Miscellaneous

[Originally published on Medium on 2/5/2022]

In an earlier essay, I explored “Why the Future of AI Will Not Be Invented in Europe” and argued that, “there is no doubt that European competitiveness is suffering today and that excessive regulation plays a fairly significant role in causing it.” This essay summarizes some of the major academic literature that leads to that conclusion.

Since the mid-1990s, the European Union has been layering on highly restrictive policies governing online data collection and use. The most significant of the E.U.’s recent mandates is the 2018 General Data Protection Regulation (GDPR). This regulation established even more stringent rules related to the protection of personal data, the movement thereof, and limits what organizations can do with data. Data minimization is the major priority of this system, but there are many different types of restrictions and reporting requirements involved in the regulatory scheme. This policy framework also has ramifications for the future of next-generation technologies, especially artificial intelligence and machine learning systems, which rely on high-quality data sets to improve their efficacy.

Whether or not the E.U.’s complicated regulatory regime has actually resulted in truly meaningful privacy protections for European citizens relative to people in other countries remains open to debate. It is very difficult to measure and compare highly subjective values like privacy across countries and cultures. This makes benefit-cost analysis for privacy regulation extremely challenging — especially on the benefits side of the equation.

What is no longer up for debate, however, is the cost side of the equation and the question of what sort of consequences the GDPR has had on business formation, competition, investment, and so on. On these matters, standardized metrics exist and the economic evidence is abundantly clear: the GDPR has been a disaster for Europe. Continue reading →

The Wall Street Journal has run my response to troubling recent opeds by President Biden (“Republicans and Democrats, Unite Against Big Tech Abuses“) and former Trump Administration Attorney General William Barr (“Congress Must Halt Big Tech’s Power Grab“) in which they both called for European-style regulation of U.S. digital technology markets.

“The only thing Europe exports now on the digital-technology front is regulation,” I noted in my response, and that makes it all the more mind-boggling that Biden and Barr want to go down that same path. “[T]he EU’s big-government regulatory crusade against digital tech: Stagnant markets, limited innovation and a dearth of major players. Overregulation by EU bureaucrats led Europe’s best entrepreneurs and investors to flee to the U.S. or elsewhere in search of the freedom to innovate.”

Thus, the Biden and Barr plans for importing European-style tech mandates, “would be a stake through the heart of the ‘permissionless innovation’ that made America’s info-tech economy a global powerhouse.” In a longer response to the Biden oped that I published on the R Street blog, I note that:

“It is remarkable to think that after years of everyone complaining about the lack of bipartisanship in Washington, we might get the one type of bipartisanship America absolutely does not need: the single most destructive technological suicide in U.S. history, with mandates being substituted for markets, and permission slips for entrepreneurial freedom.”

What makes all this even more remarkable is that they calls for hyper-regulation come at a time when China is challenging America’s dominance in technology and AI. Thus, “new mandates could compromise America’s lead,” I conclude. “Shackling our tech sectors with regulatory chains will hobble our nation’s ability to meet global competition and undermine innovation and consumer choice domestically.”

Jump over to the WSJ to read my entire response (“EU-Style Regulation Begets EU-Style Stagnation“) and to the R Street blog for my longer essay (“President Biden Wants America to Become Europe on Tech Regulation“).

Everywhere you look in tech policy land these days, people decry China as a threat to America’s technological supremacy or our national security. Many of these claims are well-founded, while others are somewhat overblown. Regardless, as I argue in a new piece for National Review this week, “America Won’t Beat China by Becoming China.” Many pundits and policymakers seem to think that only a massive dose of central planning and Big Government technocratic bureaucracy can counter the Chinese threat. It’s a recipe for a great deal of policy mischief.

Some of these advocates for a ‘let’s-be-more-like-China’ approach to tech policy also engage in revisionist histories about America’s recent success stories in the personal computing revolution and internet revolution. As I note in my essay, “[t]he revisionists instead prefer to believe that someone high up in government was carefully guiding this decentralized innovation. In the new telling of this story, deregulation had almost nothing to do with it.” In fact, I was asked by National Review to write this piece in response to a recent essay by Wells King of American Compass, who has penned some rather remarkable revisionist tales of government basically being responsible for all the innovation in digital tech sectors over the past quarter century. Markets and venture capital had nothing to do with it by his reasoning. It’s what Science writer Matt Ridley correctly labels “innovation creationism,” or the notion that it basically takes a village to raise an innovator. Continue reading →

I have a new oped in the Orange County Register discussing reforms that can help address the growing problem of “zombie government,” or old government policies and programs that just seem to never die even thought they have long outlived their usefulness. While there is no single solution to this sort of “set-it-and-forget-it” approach to government that locks in old policies and programs, but I note that:

sunsets and sandboxes are two policy innovations that can help liberate California from old and cumbersome government regulations and rules. Sunsets pause or end rules or programs regularly to ensure they don’t grow stale. Sandboxes are policy experiments that allow for the temporary relaxation of regulations to see what approaches might work better.

