Discourse magazine has just published my review of Where Is My Flying Car?, by J. Storrs Hall, which I argue is the most important book on technology policy written in the past quarter century. Hall perfectly defines what is at stake if we fail to embrace a pro-progress policy vision going forward. Hall documents how a “Jetsons” future was within our grasp, but it was stolen away from us. What held back progress in key sectors like transportation, nanotech & energy was anti-technological thinking and the overregulation that accompanies it. “[T]he Great Stagnation was really the Great Strangulation,” he argues. The culprits: negative cultural attitudes toward innovation, incumbent companies or academics looking to protect their turf, litigation-happy trial lawyers, and a raft of risk-averse laws and regulations.

Hall coins the term “the Machiavelli Effect” to identify why many people simultaneously fear the new and different, and they also want to protect whatever status quo they benefit from (or at least feel comfortable with). He builds on this passage from Niccolò Machiavelli’s classic 1532 study of political power, “The Prince”:

[I]t ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, then to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them. Thus it happens that whenever those who are hostile have the opportunity to attack they do it like partisans, whilst the others defend lukewarmly, in such wise that the prince is endangered along with them.

Hall notes that the Machiavelli Effect “has nothing to do with any conspiracy.” Rather, it comes down to human nature: Many people simultaneously fear the new and different, and they also want to protect whatever status quo they benefit from (or at least feel comfortable with). Isaac Asimov identified the same problem in a 1974 lecture when he noted how there had been “bitter, exaggerated, last-stitch resistance . . . to every significant technological change that had taken place on earth.” [On this same point, also see Innovation and Its Enemies: Why People Resist New Technologies, by Calestous Juma. It’s the best history on the topic.]

Hall identifies how the Machiavelli Effect held back nuclear, nanotech, and aviation technologies. “Over the long run, unchecked regulation destroys the learning curve, prevents innovation, protects and preserves inefficiency, and makes progress run backward.” The problem is the Precautionary Principle, which undermines the learning curve is by setting policy defaults to no trial and error as opposed to free to experiment. There can be no reward without some risk! Hall quotes Wilbur Wright on this, who once noted that, “If you are looking for perfect safety, you would do well to sit on a fence and watch the birds.”

Over-regulation of those sectors also resulted in massive misallocation of talent, “taking more than a million of the country’s most talented and motivated people and putting them to work making arguments and filing briefs instead of inventing, developing, and manufacturing.” Hall is equally critical of government R&D efforts. “One of the great tragedies of the latter 20th century, and clearly one of the causes of the Great Stagnation,” he argues, “was the increasing centralization and bureaucratization of science and research funding.”

Hall’s book builds on Jason Crawford’s insight that, “We need a new philosophy of progress,” that is rooted in optimism about the future and support for a culture of trial-and-error experimentation. Hall’s book is a major contribution to that effort. Hall makes a profoundly moral case for innovation. “The zero-sum society is a recipe for evil,” because it leaves us with a “static level of existence” that denies us the ability to improve the human condition. Indeed, Hall’s book is the most full-throated defense of innovation by a trained scientist or engineer since Samuel Florman’s 1976 “Existential Pleasures of Engineering.” Both are celebrations of the potential for humanity to build more and better tools to improve the world.

Hall’s book should also be read alongside books from Virginia Postrel (“The Future and Its Enemies”), Steven Pinker (“Enlightenment Now”), Matt Ridley (“How Innovation Works”) and Deirdre McCloskey’s three-volume trilogy about the history of modern economic growth. These scholars argue that there is a symbiotic relationship between innovation, economic growth, pluralism and human betterment, and that to deny people the ability to improve their lot in life is fundamentally anti-human.

I just cannot recommend Hall’s Where Is My Flying Car? highly enough. It’s a masterpiece. And bravo to Stripe Press for publishing a beautiful hardbound edition. It is a stunning book both to behold and read. Order it now, and jump over to Discourse to read my entire review of it.

This month’s Cato Unbound symposium features a conversation about the continuing relevance of Albert Hirschman’s Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States, fifty years after its publication. It was a slender by important book that has influenced scholars in many different fields over the past five decades. The Cato symposium features a discussion between me and three other scholars who have attempted to use Hirschman’s framework when thinking about modern social, political, and technological developments.

