Interoperability is a topic that has long been of interest to me. How networks, platforms, and devices work with each other–or sometimes fail to–is an important engineering, business, and policy issue. Back in 2012, I spilled out over 5,000 words on the topic when reviewing John Palfrey and Urs Gasser’s excellent book, Interop: The Promise and Perils of Highly Interconnected Systems.

I’ve always struggled with the interoperability issues, however, and often avoided them became of the sheer complexity of it all. Some interesting recent essays by sci-fi author and digital activist Cory Doctorow remind me that I need to get back on top of the issue. His latest essay is a call-to-arms in favor of what he calls “adversarial interoperability.” “[T]hat’s when you create a new product or service that plugs into the existing ones without the permission of the companies that make them,” he says. “Think of third-party printer ink, alternative app stores, or independent repair shops that use compatible parts from rival manufacturers to fix your car or your phone or your tractor.”

Doctorow is a vociferous defender of expanded digital access rights of many flavors and his latest essays on interoperability expand upon his previous advocacy for open access and a general freedom to tinker. He does much of this work with the Electronic Frontier Foundation (EFF), which shares his commitment to expanded digital access and interoperability rights in various contexts.

I’m in league with Doctorow and EFF on some of these things, but also find myself thinking they go much too far in other ways. At root, their work and advocacy raise a profound question: should there be any general right to exclude on digital platforms? Although he doesn’t always come right out and say it, Doctorow’s work often seems like an outright rejection of any sort of property rights in networks or platforms. Generally speaking, he does not want the law to recognize any right for tech platforms to exclude using digital fences of any sort.

Where to Draw the Lines?

As someone who has authored a book about the importance of permissionless innovation, I need to be able to answer questions about where these lines between open versus closed systems are drawn. Definitions and framing matter, however. I use “permissionless innovation” as a descriptor for one possible policy disposition when considering where legal and regulatory defaults should be set. Another conception of permissionless innovation is more of an engineering ideal; a general freedom to connect, tinker, modify, etc. (I speak more about these conceptions in my latest book, Evasive Entrepreneurs.) Of course, someone advocating permissionless innovation as a policy default will sometimes be confronted with the question of what the law should say when someone behaves in an “evasive” fashion in the latter conception of permissionless innovation.

Doctorow would generally answer that question by saying that law should not be rigged to favor exclusion through laws like the DMCA (and specifically the law’s anti- circumvention provisions), Computer Fraud and Abuse Act, patent law, and various other rules and laws. “[T]he current crop of Big Tech companies has secured laws, regulations, and court decisions that have dramatically restricted adversarial interoperability.”

Generally speaking, I agree. I’m not a fan of technocratic laws or regulations that seek to micro-manage interoperability and which stack the deck in favor of exclusionary conduct with steep penalties for evasion. But does that mean adversarial interoperability should be permitted in all cases? Should there exist any sort of common law presumption one way or the other when a user or competitor seeks access to an existing private platform or device?

Specifics matter here and I don’t have time to get into all the case studies that Doctorow goes through. Some are no-brainers, like the infamous Lexmark case involving refillable printer ink cartridges. Other cases are far more complicated, at least for me. Does Epic, creator of Fortnite, have a right of adversarial interoperability that it can exercise against Apple and their AppStore? As Dirk Auer suggests in a new essay, this episode looks more like a straightforward pricing dispute. Epic is making it out to be much more than that, suggesting Apple is guilty of unfair and exclusionary practices that require a legal remedy.

Why not take that logic further and just say Apple’s App Store us tantamount to a natural monopoly or digital essential facility that Epic and everyone else is entitled to on whatever terms they want? For that matter, why not apply the same logic to Epic’s Fortnite platform or even its Unreal Engine? Does every other gaming developer have a right to piggyback on the juggernaut that Epic has built?

This gets to the core question about Doctorow’s concept of adversarial interoperability: Exactly what should common law and the courts say platform owners make access rights a simple pricing matter and say: “You pay or you are out.” Like Doctorow and EFF, I don’t want Apple to benefit from any special favors from laws like DMCA. Where we differ is that I would still leave the door open for Apple to exercise various other common law contractual rights or property rights in court.

