Looking for a concise overview of how Internet architecture has evolved and a principled discussion of the public policies that should govern the Net going forward? Then look no further than Christopher Yoo‘s new book, The Dynamic Internet: How Technology, Users, and Businesses are Transforming the Network. It’s a quick read (just 140 pages) and is worth picking up.  Yoo is a Professor of Law, Communication, and Computer & Information Science at the University of Pennsylvania and also serves as the Director of the Center for Technology, Innovation & Competition there. For those who monitor ongoing developments in cyberlaw and digital economics, Yoo is a well-known and prolific intellectual who has established himself as one of the giants of this rapidly growing policy arena.

Yoo makes two straight-forward arguments in his new book. First, the Internet is changing. In Part 1 of the book, Yoo offers a layman-friendly overview of the changing dynamics of Internet architecture and engineering. He documents the evolving nature of Internet standards, traffic management and congestion policies, spam and security control efforts, and peering and pricing policies. He also discusses the rise of peer-to-peer applications, the growth of mobile broadband, the emergence of the app store economy, and what the explosion of online video consumption means for ongoing bandwidth management efforts. Those are the supply-side issues. Yoo also outlines the implications of changes in the demand-side of the equation, such as changing user demographics and rapidly evolving demands from consumers. He notes that these new demand-side realities of Internet usage are resulting in changes to network management and engineering, further reinforcing changes already underway on the supply-side.

Yoo’s second point in the book flows logically from the first: as the Internet continues to evolve in such a highly dynamic fashion, public policy must as well. Yoo is particularly worried about calls to lock in standards, protocols, and policies from what he regards as a bygone era of Internet engineering, architecture, and policy. “The dramatic shift in Internet usage suggests that its founding architectural principles form the mid-1990s may no longer be appropriate today,” he argues. (p. 4) “[T]he optimal network architecture is unlikely to be static. Instead, it is likely to be dynamic over time, changing with the shifts in end-user demands,” he says. (p. 7) Thus, “the static, one-size-fits-all approach that dominates the current debate misses the mark.” (p. 7)

Yoo makes a particular powerful case for flexible network pricing policies. His outstanding chapter on “The Growing Complexity of Internet Pricing” offers an excellent overview of the changing dynamics of pricing in this arena and explains why experimentation with different pricing methods and business models must be allowed to continue. Getting pricing right is essential, Yoo notes, if we hope to ensure ongoing investment in new networks and services. He also notes how foolish it is to expect the government to come in and save the day thought massive infrastructure investment to cover the hundreds of billions of dollars needed to continue to build-out high-speed services:

Most industry and political observers believe that the federal government will not be in a position to allocate that amount of money to upgrade our nation’s broadband infrastructure for the foreseeable future. The next-generation network will thus be built by private enterprise. But private corporations cannot be expected to undertake such investments unless they have a reasonable prospect of recovering their upfront costs from consumers who are using the increased bandwidth and other enhancements to the existing network. (p. 102)

Again, that’s why flexible pricing policies and ongoing experimentation with various business models is vital. This insight is particularly timely in light of the recent renewed interest in data caps. A lot of people who don’t know a lick about economics and have never run a real business in their lives are seemingly obsessed with telling private operators how to run theirs. If the Net neutrality wars devolve into a battle over price controls — exactly as I predicted they would 7 years ago this month — then we could be headed for a day when federal policymakers derail the advances in broadband we’ve seen in recent years by substituting mandates for markets.

Throughout the second half of his book, Yoo explains why that would be a disaster for consumers and high-tech innovation. To most of us, the arguments Yoo advances here are perfectly logical, but to many Ivory Tower intellectuals who dominate Net policy debates today, it will all be considered apostasy of the very highest order. Those that elevate Net neutrality and so-called “public interest” regulation to quasi-religious concepts will likely be constructing Christopher Yoo voodoo dolls and attempting to sew his mouth shut. Yet, the policy standard Yoo is advancing here is perfectly logical. In essence, he’s trying to counter the gradual growth of a Precautionary Principle mindset for Internet policy. Here’s how he puts it:

Just as engineers must design structures that preserve room for experimentation, so must regulators. In particular, regulators should avoid promulgating policies that foreclose certain technical approaches or require industry actors to obtain advance approval before they can experiment with new technological solutions. The benefits of most practices will remain ambiguous before they are deployed, and placing the burden on industry actors to prove consumer benefit before implementation would chill experimentation and effectively prevent ambiguous practices from ever being deployed. This in turn would prevent engineers from obtaining the real-world experience they need to evaluate different technological solutions and eliminate the breathing room on which technological progress depends. In the face of uncertainty, policymakers should not attempt to predict which particular network solution will ultimately prevail; rather, they ought to focus on creating regulatory structures that give industry participants the freedom to pursue a wide range of business strategies and allow consumers to decide which one (or ones, if consumer demand is sufficiently diverse to support multiple business models targeted at different market niches) ultimately proves to be the best.” (p. 8)

In other words, public policy must not restrict experimentation based on conjectural fears and boogeyman scenarios. Public policy should generally seek to avoid ex ante forms of preemptive, prophylactic Internet regulation and instead rely on an ex post approach when and if things go wrong. As I have argued here many times before, as a general rule, our policymakers should embrace “techno-agnosticism” toward ongoing debates over standards, protocols, business models, pricing methods, and so on. Lawmakers should not be preemptively tilting the balance in one direction or the other or, worse yet, restricting experimentation that can help us find superior solutions. Here’s how Yoo articulates this same principle of techno-agnosticism:

network engineering is inherently an exercise in tradeoffs that does not lend itself to broad generalizations. There is no such thing as a perfect, inherently superior architecture. Instead, the optimal infrastructure for any particular network depends on the nature of the flows passing through the network as well as the costs of the technologies comprising the network. This perspective stands in stark contrast to the categorical tone that has dominated debates over Internet policy for the past five years. (p. 138)

Indeed it does. If you read through books by Zittrain, Lessig, Wu, van Schewick, Frischmann, and others, you will notice the consistent assertion that we already have the magic formula for the Internet and all networks, for that matter. It almost always comes down to what I have referred to as an ideology of “openness at any cost” or “neutrality uber alles.” In this religion, everything is subservient to openness and neutrality, no matter what the cost (and no matter how defined, even if that is much trickier than those academics let on). But for all the reasons Yoo lays out in his book, we should reject neutrality uber alles as the basis of public policy. “The shifts in the technological and economic environment surrounding the network should remind everyone involved in Internet policy of the importance of embracing change.” (p. 139).  Again, that counsels techno-agnosticism and light-touch, responsive regulation — not a preemptive Precautionary Principle for Internet decision-making. As Yoo states in his conclusion:

Perhaps the best means for creating such an environment is to create a regulatory-enforcement regime that evaluates any charges of improper behavior on a case-by-case basis after the fact… So long as the burden of proof is placed on the party challenging the practice, such a regime should provide sufficient breathing room for industry participants to experiment with new solutions for emerging problems while simultaneously safeguarding consumers against any anticompetitive practices. (p. 139).

And even under that regime, Yoo makes it clear throughout the book that there should be a very high bar established before regulation is pursued. This is particularly true because of the First Amendment values at stake when the government attempts to regulate speech platforms. In Chapter 9 of the book, Yoo walks the reader through all the relevant case law on this front and makes it clear how “the Supreme Court has repeatedly recognized that the editorial discretion exercised by intermediaries serves important free speech values.” (p. 120). Yoo also makes the case that a certain degree of intermediation helps serve consumer needs by helping them more easily find the content and services they desire. Law should not seek to constrain that and, under current Supreme Court First Amendment jurisprudence, it probably cannot.

So, in conclusion, I strongly encourage everyone to pick up a copy of Christopher Yoo’s  Dynamic Internet. It strikes just the right balance for Net governance and public policy in the information age. It all comes down to flexibility and freedom.  If the Internet and all modern digital technologies are to thrive, we must reject the central planner’s mindset that dominated the analog era and forever bury all the static thinking it entailed.

Additional Reading:

• The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation (Oct 2005)
• More on Net Neutrality, the Importance of Business Model Experimentation & Pricing Flexibility (May 2012)
• Smartphones & Usage-Based Pricing: Are Price Controls Coming? (July 2011)
• Netflix Falls Prey to Marginal Cost Fallacy & Pleads for a Broadband Free Ride (July 8, 2011)
• Why Congestion Pricing for the iPhone & Broadband Makes Sense (October 7, 2009)
• The (Un)Free Press Calls for Internet Price Controls: “The Broadband Internet Fairness Act” (June 17, 2009)
• Free Press Hypocrisy over Metering & Internet Price Controls (June 18, 2009)
• Mueller’s “Networks and States” = Classical Liberalism for the Information Age (Nov. 2010)
• Doctorow’s Definition of “Techno-Optimism” Is Full of Fear & False Choices (May 2011)
• review of Zittrain’s “Future of the Internet” (March 2008)
• Code, Pessimism, and the Illusion of “Perfect Control” [review of Lessig’s “Code” at 10th anniversary] (May 2009)

Wow, what a year for cyberlaw and information technology policy books!  Both in terms of number of titles and the gravity of the books released, 2010 was one of the biggest years of the past decade (perhaps matched only by 2006 or 2008 in terms of significance).  So, here’s my annual list of the Most Important Info-Tech Policy Books of 2010.

First, however, as is the case each year [see my 2008 & 2009 lists], I need to repeat a few disclaimers.  First, what qualifies as an “important” info-tech policy book is highly subjective, but I would define it as a title that many people — especially scholars in the field — are currently discussing and that we will likely be referencing for many years to come.  But I “weight” books in the sense that narrowly-focused titles lose a few points. For example, books that deal mostly with privacy issues, copyright law, or antitrust policy do not exactly qualify as the same sort of “info-tech policy book” as other titles that offer a broader exploration of policy issues / concerns. For that reason, “big picture” info-tech policy books tend to rank higher on my lists.

