This is a compendium of readings on “ progress studies ,” or essays and books which generally make the case for technological innovation, dynamism, economic growth, and abundance. I will update this list as additional material of relevance is brought to my attention.   

[Last update: 10/11/22]

Recent Essays

• Marc Andreessen, “The Techno-Optimist Manifesto,” a16z.com, October 16, 2023.
• Will Rinehart, “The Abundance Agenda,” The Exformation Newsletter, October 15, 2022.
• Sarah Constantin, “Unblocking Abundance: A Model for Activism,” Rough Diamonds, October 10, 2022.
• Derek Thompson, “The Forgotten Stage of Human Progress,” The Atlantic, May 11, 2022.
• Adam Thierer, “Where is ‘Progress Studies’ Going?” Progress Forum, April 23, 2022.
• Katherine Boyle, “The Case for American Seriousness,” Common Sense, April 18, 2022.
• William Rinehart, “Vetocracy, the Costs of Vetos and Inaction,” Center for Growth & Opportunity at Utah State University, March 24, 2022.
• James Pethokoukis, “Forget about Left Wing and Right Wing. How about an Up Wing America?” Faster Please, March 23, 2022.
• John W. Lettieri & Kenan Fikri, “The Case for Economic Dynamism and Why it Matters for the American Worker,” Economic Innovation Group, March 2022.
• Adam Kovacevich, “Saying YIMBY (Yes In My Back Yard) to “Civic Innovation,” Chamber of Progress, March 21, 2022.
• Eli Dourado, “Remove Barriers to Productivity,” City Journal, March 18, 2022.
• “A Case for Innovation and Optimism,” (A conversation with Jason Crawford), Discourse, March 2, 2022.
• Noah Smith, “A New Industrialist Roundup,” Noahpinion, February 3, 2022.
• James Pethokoukis, “When Will the Next Big Thing Arrive?” Faster Please, February 3, 2022.
• Alec Stapp & Caleb Watney,  “ Progress is a Policy Choice ,” Institute for Progress, January 20, 2022.
• Adam Thierer, “ How to Get the Future We Were Promised ,” Discourse, January 18, 2022.
• Katherine Boyle, “ Building American Dynamism ,” Future, January 14, 2022.  
• Derek Thompson, “ A Simple Plan to Solve All of America’s Problems ,” The Atlantic, January 12, 2022.
• Jason Crawford, “Progress, Humanism, Agency: An Intellectual Core for the Progress Movement,” Roots of Progress, January 11, 2022.
• Adam Thierer, “Defending Innovation Against Attacks from All Sides,” Discourse, November 9, 2021.
• Matthew Yglesias, “The Case for More Energy,” October 7, 2021.
• Jason Crawford, “ We need a new philosophy of progress ,” The Roots of Progress, August 23, 2021.
• Gale Pooley & Marian L. Tupy, “The Simon Abundance Index 2021,” Human Progress, April 22, 2021.
• Noah Smith, “ Techno-optimism for the 2020s ,” December 3, 2020. 
• Ezra Klein, “ Why We Can’t Build ,” Vox, April 22, 2020.
• Marc Andreesen, “ It’s Time to Build ,” Future, April 18, 2020.
• Eli Dourado, “ How do we move the needle on progress ?” September 26, 2019.
• José Luis Ricón, “ About the ‘Progress’ in Progress Studies ” September 6, 2019.
• Will Rinehart, “ Progress Studies: Some Initial Thoughts ,” August 30, 2019.
• Adam Thierer, “ Is There a Science of Progress ?” AIER, August 8, 2019.
• Patrick Collison and Tyler Cowen, “ We Need a New Science of Progress ,” The Atlantic, July 30, 2019.
• Tyler Cowen, “ The Case for the Longer Term ,” Cato Unbound, January 9, 2019.
• Vinod Khosla, “ We Need Large Innovations ,” Medium, January 1, 2018.
• Adam Thierer, “ How Technology Expands the Horizons of Our Humanity ,” Medium, November 19, 2018. 
• Chelsea Follett, “Utopianism: One of the Biggest Obstacles to Progress,” Human Progress, August15, 2018.
• Eli Dourado, “ How Technological Innovation Can Massively Reduce the Cost of Living ,” PlainText, January 29, 2016.

Books

• J. Storrs Hall, Where Is My Flying Car ? (Stripe Press, 2021).
• Matt Ridley, How Innovation Works: And Why It Flourishes in Freedom (New York: Harper, 2020).
• Andrew McAfee, More from Less (New York: Simon & Schuster, 2020).
• Ronald Bailey & Marian L. Tupy, Ten Global Trends Every Smart Person Should Know: And Many Others You Will Find Interesting (Cato Institute, 2020).
• Arthur M. Diamond Jr., Openness to Creative Destruction: Sustaining Innovative Dynamism (Oxford: Oxford University Press, 2019).
• Tyler Cowen, Stubborn Attachments: A Vision for a Society of Free, Prosperous, and Responsible Individuals (San Francisco, CA: Stripe Press, 2018).
• Steven Pinker, Enlightenment Now: The Case for Reason, Science, Humanism, and Progress (New York: Viking, 2018).
• Hans Rosling, Factfulness: Ten Reasons We’re Wrong about the World—and Why Things Are Better Than You Think (New York: Flatiron Books, 2018).
• Tim Harford, 50 Things That Made the Modern Economy (New York: Riverhead Books, 2017).
• Joel Mokyr, A Culture of Growth: The Origins of the Modern Economy (Princeton, NJ: Princeton University Press, 2017).
• Adam Thierer, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom , 2nd ed. (Arlington, VA: Mercatus Center at George Mason University, 2016).
• Calestous Juma, Innovation and Its Enemies: Why People Resist New Technologies (New York: Oxford University Press, 2016).
• Deirdre N. McCloskey, Bourgeois Equality: How Ideas, Not Capital or Institutions, Enriched the World (Chicago: University of Chicago Press, 2016).
• Joe Carlen, A Brief History of Entrepreneurship: The Pioneers, Profiteers, and Racketeers Who Shaped Our World (New York: Columbia University Press, 2016).
• Robert Bryce, Smaller Faster Lighter Denser Cheaper: How Innovation Keeps Proving the Catastrophists Wrong (New York: Public Affairs, 2014).
• Matt Ridley, The Rational Optimist: How Prosperity Evolves (New York: Harper Collins, 2010).
• Larry Downes, The Laws of Disruption: Harnessing the New Forces That Govern Life and Business in the Digital Age (New York: Basic Books, 2009).
• Amar Bhidé, The Venturesome Economy: How Innovation Sustains Prosperity in a More Connected World (Princeton, NJ: Princeton University Press, 2008).
• Robert Friedel, A Culture of Improvement: Technology and the Western Millennium (Cambridge, MA: The MIT Press, 2007).
• Benjamin M. Friedman, The Moral Consequences of Economic Growth , (New York: Vintage Books, 2006).
• Virginia Postrel, The Future and Its Enemies (New York: The Free Press, 1998).
• David Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some are So Poor (New York: W.W. Norton & Co, 1998).
• Robert Nisbet, History of the Idea of Progress (New Brunswick, NJ: Transaction Publishers, 1994).
• Joel Mokyr, Lever of Riches: Technological Creativity and Economic Progress (New York: Oxford University Press, 1990).
• Nathan Rosenberg and L. E.. Birdzell, How the West Grew Rich: The Economic Transformation of the Industrial World (New York: Basic Books, 1986).
• Samuel C. Florman, The Existential Pleasures of Engineering (New York: St. Martin’s Griffin, 1976, 1994).