When California, other states, and the federal government fail to occasional do spring cleanings of unneeded old rules and programs, it creates chronic regulatory accumulation that has real costs and consequences for the efficient operation of markets and important government programs.

Jump over to the OCR site to read the entire oped.

I’m finishing up my next book, which is tentatively titled, “A Flexible Governance Framework for Artificial Intelligence.” I thought I’d offer a brief preview here in the hope of connecting with others who care about innovation in this space and are also interested in helping to address these policy issues going forward.

The goal of my book is to highlight the ways in which artificial intelligence (AI) machine learning (ML), robotics, and the power of computational science are set to transform the world—and the world of public policy—in profound ways. As with all my previous books and research products, my goal in this book includes both empirical and normative components. The first objective is to highlight the tensions between emerging technologies and the public policies that govern them. The second is to offer a defense of a specific governance stance toward emerging technologies intended to ensure we can enjoy the fruits of algorithmic innovation.

AI is a transformational technology that is general-purpose and dual-use. AI and ML also build on top of other important technologies—computing, microprocessors, the internet, high-speed broadband networks, and data storage/processing systems—and they will become the building blocks for a great many other innovations going forward. This means that, eventually, all policy will involve AI policy and computational considerations at some level. It will become the most important technology policy issue here and abroad going forward.

The global race for AI supremacy has important implications for competitive advantage and other geopolitical issues. This is why nations are focusing increasing attention on what they need to do to ensure they are prepared for this next major technological revolution. Public policy attitudes and defaults toward innovative activities will have an important influence on these outcomes.

In my book, I argue that, if the United States hopes to maintain a global leadership position in AI, ML, and robotics, public policy should be guided by two objectives:

  1. Maximize the potential for innovation, entrepreneurialism, investment, and worker opportunities by seeking to ensure that firms and other organizations are prepared to compete at a global scale for talent and capital and that the domestic workforce is properly prepared to meet the same global challenges.
  2. Develop a flexible governance framework to address various ethical concerns about AI development or use to ensure these technologies benefit humanity, but work to accomplish this goal without undermining the goals set forth in the first objective.

The book primarily addresses the second of these priorities because getting the governance framework for AI right significantly improves the chances of successfully accomplishing the first goal of ensuring that the United States remains a leading global AI innovator. Continue reading →

Are you a student or young scholar looking for opportunities to advance your studies and future career opportunities? The Mercatus Center at George Mason University can help. I’ve been with Mercatus for 12 years now and the most rewarding part of my job has always been the chance to interact with students and up-and-coming scholars who are hungry to learn more and make their mark on the world. Of course, learning and researching takes time and money. Mercatus works with students and scholars in many different fields to help them advance their careers by offering them some financial assistance to make their dreams easier to achieve. 

The Mercatus Center’s Academic & Student Programs team (ASP) are the ones that make all this happen. ASP is currently accepting applications for various fellowships running through the 2022-2023 academic year (for students) and 2023 calendar year (for our early-career scholars).  ASP recruits, trains, and supports graduate students who have gone on to pursue careers in academia, government, and public policy. Additionally, ASP supports scholars pursuing research on the cutting edge of academia. Mercatus fellows have an opportunity to learn from and interact with an impressive collection of Mercatus faculty, affiliated scholars, and visitors.

ASP offers several different fellowship programs to suit every need. Our fellows explore and discuss the foundations of political economy and public policy and pursue research on pressing issues. For graduate students who follow this blog and are generally interested in the big questions surrounding innovation, we especially encourage you to consider the Frédéric Bastiat Fellowship which will be premiering its innovation study track for the 2022-2023 academic year. I usually am an instructor at the session on tech and innovation policy. 

Here are more details on all the academic fellowships that Mercatus currently offers. Please pass along this information to any students or early-career scholars who might be interested.

Continue reading →

A short presentation I do for Mercatus Center graduate students every couple of years offering advice to aspiring policy scholars looking to develop their personal brand & be more effective public policy analysts.