My lead essay considers how we might use Hirschman’s insights to consider how entrepreneurialism and innovative activities might be reconceptualized as types of voice and exit. Response essays by Mikayla Novak, Ilya Somin, and Max Borders broaden the discussion to highlight how to think about Hirschman’s framework in various contexts. And then I returned to the discussion this week with a response essay of my own attempting to tie those essays together and extend the discussion about how technological innovation might provide us with greater voice and exit options going forward. Each contributor offers important insights and illustrates the continuing importance of Hirschman’s book.

I encourage you to jump over to Cato Unbound to read the essays and join the conversations in the comments.

“The world should think better about catastrophic and existential risks.” So says a new feature essay in The Economist. Indeed it should, and that includes existential risks associated with emerging technologies.

The primary focus of my research these days revolves around broad-based governance trends for emerging technologies. In particular, I have spent the last few years attempting to better understand how and why “soft law” techniques have been tapped to fill governance gaps. As I noted in this recent post compiling my recent writing on the topic;

soft law refers to informal, collaborative, and constantly evolving governance mechanisms that differ from hard law in that they lack the same degree of enforceability. Soft law builds upon and operates in the shadow of hard law. But soft law lacks the same degree of formality that hard law possess. Despite many shortcomings and criticisms, compared with hard law, soft law can be more rapidly and flexibly adapted to suit new circumstances and address complex technological governance challenges. This is why many regulatory agencies are tapping soft law methods to address shortcomings in the traditional hard law governance systems.

I argued in recent law review articles as well as my latest book, despite its imperfections, I believe that soft law has an important role to play in filling governance gaps that hard law struggles to address. But there are some instances where soft law simply will not cut it. As I noted in Chapter 7 of my new book, there may be very legitimate existential threats out there that we should be spending more time addressing because the scope, severity, and probability of severe risk are present. Hard law solutions will still be needed in such instances, even if they may be challenged by many of the same factors that are fueling the shift toward soft law for other sectors or issues.

Of course, we are immediately confronted with a definitional challenge: What exactly counts as an “existential risk”? I argue that it is important that we spend more time discussing this question because far too many people today throw around the term “existential risk” when referencing risks that are noting of the sort. For example, increased social media use may indeed be a threat to data security and personal privacy, but those risks are not “existential” in the same way chemical or nuclear weapons proliferation are threats to our existence. This gets to the heart of the matter: the root of “existential” is existence. By definition, an existential risk needs to have some direct bearing on the future of humanity’s ability to survive. Efforts to conflate lesser risks into existential ones cheapen the very meaning of the term.

This shouldn’t be controversial, but somehow it is. Countless pundits today want to suggest that almost every new technological development might somehow pose an existential threat to humanity. But it just isn’t the case. That does not mean their concerns are not important, or potentially deserving of some government attention. It simply means that we need to take risk prioritization more seriously. If everything is an existential risk, than nothing is an existential risk. We must have some sort of ranking of risks if we hope to have a rational conversation about how to use scare societal resources to address matters of public concern.

These issues are discussed at far greater length in the sections of my book (pgs. 228-240) that you will find embedded down below. How should society deal with “killer robots” or the accelerated development of genetic editing capabilities? What kind of coordinated compliance regime might help address rouge actors who seek to use new technological capabilities for nefarious purposes? What can we learn from past global enforcement efforts for chemical and nuclear weapons? These are just some of the questions I take on in this section of the book and plan to spend more time addressing in coming years. Scan these pages from the book to see my initial thoughts on these matters. But I am really just scratching the surface here. I’ll have much more to say on these matters in coming months and years. It’s a massively complicated topic.

My thanks to Dr. Wayne Brough, President at Innovation Defense Foundation, for reviewing my new book, Evasive Entrepreneurs and the Future of Governance, over at the AIER website. Brough says of the book:

Adam Thierer has created a thoughtful and surprisingly timely book examining the interplay between entrepreneurs, innovation, and regulators. Thoughtful because he tackles tough questions of innovation and governance in a dynamic market. Timely because the coronavirus pandemic has forced policymakers to seriously reconsider the cumulative regulatory burden and how it may impede the economic recovery. Whether it’s V-shaped or a slower, longer recovery, decades worth of regulatory underbrush has taken its toll on economic activity while providing few, if any, benefits.

