an abusive or overreaching manner. Mazzone believes the problem arises when content owners make false or fraudulent claims of intellectual property rights that are not recognized by the law. The discussion turns to the scope of harm that results from Copyfraud, and Mazzone proposes that the solution lies in legislative measures as well as education on the scope of intellectual property law.

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[From *The Hill* this weekend](http://thehill.com/blogs/hillicon-valley/technology/216519-alarming-rhetoric-used-in-push-for-cybersecurity-bills):

>But James Lewis, the director of the Technology and Public Policy Program at the Center for Strategic and International Studies, said “no serious analyst doubts the risk anymore” of a cyber attack.

>”There are people who are naturally skeptical about anything the government says and there are the ones who are paid to be skeptical,” Lewis said, but he claimed almost everyone else has accepted the seriousness of the situation.

Since I’m the only other person quoted in the story–making the case that the threat of a catastrophic cyberattack has been exaggerated–that statement can be read as applying to me. I’m certainly naturally skeptical of government (for good reason, I think), and to the extent my organization is also generally skeptical of government, I guess I am paid to be skeptical of government. But the implication that I wouldn’t advocate skepticism of government but for payment is insulting. And it also has nothing to do with whether the cyber threat has been blown out of proportion and whether we should be skeptical of such threat inflation.

On that front, I’d like to quote at length from a fantastic 2006 *San Francisco Chronicle* piece entitled, “[The War on Hype](http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/02/19/INGDDH8E2V1.DTL),” that might as well have been written by me. It is by a certain James A. Lewis:
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tumblr_m04g8byWGw1qdu5t4o1_500The cover story of this week’s *The New Republic* is [a review by Evgeny Morozov](http://www.tnr.com/print/article/books-and-arts/magazine/100978/form-fortune-steve-jobs-philosopher) of Walter Isaacson’s [biography of Steve Jobs](http://www.amazon.com/exec/obidos/ASIN/1451648537/jerrybritocom/ref=nosim/). In 10,000 words it is more illuminating about what made Steve Jobs tick than Isaacson’s 656 pages of warmed-over anecdotes and Wikipedia glosses. Morozov gets it right when he draws the connection between Bauhaus and Apple–functionalism and simplicity über alles. But he doesn’t seem to like where this takes Apple or Jobs.

He calls Jobs’s adherence to the Bauhaus ideal “a kind of industrial Platonism” in which products have a true form or essence that must be discovered and revealed by a designer. What consumers *think* they want is irrelevant; they will know what they want when it is presented to them. That’s true as far as it goes, but Morozov is the real Platonist here.

Morozov’s ultimate indictment of Apple is that it refuses to consider the externalities its technologies impose on “society.” One may love one’s Apple products and how they have improved one’s life, but, Morozov says,

>We need to identify the other moral instructions that may be embedded in a technology, which it promotes directly or indirectly. And this fuller analysis requires going beyond studying the immediate impact on the user and engaging with the broader–let us call it the “ecological”–impact of a device. (“Ecological” here has no environmental connotations; it simply indicates that a technology may affect not only its producer and its user, but also the values and the habits of the community in which they live.)

What is this negative externality Apple’s technology is inflicting on the value and habits of our communities? It’s that apps will kill the open Internet, except not for the reasons we think. Morozov cites and dismisses Jonathan Zittrain’s [“generativity” critique](http://www.amazon.com/exec/obidos/ASIN/0300124872/jerrybritocom/ref=nosim/) saying that Zittrain is concerned only with the threat to innovation. Morozov, on the other hand, is concerned with loftier “ethical and aesthetic considerations.” Namely, that Apple’s app paradigm “may be destroying the Internet in much the same way that the automobile destroyed the sidewalks and the playgrounds.”

>The point is not that we should forever cling to the shape and the format of the Internet as it exists today. It is that we should (to borrow Apple’s favorite phrase) “think different” and pay attention to the aesthetic and civic externalities of the app economy. Our choice is between erecting a virtual Portland or sleepwalking into a virtual Dallas. But Apple under Steve Jobs consistently refused to recognize that there is something valuable to the Web that it may be destroying.