The second caveat: Merely because a book appears on my list it does not necessarily mean I agree with everything in it. In fact, as was the case in previous years, I found much with which to disagree in my picks for the most important books of 2010 and I find that the cyber-libertarianism I subscribe to has very few fans out there.

With those caveats in mind, here are my choices for the Most Important Info-Tech Policy Books of 2010.

(1) Tim Wu – The Master Switch: The Rise and Fall of Information Empires

In The Master Switch, Tim Wu claims that information industries are prone to “cycles” that generally advance from “open” to “closed” and he correctly notes that regulatory capture and bureaucratic mismanagement are major culprits. “Again and again in the histories I have recounted,” he says, “the state has shown itself an inferior arbiter of what is good for the information industries. The federal government’s role in radio and television from the 1920s through the 1960s, for instance, was nothing short of a disgrace… Government’s tendency to protect large market players amounts to an illegitimate complicity … [particularly its] sense of obligation to protect big industries irrespective of their having become uncompetitive.”

Wu is correct. Strangely, however, he never seems to draw any lesson from that “disgrace” and “complicity.” Indeed, sometimes within a line or two of raising such concerns in his book, Wu seems to dismiss those findings entirely and proposes giving the government far more power to play games within the information sector. If Wu believes what he said about the dangers of regulatory capture and bureaucratic bungling, why is he so eager to empower the State to do even more meddling in information technology sectors?

When it comes to solutions, Wu fails to conduct any serious cost-benefit analysis of the trade-offs associated with an aggrandizement of State power in the name of countering the supposed evils of private power. The solutions Wu offers are typically presented as cost-free options. Yet, Prof. Wu’s primary solution, a so-called “Separation Principle,” would have a devastating impact on high-technology innovation and competitiveness. Claiming that information industries are too important to be governed by traditional laws and regulations, Wu advocates a sweeping industrial policy that would separate information industries into three buckets — content, distribution, and devices — and keep them segregated by force of law. Integration and cross-sector arrangements would essentially become illegal in this system of information apartheid.

Mysteriously, Wu is adamant about this not being a regulatory solution, instead preferring to call it a “constitutional” approach. But such semantic sophistry can’t disguise the fact that his regime would be an ambitious industrial policy for America’s information economy. Entire companies and sectors would need to be undone, and all future technological innovation would need to be subjected to regulatory classification proceedings to determine in which bucket they belong.  Ironically, therefore, Wu’s proposed approach would greatly empower the same regulators that he claimed drove previous industries into the ground! They would have even more sway over the future of technological innovation, media policy decisions, and free speech issues. Again, Wu never address the potential downsides or costs of his proposed approach even though we know that, when it comes to regulation, there is no free lunch. Something has to give.

In sum, I believe Wu’s hyper-pessimistic worldview and extreme recommendations are unwarranted and I made my reservations known in a 6-part series of essays about his book.  [See Parts 1, 2, 3, 4, 5, 6.]  Nonetheless, The Master Switch is a profoundly important book that we’ll be debating for many years to come.

Listen to Jerry Brito’s “Surprisingly Free” podcast discussion with Tim Wu here.

(#2) Kevin Kelly – What Technology Wants

Kevin Kelly has written a terrifically interesting book that is actually two books in one. The bookends (Parts 1 and 4) are pretty out there. In those portions of the book, Kelly aims to prove that “the technium” – “the greater, global, massively interconnected system of technology vibrating around us” — is a “force” or even a living “organism” that has a “vital spirit” and which “has its own wants” and “a noticeable measure of autonomy.” “The technium is whispering to itself,” he says. At times, Kelly sounds like he’s longing for humanity’s assimilation into the machine or The Matrix. “We can think of technology as our extended body,” he says. He speaks repeatedly of human-machine “symbiosis.” “We are now symbiotic with technology” and, apparently, that symbiotic bonding can get pretty intense as “humans are the reproductive organs of technology.” Sounds a little kinky, but what the hell does that even mean? I think those are the weaker sections of the book. He sounds like one of those enviro-extremists who proselytizes about Gaia theories of Earth as a spirit or deity.

But Kelly redeems himself with eight absolutely stunning chapters in the middle two sections of the book. Gone is most of the Gaia-like talk of the technium as a living organism. Kelly instead focuses on explaining to us in plain terms the progression of technology in our lives and how we’ve come to cope with it. He notes, for example, that “Over the centuries, societies have declared many technologies to be dangerous, economically upsetting, immoral, unwise, or simply too unknown for our good. The remedy to this perceived evil is usually a form of prohibition. The offending innovation may be taxed severely or legislated to narrow purposes or restricted to the outskirts or banned altogether.”

But banning technology never works, he argues, largely because humans adapt and embrace new tools and developments. “[H]istory shows that it is very hard for a society as a whole to say no to technology for very long.” “Prohibitions are in effect postponements” and “wholesale prohibitions simply do not work to eliminate a technology that is considered subversive or morally wrong. Technologies can be postponed but not stopped.”  Importantly, Kelly doesn’t turn a blind eye to the downsides of technology. In fact, he is refreshingly candid about the trade-offs we face. He argues that, “If we examine technologies honestly, each one as its faults as well as its virtues. There are no technologies without vices and none that are neutral. The consequences of a technology expand with its disruptive nature. Powerful technologies will be powerful in both directions – for good and bad. There is no powerfully constructive technology that is not also powerfully destructive in another direction, just as there is no great idea that cannot be greatly perverted for great harm… This should be the first law of technological expectation: The greater the promise of a new technology, the greater its potential for harm as well.”

Quite right. But then Kelly then goes on to masterfully discuss the dangers of applying the “precautionary principle” to technological advancement. Kelly correctly argues, is that because “every good produces harm somewhere… by the strict logic of an absolute Precautionary Principle no technologies would be permitted.” (p. 247-8) Under such a regime, progress becomes impossible because trade-offs are considered unacceptable. This doesn’t mean humans shouldn’t try to foresee problems associated with new technologies or address them preemptively. But that can be done without resisting new technologies or technological change altogether. “The proper response to a lousy technology is not to stop technology or to produce no technology,” Kelly argues. “It is to develop a better, more convivial technology.”

In sum, I loved the middle sections of What Technology Wants, but I could have done without the silly “technology-as-organism” theories found in the opening and closing chapters. Overall, however, Kevin Kelly has written a book that demands our attention. We will be talking about What Technology Wants for many, many years to come.

See my complete review of the book here, and make sure to listen to Kelly’s interesting podcast discussion with Jerry Brito here.

(#3) Jaron Lanier – You Are Not a Gadget: A Manifesto

Lanier’s You Are Not a Gadget is an intriguing but highly pessimistic look at the impact of the Internet and digital technology on our lives, culture, and economy. Like other Net skeptics, Lanier worries about the loss of individuality, the rise of “mob” behavior, the dangers of free culture, and the rise of a new sharecropper economy in which a small handful of capitalists are supposedly getting rich off the backs of free labor. As a respected Internet visionary, a gifted computer scientist, an expert on virtual reality, and a master wordsmith, the concerns Lanier articulates here deserve to be taken seriously — even if one ultimately does not share his lugubrious worldview. And I don’t.

He rightly castigates extreme varieties of quixotic techno-utopianism, which he labels “cybernetic totalism,” or the belief by some extreme digital age optimists that a “hive mind” or “noosphere” is coming about. It’s a vision of the Net as an organism powered by the wisdom of crowds. Lanier thinks such thinking is all bunk and, worse yet, that it has dangerous ramifications for humanity and individuality. He also asks us to think twice before taking too big of a gulp of the “free culture” kool-aid and extreme varieties of cyber-collectivism, which I wholeheartedly agree with.

But his critique is too sweeping and he refuses at times to acknowledge the many legitimate innovations associated with open source software or Web 2.0 technologies. He also gets so caught up in his critique of the free culture movement that he unfairly indicts the entire digital generation and wrongly claims most modern culture is moribund and little more than “a petty mashup of preweb culture.” Sorry, but I just don’t buy that. And it’s entirely subjective, anyway.

I also found Lanier’s “lords of the cloud” critique of social networking and advertising unpersuasive. Lanier seems to believe that Google, Facebook, MySpace, Twitter, and other Web 2.0 sites are all just part of the hive mind indoctrination scheme. Or, at a minimum, they are turning our brains into Jello, he claims, and destroying our individuality. But here Lanier is guilty of a form of hyper-nostolgia about those mythical “good ‘ol days” when all was supposedly much better. The Web 1.0 world was any better than today’s cyberspace; it had its own share of problems. And today’s leading cloud companies aren’t exploiting us or manipulating our minds by offering us great platforms or free services. Indeed, they are offering us wonderful new avenues for self-expression and interaction with others.

Lanier doesn’t seem willing to leave room for a middle ground position that rejects extreme techno-utopianism and the most extreme elements of the free culture mindset, but which also acknowledges there is much good to be found in modern digital culture and online life. Despite that, his book is easily one of the most important information technology policy books of recent years.

My lengthy review of Lanier’s book is can be found here.

(#4) Nicholas Carr – The Shallows: What the Internet is Doing to Our Brains

Rich with historical anecdotes and replete with scientific surveys and evidence, The Shallows is a book that demands your respect whether you are comfortable giving it or not. And many people won’t be. After all, Carr is a bit of a skunk at the cyber-garden party. I mean, how dare he suggest that all is not wine and roses with our glorious new world of instantaneous connectivity, abundant information flows, and cheap (often free) media content! Obviously, most of us want to believe that all adds up to a more well-rounded worldview and greater wisdom about the world around us. Carr is skeptical of those claims and The Shallows is his latest effort to poke a hole in the cyber-utopian claims that sometimes pervade discussions about Internet. Although, ultimately, he doesn’t quite convinced me that “The Web is a technology of forgetfulness,” he has made a powerful case that its effects may not be as salubrious as many of us have assumed.