He also does a nice job summarizing the key theme of both this latest book and my previous one on Permissionless Innovation:

Thierer takes to task the anti-growth mentality and the political movements against innovation and growth, highlighting the long tradition of hostility toward innovation, from the early 19th-century Luddites up through today’s technophobes advocating restrictions on new technologies such as artificial intelligence. Much of this is driven by the precautionary principle, which Thierer views as an inappropriate guide for regulators. The precautionary principle is a highly risk-averse standard that provides regulators an excuse to stifle innovation for the slightest perceived hazard.

But Dr. Brough rightly takes me to task for not addressing intellectual property issues in either book. He’s right. I did indeed chicken out of bringing IP policy into these books for a variety of reasons. After I co-edited a big book on IP wars in 2002 (Copy Fights), I made so many enemies for trying to walk the moderate middle path that I largely abandoned the field forevermore. I just got tired of the Holy Wars fought over the topic, and every time I tried to play the role of peacemaker in those wars, I just got shot at by both sides in the intellectual crossfire. I was simultaneously being accused of being an “IP anarchist” and “a whore for Big Content,” by people on either side of those wars. At one point, a board member of the Cato Institute suggested I should be removed from my job for not being enough of an IP opponent while, at the exact same time, a Cato adjunct fellow was suggesting I was already far too radical of an IP opponent. I certainly couldn’t be both! It was comical, but also exhausting and incredibly frustrating. And so I raised the white flag of surrender and walked off the IP battlefield around 2005.

But I also did not bring IP policy into either of my latest books simply because I needed to pick my battles and focus on the issues I know best. When you go down the IP rabbit hole, there’s no escaping that endless descent. Both books would have needed to be significantly longer to incorporate nuanced discussions of how copyright and patents affect innovation outcomes.

Regardless, I very much understand the concerns that Dr. Brough raises in his review about how, “the efficacy of intellectual property laws is inextricably tied to innovation, for better or worse,” and how, “[s]ome of the most disruptive innovation has occurred in the shadow of intellectual property laws that still struggle to keep pace with the rate of technological change.” He’s correct, and entire books have been written on the topic… including my old one!

Anyway, you can read the opening chapter of my new book here, or buy the entire thing here. And my thanks again to Wayne Brough for taking the time to read and review it.

There are few things more exciting to innovation policy geeks that than the week a new Matt Ridley book drops. Thankfully, that time is upon us once again. This week, Ridley’s latest book, How Innovation Works: And Why It Flourishes in Freedom, is being released. I can’t wait to dig in.

This weekend, the Wall Street Journal published an essay condensed from the book entitled, “Innovation Can’t Be Forced, but It Can Be Quashed.” Here are some of the highlights from Ridley’s piece:

Innovation relies upon freedom to experiment and try new things, which requires sensible regulation that is permissive, encouraging and quick to give decisions. By far the surest way to rediscover rapid economic growth when the pandemic is over will be to study the regulatory delays and hurdles that have now been hastily swept aside to help innovators in medical devices and therapies, and to see whether such reforms could be applied to other parts of the economy too. … Dealing with Covid-19 has forcibly reminded governments of the value of innovation. But if we are to get faster vaccines and treatments—and better still, more innovation across all fields in the future—then innovators need to be freed from the shackles that hold them back.

These are crucial point, and ones I discuss in the launch essay and the afterward of my new book, Evasive Entrepreneurs and the Future of Governance. Alas, as I pointed out in that launch essay and my last book on Permissionless Innovation, a great many barriers stand in the way of the freedom to experiment and try new things. As Ridley points out:

There is nothing new about resistance to innovation. […] Incumbent vested interests, overcautious regulators, opportunistic activists and rent-seeking patent holders combine to oppose or delay almost every innovation.

And that’s a real shame because, Ridley correctly concludes, “It turns out that continuous tinkering to develop and refine a better product is much more important than protecting what you’ve already created.”