Post image for Another NFT Explainer

Another NFT Explainer

by on March 29, 2021 · 0 comments

I don’t understand the hype surrounding Non-Fungible Tokens (NFTs). As someone who has studied copyright and technology issues for years, maybe because it doesn’t seem very new to me. It’s just a remixing of some ideas and technologies that have been around for decades. Let me explain.

For at least 100 years, “ownership” of real property has been thought of as a “bundle of rights.” As a simple example, you may “own” the land your house sits on, but the city probably has a right to build and maintain a sidewalk across your yard and the general public has a right to walk across your property on that sidewalk. The gas company has the right to walk into your side yard to read your gas meter. Pilots have a right to fly over your house. Some other company or companies may have rights to any water and minerals in the ground below your house. Your homeowners association may even have a right to dictate what color you paint the exterior of your house.

This same “bundle of rights” concept also applies to copyright. Unless explicitly granted by contract, buying an original painting doesn’t mean you have the right to take a photograph of the painting and sell prints of the photograph. If you buy a DVD, you have the right to watch the DVD privately and you have the right to sell the DVD when you’re no longer interested in it. (That second right is called the “first sale doctrine” and there have been numerous Supreme Court cases and laws defining it’s exact boundaries.) But unless explicitly granted by contract, purchasing a DVD doesn’t mean you have the right to set up a projector and big screen and charge members of the public to watch it. That requires a “public performance” right.

When you buy most NFTs, you get very few of the rights that typically come with ownership. You might only get the right to privately exhibit the underlying work. And if you decide to later resell the NFT, the contract (which is embedded in digital code of the NFT) may stipulate that the original artist gets a 10% royalty on every future sale of the work.

The second thing you need to understand is the concept of “artificial scarcity.” As a simple example, in the art world, it’s common for photographers and painters to sell numbered, “limited edition” prints of their works. There’s no technological reason why they couldn’t print 1,000 copies of their work, or even register the print with a “print on demand” service that will continue making and selling prints as long as there are people who want to buy them. But limiting the number of prints made (even if each print is identical to any other print), is likely to raise the price. This is artificial scarcity. Most NFTs are an edition of one. Even if there are other exact copies of the underlying artwork sold as NFTs, each NFT is unique. This is like an artist selling numbered prints but not putting a limit on how many numbered prints they make. Each numbered print is technically unique because each has a different number. But without some artificial scarcity, the value of any one print may stay very low.

So if buying a NFT doesn’t get you any real rights and the scarcity is purely artificial, why are NFTs selling for hundreds of thousands of dollars? Here’s where all the technology really makes a difference. If you spend millions on a Picasso painting, you’re taking a lot of risks. First, you’re taking the risk that it’s a forgery, which would drop the value to near-zero. Second is the risk that the painting will be stolen from you. Insurance can help deal with both problems, but that adds more complications. If you’re buying the painting as an investment, these complications reduce the “liquidity” of the asset. Liquidity is the ease with which an asset can be converted into cash without affecting the market value of the asset. Put more simply, liquidity is how easily the asset can be sold. Cash has long been considered the most liquid asset, but NFTs are arguably much /more/ liquid than cash. NFTs don’t require anything physical to trade hands. And even electronic currency transfers take time and are subject to government oversight. NFTs are so new, they’re barely regulated. But by using blockchain technology, they can be easily and safely bought and sold anonymously. NFTs are a money launderers dream. It’s unclear if NFTs are actually being used to launder money, but it’s a concern.

The other reason I think NFTs are so popular is speculation. Because NFTs are so liquid and because there basically doesn’t even need to be an underlying work, the initial cost to “mint” (create) a NFT is near zero. And by using blockchain systems, NFTs can be resold with little overhead. (Though they can also be configured to ensure a certain overhead, e.g. that 10% of every resale goes to the original artist.) These characteristics, along with the newness of NFTs make it a popular marketplace for speculators, people who purchase assets with the intent of holding them for only a short time and then selling them for a profit.

NFTs started to enter the public consciousness in February 2021, after the 10-year old “Nyan cat” animation sold for over half a million dollars. This is also just a few weeks after the Gamestop stock short squeeze made a compelling case that average investors, working in concert, could upset the stock market and make millions. So it’s no wonder that there is rampant speculation in NFTs.