After reading [a competing cover story about Portland](http://www.weeklystandard.com/articles/insufferable-portland_631919.html?nopager=1) in another newsweekly, I’m not sure the choice is as clear as Morozov thinks it is. But the message is clear: like Portland’s planners do about a “livable city,” Morozov has a vision of what is the Internet’s pure form, and it’s not one left to messy markets.

Morozov quotes a *Newsweek* interview with Jobs just a few years after the Web was invented. Jobs sees it as “the ultimate direct-to-customer distribution channel.” He essentially predicts that you’ll be able to buy books online and that the bookstore will know what you like.

>That the Web did become a shopping mall fifteen years after Jobs made his remark does not mean that he got the Web right. It means only that a powerful technology company that wants to change the Web as it pleases can currently do so with little or no resistance from anyone. If one day Apple decides to remove a built-in browser from the iPad, as the Web becomes less necessary in an apped world, it will not be because things took on a life of their own, but because Apple refused to investigate what other possible directions—or forms of life—“things” might have taken. For Jobs, with his pre-political mind, there was no other way to think about the Internet than to rely on the tired binary poles of supply and demand.

The notion that Apple turned the web into what it is today singlehandedly is laughable. Apple was moribund until 2000, didn’t introduce the iTunes Store until 2003, and has never had a strong presence on the web. The web has become what it is today because the convenience of getting any book you want, whenever you want it, and cheaply [beats little bookstores stocked by proprietor’s whims](http://www.slate.com/articles/technology/technology/2011/12/independent_bookstores_vs_amazon_buying_books_online_is_better_for_authors_better_for_the_economy_and_better_for_you_.single.html), however aesthetically pleasing they may be–which they’re often not. And for the record, I hope we can all agree the web is more than a shopping mall.

More to the point, though, Jobs was not as much a Pied Piper as we’d like to think he was. Depite all his marketing moxie, he was constrained by the market. If Jobs ever thought there was a true essence of a computer, it was the Power Mac G4 Cube. As Isaacson says, “it was the pure expression of Jobs’s aesthetic.” And it was a flop. “Jobs later admitted that he had overdesigned and overpriced the Cube, just as he had the NeXT computer.” Remember the NeXT cube? How about the iPod Hi-Fi? The buttonless iPod shuffle? Ping? Those tired poles of supply and demand told Jobs “no” time after time, but we might just as easily dismiss gravity or entropy as tired.

If Apple were to remove the browser from the iPad today, there would be, shall we say, less demand for the tablet. If at some future date there is no more demand for a web browser, and Apple removes it to little fanfare, then what is the harm?

I guess it is some Platonic Internet that we’d lose. A *pure* internet that we don’t know we want. One that only philosopher-kings can see. One they will discuss at “Berlin-based think tanks” and in the pages of “quarterly magazines,” as Morozov praises Google for sponsoring. And it’s an Internet the philosopher-kings would plan for us the same way Neil Goldschmidt and his friends planned Portland.

No thanks. I prefer a Steve Jobs, pursuing a functionalist ideal with little care for the consequences, yet checked by those tired poles and the “perennial gale of creative destruction” that will someday catch up with Apple.

On the podcast this week, Gabriella Coleman, anthropologist and the Wolfe Chair in Scientific and Technological Literacy in the Department of Art History & Communication Studies at McGill University, discusses hacktivist group Anonymous. Coleman begins with an overview of Anonymous originating with online pranks that eventually evolved into political activism. The group, according to Coleman, began seeking “lulz” on the message board 4chan. The pranks consisted of Internet memes and practical Internet jokes called trolling. She then discusses how the group moved into activism using denial of services attacks to shut down websites and how it issued a series of videos against the Church of Scientology. The discussion then turns to the recent arrest of several LulzSec members, including Sabu, the hacker turned FBI informant.