But the ultimate question is: Do the costs really outweigh the benefits? Is it the case that these technologies “turn numb the most intimate, the most human, of our natural capacities — those for reason, perception, memory, emotion”? I think that goes a bit too far. Importantly, Carr doesn’t really ever answer the crucial question: Were we really better off in the decades prior to the rise of the Net? Did we really read more and engage in the more contemplative deep-reading and thinking he Carr fears we are losing because of the Net? Count me among those who think that — whatever most of us are doing in front our our computers most nights, and no matter how distracting it is — it has to be better than much of the junk we wasted our spare time on in the past!

It would have also been nice to have seen Carr offer up some personal suggestions for how we each might better manage cognitive overload, which can be a real problem. In a brief “digression” chapter entitled “On the Writing of This Book,” Carr does mention some of the steps he took personally to make sure he could complete The Shallows without being driven to distraction by the Web and digital technologies. But he doesn’t dwell on that much, which is a shame. A bit of a self-help can go a long way toward alleviating the worst forms of cognitive overload, although it will continue to be a struggle for many of us.

Despite the reservations I raised in my review of the book, Nick Carr’s The Shallows is beautifully written and will be required reading in this field for many years to come.   And make sure to check out this “Surprisingly Free” podcast conversation that Jerry Brito had with Carr back in June.

(#5) Clay Shirky – Cognitive Surplus: Creativity and Generosity in a Connected Age

If you are an avid reader of everything Clay Skirky pens, then the chapters you’ll find in his new book, Cognitive Surplus: Creativity and Generosity in the a Connected Age, will seem quite familiar.  We’ve seen or heard most of the material in Cognitive Surplus many times before and I think we got the point: The Internet and digital technology has freed up an enormous amount of time for more productive / worthwhile endeavors that was previously squandered — most by too much coach potato television consumption. He spells out his thesis a bit more eloquently on pg. 63:

The harnessing of our cognitive surplus allows people to behave in increasingly generous, public, and social ways, relative to their old status as consumers and couch potatoes. The raw material of this change is the free time available to us, time we can commit to projects that range from the amusing to the culturally transformative. […] Flexible, cheap, and inclusive media now offers us opportunities to do all sorts of things we once didn’t do. In the world of “the media,” we were like children, sitting quietly at the edge of a circle and consuming whatever the grown-ups in the center of the circle produced. That has given way to a world in which most forms of communication, public and private, are available to everyone in some form. (p. 63)

Shirky spends 200+ pages here trying to bolster that claim in various ways. But, again, I’m not sure he needed to. The notion that the Net has made us and our culture better off seems fairly uncontroversial to most of us. But Shirky also overplays his hand at times and tries to read a bit too much into the significance of the rising cognitive surplus.  It’s less likely to reshape politics or civic spirit, for example, as much as he seems to suggest.

My longer review of Cognitive Surplus can be found here and you’ll want to listen to Jerry Brito’s very interesting “Surprisingly Free” podcast discussion with him here.

(#6) Barbara van Schewick – Internet Architecture and Innovation

Barbara van Schewick’s book is an extended — and I do mean extended — love letter to the “end-to-end” principle and Net neutrality.  Weighing in at almost 600 pages, van Schewick goes on much longer than she needed to make her core argument: The structure of the current Internet is sacrosanct and must be preserved. Deviations from end-to-end or “neutrality,” however defined, are to be discouraged or disallowed. “[D]ifferent ways of structuring the Internet result in very different environments for its development,” she argues.  “If left to themselves, network providers will continue to change  the internal structure of the Internet in ways that are good for them, but not necessarily for the rest of us,” she says. (p. 377)

Of course, we’ve heard all these arguments made ad nauseam in the Net neutrality wars, but to her credit, van Schewick makes them far more eloquently in this book than they have ever been made before.  She does a particularly good job of walking the reader through the guts of the Internet’s current architecture.  The layman will find the book quite challenging in light of its highly technical nature, however.  But her grasp of the subject is impressive.

Unfortunately, van Schewick doesn’t spend much time addressing the downsides associated with expanding regulation of the Internet.  There’s no acknowledgment of the danger of regulatory capture, regulatory creep, or bureaucratic meddling with highly complex systems.  She seems to assume regulators will be immune to such tendencies and, more surprisingly, have a crystal ball with which they can view the wisdom of current regulatory actions. She argues, for example, that in some cases “regulators will need to shape the technology before it is deployed.” (p. 388)  This suggests a return to the sort of anticipatory, “Mother, May I” regulatory regime America began turning away from following the passage of the Telecommunications Act of 1996.  Do we really want the FCC micro-managing every important innovation and business decision in these fast-moving, complex markets?   Experimentation with different digital architectures would essentially become verboten under van Schewick’s paradigm.

When it comes imposing “an engineering design principle” from above, van Schewick claims that “the broad version [of the end-to-end principle] provides much more flexibility for the evolution of the network’s core than is often assumed.” (p. 389)  Yet, she never spells out what she means by that and how much flexibility she would allow in terms of core innovation before having regulators intervene.  For those of us who favor a more dynamic, experimental, and evolutionary approach to markets and technical engineering determinations, van Schewick’s approach looks like one that would freeze current high-tech markets and networks in stone.   Her occasional lip-service to the trade-offs involved in this process are appreciated but, ultimately, unbelievable since she always comes down in favor of maximizing opportunities or innovation at the edge of networks relative to the core. Innovation at the core of networks is every bit as important as innovation at the edge, however. We don’t want stagnation at the core of networks or else the applications that ride on them will suffer.

(#7) Milton Mueller — Networks and States: The Global Politics of Internet Governance

Milton Mueller’s Networks and States isn’t the most important information technology policy book of the year, but it was easily my favorite.   Mueller’s book continues his exploration of the forces shaping Internet policy across the globe. What Mueller is doing in his work in this book and elsewhere is becoming the early chronicler of the unfolding Internet governance scene. He meticulously reports on, and then deconstructs, ongoing governance developments along the cyber-frontier. He is, in effect, a sort of de Tocqueville for cyberspace; an outsider looking in and asking questions about what makes this new world tick. Fifty years from now, when historians look back on the opening era of Internet governance squabbles, Milton Mueller’s work will be among the first things they consult.

Mueller’s goal in Networks and States is two-fold and has both an empirical and normative element. First, he aims to extend his exploration of the actors and forces affecting Internet governance debates and then develop a framework and taxonomy to better map and understand these forces and actors. He does a wonderful job on that front, even though many Net governance issues can be incredibly boring. Mueller finds a way to make them far more interesting, especially by helping to familiarize the reader with the personalities and organizations that increasingly dominate these debates and the issues and principles that drive their actions or activism.

Mueller’s second goal in Networks and States is to breathe new life into the old cyber-libertarian philosophy that was more prevalent during the Net’s founding era but has lost favor today. Mueller says his “normative stance is rooted in the Internet’s early promise of unfettered and borderless global communication, and its largely accidental and temporary escape from traditional institutional mechanisms of control.” Mueller makes a convincing case for giving cyber-libertarianism, or what he calls “denationalized liberalism,” another chance; a chance that it really never had. “At its core,” Mueller continues, “denationalized liberalism favors a universal right to receive and impart information regardless of frontiers, and sees freedom to communicate and exchange information as fundamental and primary elements of human choice and political and social activity.” Moreover, “this ideology holds a presumption in favor of networked, associative relations over hierarchical relations as a mode of transnational governance,” he argues. “Governance should emerge primarily as a byproduct of many unilateral and bilateral decisions by its members to exchange or negotiate with other members (or refuse to do so).” Finally, he says, “a denationalized liberalism strives to make Internet users and suppliers an autonomous, global polity.” In essence, it’s about free will, freedom of action, and freedom of association. It’s essentially classical liberalism for the Information Age. Mueller admits that “such an ideology needs to answer tough questions about when hierarchical exercises of power are justified and through which instruments they are exercised.” But he continues on to make the case for “question[ing] the scope of national sovereignty over communications.” “The governance of the Internet needs to explicitly recognize and embrace the principle that there are limits to national sovereignty over the flow of information,” he says.

Mueller has made a beautiful case for cyber-libertarianism and he has given the movement its marching orders: “In short, we need to find ways to translate classical liberal rights and freedom into a governance framework suitable for the global Internet. There can be no cyberliberty without a political movement to define, defend, and institutionalize individual rights and freedoms on a transnational scale.”   Even if you aren’t compelled to join the cause, however, I highly recommend you pick up Mueller’s Network and States, anyway. It’s a terrific survey of the current state of Internet governance and an important work of political science since it offers us a useful spectrum of Net governance viewpoints.

My longer review of Networks and States is here and here’s Jerry Brito’s podcast discussion with Mueller about his book.

(#8) Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds.) – Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace

Smartly organized and edited, Access Controlled is essential reading for anyone interested in studying the methods governments are using globally to stifle online expression and dissent. There is simply no other resource out there like this; it should be required reading in every cyberlaw or information policy program.

The book, which is a project of the OpenNet Initiative (ONI), is divided into two parts. Part 1 of the book includes six chapters on “Theory and Analysis.” They are terrifically informative essays. The beefy second part of the book provides a whopping 480 pages of detailed regional and country-by-country overviews of the global state of online speech controls and discuss the long-term ramifications of increasing government meddling with online networks.