Adam Thierer, Senior Research Fellow at the Mercatus Center discusses his recent working paper with coauthor Brent Skorup, A History of Cronyism and Capture in the Information Technology Sector. Thierer takes a look at how cronyism has manifested itself in technology and media markets — whether it be in the form of regulatory favoritism or tax privileges. Which tech companies are the worst offenders? What are the consequences for consumers? And, how does cronyism affect entrepreneurship over the long term?

Download

Related Links

• A History of Cronyism and Capture in the Information Technology Sector, Thierer
• Video: A History of Cronysim and Capture in the Information Technology Sector, Thierer
• Adam Thierer Biography, Mercatus Center
• Adam Thierer on Anti-Tech Grump Evgeny Morozov, Thierer

Former TLF blogger Tim Lee returns with this guest post. Find him most of the time at the Bottom-Up blog.

Thanks to Jim Harper for inviting me to return to TLF to offer some thoughts on the recent Adam Thierer–Tim Wu smackdown. I’ve recently finished finished reading The Master Switch, and I didn’t have have my friend Adam’s viscerally negative reactions.

To be clear, on the policy questions raised by The Master Switch, Adam and I are largely on the same page. Wu exaggerates the extent to which traditional media has become more “closed” since 1980, he is too pessimistic about the future of the Internet, and the policy agenda he sketches in his final chapter is likely to do more harm than good. I plan to say more about these issues in future writings; for now I’d like to comment on the shape of the discussion that’s taken place so far here at TLF, and to point out what I think Adam is missing about The Master Switch.

Here’s the thing: my copy of the book is 319 pages long. Adam’s critique focuses almost entirely on the final third of the book, (pages 205-319) in which Wu tells the history of the last 30 years and makes some tentative policy suggestions. If Wu had published pages 205-319 as a stand-alone monograph, I would have been cheering along with Adam’s response to it.

But what about the first 200-some pages of the book? A reader of Adam’s epic 6-part critique is mostly left in the dark about their contents. And that’s a shame, because in my view those pages not only contain the best part of the book, but they’re also the most libertarian-friendly parts.

Those pages tell the history of the American communications industries—telephone, cinema, radio, television, and cable—between 1876 and 1980. Adam only discusses this history in one of his six posts. There, he characterizes Wu as blaming market forces for the monopolization of the telephone industry. That’s not how I read the chapter in question. Although Wu certainly suggests that market forces tended toward consolidation (which seems obviously correct), he also makes it clear that the government played an active role in the process, through the patent system, the Kingsbury Commitment, turning a blind eye to industrial sabotage, and later through explicit pro-monopoly regulation. Adam’s only specific quibble with Wu’s history is his failure to mention the nationalization of the telephone network during World War I. Maybe that’s an important oversight, but I’m not sure it would have changed Wu’s story very much. Certainly I think characterizing this section of the book as an anti-free-market screed is unfair.

The Master Switch takes an even more explicitly libertarian tone in its discussion of broadcasting. Wu makes it plain that everything about the radio (and later television) industries post-1927 was the result of heavy-handed government regulation. He tells how federal regulations robbed the inventor of FM radio of the opportunity to commercialize his invention, and how the FCC delayed the introduction of television by more than a decade to give RCA (then the dominant radio firm) time to perfect its own television technology.

It’s easy to imagine chapters 5, 9, and 10 being published by Cato or the Mercatus Center. Consider, for example, this passage describing the FCC’s decision to delay the introduction of television (p. 144):

Consider for a moment the oddness of this phenomenon in the putatively free-market economy. The government was deciding, in effect, when a product that posed no hazard to the public health would be “ready” for sale. Consider, too, how incongruous this was in a society under the First Amendment: a medium with great potential to further the exercise of free speech was being stalled until such time as the government could agree it had attained an acceptable technical standard. Rather than letting the market decide what a technology in its present state was worth, a federal agency—not even a democratically elected body—was to forbid its sale outright.

Whatever else you might say about this passage, it’s certainly not blaming anything on market forces!

One of Wu’s central points is that during the 20th century, the communications policy world was divided along different ideological lines. On one hand were the champions of monopoly and central planning—Wu chooses legendary AT&T president Theodore Vail as its intellectual father. On the other hand were champions of choice and competition. It’s worth emphasizing that Adam and Wu are on the same side of this ideological battle. In 1930, 1950, or 1970, all of us would have been teaming up to oppose monopolistic regulations.