In conclusion, NFTs will be a tremendous benefit to digital artists, who did not previously have a way to easily prove the authenticity of their works (which is of tremendous importance to investors) or to provide a digital equivalent to numbered prints in the physical art world. But the hype about NFTs is just that. It’s driven by speculators and you’d be crazy to think of this as a worthy investment opportunity.

Content moderation online is a newsworthy and heated political topic. In the past year, social media companies and Internet infrastructure companies have gotten much more aggressive about banning and suspending users and organizations from their platforms. Today, Congress is holding another hearing for tech CEOs to explain and defend their content moderation standards. Relatedly, Ben Thompson at Stratechery recently had interesting interviews with Patrick Collison (Stripe), Brad Smith (Microsoft), Thomas Kurian (Google Cloud), and Matthew Prince (Cloudflare) about the difficult road ahead re: content moderation by Internet infrastructure companies.

I’m unconvinced of the need to rewrite Section 230 but like the rest of the Telecom Act—which turned 25 last month–the law is showing its age. There are legal questions about Internet content moderation that would benefit from clarifications from courts or legal scholars.

(One note: Social media common carriage, which some advocates on the left, right, and center have proposed, won’t work well, largely for the same reason ISP common carriage won’t work well—heterogeneous customer demands and a complex technical interface to regulate—a topic for another essay.)

The recent increase in content moderation and user bans raises questions–for lawmakers in both parties–about how these practices interact with existing federal laws and court precedents. Some legal issues that need industry, scholar, and court attention:

Public Officials’ Social Media and Designated Public Forums

Does Knight Institute v. Trump prevent social media companies’ censorship on public officials’ social media pages?

The 2nd Circuit, in Knight Institute v. Trump, deemed the “interactive space” beneath Pres. Trump’s tweets a “designated public forum,” which meant that “he may not selectively exclude those whose views he disagrees with.” For the 2nd Circuit and any courts that follow that decision, the “interactive space” of most public officials’ Facebook pages, Twitter feeds, and YouTube pages seem to be designated public forums.

I read the Knight Institute decision when it came out and I couldn’t shake the feeling that the decision had some unsettling implications. The reason the decision seems amiss struck me recently:

Can it be lawful for a private party (Twitter, Facebook, etc.) to censor members of the public who are using a designated public forum (like replying to President Trump’s tweets)? 

That can’t be right. We have designated public forums in the physical world, like when a city council rents out a church auditorium or Lions Club hall for a public meeting. All speech in a designated public forum is accorded the strong First Amendment rights found in traditional public forums. I’m unaware of a case on the subject but a court is unlikely to allow the private owner of a designated public forum, like a church, to censor or dictate who can speak when its facilities are used as a designated public forum.

The straightforward implication from Knight Institute v. Trump seems to be that neither politicians nor social media companies can make viewpoint-based decisions about who can comment on or access an official’s social media account.

Knight Institute creates more First Amendment problems than it solves, and could be reversed someday. [Ed. update: In April 2021, the Supreme Court vacated the 2nd Circuit decision as moot since Trump is no longer president. However, a federal district court in Florida concluded, in Attwood v. Clemons, that public officials’ “social media accounts are designated public forums.” The Knight Institute has likewise sued Texas Attorney General Paxton for blocking user and claimed that his social media feed is a designated public forum. It’s clear more courts will adopt this rule.] But to the extent Knight Institute v. Trump is good law, it seems to limit how social media companies moderate public officials’ pages and feeds.

Cloud neutrality

How should tech companies, lawmakers, and courts interpret Sec. 512?

Wired recently published a piece about “cloud neutrality,” which draws on net neutrality norms of nondiscrimination towards content and applies them to Internet infrastructure companies. I’m skeptical of the need or constitutionality of the idea but, arguably, the US has a soft version of cloud neutrality embedded in Section 512 of the DMCA.

The law conditions the copyright liability safe harbor for Internet infrastructure companies only if: 

the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider.

17 USC § 512(a).

Perhaps a copyright lawyer can clarify, but it appears that Internet infrastructure companies may lose their copyright safe harbor if they handpick material to censor. To my knowledge, there is no scholarship or court decision on this question.

State Action

What evidence would a user-plaintiff need to show that their account or content was removed due to state action?

Most complaints of state action for social media companies’ content moderation are dubious. And while showing state action is hard to prove, in narrow circumstances it may apply. The Supreme Court test has said that when there is a “sufficiently close nexus between the State and [a] challenged action,” the action of a private company will be treated as state action. For that reason, content removals made after non-public pressure or demands from federal and state officials to social media moderators likely aren’t protected by the First Amendment or Section 230.