The book also offers a useful taxonomy to illustrate the three general types of speech and information controls that states are deploying today. Throughout the book, various authors document the increasing movement away from “first generation controls,” which are epitomized by “Great Firewall of China”-like filtering methods, and toward second- and third-generation controls, which are more refined and difficult to monitor.

The individual authors seem to adopt a somewhat gloomy outlook toward the long-term prospects for “technologies of freedom” relative to “technologies of control.” But I think it’s vital to put things in some historical context in this regard. It’s important to recall that, as a communications medium, the Net is still quite young. So, is the Net really more susceptible to State control and manipulation than previous communications technologies and platforms? I’m not so sure, although it’s hard to find a metric to compare them in an analytically rigorous fashion. It’s certainly true that the State has access to more data about its citizens than in the past, but it’s also true that we have more information about the State than ever before, too! And, again, we also have access to more of those technologies of freedom than ever before to at least try to fight back. Compare, for example, the plight of a dissident in a Cold War-era Eastern Bloc communist state to a dissident in China or Iran today. Which one had a better chance of getting their words (or audio and video) out to the local or global community?  And what do the recent Wikileaks episodes teach us in this regard?

Despite those small quibbles, Access Controlled is an indispensable resource that belongs on the bookshelf of anyone who covers information technology policy and wants to better understand global Internet regulation.  Very highly recommended.  My complete review of the book is here.

(#9) Richard A. Clarke and Robert K. Knake – Cyber War: The Next Threat to National Security and What to Do About It

Clarke and Knake’s book is important if for no other reason than, as they note, “there are few books on cyber war.” Thus, their treatment of the issue will likely remain the most relevant text in the field for some time to come. They define cyber war as “actions by a nation-state to penetrate another nation’s computers or networks for the purposes of causing damage or disruption” and they argue that such actions are on the rise. And they also claim that the U.S. has the most to lose if and when a major cyber war breaks out, since we are now so utterly dependent upon digital technologies and networks.

At their best, Clarke and Knake walk the reader through the mechanics of cyber war, who some of the key players and countries are who could engage in it, and identify what the costs of such of war would entail. Other times, however, the book suffers from a somewhat hysterical tone, as the authors are out here not just to describe cyber war, but to also issue a clarion call for regulatory action to combat it. A bigger problem with the book is the complete lack of reference material, footnotes, or even an index. If you’re going to go around sounding like a couple of cyber-Jeremiahs, you really should include some reference material to back up your gloomy assertions of impending doom.

The authors go after ISPs and many other companies for supposedly not caring about cyber-security. In reality, those companies have powerful incentives to make sure their networks are relatively safe and secure to avoid costly attacks and retain customers who demand their online information and activities be trouble-free. And most ISPs take steps not just to guard against malware and other types of cyber attacks, but they also offer customers free (or cheap) security software as part of a growing suite of gratis services (anti-virus, parental controls, e-mail, etc).

Clarke and Knake would like to see government impose a fairly sweeping set of new rules on ISPs to better secure their networks against potential attacks. In true deputize-the-middleman fashion, they want ISPs to engage in a great deal more network monitoring (using deep-packet inspection techniques) under threat of legal sanction if things go wrong. They admit there are corresponding costs and privacy concerns, but largely dismiss them and essentially ask us to just get over those concerns in the name of a safer and more secure cyberspace. They do, however, say they would be willing to have a “Privacy and Civil Liberties Board” appointed “to ensure that neither the ISPs nor the government was illegal spying on us.” I doubt that will soothe the fears of those who (like me) are fundamentally suspicious of government snooping.

Overall, Clarke and Knake have written a book that is worth reading, but suffers from hyperbolic rhetoric and a serious lack of documentation. Readers should also seek out other perspectives on cyber-security issues, which take a more reasoned approach to the issue.   Read my longer review of Cyber War here.

(#10) Adrian Johns – Piracy: The Intellectual Property Wars from Gutenberg to Gates

I can’t remember the last time I read a book that qualified as a “magisterial treatment” of an issue (I suppose it would be Elizabeth Eisenstein’s The Printing Press as an Agent of Change), but Johns’ book on piracy certainly qualifies as one.  As the subtitle makes clear, it’s a sweeping 400+ year history of the intellectual property wars.

This mammoth tome was a real struggle to finish since Johns leaves no stone unturned in his exhaustive overview of the history of intellectual property and piracy.  I read it over the course of 6 months because it felt like I was running a marathon to get through each chapter. I needed a big break between each one.  So, pick it up and get ready to pace yourself for the long slog through this important book.  And don’t jump ahead!   Some of the most interesting stories are from the early battles about the very concept of copyright and intellectual property.  I particularly enjoyed the chapter on the early American experience, which began with widespread piracy of English works as a method of undermining the tyranny of the Crown. (Reminded me of how we still screw Cuba by denying trademarks in their cigars just to stick it to Castro).

Johns offers a fairly objective narrative throughout the first 500 pages, but toward the end his own views start to emerge:

“[Enforcement] issues, it seems, have dogged intellectual property policing throughout its history, because of he nature of the enterprise.  They continue to do so today in new forms and media.  Large-scale, intensive, and internationally coordinated antipirate enforcement is sometimes justifies–the effort against counterfeit medicines is a relatively clear example–but in other cases the public good is not so evident.” (p. 507-508)

He goes on to suggest that IP may need to be rethought given new realities. “Intellectual property being a relatively recent concept, it ought to be possible to conceive of an alternative to it that suited the twenty-first century rather than the nineteenth,” he argues.  (p. 515)  Yet, the only alternatives he suggest — prizes, subsidies, compulsory licenses — are decidedly nineteenth century in nature.  That leaves him with few other options other than to suggest that the entire concept of IP should potentially be rethought, or that it may perhaps be fading anyhow in light of recent development in the information age, anyway.  IP defenders, however, should not let that discourage them from reading this book. It’s an insightful, interesting, one-of-a-kind history of this contentious subject.

(Listen to Jerry Brito’s “Surprising Free” podcast discussion with Adrian Johns here.)

Honorable Mentions:

* Rob Frieden – Winning the Silicon Sweepstakes: Can the United States Compete in Global Telecommunications?

Frieden’s book argues America has lost its edge in the global telecommunications and broadband race and that government must intervene to set us back on the right course.  What’s the proper course?  He suggest it’s the forced access infrastructural-sharing regime for communications and broadband networks that existed for several years following the passage of the Telecommunications Act of 1996.  (UNE-P, TELRIC, line-sharing, etc) That regime was largely abandoned, however, after it became evident to most market analysts and economists that, despite the best of intentions, infrastructure-sharing did little to promote investment and innovation.

Frieden suggests all that legal and economic thinking was flawed and that we should go ‘back to the future’ with telecom / broadband policy.  I’m not buying it for one minute, but if you’re looking for a blueprint for resurrecting yesterday’s regulatory regime, this book is it.

Here’s a conversation Jerry Brito had with Rob Frieden on his podcast back in March.

* Daniel Lathrop and Laurel Ruma (eds.) – Open Government: Collaboration, Transparency, and Participation in Practice

Open Government is a terrific collection of 34 essays covering the full gamut of transparency and “Government 2.0″ issues.  The collection was published by O’Reilly Media and Tim O’Reilly himself has one of the best chapters in the book on “Government as a Platform.” “The magic of open data is that the same openness that enables transparency also enables innovation, as developers build applications that reuse government data in unexpected ways.” (p. 25) This explains why in their chapter on “Enabling Innovation for Civic Engagement,” David G. Robinson, Harlan Yu, and Edward W. Felten, of the Center for Information Technology Policy at Princeton University, speak of “a new baseline assumption about the public response to government data: when government puts data online, someone, somewhere will do something valuable and innovative with it.” (p.84) “By publishing its data in a form that is free, open, and reusable,” they continue, “government will empower citizens to dream up and implement their own innovative ideas of how to best connect with their governments.” (p. 89)  The book also includes a terrific chapters by my TLF colleagues Jim Harper and Jerry Brito.  This is an indispensable resource for your bookshelf. Pick it up.

* William Powers – Hamlet’s BlackBerry: A Practical Philosophy for Building a Good Life in the Digital Age

Powers is a gifted storyteller and his walk though the history of philosophy and technology makes this slender volume an enjoyable, quick read. He begins by reminding us that “whenever new devices have emerged, they’ve presented the kinds of challenges we face today — busyness, information overload, that sense of life being out of control. These challenges were as real two millennia ago as they are today, and throughout history, people have been grappling with them and looking for creative ways to manage life in the crowd.”

His key insight is that is that humans can adapt new technology, but it takes time, patience, humility, and a little effort. “The key is to strike a balance,” he says, between “the call of the crowd” and the “need for time and space apart” from it. The problem we face today is that all the pressure is on us to be what he calls “Digital Maximalists.” That is, many of us are increasingly out to maximize the time spent in front of various digital “screens” whether we have made the determination that is really in our best interest or not. It has just gradually happened, Powers argues, because “The goal is no longer to be ‘in touch’ but to erase the possibility of ever being out of touch.”

Even though Powers clearly leans more toward the techno-pessimist camp, what I like best about his book is that he generally avoids a preachy tone and excessive hand-wringing. He isn’t one of those pessimists who adopts a holy-than-thou, the-rest-of-you-just-don’t-get-it attitude. In fact, there’s a great deal of self-deprecating humor in the book as Powers explains how he is struggling with the same issues the rest of us are and trying to figure out how to strike the right balance in his own life. Importantly, he notes that each of us will strike that balance differently. “[E]veryone has to work that out for himself. We’re all different, and there’s no one-size-fits-all way to balance the outward life and the inward one.” That is a crucial insight. There’s nothing worse than a techno-skeptic who tells us they have discovered the one true path to enlightenment or happiness — especially when it entails giving up new technologies that can have so many beneficial upsides. Indeed, Powers argues that “It’s never a good idea to buy into the dark fears of the techno-Cassandras, who generally turn out to be wrong. Human beings are skillful at figuring out the best uses of new tools. However, it can take awhile.”