I suspect Doctorow would deny any such claims by Apple or anyone else. If so, I would like to see him spell out in more precise terms exactly what Apple’s property rights and contractual rights are in this instance. Or, again, should we just treat the App Store as a digital commons with unfettered open access rights for developers? If so, would Apple be required to still manage the resource once it is a quasi-commons?

I think that would end miserably, but would like to hear Doctorow’s preferred approach before saying more. I suspect a lot rides on the distinction between “open” verses “proprietary” standards, but compared to Doctorow and EFF, I am willing to embrace a world of both open and proprietary systems, and many hybrids in between. I don’t want the law favoring one type over the other, but that means I need to endorse a generalized property right for digital operators such that they can still exclude others (even in the absence of artificial regulatory rights like DMCA creates). Again, I suspect Doctorow would reject that standard, preferring a generalized right of access, even if that means the platforms become de facto commons.

More Radical Steps

Elsewhere, Doctorow has said is that some of these questions would be better addressed through more aggressive antitrust regulation. Mere data portability or mandatory interoperability isn’t enough for him. “Data portability is important,” Doctorow says, “but it is no substitute for the ability to have ongoing access to a service that you’re in the process of migrating away from.”

In his latest online book on “How to Destroy Surveillance Capitalism,” Doctorow suggests that it is time to “make Big Tech small again” through an “anti-monopoly ecology movement.” That “means bans on mergers between large companies, on big companies acquiring nascent competitors, and on platform companies competing directly with the companies that rely on the platforms.” And he desires a host of other remedies.

So, here we have the convergence of interoperability policy and antitrust policy, with a layer of property confiscation layered on top apparently. “Now it’s up to us to seize the means of computation, putting that electronic nervous system under democratic, accountable control,” he insists in his latest manifesto.

What’s funny about this is that Doctorow begins most of his essays by pointing out all the ways that politics is the problem when it comes to access issues, only to end by suggesting that a lot more political meddling is the required solution. He repeatedly laments how large tech players have so often been able to convince lawmakers and regulators to pass special laws or regulations that work to their favor. Yet, in his We-Can-Build-A-Better-Bureaucrat model of things, all those old problems will apparently disappear when we get the right people in power and get rid of those nefarious capitalist schemers.

Thus, what really animates Doctorow’s advocacy for adversarial interoperability is a deep suspicion of free market capitalism and property rights in particular. In this worldview, interoperability really just becomes a Trojan Horse meant to help bring down the entire capitalist order. Am I exaggerating? “As to why things are so screwed up? Capitalism.” Those are his exact words from the conclusion of his latest book.

Adversarial Innovation & Evolutionary Interop

Still, Doctorow raises many legitimate issues about interconnection and digital access rights. But we need a better approach to work though these questions than the one he suggests.

In my lengthy review of the Palfrey and Gasser Interop book, I tried to sketch out an alternative framework for thinking seriously about these issues. I referred to my preferred approach as “experimental interoperability” or “evolutionary interoperability.” I described this as the theory that ongoing marketplace experimentation with technical standards, modes of information production and dissemination, and interoperable information systems, is almost always preferable to the artificial foreclosure of this dynamic process through state action. The former allows for better learning and coping mechanisms to develop while also incentivizing the spontaneous, natural evolution of the market and market responses.

Adversarial interoperability is important, but not nearly as important as adversarial innovation and facilities-based competition. Stated differently, access rights to existing systems is an important value, but the incentives we have in place to encourage entirely new systems is what really matters most. At some point, a generalized right of access to existing systems discourages the sort of platform-building that could help give rise to the sort of creative destruction we have seen at work repeatedly in the past and that we still need today. Taken too far, adversarial interoperability threatens to undermine this goal. Why seek to build a better alternative platform if you can just endlessly free ride off someone else’s by force of law?

Thus, I prefer to work at the margins and think through how to balance these competing claims of access / interoperability rights versus contractual / property rights. My take will be too utilitarian for not only Doctorow but also for some libertarians, who want clear answers to all these questions based upon their preferred natural law-oriented constructions of rights. The problem with that approach is that it leads to all-or-nothing extremes (complete digital property rights, or virtually none) and that approach is fundamentally unworkable and destructive. We need to work harder about how to balance these rights and values in pro-competitive, pro-innovation fashion.