Spot on. Head over to the  Wall Street Journal to read the entire thing and then go order a copy of Ridley’s new book. He’s one of the most important living defenders of technological innovation and human progress. His work has had a huge influence on my way of thinking about innovation, science, and technology. Thank you Matt!

My latest book, Evasive Entrepreneurs and the Future of Governance How Innovation Improves Economies and Governments, is now live. Here’s the launch essay and online launch event. Also, here’s a summary of 10 major arguments advanced in the book. I will have more to say about the book in coming weeks, but here is a list of 13 key terms discussed in the text. This list appears at the end of the introduction to the book:

1. Compliance paradox: The situation in which heightened legal or regulatory efforts fail to reverse unwanted behavior and instead lead to increased legal evasion and additional enforcement problems.
2. Demosclerosis: Growing government dysfunction brought on by the inability of public institutions to adapt to change, especially technological change.
3. Evasive entrepreneurs: Innovators who do not always conform to social or legal norms.
4. Free innovation: Bottom-up, noncommercial forms of innovation that often take on an evasive character. Free innovation is sometimes called “grassroots” or “household” innovation or “social entrepreneurialism.” Even though it is typically noncommercial in character, free innovation often involves regulatory entrepreneurialism and technological civil disobedience.
5. Innovation arbitrage: The movement of ideas, innovations, or operations to jurisdictions that provide legal and regulatory environments most hospitable to entrepreneurial activity. It can also be thought of as a form of jurisdictional shopping and can be facilitated by competitive federalism.
6. Innovation culture: The various social and political attitudes and pronouncements toward innovation, technology, and entrepreneurial activities that, taken together, influence the innovative capacity of a culture or nation.
7. Pacing problem: A term that generally refers to the inability of legal or regulatory regimes to keep up with the intensifying pace of technological change.
8. Permissionless innovation: The general notion that “it’s easier to ask forgiveness than it is to get permission.” As a policy vision, it refers to the idea that experimentation with new technologies and innovations should generally be permitted by default.
9. Precautionary principle: The practice of crafting public policies to control or limit innovations until their creators can prove that they will not cause any harm or disruptions.
10. Regulatory entrepreneurs: Evasive entrepreneurs who set out to intentionally challenge and change the law through their innovative activities. In essence, policy change is part of their business model.
11. Soft law: Informal, collaborative, and constantly evolving governance mechanisms that differ from hard law in that they lack the same degree of enforceability.
12. Technological civil disobedience: The technologically enabled refusal of individuals, groups, or businesses to obey certain laws or regulations because they find them offensive, confusing, time-consuming, expensive, or perhaps just annoying and irrelevant.
13. Technologies of freedom: Devices and platforms that let citizens openly defy (or perhaps just ignore) public policies that limit their liberty or freedom to innovate. Another term with the same meaning is “technologies of resistance.”

In coming days and weeks I will be occasionally blogging about different arguments made in the 368-page book, but here’s a quick summary of some of the key points I make in the book. These ten passages are pulled directly from the text:

1. “the freedom to innovate is essential to human betterment for each of us individually and for civilization as a whole. That freedom deserves to be taken more seriously today.”
2. “Entrepreneurialism and technological innovation are the fundamental drivers of economic growth and of the incredible advances in the everyday quality of life we have enjoyed over time. They are the key to expanding economic opportunities, choice, and mobility.”
3. “Unfortunately, many barriers exist to expanding innovation opportunities and our entrepreneurial efforts to help ourselves, our loved ones, and others. Those barriers include occupational licensing rules, cronyism-based industrial protectionist schemes, inefficient tax schemes, and many other layers of regulatory red tape at the federal, state, and local levels. We should not be surprised, therefore, when citizens take advantage of new technological capabilities to evade some of those barriers in pursuit of their right to earn a living, to tinker with or try doing new things, or just to learn about the world and serve it better.”
4. “Evasive entrepreneurs rely on a strategy of permissionless innovation in both the business world and the political arena. They push back against ‘the Permission Society,’ or the convoluted labyrinth of permits and red tape that often encumber entrepreneurial activities.” 
5. “We should be willing to tolerate a certain amount of such outside-the-box thinking because entrepreneurialism expands opportunities for human betterment by constantly replenishing the well of important, life-enhancing ideas and applications.”
6. “we should better appreciate how creative acts and the innovations they give rise to can help us improve government by keeping public policies fresh, sensible, and in line with common sense and the consent of the governed.”
7. “Evasive entrepreneurialism is not so much about evading law altogether as it is about trying to get interesting things done, demonstrating a social or an economic need for new innovations in the process, and then creating positive leverage for better results when politics inevitably becomes part of the story. By acting as entrepreneurs in the political arena, innovators expand opportunities for themselves and for the public more generally, which would not have been likely if they had done things by the book.”
8. “Dissenting through innovation can help make public officials more responsive to the people by reining in the excesses of the administrative state, making government more transparent and accountable, and ensuring that our civil rights and economic liberties are respected.”
9. “In an age when many of the constitutional limitations on government power are being ignored or unenforced, innovation itself can act as a powerful check on the power of the state and can help serve as a protector of important human liberties.”
10. “Lawmakers and regulators need to consider a balanced response to evasive entrepreneurialism that is rooted in the realization that technology creators and users are less likely to seek to evade laws and regulations when public policies are more in line with common sense.”