Indeed, the struggle with information clutter will continue. Assimilating new communications and entertainment technologies into our lives has always been challenging, but, thanks to excellent advice like that offer by William Powers in Hamlet’s BlackBerry, I am optimistic that we humans can do so sensibly and be happier — and wiser — for it in the long-run.

Here’s my complete review of Hamlet’s Blackberry and make sure to listen to Jerry Brito’s discussion with Powers here.

• Robert W. McChesney & John Nichols – The Death and Life of American Journalism

If my list was of the most important media policy books of the year, McChesney and Nichols’ book would be a shoo-in for the top spot. It’s easily the most significant text on media policy in the past few years.  It’s also the most horrifying.  In their world of “post-corporate” newsrooms, the State serves as the primary benefactor of the Fourth Estate.  Billions would flow from bureaucracies to media entities and individual journalists in the name of sustaining a “free press.” And this new media welfare state is funded by steep taxes on our mobile phones, broadband connections, and digital gadgets. McChesney and Nichols model their $35 billion annual “public works” program for the press after the Works Progress Administration of the New Deal era. Their media WPA would include a “News AmeriCorps” for out-of-work journalists, a “Citizenship News Voucher” to funnel taxpayer support to struggling media entities, a significant expansion of postal subsidies, a massive new subsidy for journalism schools, corporate welfare for newspapers sufficient to pay 50 percent of the salaries of all “journalistic employees,” and more. It’s a veritable industrial policy for the press that resembles a Soviet-style five-year plan.

Who pays the bill and how much will the takeover cost? McChesney and Nichols take a remarkably cavalier attitude about it: “The money must be spent and we will worry about where it comes from later.” Such “we’re-all-dead-in-the-long-run” reasoning seems to be the dominant philosophy in Washington policy circles these days. But the estimated $35 billion annual price tag for a “public works” program for the press should give us pause. Moreover, like every other corporate-welfare program (think agriculture subsidies), a journalistic welfare state would no doubt grow in scope and cost over time.

McChesney and Nichols suggest several potential funding sources for the program, many of which would end up burdening commercial media providers in order to subsidize their noncommercial/public media competitors. They advocate a four-part tax plan that would include: a 5 percent tax on new purchases of consumer electronics, which they estimate would bring in $4 billion a year; a 3 percent tax on monthly ISP & mobile-service bills (estimated at $6 billion a year); a 2 percent sales tax on advertising (estimated at $5 to $6 billion a year); and a 7 percent tax on broadcasters’ spectrum licenses (estimated to sap another $3-6 billion a year from an already reeling industry). In other words, they would tax every device and network in your house to transfer money to the federal government to set up a journalistic welfare state.

What McChesney and Nichols essentially advocate is a radical form of media redistributionism — with struggling private entities and others forced to the fund public or non-commercial media outlets they desire. That is, what they seek is not so much a bailout for the familiar private media that has served America so well for two centuries, but rather a massive wealth transfer from one class of media to another, with the stipulation — which they repeat numerous times in the book — that state-subsidized entities are to forgo private advertising revenues, copyright protection, and any affiliation with corporate parents. These restrictions are an essential part of their push for a “post-corporate,” government-controlled press. Indeed, it would virtually make such a press a self-fulfilling prophecy, since copyright laws and advertising have been core ingredients of a successful private media system in the U.S. They’re also why we haven’t had to resort to massive public subsidies for media, as many other nations have.

The Death and Life of American Journalism is a troubling book, but I will give it this: For those of us who still care about our fundamental First Amendment freedoms and a truly free and independent press, McChesney & Nichols’ book clearly draws the battle lines for the future of media and provides a fresh reminder about what it is we’re fighting for.

My longer review of this troubling book can be found here.

Couple of others…

• Nick Bilton –  I Live in the Future & Here’s How It Works. I didn’t have a chance to formally review Bilton’s interesting book, but make sure to listen to Bilton’s appearance on the “Surprisingly Free” podcast here.
• Lee Bollinger – Uninhibited, Robust, and Wide-open: A Free Press for a New Century I had a very hard time taking this book seriously since Bollinger proposes the creation of a massive U.S. propaganda machine.  Bollinger doesn’t just want our government to help out a bit at the margins like it currently does; he wants the State to get under the covers, cuddle tight and become intimate lovers with the Press.  And then he wants the Big Press to project itself more, especially overseas, to compete with other State-owned or subsidized media enterprises.  It’s almost as disturbing as the McChesney and Nichols book referenced above.  Read my short review of Bollinger’s book here.

Let me know what I’ve missed and tell me what you think is the most important info-tech book of 2010!

What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]

by Adam Thierer & Berin Szoka The Progress & Freedom Foundation, Progress on Point No. 16.19

Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:

1. People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
2. All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.

While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”^[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.

That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families.

I. The Elitism of Speech Regulation

First, consider how those two elitist beliefs identified above are on display when lawmakers or regulatory advocates make efforts to control speech or content.^[2] Calls to regulate free speech are often premised on the belief that something must be done to “protect The Children.”^[3] Personal and parental responsibility ^[4] are regarded as inadequate safeguards ^[5] since some parents will inevitably fall down on the job by not adequately shielding their children’s eyes and ears from potentially objectionable (or supposedly harmful) speech. Therefore, government must regulate content that is indecent, profane, excessively violent, and so on. The definition of those things is then left to unelected bureaucrats and judges to make on our behalf.

But it’s not just about “The Children.” Some regulatory advocates believe that even the choices made by consenting adults must be disregarded because some people fail to understand the supposedly destructive nature of the speech they are consuming. Government must act to protect people from making what some regulatory advocates regard as destructive or even immoral choices that could bring harm to them or their loved ones.

In sum, regulatory advocates are essentially saying that people cannot be trusted or left to their own devices and, therefore, government must intervene and establish a baseline “community standard” on behalf of the entire citizenry to tell them what‘s best for them.^[6] Even if those citizens have tools and information at their disposal to make sensible decisions about objectionable content, that’s not good enough because they might not do the job properly. Government must do it for them!

II. The Elitism of Privacy Regulation

This same mentality motivates calls for privacy regulations. Those who call for government interventions to “protect privacy” often claim that people too willingly surrender personal information about themselves and that they don’t understand the adverse consequences of those actions.^[7] Alternatively, regulatory advocates claim that advertising and marketing efforts are inherently “manipulative” and that people do not realize they are being duped into surrendering personal information or into buying products or services they supposedly don’t need.^[8] Of course, those regulatory advocates rarely pause to explain to us how it is that they were not also duped and manipulated by the same things—again revealing their deeply-rooted elitism! (As discussed below, this makes it clear how the psychological phenomenon of “third-person effect hypothesis” is driving much of this debate.)

“Protecting The Children” is also used as a rhetorical cover for regulation here, but not as often in debates over speech controls.^[9] Instead, regulatory advocates mostly focus on adults who are presumed not to know what is in their own best interest—necessitating paternalistic government intervention on their behalf.

III. Intellectual Schizophrenia on Both the Left & Right

What is particularly interesting about all this is the way these two issues expose a sort of intellectual schizophrenia at work on both the Left and Right of the political spectrum. Left-leaning policymakers and intellectuals typically decry censorship efforts (except where “commercial speech,” “hate speech” and “bias” are at issue), but are quick to rally around proposals to layer privacy regulations on the Internet. The opposite is often true of many on the Right of the political spectrum: They typically declare privacy regulations to be paternalistic and antithetical to free enterprise (or perhaps just erosive of efforts to legislate morality),^[10] but in the next breath advocate controls on content they find objectionable.

Few on either side stop to consider the relationship between speech and privacy. In fact, they are but two sides of the same coin. After all, what is your “right to privacy” but a right to stop me from observing you and speaking about you?^[11] “Protecting privacy,” therefore, typically means restricting speech rights in the process. Advocates of privacy regulation often insist that the use, processing and collection of information are “conduct” unprotected by the First Amendment, but in fact, the First Amendment broadly protects the gathering and distribution of information as part of the process of communication (“speech”).^[12] Similarly, attempts to “clean up” speech or “protect The Children,” often require regulations that would betray the privacy of adults by expanding the role of government, and impose serious burdens on businesses and markets—such as age verification mandates ^[13] or extensive data retention requirements.^[14]

IV. Common Tactics & Regulatory Mechanisms

The two movements also share common political tactics and regulatory approaches. Privacy advocates generally favor “opt-in” mandates as the federal “baseline standard” for any website collecting information about users, especially their browsing habits (regardless of whether the information is “personally identifiable”). In other words, the law would create a property right in such “personal information” (ironically, many advocates of this approach criticize or reject intellectual property.) In a similar vein, many advocates of speech controls push for mandatory parental control tools or restrictive default settings.^[15] That is, if government won’t censor speech outright, regulatory advocates want lawmakers to at least (1) require that media, computing and communications devices be shipped to market with parental controls embedded or included (as proposed in Australia and with China’s “Green Dam” filter),^[16] and possibly, (2) that such controls be defaulted to their most restrictive position—forcing users to opt-out of the controls later if they want to consume media rated above a certain threshold.