There is No Such Thing as Optimal Interoperability

In sum, there is no such thing as “optimal interoperablity.” Sometimes proprietary or “closed” systems will offer the public features and options that they will find preferable to “open” ones.  “There are many reasons why consumers might prefer ‘closed’ systems – even when they have to pay a premium for them,” argues Dirk Auer in a separate essay. It could be greater convenience, security, or other things. Palfrey and Gasser correctly noted in their book that, “the state is rarely in a position to call a winner among competing technologies” (p. 174). Moreover, they concluded:

“Lawmakers need to keep in view the limits of their own effectiveness when it comes to accomplishing optimal levels of interoperability. Case studies of government intervention, especially where complex information technologies are involved, show that states tend to be ill suited to determine on their own what specific technology will be the best option for the future (p. 175)

A thousand amens to that! The law should not artificially foreclose experimentation with many different types of platforms, standards, devices and the interoperability that exists among them.

I’ve just finished reading Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion, by Hal Abelson, Ken Ledeen, and Harry Lewis, and it’s another title worth adding to your tech policy reading list. The authors survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a wonderful history and technology primer on each topic.

I like the approach and tone they use throughout the book. It is certainly something more than “Internet Policy for Dummies.” It’s more like “Internet Policy for the Educated Layman”: a nice mix of background, policy, and advice. I think Ray Lodato’s Slashdot review gets it generally right in noting that, “Each chapter will alternatively interest you and leave you appalled (and perhaps a little frightened). You will be given the insight to protect yourself a little better, and it provides background for intelligent discussions about the legalities that impact our use of technology.”

Abelson, Ledeen, and Lewis aren’t really seeking to be polemical in this book by advancing a single thesis or worldview. To the extent the book’s chapters are guided by any central theme, it comes in the form of the “two basic morals about technology” they outline in Chapter 1:

The first is that information technology is inherently neither good nor bad — it can be used for good or ill, to free us or to shackle us. Second, new technology brings social change, and change comes with both risks and opportunities. All of us, and all of our public agencies and private institutions, have a say in whether technology will be used for good or ill and whether we will fall prey to its risks or prosper from the opportunities it creates. (p. 14)

Mostly, what they aim to show is that digital technology is reshaping society and, whether we like or it not, we better get used to it — and quick!  “The digital explosion is changing the world as much as printing once did — and some of the changes are catching us unaware, blowing to bits our assumptions about the way the world works… The explosion, and the social disruption that it will create, have barely begun.” (p 3)

In that sense, most chapters discuss how technology and technological change can be both a blessing and a curse, but the authors are generally more optimistic than pessimistic about the impact of the Net and digital technology on our society. What follows is a quick summary of some of the major issues covered in Blown to Bits.

Privacy: In the chapter on privacy, the authors conclude that it is increasingly difficult to bottle up our personal information and protect it and ourselves entirely from the outside world. “Despite the very best efforts, and the most sophisticated technologies, we can not control the spread of our private information. And we often want information to be made public to serve our own, or society’s purposes.” (p. 70) They argue that there still may be some ways to deal with the misuse of information and that some new technologies might be able to help protect our privacy at the margins. Generally speaking, however, this is a losing battle, and, more importantly, there is an increasing tension between privacy and freedom of speech:

A continuing border war is likely to be waged, however, along an existing free speech front: the line separating my right to tell the truth about you from your right not to have that information used against you. In the realm of privacy, the digital explosion has left matters deeply unsettled. (p. 70)

These are issues I discussed in more detail in my recent review of Daniel Solove’s important new book, Understanding Privacy. Abelson, Ledeen, and Lewis are right to point out that these tensions are only going to increase in coming years and their chapter outlines many of the new fault lines in the debate over online privacy.