In a nutshell, the core arguments made in the book boil down to this: “evasive entrepreneurialism can transform our society for the better because it can do the following

• Help expand the range of life-enriching innovations available to society.
• Help citizens pursue lives of their own choosing—both as creators looking for the freedom to earn a living and as consumers looking to discover and enjoy important new goods and services.
• Help provide a meaningful, ongoing check on government policies and programs that all too often have outlived their usefulness or simply defy common sense.”

I hope you will consider reading the book.

Over at Plain Text, I have posted a new essay entitled, “Converting Permissionless Innovation into Public Policy: 3 Reforms.” It’s a preliminary sketch of some reform ideas that I have been working on as part of my next book project. The goal is to find some creative ways to move the ball forward on the innovation policy front, regardless of what level of government we are talking about.

To maximize the potential for ongoing, positive change and create a policy environment conducive to permissionless innovation, I argue that policymakers should pursue policy reforms based on these three ideas:

1. The Innovator’s Presumption: Any person or party (including a regulatory authority) who opposes a new technology or service shall have the burden to demonstrate that such proposal is inconsistent with the public interest.
2. The Sunsetting Imperative: Any existing or newly imposed technology regulation should include a provision sunsetting the law or regulation within two years.
3. The Parity Provision: Any operator offering a similarly situated product or service should be regulated no more stringently than its least regulated competitor.

These provisions are crafted in a somewhat generic fashion in the hope that these reform proposals could be modified and adopted by various legislative or regulatory bodies. If you are interested in reading more details about each proposal, jump over to Plain Text to read the entire essay.

[originally posted on Medium ]

Today is the anniversary of the day the machines took over.

Exactly twenty years ago today, on May 11, 1997, the great chess grandmaster Garry Kasparov became the first chess world champion to lose a match to a supercomputer. His battle with IBM’s “Deep Blue” was a highly-publicized media spectacle, and when he lost Game 6 of his match against the machine, it shocked the world.

At the time, Kasparov was bitter about the loss and even expressed suspicions about how Deep Blue’s team of human programmers and chess consultants might have tipped the match in favor of machine over man. Although he still wonders about how things went down behind the scenes during the match, Kasparov is no longer as sore as he once was about losing to Deep Blue. Instead, Kasparov has built on his experience that fateful week in 1997 and learned how he and others can benefit from it.

The result of this evolution in his thinking is Deep Thinking: Where Machine Intelligence Ends and Human Creativity Begins, a book which serves as a paean to human resiliency and our collective ability as a species to adapt in the face of technological disruption, no matter how turbulent.

Kasparov’s book serves as the perfect antidote to the prevailing gloom-and-doom narrative in modern writing about artificial intelligence (AI) and smart machines. His message is one of hope and rational optimism about future in which we won’t be racing against the machines but rather running alongside them and benefiting in the process.

Overcoming the Technopanic Mentality

There is certainly no shortage of books and articles being written today about AI, robotics, and intelligent machines. The tone of most of these tracts is extraordinarily pessimistic. Each page is usually dripping with dystopian dread and decrying a future in which humanity is essentially doomed.