More sophisticated advocates of speech controls and privacy regulation will likely argue that their paternalism is less elitist or intrusive because they merely want to “nudge” the public into making “better” decisions. Economist Richard Thaler and legal scholar Cass Sunstein (director of President Obama’s Office of Information and Regulatory Affairs, responsible for analyzing most new federal regulations) popularized this approach with their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness. Based on behavioral economics studies, they argue that both government and private actors must inevitably make decisions about “choice architecture” and that, by setting defaults, incentives and rules smartly, “choice architects” can and should improve decision-making without blocking, fencing-off or significantly burdening choices.^[17]

In this regard, Sunstein and Thaler’s approach parallels the work of Lawrence Lessig, one of the most influential Internet policy thinkers. Lessig has argued that the “architecture” of “code” (how software is written) “regulates” all online activities and requires government oversight and intervention to keep in check. Otherwise, he warned ominously a decade ago, “Left to itself, cyberspace will become a perfect tool of control.”^[18] Lessig’s hyper-pessimistic predictions have proven unwarranted, however. Far from fostering a world of “perfect control,” code and cyberspace have proven remarkably difficult to regulate, but nonetheless has generally benefited consumers and citizens without centralized direction.^[19] Still, Lessig, Sunstein, and others of this ilk persist in their advocacy of “nudges” of many varieties to impose their will on cyberspace through mandates from above.

But while it might be possible to define “better decisions” and argue that poor choice architecture leads people to choose things they clearly don’t want in contexts like investment decisions and mortgages, how can elites know what other people really want in highly subjective contexts like privacy and speech? Should they rely on opinion polls—the highly subjective results of which depend heavily on “choice architecture” of question-crafting—to guess what the right default should be?^[20] Was the Chinese proposal to mandate deployment of “Green Dam” just a harmless “nudge” because users weren’t barred from uninstalling the filtering software that must accompany their computers (i.e., “opting-out”)? The problem becomes even more difficult where trade-offs among competing values are inevitable. For example, data collection about Internet users raises privacy concerns for some but benefits all, creating more funding for “free” content (i.e., speech) and services users prefer by making more valuable the advertising that supports online publishers. In short, regulations of speech and privacy are likely to be pure paternalism, even when billed as “libertarian paternalism as Thaler and Sunstein label their approach.^[21]

What might be called “regulatory blackmail” is also a time-honored tradition among both advocates of speech controls and privacy regulation. When censorship advocates have previously been impeded by the First Amendment, they have worked behind the scenes with lawmakers or regulatory agencies to use indirect pressure and strong-arming tactics to extract “voluntary concessions” from companies or others.^[22] For example, in 2004, the FCC strong-armed radio giant Clear Channel into agreeing to a “voluntary” consent decree that involved taking Howard Stern off the air.^[23] Similarly, in 2008, XM and Sirius Satellite Radio finally agreed to set aside 4% of their system capacity for use by politically favored racial minorities (a kind of speech control) as a “voluntary condition” of their merger—after the FCC had sat on their application for nearly 16 months.^[24] This race-based preference would have been unconstitutional if the FCC had imposed it directly.^[25] While the FTC has been far less prone to such abuse and actually plays a key role in holding companies to their promises, its current Chairman, Jon Leibowitz, has hung the “regulatory sword of Damocles” over the heads of the online advertising industry, threatening them with a “day of reckoning” if he doesn’t get what he wants from industry self-regulatory efforts.”^[26] The sword could actually fall if the FTC turns self-regulation into the European model of “co-regulation,” where the government steers and industry simply rows.^[27]

V. The Crisis Mentality that Drives Regulation

Speech and privacy regulatory advocates share another trait in common: an affinity for the use of a crisis mentality as a method of spurring political action. In his 1995 book The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, political philosopher and economist Thomas Sowell formulated a model that he argued drives ideological crusades to expand government power over our lives and economy. “The great ideological crusades of the twentieth-century intellectuals have ranged across the most disparate fields,” noted Sowell. But what they all had in common, he argued, was “their moral exaltation of the anointed above others, who are to have their different views nullified and superseded by the views of the anointed, imposed via the power of government.”^[28] These government-expanding crusades shared several key elements, which Sowell identified as follows:

1. Assertion of a great danger to the whole society, a danger to which the masses of people are oblivious.
2. An urgent need for government action to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.

We see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but the model is equally applicable to debates over speech controls and privacy regulation. In particular, the various “technopanics”^[29] we have witnessed in recent years fit this model. For example, consider how this model plays out in the debate over online social networking:

1. Assertion of a great danger to the whole society [online sexual predators], a danger to which the masses of people are oblivious.
2. An urgent need for government action [such as mandatory online age verification ^[30] or the Deleting Online Predators Act ^[31]] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [must stop kids and adults from being online together on same sites], in response to the prescient conclusions of the few [some state Attorneys General].^[32]
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [child safety researchers and others are told that their research is meaningless or offbase].^[33]

We also see this model in play in other debates, such as efforts to regulate “excessively violent” video games and television programming.^[34] And consider how this model plays out on the privacy front:

1. Assertion of a great danger to the whole society [amorphous privacy violations], a danger to which the masses of people are oblivious.
2. An urgent need for government action [“baseline federal privacy regulation”] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [anyone who shares information online], in response to the prescient conclusions of the few [a handful of privacy advocacy groups].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [any suggestion that privacy concerns are being overblown and that most information-sharing is socially beneficial is dismissed out-of-hand].

Worse yet, regulatory intervention in these cases simply begets more and more intervention to correct the inevitable failures of, or dissatisfaction with, previous interventions.^[35] Thus, the “crisis” cycle never ends.

VI. Third-Person Effect Hypothesis as an Explanation

Something more profound than simple political elitism seems to be at work here, however. A phenomenon psychologists refer to as the “third-person effect hypothesis” can explain many calls for government intervention, especially in the media world.^[36] Simply stated, speech and privacy critics sometimes seem to only see and hear in media or communications what they want to see and hear—or what they don’t want to see or hear. When they encounter perspectives or preferences that are at odds with their own, they are more likely to be concerned about the impact of those things on others throughout society and come to believe that government must “do something” to correct those perspectives. Many people desire regulation because they think it will be good for others, not necessarily for themselves. The regulation they desire has a very specific purpose in mind: “re-tilting” speech or market behavior in their desired direction.

The third-person effect hypothesis was first formulated by W. Phillips Davison in a seminal 1983 article:

In its broadest formulation, this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.^[37]

Davison used this hypothesis to explain how media critics on both the Left and Right seemed to simultaneously find “bias” in the same content or reports when they couldn’t possibly both be correct. In reality, their own personal preferences were biasing their ability to fairly evaluate that content. Davison’s article prompted further research by many other psychologists, social scientists, and public opinion experts to test just how powerful this phenomenon was in explaining calls for censorship and other social phenomena.^[38] In these studies, third-person effect has been shown to be the primary explanation for why many people fear—or even want to ban—various types of speech or expression, including news,^[39] misogynistic rap lyrics,^[40] television violence,^[41] video games,^[42] and pornography.^[43] In each case, the subjects surveyed expressed strong misgivings about allowing others to see or hear too much of the speech or expression in question, but greatly discounted the impact of that speech on themselves. Such studies thus reveal the strong paternalistic instinct behind proposals to regulate speech. As Davison notes:

Insofar as faith and morals are concerned… it is difficult to find a censor who will admit to having been adversely affected by the information whose dissemination is to be prohibited. Even the censor’s friends are usually safe from the pollution. It is the general public that must be protected. Or else, it is youthful members of the general public, or those with impressionable minds.^[44]

It’s easy to see how this same phenomenon is at work in debates about privacy. Regulatory advocates imagine their preferences are “correct” (right for everyone) and that the masses are being duped by external forces beyond their control or comprehension, even though the advocates themselves are somehow immune from the brain-washing and privy to some higher truth that the hoi polloi simply cannot fathom. Again, this is Sowell’s “Vision of the Anointed” at work.

Consider the flare-up in 2004 over the introduction of Gmail, Google’s free email service. At a time when Yahoo! mail (then as now the leading webmail provider) offered customers less than 10 megabytes of email storage, Gmail offered an astounding gigabyte of storage that would grow over time (now over 7 GB). Rather than charging some users for more storage or special features, Google paid for the service by showing advertisements next to each email “contextually” targeted to keywords in that email—a far more profitable form of advertising than “dumb banner” ads previously used by other webmail providers.^[45] Self-appointed (or, to extend Sowell’s framework, “self-anointed”) privacy advocates howled that Google was going to “read users’ email,” and led a crusade to ban such algorithmic contextual targeting.^[46] Thierer responded to these critics by pointing out that the service was purely voluntary and noted:

you don’t speak for me and a lot of other people in this world who will be more than happy to cut this deal with Google. So do us a favor and don’t ask the government to shut down a service just because you don’t like it. Privacy is a subjective condition and your value preferences are not representative of everyone else’s values in our diverse nation. Stop trying to coercively force your values and choices on others. We can decide these things on our own, thank you very much.^[47]

Interestingly, however, the frenzy of hysterical indignation about Gmail was followed by a collective cyber-yawn: Users increasingly understood that algorithms, not humans, were doing the “reading” and that, if they didn’t like it, they didn’t have to use it. Today, nearly 150 million of people around the world use Gmail, and it has a steadily growing share of the webmail market. Even though cyber-consumers have embraced the service, some privacy advocates persist in their effort to shut down Gmail. They appear determined to stop at nothing to impose their will on others—the essence of political elitism—even if that means cutting off free email service for 150 million people!^[48]

A similar debate has played out more recently regarding targeted online advertising in general. Advertising on search engines is, much like Gmail, targeted “contextually” based on search terms entered by users and most advertising on other websites is based on the nature of content on a site or page. But certain data is collected about users as they browse to make that advertising more effective—by measuring its performance, reducing fraud, preventing over-exposure, etc. Some privacy advocates have insisted that industry self-regulation of such practices (even if enforced by the FTC) is inadequate and have called for preemptive regulation. They are even more offended by “behavioral advertising” which allows publishers whose content would have little value as the basis for contextually targeting advertising on their own sites to compete for more highly valued advertising by showing ads to users based on other sites they’ve visited. In both cases, data collection can increase the funding available to publishers to produce more of the content and services preferred by users, thus conferring an enormous indirect benefit on users, but also directly benefits users by increasing the relevance of the advertising they see.^[49] For some of the more extreme advocates of privacy regulation, however, there are no trade-offs, only absolutist “solutions:” To them, privacy is so obviously desirable that they feel at ease in deciding what’s best for everyone else. Such absolutists often respond with righteous indignation and conspiratorial fulmination when challenged to identify the harm against which they’re protecting consumers, while disdainfully dismissing all talk of the benefits of online advertising as self-serving industry propaganda.^[50]

VII. The Principled Alternative: Trust People & Empower Them

There is an alternative to this elitist mentality: freedom and personal responsibility. Individuals should be permitted to live a life of their own, even if they sometimes make mistakes or choices that are at odds with what elites think is best for them. ^[51]

Of course, the world isn’t perfect. In an ideal world, adults would be fully empowered to tailor speech and privacy decisions to their own values and preferences. Specifically, in an ideal world, adults (and parents) would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block the things they don’t like—objectionable content, annoying ads or the collection of data about them—while also finding the things they want.