Encryption: Having followed the “crypto wars” closely in the mid-1990s, I also found their chapter on cryptography intriguing. The authors note that encryption has gone mainstream. “Keys are cheap. Secret messages are everywhere on the Internet. We are all cryptographers now.” Despite that, the authors note that “very little email is encrypted today.” With the exception of some human rights groups and some particularly privacy-sensitive users, most of us are perfectly content to send our e-mails unencrypted. They argue that there are three reasons most people are unconcerned about their e-mail privacy:

First, there is still little awareness of how easily our e-mail can be captured as the packets flow through the Internet. […] Second, there is little concern because most ordinary citizens feel they have little to hide, so why would anyone bother looking? […] Finally, encrypted email is not built into the Internet infrastructure in the way encrypted web browsing is. (p. 191-92)

They continue and conclude:

Overall, the public seems unconcerned about privacy of communication today, and that privacy fervor that permeated the crypto wars a decade ago is nowhere to be seen. In a very real sense, the dystopian predictions of both sides of that debate are being realized: On the one hand, encryption technology is readily available around the world, and people can hide the contents of their messages, just as law-enforcement feared… At the same time, the spread of the Internet has been accompanied by an increase in surveillance, just as the opponents of encryption regulation feared. (p. 193)

Actually, I’m not sure there really was a “privacy fervor that permeated the crypto wars a decade ago.” Many of us who argued passionately for crypto-freedom back then knew it was unlikely that the masses were going to rush right out and start encrypting all their mail the minute the policy battle ended. In reality, most of us live pretty mundane lives and just don’t care enough to go through the hassle of encrypting the random chatter of e-mail. But it was the principle of the matter that counted — the government should never be given the keys to unlock all private communications. That is what we were fighting about in the crypto wars — not the necessity of everyone encyrpting every e-mail they sent.

Importantly, however, the authors correctly note how the truly beneficial result of the fight for crypto-freedom was an explosion of online commerce, facilitated by behind-the-scenes crypto protecting our transactions. Amazon, eBay, and many other e-commerce vendors, both big and small, have prospered because of strong crypto. That was the security blanket many of us needed before we were willing to take the plunge and begin doing most of our shopping and financial transactions online. This is a great public policy success story, and Abelson, Ledeen, and Lewis do a wonderful job relaying it to the reader.

Online Free Speech / Age Verification: As a passionate First Amendment advocate, the chapter on free speech issues was also of great interest to me. The authors run through the early history of efforts to censor online speech, including the Communications Decency Act of 1996 (CDA) and the Child Online Protection Act of 1998 (COPA), and bring us right up to speed with congressional efforts such as the Deleting Online Predators Act (DOPA), which would ban social networking sites and services in publicly funded schools and libraries. “DOPA, which has not passed into law, is the latest battle in a long war between conflicting values,” note the authors. “On the one hand, society has an interest in keeping unwanted information away from children. On the other hand, society as a whole has an interest in maximizing open communication.” (p. 231)

Abelson, Ledeen, and Lewis go on to outline the dangers of online censorship and the importance of defending the First Amendment from new legislative and regulatory attacks, but they would have done well to cite the growing diversity of parental control tools and methods that are now on the market. I share their passion for defending free speech values, but it is equally important we work hard to show parents and policymakers how many effective self-help tools and strategies are out there on the market today to help them guide — or even control — their child’s media and Internet experiences. Not everyone is equally excited about what a world of media abundance offers us, or out children. If we hope to continue to fend off attacks on the First Amendment, we have to make sure parents are empowered to mentor their kids and limit access to content they find objectionable so they don’t expect Uncle Sam to play the role of national nanny.

I was glad to see the authors spend some time focusing on online age verification / identity authentication since that is probably the most important free speech debate raging today. [I’ve written quite a bit here about the battle over online age verification for social networking sites and other online sites.] The authors point out Congress already attempted to impose age verification on the Internet when they passed the Child Online Protection Act in 1998. “The big problem,” the authors note, “was that these methods either didn’t work or didn’t even exist.” (p. 248) Indeed, the effort in COPA to require “adult personal identification numbers” or a “digital certificate that verifies age” was in their words, “basically a plea from Congress for the industry to come up with some technical magic for determining age at a distance.” (p. 248)  And things really haven’t advanced much since then, they argue:

In the state-of-the-art, however, computers can’t reliably tell the if party on the other end of the communications link is a human or is another computer. For a computer to tell whether a human is over or under the age of 17, even imperfectly, would be very hard indeed. Mischievous 15-year-olds could get around any simple screening system that could be used in the home. The Internet just isn’t like a magazine store. (p. 249)

I hope policymakers are listening — especially the many stubborn state attorneys general who continue to push age verification as a silver-bullet solution to online child safety concerns.