We would have regarded AT&T, RCA, and other state-sponsored monopolists as our common enemy. If we’d submitted amicus briefs in the Carterfone or MCI proceedings, we would have made largely the same arguments. Of course, we wouldn’t have agreed perfectly on our long-term policy agenda, but we would have regarded that as a relatively minor area of disagreement compared to the pressing problem of repealing blatantly monopolistic government policies and bringing some degree of competition to communications markets. And for most of the 20th century we would have been the underdogs. In 1950, the monopolists were not only utterly dominant in Washington, D.C., but their ideology still had a great deal of cachet with the intellectual class.

Vail’s corporatist ideology has fallen so far out of favor that today it’s hard to find anyone who’s willing to defend it forthrightly. The remnants of the once-great monopolists have been forced to adopt the rhetoric of the free market and pretend to care about choice and competition. And it’s only in this new intellectual environment that Adam can plausibly portray Wu a “cyber-collectivist” at the opposite end of the ideological spectrum from me and Adam. The Master Switch reminds us that much less separates Adam from Wu than separates either of them from Theodore Vail and David Sarnoff.

Adam began his first post by stating that he “disagrees vehemently with Wu’s general worldview and recommendations, and even much of his retelling of the history of information sectors and policy.” This is kind of silly. In fact, Adam and Wu (and I) want largely the same things out of information technology markets: we want competitive industries with low barriers to entry in which many firms compete to bring consumers the best products and services. We all reject the prevailing orthodoxy of the 20th century, which said that the government should be in the business of picking technological winners and losers. Where we disagree is over means: we classical liberals believe that the rules of property, contract, and maybe a bit of antitrust enforcement are sufficient to yield competitive markets, whereas left-liberals fear that too little regulation will lead to excessive industry concentration. That’s an important argument to have, and I think the facts are mostly on the libertarians’ side. But we shouldn’t lose sight of the extent to which we’re on the same side, fighting against the ancient threat of government-sponsored monopoly.

My friend Kerry Howley coined the term “state-worship” to describe libertarians who insist on making the government the villain of every story. For most of history, the state has, indeed, been the primary enemy of human freedom. Liberals like Wu are too sanguine about the dangers of concentrating too much power in Washington, D.C. But to say the state is an important threat to freedom is not to say that it’s the only threat worth worrying about. Wu tells the story of Western Union’s efforts to use its telegraph monopoly to sway the election of 1876 to Republican Rutherford B. Hayes. That effort would be sinister whether or not Western Union’s monopoly was the product of government interference with the free market. Similarly, the Hays code (Hollywood’s mid-century censorship regime) was an impediment to freedom of expression whether or not the regime was implicitly backed by the power of the state. Libertarians are more reluctant to call in the power of the state to combat these wrongs, but that doesn’t mean we shouldn’t be concerned with them.

By casting every argument in terms of a Manichean struggle between “cyber-libertarians” and “cyber-collectivists,” Adam misses a lot of the value of The Master Switch. Many of the stories Wu tells are too complicated to fit comfortably at either end of the free-market-vs-regulation spectrum. For example, until I read The Master Switch, I didn’t realize how important, and harmful, patents were to the early development of communications markets. Should these stories make libertarians more skeptical of patent law? I’d be interested to hear Adam take, but he was too busy railing against Wu’s alleged cyber-collectivism to discuss the topic.

As he noted, Adam Thierer’s lead article in the most recent Cato Policy Report is called “The Sad State of Cyber-Politics.” It goes through so many ways tech and telecom companies are playing the Washington game to win or keep competitive advantage.

It’s a nice set-up to a Washington Post opinion piece from this weekend in which TownFlier CEO Morris Panner talks about the growing riches accruing to Washington influencers:

We are creating so much regulation – over tax policy, health care, financial activity – that smart people have figured out that they can get rich faster and more easily by manipulating rules on behalf of existing corporations than by creating net new activity and wealth. Gamesmanship pays better than entrepreneurship.

Thierer sees some hope for the tech sector, for a few reasons:

Smaller tech companies have thus far largely resisted the urge [to engage with Washington]. Hopefully that’s for principled reasons, not just due to a shortage of lobbying resources. Second, the esoteric nature of many Internet and digital technology policy discussions frustrates many lawmakers and often forces them to lose interest in these topics. Third, the breakneck pace of technological change makes it difficult for regulators to bottle up innovation and entrepreneurialism.

Panner’s broader piece calls for “a national campaign to create transparency in our legislation and a national moratorium on the creation of commissions, regulators and czars. It is time for Congress to do the hard job of saying what lawmakers mean in clear and easy-to-understand language.” He continues, “We should reject bills that are thousands of pages or that delegate vast authority to unelected regulators.”

That would be a start.

The Comcast-NBC deal has the traditional media world all atwitter—well, better call it aflutter. “Atwitter” is losing its old media connotations.

So the New York Times rounded up a foursome of advocates to air their views, among them Adam Thierer and yours truly.

Huzzahs and rotten fruit in the comments, please.

(And you can see from comparing our posts which of us believes in economy in the use of words.)

by Berin Szoka & Adam Thierer, Progress Snapshot 5.11 (PDF)

Ten years ago, Nobel Prize-winning economist Milton Friedman lamented the “Business Community’s Suicidal Impulse:” the persistent propensity to persecute one’s competitors through regulation or the threat thereof. Friedman asked: “Is it really in the self-interest of Silicon Valley to set the government on Microsoft?” After yesterday’s FCC vote’s to open a formal “Net Neutrality” rule-making, we must ask whether the high-tech industry—or consumers—will benefit from inviting government regulation of the Internet under the mantra of “neutrality.”

The hatred directed at Microsoft in the 1990s has more recently been focused on the industry that has brought broadband to Americans’ homes (Internet Service Providers) and the company that has done more than any other to make the web useful (Google). Both have been attacked for exercising supposed “gatekeeper” control over the Internet in one fashion or another. They are now turning their guns on each other—the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates. Unless we find a way to achieve “Digital Détente,” the consequences of this increasing regulatory brinkmanship will be “mutually assured destruction” (MAD) for industry and consumers.