Most examples of federal and state officials privately jawboning social media companies will never see the light of day. However, it probably occurs. Based on Politico reporting, for instance, it appears that state officials in a few states leaned on social media companies to remove anti-lockdown protest events last April. It’s hard to know exactly what occurred in those private conversations, and Politico has updated the story a few times, but examples like that may qualify as state action.

Any public official who engages in non-public jawboning resulting in content moderation could also be liable to a Section 1983 claim–civil liability for deprivation of an affected user’s constitutional rights.

Finally, what should Congress do about foreign state action that results in tech censorship in the US? A major theme of the Stretechery interviews ist that many tech companies feel pressure to set their moderation standards based on what foreign governments censor and prohibit. Content removal from online services because of foreign influence isn’t a First Amendment problem, but it is a serious free speech problem for Americans.

Many Republicans and Democrats want to punish large tech companies for real or perceived unfairness in content moderation. That’s politics, I suppose, but it’s a damaging instinct. For one thing, the Section 230 fixation distract free-market and free-speech advocates from, among other things, alarming proposals for changes to the FEC that empower it to criminalize more political speech. The singular focus on Section 230 repeal-reform distracts from these other legal questions about content moderation. Hopefully the Biden DOJ or congressional hearings will take some of these up.

On January 7, with the Pai FCC winding down, the agency made an important rule change that gives US households more broadband options. Small, outdoor broadband antennas installed on private property will be shielded from “unreasonable” state and local restrictions and fees, much like satellite TV dishes are protected today. The practical effect is most consumers can install small broadband devices on their rooftops, on their balconies, or on short poles in their yards in order to bring broadband to their home and their neighbors’. The FCC decision was bipartisan and unanimous and will open up tens of millions of new installation sites for certain 5G small cells, WISP systems, outdoor WiFi, mesh network nodes, and other wireless devices.

Previously, satellite dish installation was protected from most fees and restrictions but most small broadband antennas were not.

Disparate treatment.

The rule change involved the FCC’s 20 year-old over-the-air-reception-device (OTARD) rules, which protect consumers from unreasonable local fees and restrictions when installing satellite TV dishes. The rules came about because in the 1990s states and cities often restricted or imposed fees on homeowners installing satellite TV dishes. Congress got involved and, circa 1998, the FCC created the OTARD rules, aka the “pizza box rules,” to protect the installation of TV dishes less than 1 meter diameter.

In recent years, homeowners and tenants increasingly want to install small, outdoor broadband antennas on their property to bring new services and competition to their neighborhood. However, they face many of the same problems satellite dish installers faced in the 1990s. From my comments (pdf) to the FCC in the proceeding:

For instance, a few years ago a woman in the Charlottesville, Virginia, area switched from cable to less expensive satellite TV service in order to save money after being laid off. She had a satellite dish installed in her front yard—the only place the dish could receive an adequate signal. A city zoning official sent her and about 30 neighbors letters informing them that their (OTARD rules-covered) satellite dishes were, per local ordinance, unpermitted accessory structures. Any homeowners who did not remove their dish faced fines of $250 per day.

Fortunately for the homeowners, the woman was familiar with the OTARD rules and informed the local officials of the FCC’s authority.38 After being informed of the FCC’s OTARD regulations, the city officials declined to enforce the local ordinance and agreed to revisit the ordinance for compliance with FCC rules.

Today, WISPs and other broadband providers face similar issues when trying to install antennas on private property. It’s hard to know how much the OTARD rules helped expand satellite TV penetration but it helped. The FCC rules coincided with the installation of 20-30 million small dishes on private property.

With the rules extended to broadband antennas, operators will have millions more low-cost siting options. One provider, Starry, wrote to the FCC that today “it takes on average 100 days to complete the permitting process for a single base station, which accounts for about 80% of the time that it spends in activating a site.” Starry says that with the January 2021 rule change, they’ll likely activate 25-30% more antenna sites in the next year, bringing a broadband option to 1 million additional households. Take projections with a grain of salt, but it’s clear the new rules will improve coverage and competition.

There are some exceptions. States and cities are able to restrict antenna installation if they can show a safety hazard or a historic preservation issue. Generally, however, the rules are protective of homeowners and tenants. The changes faced some opposition from cities, counties, and homeowners associations but it’s great to see a bipartisan and unanimous decision in the final days of Chairman Pai’s broadband expansion-focused tenure to give consumers more protection for installing and self-provisioning small broadband antennas.