Achieving that ideal is likely impossible, but the good news is that we are moving closer to it with each passing day. Citizens have more tools and methods at their disposal than ever before which enable them to make decisions for themselves and their families. And this is true for both parental controls ^[52] and privacy controls.^[53]

Of course, some speech and privacy elitists will argue that we can’t trust empowerment tools ( e.g., filters, rating systems, or other controls) that are created by companies or other affected parties. But rather than trying to enhance those tools and educate users about how to use them, these elitists skip right past user empowerment and channel their energies into regulations that would impose a top-down, one-size-fits all standard on all adults and families—or even into trying to craft the perfect “nudge” that will help users make what elites believe to be the “right” decisions. Of course, these tools can, and should, be improved. Those groups worried about speech/content and privacy issues should focus on how we might drive such protections from the bottom-up by empowering individuals instead of government bureaucrats. The goal in both cases should be a “let-a-thousand-flowers-bloom” approach, which offers diverse tools and strategies for our diverse citizenry.^[54] We need not accept “one-size-fits” all approaches, whether they be regulatory mandates or “nudges,” based on the presumption that elites know best.

Finally, it is vital not to lose sight of what’s ultimately at stake here. If regulatory approaches trump the empowerment agenda we have described, the future of a free and open Internet—indeed, as technology converges, the future of all media—is at risk.^[55] By imposing technological solutions from the top-down that can never keep pace with technological change, regulation necessarily forecloses freedom and innovation.^[56] By contrast, individual empowerment allows innovation to flourish. The better approach across the board is education, not regulation.^[57] Empowerment, not elitism, is the path forward. The digital elite should be leading this effort by developing and promoting technologies of empowerment, not crafting regulatory mandates to force their will upon us.^[58]

#

Adam Thierer is a Senior Fellow with The Progress & Freedom Foundation and the director of its Center for Digital Media Freedom. Berin Szoka  is a Senior Fellow with PFF and the Director of PFF’s Center for Internet Freedom.

[1] . William A. Henry, In Defense of Elitism (1995) at 2-3.

[2] . See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html. Like American courts, we use the term “speech” as a broad catch-all for communications, including both actual speaking as well as other forms of transmitting, as well as receiving, information (“content”).

[3] . See generally Adam Thierer, Don’t Scapegoat Media, USA Today, Dec. 4, 2008, www.pff.org/issues-pubs/ps/2008/ps4.24scapegoatmedia.html; Marjorie Heins, Not in Front of the Children, “Indecency,” Censorship, and the Innocence of Youth (2001); Karen Sternheimer, It’s Not the Media: The Truth about Pop Culture’s Influence on Children (2003); Karen Sternheimer, Kids These Days: Facts and Fictions about Today’s Youth (2006).

[4] . See Adam Thierer, The Progress & Freedom Foundation, FCC Violence Report Concludes that Parenting Doesn’t Work, PFF Blog, Apr. 26, 2007, http://blog.pff.org/archives/2007/04/fcc_violence_re.html.

[5] . See Adam Thierer, The Progress & Freedom Foundation, Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing, PFF Blog, June 26, 2007, blog.pff.org/archives/2007/06/sen_rockefeller_1.html.

[6] . Adam Thierer, Conservatives, Porn, and “Community Standards,” The Technology Liberation Front, March 2, 2009, http://techliberation.com/2009/03/02/conservatives-porn-and-community-standards.

[7] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Online Advertising & User Privacy: Principles to Guide the Debate, Progress Snapshot 4.19, Sept. 2008, www.pff.org/issues-pubs/ps/2008/ps4.19onlinetargeting.html.

[8] . Jeff Chester, for decades the great gadfly of American advertising, has decried “the system … developed to track each and every one of us and our behavior for one-on-one marketing efforts” as “manipulative, intrusive and un-democratic.” Wendy Melillo, Q&A: Chester Writes the Book on Privacy, Dec. 11, 2007, www.gfem.org/node/227. For instance, Chester and other leading “privacy advocates” ridicule the idea of smart phones as a “liberating technology” and insist that,

Despite the glowing words about customization and personalized service, what marketers and advertisers are increasingly offering consumers is merely the illusion of free choice. Mobile operators offer their various options and services, not on an individual basis, but preconfigured according to segmented demographic profiles.

Center for Digital Democracy and U.S. Public Interest Research Group, Complaint and Request for Inquiry and Injunctive Relief Concerning Unfair and Deceptive Mobile Marketing Practices, Jan. 13, 2009 (emphasis original), www.democraticmedia.org/files/FTCmobile_complaint0109.pdf. See generally Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Progress on Point 16.2, Feb. 2009, www.pff.org/issues-pubs/pops/2009/pop16.2targetonlinead.pdf.

[9] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech, Progress on Point 16.11, May 2009, www.pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf.

[10] . The Supreme Court has used a “right to privacy” to strike down laws against the use of contraception by married couples, Griswold v Connecticut, 381 U.S. 479 (1965), and abortion, Roe v. Wade, 410 U.S. 113 (1973).

[11] . Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000), available at www.pff.org/issues-pubs/pops/pop7.15freedomofspeech.pdf.

[12] . See , Amicus Brief for Association Of National Advertisers, Cato Institute, Coalition For Healthcare Communication, Pacific Legal Foundation And The Progress & Freedom Foundation In Support Of Appellants, IMS Health v. Sorrell, No. 09-1913-cv(L), 09-2056-cv(CON) (2nd Cir. 2009), available at www.pff.org/issues-pubs/filings/2009/071309-Brief-Amici-Curiae-ANA-et-al-Second-Circuit-(09-1913-cv).pdf.

[13] . See Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, March 2007, www.pff.org/issues-pubs/ pops/pop14.8ageverificationtranscript.pdf; www.pff.org/issues-pubs/pops/pop14.5ageverification.pdfAdam Thierer, The Progress & Freedom Foundation, Statement Regarding the Internet Safety Technical Task Force’s Final Report to the Attorneys General, Jan. 14, 2008, www.pff.org/issues-pubs/other/090114ISTTFthiererclosingstatement.pdf; Nancy Willard, Why Age and Identity Verification Will Not Work—And is a Really Bad Idea, Jan. 26, 2009, www.csriu.org/PDFs/digitalidnot.pdf; Jeff Schmidt, Online Child Safety: A Security Professional’s Take, The Guardian, Spring 2007, www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf.

[14] . Adam Thierer, The Progress & Freedom Foundation, Mandatory Data Retention: How Much is Appropriate, PFF Blog, June 26, 2006, http://blog.pff.org/archives/2006/06/mandatory_data.html

[15] . Adam Thierer, The Progress & Freedom Foundation, The Perils of Mandatory Parental Controls and Restrictive Defaults, Progress on Point 14.4, Apr. 11, 2008, www.pff.org/issues-pubs/pops/2008/pop15.4defaultdanger.pdf.

[16] . Adam Thierer, China’s Green Dam Filter and the Threat of Rising Global Censorship, PFF Blog, June 17, 2009, http://blog.pff.org/archives/2009/06/chinas_green_dam_filter_and_threat_of_rising_globa.html

[17] . They define choice architecture as follows: “A structure designed by a choice architect(s) to improve the quality of decisions made by homo sapiens. Often invisible, choice architecture is the specific user-friendly shape of an organization’s policy or physical building when homo sapiens come into contact with it. Examples of choice architecture include a voter ballot, a procedure for handling well-meaning people who forget a deadline, or a skyscraper.” Nudge Glossary of Terms, www.nudges.org/glossary.cfm.

[18] . Lawrence Lessig, Code and Other Laws of Cyberspace (1999) at 6.

[19] . See Adam Thierer, Code, Pessimism, and the Illusion of “Perfect Control,” Cato Unbound, May 2009, www.cato-unbound.org/2009/05/08/adam-thierer/code-pessimism-and-the-illusion-of-perfect-control

[20] . See Solveig Singleton & Jim Harper, With A Grain of Salt: What Consumer Privacy Surveys Don’t Tell Us, 2001, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299930.

[21] . As Cato Institute scholar Will Wilkinson has argued, the book’s “agreeably banal doctrine of choice-preserving helpfulness” blurs the lines between paternalism and libertarianism, and thus “the thrust of the conceptual renovation behind the term libertarian paternalism is to empower, not limit, political elites.” Why Opting Out Is No “Third Way,” Reason, October 2008, www.reason.com/news/show/128916.html. See also Adam Thierer, The Progress & Freedom Foundation, Sunstein’s “Libertarian Paternalism” is Really Just Paternalism, PFF Blog, April 7, 2008, http://blog.pff.org/archives/2008/04/sunsteins_liber.html.