New Fronts in the Neutrality Wars

The FCC’s proposed rules would apply to all broadband providers, including wireless, but not to Google or many other players operating in other layers of the Net who favor such broadband-specific rules. With this rulemaking looming, AT&T came after Google with letters to the FCC in late September and then another last week accusing the company of violating neutrality principles in their business practices and arguing that any neutrality rules that apply to ISPs should apply equally to Google’s panoply of popular services. In particular, AT&T accused Google of “search engine bias,” suggesting that only government-enforced neutrality mandates could protect consumers from Google’s supposed “monopolist” control.

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. The reality is that regulation always spreads. The march of regulation can sometimes be glacial, but it is, sadly, almost inevitable: Regulatory regimes grow but almost never contract. Indeed, in some ways, the prediction we made just three weeks ago is already coming true: The basic premise of neutrality regulation is already being proposed for other layers of the Internet—and not just by AT&T in retaliation. One need not agree with all of AT&T’s accusations to recognize that, whatever the FCC might say today, any large online intermediary with a popular platform potentially faces the threat of “network neutrality” mandates—because every platform is essentially a “network,” too. We’re not just talking about “search neutrality” (Google as well as Microsoft) but also about “device neutrality” (mobile handsets), “app neutrality” (Apple’s iTunes store, Facebook’s developers and Google’s Android mobile OS) and so on for social networking, email, instant messaging, online advertising, etc.

An open letter sent to FCC Chairman Julius Genachowski this week by 28 founders and CEOs of leading application providers—including Amazon, Google, Facebook, Netflix, Craigslist, Sony and Twitter—speaks generally about the need for the FCC to enforce a “guarantee of neutral, nondiscriminatory access by users.” While many of these signatories may have in mind ISPs as the network “gatekeepers” that need to be reined in by the FCC, the more successful among them are likely to find this letter used against them in the future—perhaps even by co-signatories—to advance a broad conception of what the government must do to ensure “openness” and “access” for platforms at all layers of the Internet.

Dumb Networks, Dumb Devices

The intellectual foundations for this regulatory creep have already been laid by groups like Free Press and Public Knowledge and law professors like Columbia’s Tim Wu, Harvard’s Jonathan Zittrain and Seton Hall’s Frank Pasquale. As originally conceived by Tim Wu in 2003, “network neutrality” is not unique to broadband networks: “the basic economic problem found in the network neutrality debate (a form of ‘platform exclusion’ or ‘vertical foreclosure’) can be found in many other markets.” Indeed, Wu’s popular Net Neutrality FAQ declares:

The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short-term interests of the owner do not prevent the best products or applications becoming available to end-users.

Zittrain picked up where Wu left off in The Future of the Internet and How to Stop It—attacking, as the enemies of innovation, not ISPs but the supposedly “closed” platforms of Apple, TiVo and Microsoft’s Xbox. Zittrain warns that:

If there is a present worldwide threat to neutrality in the movement of bits, it comes not from restrictions on traditional Internet access that can be evaded using generative PCs, but from enhancements to traditional and emerging appliancized services that are not open to third-party tinkering.

Zittrain’s general solution is “API [Applications Programming Interface] neutrality:” If you create a platform (whether hardware or software) and begin allowing third-party contributions (“generativity”), you will lose all control over devices or applications that can run on that platform.

Those who offer open APIs on the Net in an attempt to harness the generative cycle ought to remain application-neutral after their efforts have succeeded, so all those who built on top of their interface can continue to do so on equal terms…. [N]etwork neutrality ought to be applied to the new platforms of Web services that, in turn, depend on Internet connectivity to function.

Clearly, if Zittrain and his allies have their way, the sort of neutrality mandates envisioned by the FCC or some Congressmen for ISPs will eventually cover companies such as Apple, Google, Facebook, Myspace, Twitter and Amazon—all singled out by Zittrain in a New York Times op-ed in July:

If the market settles into a handful of gated cloud communities whose proprietors control the availability of new code, the time may come to ensure that their platforms do not discriminate. Such a demand could take many forms, from an outright regulatory requirement to a more subtle set of incentives — tax breaks or liability relief — that nudge companies to maintain the kind of openness that earlier allowed them a level playing field on which they could lure users from competing, mighty incumbents.

Frank Pasquale agrees on the need to restrain all “the dominant players at all layers of online life,” but focuses on his demand for a Federal Search Commission to control supposedly “biased” search results. While the FCC wrings its hands over “managed services” offered by ISPs, search engines are increasingly offering their own value-added services by “blending” algorithmically-derived results with special features like maps, videos, books or music depending on what the search term suggests the user is interested in. “Artificially” ensuring that these features appear on the first page of search results is clearly non-neutral, and necessarily involves search engines making ”managed” decisions as to whose features to include. Yet such features also clearly benefit users—dramatically improving the usefulness of search engines and helping to sustain struggling business models like music retailing.

But one need not resort to the works of “ivory tower” academics to see the slippery slope we’re already tumbling down with the infinitely elastic principle of “neutrality.” The prospect of the FCC gradually transforming into a “Federal Information Commission” becomes more apparent when one reads the Wireless Innovation and Investment Notice of Inquiry recently released by the FCC:

As other approaches, such as cloud computing, evolve, will established standards or de facto standards become more important to the applications development process? For example, can a dominant cloud computing position raise the same competitive issues that are now being discussed in the context of network neutrality? Will it be necessary to modify the existing balance between regulatory and market forces to promote further innovation in the development and deployment of new applications and services?

One can imagine how some might use such language to accuse Google of being in “a dominant cloud computing position” such that “the context of network neutrality” will be applied to cloud service (like Google Voice) to “modify the existing balance between regulatory and market forces” through regulation. Indeed, that’s precisely what AT&T has suggested in recent letters (September 25 ^th and October 14 ^th) to the FCC.