Spectrum Policy: The authors point out how the death of media scarcity has profound implications for the future of speech regulation and spectrum policy alike. “As a society,” they argue, “we simply have to confront the reality that our mindset about radio and television is wrong. It has been shaped by decades of the scarcity argument.” (p. 292)  Regarding what it means for speech controls, they note:

If almost anyone can now send information that many people can receive, perhaps the government’s interest in restricting transmissions should be less than what it once was, not greater. In the absence of scarcity, perhaps the government should have no more authority over what gets said on radio and TV than it does over what gets printed in newspapers. (p. 261)

I couldn’t agree more, and I’ve written voluminously on the topic of creating a “consistent First Amendment standard for the Information Age.” Abelson, Ledeen, and Lewis seem to agree with what I said there when they argue:

Other regulation of broadcast words and images should end. Its legal foundation survives no longer in the newly engineered world of information. There are too many ways for the information to reach us. We need to take responsibility for what we see, and what our children are allowed to see. And they must be educated to live in a world of information plenty. (p. 293)

The death of the scarcity doctrine should also have a profound impact on the future spectrum policy decisions, they say. Perhaps scarcity-based rationales for regulation made (some) sense in the past, but:

These were facts of the technology of the time. They were true, but they were contingent truths of engineering. They were never universal laws of physics, and are no longer limitations of technology. Because of engineering innovations over the past 20 years, there is no practically significant “natural limitation” on the number of broadcast stations. Arguments from inevitable scarcity can no longer justify U.S. government denials of the use of the airwaves. The vast regulatory infrastructure, built to rationalize use of the spectrum but much more limited radio technology, has adjusted slowly — as it almost inevitably must: Bureaucracies don’t move as quickly as technological innovators. The FCC tries to anticipate resource needs centrally and far in advance. But technology can cause abrupt changes in supply, and market forces can cause abrupt changes in demand. Central planning works no better for the FCC than it did for the Soviet Union. (p. 272)

I completely agree, although challenging questions remain about how to get us out of the current mess. Abelson, Ledeen, and Lewis argue that “commons-based” approaches make the most sense. I am certainly open to the idea of treating certain swaths of spectrum as a commons, but it’s important to recognize that this does not necessarily get the regulators completely out of the picture. In fact, as my TLF colleague Jerry Brito has persuasively argued, there is the real potential that the FCC could become an aggressive device regulator if we switch to this approach. “A ‘commons’ model is not a third way between regulation and property, it is just another kind of regulation,” Brito concludes. That’s why I continue to believe that a property rights-based approach for most spectrum allocation makes the most sense and will get the spectrum deployed for its most highly-valued use. Commons-based approaches should supplement, not supplant, that model.

Abelson, Ledeen, and Lewis also fail to sweat the details about how to handle the issue of incumbent spectrum users in the transition to their preferred commons-based model. That strikes me as a pretty big problem. They repeatedly mention how incumbents often seek to block beneficial spectrum reforms — which is no doubt true on some occasions — but that doesn’t mean incumbent spectrum holders don’t have legitimate rights in their existing allocations that should be honored. I would hope that, even if they wanted to go with a pure commons approach going forward, the authors would at least be willing to grandfather-in existing spectrum users. If the goal is to encourage them to vacate what they currently have, incentivize them with flexible use and resale rights. For example, for the right price, a lot of broadcast spectrum holders might be willing to give up their current allotment. Alternatively, if flexible use was allowed, they might deploy their spectrum for a different purpose. Unfortunately, both of these options are currently prohibited by the FCC’s command-and-control regulatory system.

Overall, however, I enjoyed the spectrum chapter and found the history and technology primer in this chapter to be the best in the book.