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On Wednesday, administration and military officials [simulated a cyber attack](http://thehill.com/blogs/hillicon-valley/technology/214951-white-house-simulates-cyber-attack-for-senators-as-part-of-push-for-legislation) for a group of senators in an attempt to show a dire need for cybersecurity legislation. All 100 senators were invited to the simulation, which “demonstrated how the federal government would respond to an attack on the New York City electrical grid during a summer heat wave, according to Senate aides.” Around 30 Senators attended. Some [post-game reactions](http://www.politico.com/morningtech/0312/morningtech421.html):

>After the briefing, [Sen. Jay] Rockefeller spokesman Vincent Morris said: “We hope that seeing the catastrophic outcome of a power grid takedown by cyberterrorists encourages more senators to set aside Chamber of Commerce talking points and get on this bill.” [Sen. Mary] Landrieu said the simulation “just enhanced the view that I have about how important” cybersecurity is. She added: “The big takeaway is it’s urgent that we get this done now.”

So how catastrophic did the simulation get? How many casualties? What was the extent of the simulated damage? Did thousands die a la 9/11? A “cyber 9/11” if you will? We’ll likely never know because such a simulation will be classified.

Yet as policymakers consider the cost-benefit of cybersecurity legislation, I hope they’ll remember that we’ve already had many a blackout in New York City in real life and, well, they didn’t lead to catastrophic loss of life, panic or terror. As Sean lawson [has explained](http://mercatus.org/publication/beyond-cyber-doom):

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On the podcast this week, Rebecca MacKinnon, a former CNN correspondent and now Senior Fellow at the New America Foundation, discusses her new book, “Consent of the Networked: The Worldwide Struggle for Internet Freedom.” MacKinnon begins by discussing “Net Freedom,” which she describes as a structure that respects rights, freedoms, and accountability. She discusses how some governments, like China, use coercion to make private companies act a as subcontractors for censorship and manipulation. She goes on to discuss a project she launched called Global Network Initiative, where she urges companies like Google and Facebook to be more socially responsible. MacKinnon believes technology needs to be compatible with political freedoms, and she issues a call to action for Internet users to demand policies that are compatible with Internet freedoms.

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After the NSA’s aggressive pursuit of a greater role in civilian cybersecurity, and last week’s statement by Sen. John McCain criticizing the Lieberman-Collins bill for not including a role for the agency, [some feared](http://www.techdirt.com/articles/20120229/17512717918/nsa-makes-its-power-play-to-spy-key-private-networks-pretending-that-only-it-can-protect-everyone-attack.shtml) that the new G.O.P. cybersecurity bill would allow the military agency to gather information about U.S. citizens on U.S. soil. So, it’s refreshing to see that the bill introduced today–the SECURE IT Act of 2012–does not include NSA monitoring of Internet traffic, which would have been very troubling from a civil liberties perspective.

In fact, this new alternative goes further on privacy than the Liberman-Collins bill. It limits the type of information ISPs and other critical infrastructure providers can share with law enforcement. Without such limits, “information sharing” could become a back door for government surveillance. With these limits in place, information sharing is certainly preferable to the more regulatory route taken by the Liberman-Collins bill.

It seems to me that despite Sen. McCain’s stated preference for an NSA role, the G.O.P. alternative is looking to address the over-breadth of the Lieberman-Collins bill without introducing any new complications. The SECURE IT bill is also more in line with the approach taken by the House, so it would make reaching consensus easier.

I’ll be posting more here as I learn about the bill.

**UPDATE 12:06 PM:** A copy of the bill is now available. Find it after the break.

**UPDATE 2:55 PM:** Having now had an opportunity to take a look at the bill and not just the summary, it does appear it includes a hole through which the NSA may be able to drive a freight train. While NSA monitoring of civilian networks is not mandated, information that is shared by private entities with federal cybersecurity centers “may be disclosed to and used by”

>any Federal agency or department, component, officer, employee, or agent of the Federal government for a cybersecurity purpose, **a national security purpose,** or in order to prevent, investigate, or prosecute any of the offenses listed in section 2516 of title 18, United States Code …

That last bit limits law enforcement’s use of shared cyber threat information to serious crimes, but the highlighted bit potentially allows sharing with the NSA or any other agency, civilian or military, for a any “national security” reasons. That is troublingly broad and a blemish on this otherwise non-regulatory bill.

Information sharing with the NSA might be fine as long as it is not mandatory and the shared information is used *only* for cyber security purposes.

**[Cross posted from JerryBrito.com](http://jerrybrito.com/2012/03/01/no-nsa-monitoring-in-mccain-cyber-bill-seems-better-on-privacy/)**

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