AT&T’s partner Apple has already been the subject of such attacks for its decision to block the Google Voice app earlier this summer. The incident marked the beginning of open warfare between Google and AT&T/Apple. The FCC quickly jumped into the mix, first questioning how Apple manages its iTunes apps store for the iPhone, then questioning how Google runs its free Voice application. What legal authority the FCC has over either service is far from clear, but Apple seems to have gotten the message: It recently approved the Spotify music streaming app for the iPhone, which could be a serious competitive threat to the iTunes music store. This small incident highlights how easily regulators can impose their will through informal mechanisms like open-ended investigations even without clear authority to issue rules or bring enforcement actions. Yet none dare call it what it is: regulatory blackmail.

The Inevitability of Regulatory Capture

No doubt, other industry players will cheer on such regulatory harassment of the titans of tech—and maybe even demand more of it. Regulatory creep is driven by more than the self-interests of every bureaucracy to expand its own mission, budget and staff. As the Electronic Frontier Foundation has noted, “Experience shows that the FCC is particularly vulnerable to regulatory capture.” While lobbyists play an important role in defending business from government, all too many businesses naively look at government as a beast that can be tamed, trained, and turned to one’s own advantage, and often try to use the expanding regulatory apparatus to their own advantage or simply throw their competitors under the bus to save themselves. The result is a Hobbesian regulatory “war of all against all” within industry.

As Professor Alfred E. Kahn explained in his 2-volume opus, The Economics of Regulation, all regulation—however high-minded—is inevitably captured by special interests because:

When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition. […] Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.

If Internet regulation follows the same course as other industries, the FCC and/or lawmakers will eventually indulge calls by all sides to bring more providers and technologies “into the regulatory fold.” Clearly, this process has already begun. Even before rules are on the books, the companies that have made America the leader in the Digital Revolution are turning on each other in a dangerous game of brinksmanship, escalating demands for regulation and playing right into the hands of those who want to bring the entire high-tech sector under the thumb of government—under an Orwellian conception of “Internet Freedom” that makes corporations the real Big Brother, and government, our savior.

Toward a Less MAD World: Digital Détente

Sincere defenders of real Internet Freedom—that is, freedom from government techno-meddling—recognize that there will always be disputes over how companies deal with each other online across all layers of the Internet. The question is not whether we need a technical coordinating mechanism for handling such disputes. Someone should mediate conflicts over alleged deviations from abstract neutrality principles. But should that arbitrator be an inherently political body like FCC? Or should we instead look to truly independent, apolitical arbitrators like the Internet Engineering Task Force or collaborative efforts like the Network Neutrality Squad? Such alternative dispute resolution mechanisms and fora need not have the power of law to be effective: The weight of their expert opinion, based on careful investigation of the facts, would likely resolve most disputes, because companies have strong reputational incentives to comply with reasoned rulings by truly neutral experts. And the white hot spotlight of public attention has a way of disciplining marketplace behavior as well.

Government would still have a role to play, of course, in enforcing antitrust laws where anticompetitive harm to consumers can be proven, and in enforcing the promises companies make to consumers. Ultimately, however, certain business models and technologies require non-neutral treatment, and the best remedy for concerns about non-neutrality is competition itself: In the high-tech sector more than any other, disruptive innovation makes it difficult for even the most successful companies to stay on top forever. Competitive entry—or even the threat of new entry—provides a powerful check on the power of so-called “gatekeepers,” but even more important is the prospect that today’s leaders will be tomorrow’s laggards: There’s little reason to think Google (search and advertising), Apple (smart phones and music) and Facebook (social networking) won’t someday find themselves playing catch-up, just as IBM (computers), Microsoft (desktop software and search), Friendster and MySpace (social networking), and Yahoo! and AOL (web portals) have had to do.

“Digital Détente” would require that all parties concede something and work constructively toward a more “peaceful” ( i.e., less regulatory) resolution. And yet, no Internet company wants to disarm unilaterally, foreswearing politics as a continuation of competition by other means. Only through multilateral disarmament could they break out of the current cycle of regulatory one-upmanship: If the companies in the Internet ecosystem could form a united front against increased government regulation and in favor of removing existing regulatory obstacles to competition, they could all return to their core competencies of creativity and innovation.

The alternative is a regulatory “nuclear winter”: high-tech titans turning their political fire on each other, catching innocent third parties in the cross-fire and bringing a dark cloud of government regulation over the entire Internet. Such increased regulation would stifle investment and innovation throughout the Internet ecosystem. Thus, it is consumers who will ultimately suffer most from the tech industry’s suicidal impulse, as their choices and digital lives are impoverished. For their sake, we hope all industry players will step back from the brink to avoid such high-tech mutually assured destruction.

Adam Thierer has been named the new president of the Progress & Freedom Foundation.

TLF readers don’t need to be told that he’s a tireless advocate for technology policies that preserve freedom and innovation. He was the driving force behind creation of this blog, for example, and he is a prodigious writer and commentator.

Adam will do even more to advance those goals and protect the Internet from stifling regulation from his new perch. Congratulations, Adam!

The D.C. Circuit has struck down as arbitrary and capricious the FCC’s “cable cap.”  The cap prevented a single cable operator from serving more than 30% of U.S. homes—precisely the same percentage limit struck down by the court in 2001.  The court ruled that the FCC had failed to demonstrate that “allowing a cable operator to serve more than 30% of all cable subscribers would threaten to reduce either competition or diversity in programming.”

The court’s decision rested on the two critical charts (both generated by my PFF colleague Adam Thierer in his excellent Media Metrics special report) at the heart of the PFF amicus brief I wrote with our president, Ken Ferree:

First, the record is replete with evidence of ever increasing competition among video providers: Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992.

Second, over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers.