[22] . See Robert Corn-Revere, “’Voluntary’ Self-Regulation and the Triumph of Euphemism,” in Rationales & Rationalizations: Regulating the Electronic Media (Robert Corn-Revere, ed., 1997), at 183-208.

[23] . Telecom Policy Report, Commission Settles Indecency Charges, But At What Cost?, June 30, 2004, http://findarticles.com/p/articles/mi_m0PJR/is_25_2/ai_n6091525.

[24] . See Adam Thierer, XM-Sirius, Regulatory Blackmail, and Diversity, June 17, 2008, http://blog.pff.org/archives/2008/06/xmsirius_regula.html.

[25] . See Comments of W. Kenneth Ferree on Implementation of Sirius-XM Merger Condition, The Progress & Freedom Foundation, MB Docket No. 07-57, March 30, 2009, www.pff.org/issues-pubs/filings/2009/033009siriusXMconditionfiling.pdf.

[26] . See Szoka & Adam Thierer, supra note 8 at 3.

[27] . See id. at 2.

[28] . Thomas Sowell, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy (1995) at 5.

[29] . Alice Marwick, To Catch a Predator? The MySpace Moral Panic, First Monday, Vol. 13, No. 6-2, June 2008, www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2152/1966; Wade Roush, The Moral Panic over Social Networking Sites, Technology Review, Aug. 7, 2006, www.technologyreview.com/communications/17266; Anne Collier, Why Techopanics are Bad, Net Family News, April 23, 2009, www.netfamilynews.org/2009/04/why-technopanics-are-bad.html; Adam Thierer, Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics,’ Inside ALEC, July 2009, at 16-17, www.alec.org/am/pdf/Inside_July09.pdf; Adam Thierer, Progress & Freedom Foundation, Technopanics and the Great Social Networking Scare, PFF Blog, June 10, 2008, http://techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare.

[30] . Supra note 13.

[31] . In the 109th Congress, former Rep. Michael Fitzpatrick (R-PA) introduced the Deleting Online Predators Act (DOPA), which proposed a ban on social networking sites in public schools and libraries. DOPA passed the House of Representatives shortly thereafter by a lopsided 410-15 vote, but failed to pass the Senate. The measure was reintroduced just a few weeks into the 110th Congress by Senator Ted Stevens (R-AK), the ranking minority member and former chairman of the Senate Commerce Committee. It was section 2 of a bill that Sen. Stevens sponsored titled the “Protecting Children in the 21st Century Act” (S. 49), but was later removed from the bill. See Declan McCullagh, Chat Rooms Could Face Expulsion, CNet News.com, July 28, 2006, http://news.com.com/2100-1028_3-6099414.html?part=rss&tag=6099414&subj=news.

[32] . See Emily Steel & Julia Angwin, MySpace Receives More Pressure to Limit Children’s Access to Site, Wall Street Journal, June 23, 2006, online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html; Susan Haigh, Conn. Bill Would Force MySpace Age Check, Yahoo News.com, March 7, 2007, www.msnbc.msn.com/id/17502005.

[33] . See, e.g., Letter of Henry McMaster, Attorney General, South Carolina to Attorney General Richard Blumenthal and Attorney General Roy Cooper Regarding Internet Safety Task Force (“ISTTF”) Report, January 14, 2009, www.scag.gov/newsroom/pdf/2009/internetsafetyreport.pdf

[34] . See Adam Thierer, The Progress & Freedom Foundation, Video Games and “Moral Panic,” PFF Blog, Jan. 23, 2009, http://blog.pff.org/archives/2009/01/video_games_and_moral_panic.html ; Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate over Video Game Regulation, Progress Snapshot 13.7, March 2006, www.pff.org/issues-pubs/pops/pop13.7videogames.pdf.

[35] . “All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which—from the point of view of their authors’ and advocates’ valuations—is less desirable than the previous state affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it.” Ludwig von Mises, Human Action, at 858 (3rd ed. 1963) (1949).

[36] . See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 119-123, www.pff.org/issues-pubs/books/050610mediamyths.pdf (Explaining how the third-person effect serves as a powerful explanation for the heated backlash that followed an FCC effort to moderately liberalize media ownership rules in 2003-04).

[37] . W. Phillips Davison, The Third-Person Effect in Communication, 47 Public Opinion Quarterly 1, Spring 1983, at 3.

[38] . For the best overview of third-person effect research, see Douglas M. McLeod, Benjamin H. Detenber, and William P. Eveland., Jr., Behind the Third-Person Effect: Differentiating Perceptual Processes for Self and Other, 51 Journal of Communication, Vol. 51, No. 4, 2001, at 678-695.

[39] . Vincent Price, David H. Tewksbury & Li-Ning Huang, Third-person Effects of News Coverage: Orientations Toward Media, Journalism & Mass Communications Quarterly, Vol. 74, at 525-540.

[40] . Douglas M. McLeod, William P. Eveland & Amy I. Nathanson, Support for Censorship of Violent and Misogynic Rap Lyrics: And Analysis of the Third-Person Effect, Communications Research, Vol. 24, 1997, at 153-174.

[41] . Hernando Rojas, Dhavan V. Shah, and Ronald J. Faber, For the Good of Others: Censorship and the Third-Person Effect, International Journal of Public Opinion Research, Vol. 8, 1996, at 163-186.

[42] . James D. Ivory, Addictive, But Not For Me: The Third-Person Effect and Electronic Game Players’ Views Toward the Medium’s Potential for Dependency and Addiction, University of North Carolina at Chapel Hill, School of Journalism and Mass Communication, Aug. 2002.

[43] . Albert C. Gunther, Overrating the X-rating: The Third-person Perception and Support for Censorship of Pornography, Journal of Communication, Vol. 45, No. 1, 1995, at 27-38

[44] . Supra note 37 at 14. Along these lines, a December 2004 Washington Post article documented the process by which the Parents Television Council, a vociferous censorship advocacy group, screens various television programming. One of the PTC screeners interviewed for the story talked about the societal dangers of various broadcast and cable programs she rates, but then also noted how much she personally enjoys HBO’s “The Sopranos” and “Sex and the City,” as well as ABC’s “Desperate Housewives.” Apparently, in her opinion, what’s good for the goose is not good for the gander! See Bob Thompson, Fighting Indecency, One Bleep at a Time, The Washington Post, Dec. 9, 2004, at C1, www.washingtonpost.com/wp-dyn/articles/A49907-2004Dec8.html.

[45] . See Chris Anderson, Free: The Future of a Radical Price at 112-118 (2009).

[46] . See Letter from Chris Jay Hoofnagle, Electronic Privacy Information Center, Beth Givens, Privacy Rights Clearinghouse, Pam Dixon, World Privacy Forum, to California Attorney General Lockyer, May 3, 2004, http://epic.org/privacy/gmail/agltr5.3.04.html.

[47] . See email from Adam Thierer to Declan McCullaugh on Politech Email discussion group, April 30, 2004, http://lists.jammed.com/politech/2004/04/0083.html (emphasis added).

[48] . See Complaint and Request for Injunction of the Electronic Privacy Information Center against Google, Inc., March 17, 2009, http://epic.org/privacy/cloudcomputing/google/ftc031709.pdf; see also Ryan Radia, Should the FTC Shut Down Gmail and Google Docs Because of an Already-Fixed Bug?, Technology Liberation Front Blog, March 18, 2009, http://techliberation.com/2009/03/18/should-the-ftc-shut-down-gmail-and-google-docs-because-of-an-already-fixed-bug/.

[49] . See Berin Szoka & Mark Adams, The Progress & Freedom Foundation, The Benefits of Online Advertising & the Costs of Regulation, PFF Working Paper, forthcoming.

[50] . Anti-advertising crusader Jeff Chester often resorts to questioning the motives of those who question whether his regulatory prescriptions would actually benefit consumers, see, e.g., http://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/#comment-11698840. See generally Jeff Chester, Digital Destiny: New Media and the Future of Democracy (2007).

[51] . “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual.” John Stuart Mill, On Liberty (Penguin Classics, 1859, 1986) at 72.

[52] . Adam Thierer, The Progress & Freedom Foundation, Parental Controls & Online Child Protection, Special Report, Version 4.0, Summer 2009, www.pff.org/parentalcontrols.

[53] . Adam Thierer, Berin Szoka & Adam Marcus, The Progress & Freedom Foundation, Privacy Solutions, PFF Blog, Ongoing Series, http://blog.pff.org/archives/ongoing_series/privacy_solutions.

[54] . Comments of Adam Thierer, The Progress & Freedom Foundation, In the Matter of Implementation of the Child Save Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming; MB Docket No. 09-26, April 16, 2009, www.pff.org/issues-pubs/filings/2009/041509-%5bFCC-FILING%5d-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-(MB-09-26).pdf.

[55] . See Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage, Feb. 20, 2009, www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

[56] . “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.” Friedrich von Hayek, “The Pretence of Knowledge,” in The Essence of Hayek, (Hoover Inst., 1984), at 276.

[57] . Adam Thierer, The Progress & Freedom Foundation, Two Sensible, Education-Based Legislative Approaches to Online Child safety, Progress Snapshot 3.10, Sept. 2007, www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf.

[58] . See, e.g., Berin Szoka, Google, CDT, Online Advertising & Preserving Persistent User Choice Across Ad Networks Through Plug-ins, Technology Liberation Front Blog, March 13, 2009, http://techliberation.com/2009/ 03/13/google-cdt-online-advertising-preserving-persistent-user-choice-across-ad-networks-through-plug-ins/.