Copyright: The authors have a strongly-worded chapter on copyright that generally argues for relaxing copyright protections. Interestingly, however, (unless I am missing something) I notice they don’t offer their book for free download on their site.  I’m always intrigued by copyright critics who refuse to put their own content online. Apparently, it’s another case of ‘copying is good for me, but not for thee.’ Regardless, in their copyright chapter, they argue that:

The war over copyright and the Internet has been escalating for more than 15 years. It is a spiral of more and more technology that makes it ever easier for more and more people to share more and more information. This explosion is countered by a legislative response that brings more and more acts within the scope of copyright enforcement, subject to punishments that grow ever more severe. Regulation tries to keep pace by banning technology, sometimes even before the technology exists… If we cannot slow the arms race, tomorrow’s casualties may come to include the open Internet and dynamic of innovation that fuels the information revolution. (p. 199)

The authors make a fair point about the perils of banning technologies to protect copyright. That’s never the right answer. Regrettably, however, they pay less attention to what I regard as the legitimate concerns of copyright holders about how to protect their creative works and expressive endeavors going forward. And it’s not just about protecting large-scale industries, as they and other copyright critics are often prone to claim. It’s about whether or not we want a workable copyright system going forward. Of course, some critics wouldn’t mind seeing copyright law fade into the sunset altogether. But Abelson, Ledeen, and Lewis don’t really make it clear how far they’d be willing to go. They do have a brief discussion about collective licensing approaches as a possible solution, which may be coming sooner than we think for the Net. Unfortunately, they don’t spend much time developing the details. I remain skeptical about the sensibility of that approach — especially since it will likely end up being compulsory in nature and fraught with fairness problems (i.e. Who pays in? How much? On the other end, who gets paid how much when their content appears online? etc.) Nonetheless, I think that’s where we’ll end up before the copyright wars are over, so it would have been nice to see the authors spend more time on collective licensing issues.

They also spend a lot of time discussing DRM. I was surprised by their comment that, “Developers of DRM and trusted platforms may be creating effective technologies to control the use of information, but no one has yet devised effective methods to circumscribe the limits of that control.” (p. 212) I must say, that does not seem to match up with the reality of the market we see around us today in which DRM systems are rapidly crumbling and being abandoned left and right.

Conclusion

I didn’t agree with everything in Blown to Bits, such as their unfortunate call for Net neutrality regulation. Overall, however, I enjoyed the book and recommend it. The narrative can be a little disjointed at times, almost sounding like a series of e-mail exchanges between friends (which may have been the case since the book had three authors). But the text is very accessible and contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. If the authors are smart, they’ll throw the book online and update it periodically to keep it fresh. As I have found with my parental controls and Media Metrics reports, that’s the only way to keep up with the frantic pace of change in the tech policy arena — version your books like software and release periodic updates.

This book will definitely appear on my big, end-of-year “Most Important Tech Policy Books of 2008” list, which I should have wrapped up shortly. Also, I think this book makes a nice complement to Palfrey and Gasser’s Born Digital, which I reviewed here last month. And, if you are interested in another title that takes an approach similar to what Abelson, Ledeen, and Lewis have taken here, you might want to check out Bruce Owen’s outstanding 1999 book “The Internet Challenge to Television.” It’s an oldy but a goodie, as I noted here.

Finally, given the title of the book and the countless times in the text that Abelson, Ledeen, and Lewis talk about the “bits revolution,” how “bits are bits,” and how “bits behave strangely,” shockingly, they never seem to get around to crediting Nicholas Negroponte for his pioneering work on this front in Being Digital. Long before anybody else gave a damn about how the movement from a world of atoms to a world bits would change our entire existence, Nicholas Negroponte was preaching that gospel to the unconverted. And considering he was saying all that back in the dark (dial-up) ages of 1995, the man deserves some credit, as I have noted here before.

Good editorial in the Boston Globe today about “The Dangers of Internet Censorship” by Harry Lewis, a professor of computer science at Harvard and fellow at Harvard’s Berkman Center for Internet and Society. Lewis argues that:

Determining which ideas are “harmful” is not the government’s job. Parents should judge what information their children should see – and should expect that older children will, as they always have, find ways around restrictive rules.

Worth reading the whole thing. Incidentally, Harry Lewis is the co-author of an interesting new book I am reading right now, Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion. I’m going to try to review it here eventually.