Our chart shows the explosion in the number of programmers (though not the total amount of programming), as well as the falling rate of affiliation between cable operators and programmers, which was among the prime factors motivating Congress when it authorized a cable cap in the 1992 Cable Act:

These two charts show how much less defensible the FCC’s 30% cap is now than it was back in 2001. If the Court had needed still more evidence, it could have cited the broader trend towards “Cutting the Video Cord.” As we explained in our amicus brief, viewers are shifting away from cable, satellite and fiber (“Multichannel Video Programming Distributors,” in FCC-speak) towards sites like Hulu and Netflix (which we dubbed “Internet Video Programming Distributors” in the hopes that a familiar-sounding acronym might resonate inside a regulatory agency that can’t even figure out how to stream its own meetings properly). Nothing better demonstrates how the Internet is revolutionizing video distribution than the fact that Hulu.com has actually overtaken TimeWarner cable in viewership:

On July 27th, The Progress & Freedom Foundation hosted a Capitol Hill panel discussion entitled “Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States.” The event featured remarks from:

• Parry Aftab, Executive Director, WiredSafety.org
• Todd Haiken, Senior Manager of Policy, Common Sense Media
• Jim Halpert, Partner, DLA Piper
• Berin Szoka, Senior Fellow, The Progress & Freedom Foundation

We’ve just released the transcript of the event, which I have also pasted down below the fold in a Scribd document reader. Also, the audio for this event can be heard by clicking below:

Download mp3

Here is the full event description:

Online child safety, privacy, and free speech remain hotly debated issues at both the federal and state level. Bills introduced in Congress to address cyberbullying concerns propose either educational initiatives or a criminalization approach. Access to objectionable content also remains a concern and a new, government-mandated task force is looking into those issues. Meanwhile, state officials, including many state attorneys general, continue to explore age verification mandates for social networking sites and some have considered building on the federal Children’s Online Privacy Protection Act (COPPA) to expand “parental notification” mandates. The Federal Trade Commission (FTC) has recently announced an expedited review of COPPA to see if it is keeping up with new developments. The FTC is also exploring child safety in virtual worlds. New concerns about “sexting,” or the sending of sexual explicit images over mobile devices, has also raised new concerns led some lawmakers to ponder penalties.

How serious are these concerns? Is legislation or regulation needed to address them? What free speech issues are at stake? Should Congress take the lead or leave it to the States to experiment with different models? These and other issues were discussed by a panel of leading experts in the field of online safety and privacy policy.

Transcript PFF Online Child Safety Privacy Hill Event (7-27-2009) http://d.scribd.com/ScribdViewer.swf?document_id=18756666&access_key=key-1blb7az1ag406howibuk&page=1&version=1&viewMode=

Five years ago today the Technology Liberation Front (the “TLF”) got underway with this post.  The idea for the TLF came about after I asked some tech policy wonks whether it was worth put together a blog dedicated to covering Internet-related issues from a cyber-libertarian perspective.  The model I had in mind was a “Volokh Conspiracy for Tech Issues,” if you will. I wanted to bring together a collection of sharp, liberty-loving wonks (most of whom worked in the think tank world) to talk about their research on this front and to give them a place to post their views on breaking tech policy developments.  It was to be a sort of central clearinghouse for libertarian-oriented tech policy analysis and advocacy.

At first, Tim Lee and I debated whether it even made sense to have that sort of narrow focus, but I think the passage of time and the rise of plenty of competition on this front shows that it was worthwhile.  And I’ve been very pleased with the tag-team effort of all our TLF contributors and the way—without anyone planning it, in true libertarian fashion—we’ve sort of developed a nice division of labor on various tech policy issues.

Perhaps a few stats are in order on this occasion to mark our progress 5 years in. The best indication of our success is the fact that our Pagerank (Google’s logarithmic scale of website importance based on links to that site) has reached 7/10—the same score shared by the Volokh Conspiracy (our model), as well as Techmeme (the leading tech news aggregator), the Cato Institute, CDT, etc. (For comparison: ArsTechnica and EFF are 8s.) Unfortunately, we’ve only been using Google Analytics for three of the past five years, so it’s impossible to get a authoritative accounting of traffic growth since Day 1. But here are few markers:

• 4,450+ posts
• 29,000+ comments
• 2,698 RSS subscribers
• 15,763 unique visitors per month
• 1,000,000 pageviews since Nov. 2006 when we started using Google Analytics
• Besides organic search and direct links, we get the bulk of our traffic from other tech-oriented sites (in order of hits) TechDirt, Freedom to Tinker, Ars Technica, GamePolitics.com, TechMeme, Slate, etc., and aggregators such as reddit, Fark, and StumbleUpon

So, what’s our #1 post of all-time? That would be Jim Harper’s “Where to Get Your Fake ID,” proving that if you play Google search terms wisely, you can build a link goldmine!  18,200+ pageviews and counting!  (Harper… You finally have something to list on your resume that lots of people have read!)  Sometimes silly posts like that can net a lot of traffic. For example, another top 5 TLF post was my piece on “The Most Powerful Computer Ever,” which has netted over 7,700 pageviews.  It was just an old magazine ad that Wayne Crews had found years ago and sent me a copy of.

In case you’re interested, some of our other most popular TLF posts include:

• My post “Grouping Recent Net Books: Internet Optimists vs. Pessimists” (6,631 views)
• Jim Harper’s “Social Hack on Gmail Users” (3,756 views)
• My rant on “Video Games & Moral Panic” (3,408 views)
• Berin Szoka’s look at “The Right Way to Allow Cell Phone Jammers” (3,322 views)
• Tim Lee’s piece on the tech community & civil liberties: “Pissing on Their Graves” (2,828 views)
• Harper’s “ID Checks are About Control, Not Security” (2,870) and his look at “Border Biometrics” (2,402 views)
• Cord Blomquist’s “Sirius XM Bankruptcy: Thank Washington for the Delay” (2,069 views)
• Alex Harris’s look at the “Best and Worst Supreme Court Decisions” (1,714 views)
• My book review of  “Zittrain’s Future of the Internet” (1,689 views)

I want to thank all my TLF blogging colleagues for their contributions over the past 5 years. As I noted in that very first post here back in 2004, “this blog is not a one-man show.”  Almost all of us here have our own personal or organizational blogs, but when we come together here on the TLF, it helps us show the world that there is another vision for ordering the affairs of cyberspace beside the command-and-control, hands-all-over-the-Net mentality that dominates today: real Internet freedom!

There are a couple of people who deserve special thanks for what they have done for the TLF:

PJ Doland has not only generously hosted our site all these years and donated endless hours of his time to keeping it running through waves of spam attacks, but he also designed our unique TLF banner. His use of Soviet-style art for libertarian purposes is the perfect compliment to our “Liberation Front” theme.  PJ also provided that awesome TLF tagline: “The real problem is not whether machines think but whether men do.” (It’s a B.F. Skinner quote, incidentally).

Jerry Brito has also been enormously helpful with the back office stuff, including getting our podcast off the ground. He is also is responsible for the wonderful site redesign and improvements that were just rolled out recently. And Jerry has been extremely patient with all the TLF bloggers through the years as he taught us the basics about how to be more effective bloggers.

Tim Lee has been the TLF’s most prolific and popular blogger and, as I noted recently when he announced his departure from the TLF, it is not an overstatement to say that for many of the TLF’s five years the rest of us here have simply been riding on his coat tails. We were just lucky to be along for the ride as he made the TLF more visible to the tech policy world. He brought us a significant portion of the audience and respect that we have to today and I cannot thank him enough for that.

Berin Szoka, my colleague at PFF, came on board just over a year ago but since then has become a prolific force on the TLF and helped spawn several new “ongoing series” features such as the Privacy Solutions Series, “Googlephobia,” and Cutting the Video Cord.  Berin is also helping with the back-office stuff and trying to help me get the podcast going again regularly.

Our Readers! Seriously, we thank each and every one of you who has taken the time to visit our site, read our rants, and leave comments (even the shitty ones!)  We really appreciate it. We know there are countless other blogs out there to occupy your time and we’re honored that you’d give ours even a few minutes of your day. If you’re in D.C. today, we hope you’ll join us for our celebratory happy hour tonight!

Here’s to another 5 great years of technology freedom!  If you haven’t already done so, please subscribe to our blog feed, podcast feed (iTunes), Twitter and Facebook page.

Cheers,

Adam Thierer

P.S. I’m feeling a bit sentimental as I think back and realize all the things that didn’t exist even just 5 years ago: Twitter, the iPhone, FiOS, Facebook, Pandora, Chrome, the PS3 + Wii + 360, YouTube, Hulu, etc…   Just imagine how exciting the next 5 years will be!

Last year, my PFF colleague Adam Thierer asked whether State AGs + NCMEC = The Net’s New Regulators? Adam noted that NCMEC, the National Center for Missing and Exploited Children, a private non-profit organization, was playing a law enforcement role in regulating child pornography—but without any clear mechanisms for ensuring its accountability and effectiveness. Adam’s point wasn’t just that transparency is a good thing, but that when it comes to a cause as important as protecting children from exploitation, it’s vital to ensuring that we’re that we’re actually doing a good job at it!

Yesterday, Emmanuel Lazaridis commented on that post:

Given the increasing regulatory and investigative powers of the NCMEC, it is no longer clear whether or not the [Freedom of Information Act] applies to NCMEC records. We are about to find out. I am right now bringing a case against the NCMEC in federal court for access to records under the FOIA and, failing that, for discovery under 28 U.S.C. § 1782(a).

Mr. Lazaridis’s complaint in the D.C. District Court claims that Lazaridis (a Greek national) has been unfairly deemed a fugitive from U.S. justice for having taken his daughter to Greece over the objections of the girl’s American mother, Lazaridis’s ex-wife. NCMEC got involved by placing the girl on their MissingKids.com registry of abducted children. Lazaridis wants the court to recognize his custody, deem him not to be a fugitive, and to order NCMEC to turn over all their records on the girl.

This is, of course, just one side of the story (and such cases are usually so complicated as to be indecipherable to outsiders). But even if Lazaridis’s case were wholly without merit, his basic argument would be a sound one: Why shouldn’t NCMEC, in exercising any of its essentially governmental functions, be subject to the same accountability requirements through FOIA as the FBI would be?

When the issue is the Lazaridis family’s trans-Atlantic custody battle, it may seem easy to ignore this question. But when NCMEC is essentially making policy regarding filtering Internet content, blacklisting websites, turning over user logs to law enforcement, or “cleaning up” Craigslist, the question of NCMEC’s accountability under FOIA cannot be avoided as a critical decision about the future of Internet governance.

On heels of Adam’s piece last year, controversialist Chris Soghoian suggested one answer: Given its status as a sacred cow, we cannot expect any politician pay heed to calls to overhaul NCMEC or subject it to oversight. However, what we can do, is call for the nationalization of the National Center for Missing and Exploited Children.

Think of it this way: We have a drug czar, a war czar, a copyright czar, and will likely have a cybersecurity czar and car czar under the next administration. Why not throw a child porn czar into the mix? Nationalize NCMEC, make all of its workers federal employees, with good health care and job security, and perhaps even expand its budget–after all, it does good work, right? NCMEC’s job is simply too important to be entrusted to a nonprofit group–such a task can only be performed by a fully trained and funded law enforcement agency (one, which conveniently enough, is subject to the Freedom of Information Act, congressional oversight, and constitutional requirements for due process.)

Despite my differences with Chris, he’s often right and may be here, too. He’s certainly right that Congress is unlikely to address the problem of NCMEC’s accountability given the sensitivity of the issue of child protection.

But, fortunately, we live in a republic, not a pure democracy: Our third branch of government, the courts, exists to enforce the rule of law; being somewhat insulated from political pressure, the courts provide a final check on the authority even of the almighty NCMEC. So while Chris’s nationalization proposal might well be the ideal solution, it hasn’t happened yet—nine months later to the day, and it’s probably not high on the Obama administration’s list of czarist reforms.

But simply by ordering NCMEC to comply with FOIA, the Lazaridis court could, with the stroke of a pen, bring accountability to NCMEC’s law enforcement functions. The legal question is simple: Does NCMEC qualify as an “agency,” which FOIA defines as an “authority of the Government of the United States?”

If so, NCMEC must not only respond to requests for certain of its “records,” but it must also follow a rule-making process akin to that required of federal agencies when they make policy decisions, offering the public appropriate notice and the opportunity to comment on proposed regulations—instead of, say, threatening Internet companies behind closed doors (sometimes the same companies that later make generous donations to NCMEC) or cutting deals with state attorneys general.

It turns out that this is not a new issue. Federal courts have had to decide whether a number of quasi-governmental entities qualify as “agencies” over the years, especially given the trend towards privatization over the last three decades. Some organizations, like the Smithsonian Institution, have decided to comply with FOIA even though courts have held that they’re not required to do so. NCMEC could have allayed all these concerns years ago by doing the same thing, but absent a change in management at the organization, it seems only a court order will force the organization to open its “black box” of decision-making to public inquiry.

In a number of other circumstances, courts have required nominally private organizations to comply with the federal FOIA or its state equivalents. A thorough (if dated) treatment of this issue can be found in the 1999 law review article, Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities Under Federal Law by Craig Feiser, Florida’s deputy solicitor general and an adjunct at FSU Law. Feiser explains:

When Congress amended FOIA in 1974, it added section 552(f)(1) and broadened the definition of “agency” to include entities not explicitly mentioned under the APA, but which “perform governmental functions and control information of interest to the public.”

In deciding whether a private organization qualifies as an agency subject to FOIA, courts have considered two factors.

One factor asks whether the entity has substantial independent authority in performing a function of the government, making it the functional equivalent of the government. The other factor asks whether the government substantially controls the entity’s day-to-day operations or organizational framework. In using either factor, the court is essentially asking to what degree the entity is performing a government function. In one case, the government is pulling nearly all of the strings; in the other case, the entity is making decisions independently for the government.

Financially, NCMEC is largely a creature of government: 70% of NCMEC’s $42 million budget in 2007 came from the government. But as Feiser notes, funding does not always mean control. Government control over NCMEC’s internal decisions is unclear. Indeed, the very lack of government control over an organization essentially regulating the Internet and imposing criminal sanctions that could follow convicted “sex offenders” for life would by itself be an enormous problem.

But given what NCMEC actually does, it obviously qualifies as an “agency” subject to FOIA under the “functional equivalence factor,” which as Feiser explains,

basically represents the opposite situation from the control factor. Here, the entity is functioning independently, but making decisions for the government, as opposed to having its decisions made by the government. In effect, it is the functional equivalent of the federal government, and, therefore, it should be an “agency” under the FOIA.

I’ll be watching the Lazaridis case closely, hoping that the court sees NCMEC for what it is: a private organization tasked with implementing not just any government function, but the enforcement of laws against the most vulnerable victims in society. Absent such a recognition, NCMEC will continue to grow into an unaccountable regulator for the Internet.

Today, the only public oversight of NCMEC required by law is the requirement that NCMEC (like any non-profit with federal tax-exempt 501(c)(3) non-profit status) file a Form 990 each year disclosing basic information about its finances. That report does not list NCMEC’s donors, because donors have a First Amendment right to remain anonymous, but a more transparent organization would, like my own think tank, at least identify its major donors. The 2006 and 2007 Form 990s do reveal a few interesting things, though, about what NCMEC does with its budget (70% of which comes from the taxpayer):

• NCMEC’s CEO, Ernie Allen, was paid $359,191 plus $411,636 in benefits in 2006 (PDF p. 46) and $409,821 plus $426,540 in benefits in 2007 (PDF p. 19), for a total of $1.6 million in two years (roughly $800,000/year);
• Not counting Allen, NCMEC spent $778,564 on its top five highest-paid employees in 2006 ($155,713/employee), and $875,657 in 2007 ($175,131/employee) (PDF p. 10 in both);
• 31% of NCMEC’s 2006 revenues and 35% of its 2007 revenues went to salaries (PDF pp. 1 & 2 in both); and
• NCMEC had 104 employees paid over $50,000 in 2006 (PDF p. 10) and 116 in 2007 (PDF p. 10).

I’d be reluctant to suggest that anyone at NCMEC was more interested in money than in protecting children, but if given the choice, we’d all prefer to do well while doing good. So if Allen were smart, he’d realize that a court order subjecting NCMEC to FOIA might be the best of all possible worlds: Requiring real accountability would neutralize calls for nationalizing NCMEC, allowing the organization to continue operating as a non-profit that can pay quite a bit better than the Federal civil service. Even the Senior Executive Service, for agency heads, maxes out at a measly $177,000/year.

Of course, if NCMEC’s records and decisions to regulate the Internet were subject to FOIA, the organization might not be able to… “convince” the Internet companies it essentially regulates to write large checks to NCMEC. But even this tax-hating libertarian would be hard-pressed to argue against funding the enforcement of laws against child pornography, abduction and exploitation with taxpayer dollars.

As the grandson of an FBI agent, whose framed credentials hang in a place of pride in my office (stamped “RETIRED” after his 25 years of loyal service), I can’t help but wonder how many more agents the FBI could employ to combat child porn with an extra $1.6 million/year in funding (the salary of Allen and NCMEC’s top-five highest paid employees). It seems that FBI agents today make roughly $48,000-87,000/year. Let’s call it an average of $67,500 and throw in 20% for overhead. That works out to $81,000/year—or:

• 20 new agents for what NCMEC is paying its top six employees; or
• 368 new agents for the $29.82 million NCMEC received in government support in 2007.

I’m sure the solution is far more complicated than simply hiring more FBI agents, and that NCMEC does much good work in the service of a noble cause. But until NCMEC is either nationalized as a direct arm of law enforcement or made significantly more accountable as a private organization, we won’t really have any way of knowing whether the money being spent on NCMEC is being spent in the most effective manner possible to deal with the problems of child pornography, abduction and exploitation. We also won’t know whether draconian alternatives to direct enforcement ( e.g., hiring more FBI agents) like network-level filtering mandates are truly necessary, despite their unintended consequences for the free speech and privacy rights of law-abiding Internet users.