As I noted in a recent essay about “The Growing AI Technopanic,” after reading through most of these books and articles, one is left to believe that in the future: “Either nefarious-minded robots enslave us or kill us, or AI systems treacherously trick us, or at a minimum turn our brains to mush.” These pessimistic perspectives are clearly on display within the realm of fiction, where every sci-fi book, movie, or TV show depicts humanity as certain losers in the proverbial “race” against machines. But such lugubrious lamentations are equally prevalent within the pages of many non-fiction books, academic papers, editorials, and journalistic articles.

Given the predominantly panicky narrative surrounding the age of smart machines, Kasparov’s Deep Thinking serves as a welcome breath of fresh air. The aim of his book is finding ways of “doing a smarter job of humans and machines working together” to improve well-being.

Chess fans will enjoy Kasparov’s overview of the history of the game as well as his discussion of how the development of computing and smart machines has been intermingled with chess for many decades now. They will also appreciate his detailed postmortem of his losing battle with Deep Blue, which makes up the meat of the middle of the book. But what is important about the book is the way Kasparov draws out lessons about how the game of chess and chess players themselves have adapted to the rise of smart machines over time — just as he had to following his historic loss to Deep Blue.

Kasparov begins by noting that the growing panic over machine-learning and AI is unwarranted, but in another sense entirely unsurprising. He correctly observes that, “doomsaying has always been a popular pastime when it comes to new technology” and that, “With every new encroachment of machines, the voices of panic and doubt are heard, and they are only getting louder today.”

Fears of sectoral disruptions and job displacements are nothing new, of course, and many of them have even proven legitimate, Kasparov notes. He discusses “a pattern that has repeated over and over for centuries,” in which humans initially scoffed at the idea of machines being able to compete with them. “Eventually we have had to concede that there is no physical labor that couldn’t be replicated, or mechanically surpassed.” That includes the game of chess, where smart machines are now superior to the world’s best players.

But that doesn’t mean we can or should stop the progression of machine intelligence, he says, because the history of humanity is fundamentally tied up with the never-ending process of technological improvements and the gradual assimilation of new tools into our lives, jobs, and economy. He argues:

“Every profession will eventually feel this pressure, and it must, or else it will mean humanity has ceased to make progress. We can either see these changes as a robotic hand closing around our necks or one that can lift us up higher than we can reach on our own, as has always been the case. Romanticizing the loss of jobs to technology is little better than complaining that antibiotics put too many grave diggers out of work.”

That is why it is essential, Kasparov argues, that we not waste time trying to avoid these changes altogether. He regards the very idea of it as an exercise in futility. “Fighting to thwart the impact of machine intelligence is like lobbying against electricity or rockets,” he says. Instead, he argues, we must look to adapt, and do so quickly.

Adaptation, Resiliency & Risk-Taking

In that sense, Kasparov suggests that there are lessons for us in the history of chess as well as from his own experience competing against Deep Blue. He notes that his match against IBM’s supercomputer, “was symbolic of how we are in a strange competition both with and against our creation in more ways every day.”

Instead of just throwing our hands up in the air in frustration, we must be willing to embrace the new and unknown — especially AI and machine-learning. “Each of us has a choice to make: to embrace these new challenges, or to resist them.” His consistent plea throughout the book is to not give into to our worst fears, but instead to embrace these new technological challenges with a willingness to try new ways of doing things. “No matter how many people are worried about jobs, or the social structure, or killer machines, we can never go back,” he concludes.

On that point, my favorite passage in his book comes early in a short chapter about the history of chess. Kasparov’s sagacious advice is worth quoting at length:

“The willingness to keep trying new things — different methods, uncomfortable tasks — when you are already an expert at something is what separates good from great. Focusing on your strengths is required for peak performance, but improving your weaknesses has the potential for the greatest gains. This is true for athletes, executives, and entire companies. Leaving your comfort zone involves risk, however, and when you are already doing well the temptation to stick with the status quo can be overwhelming, leading to stagnation.”

Societal attitudes toward risk-taking and disruption matter profoundly in this regard because “our perspective on disruption affects how well prepared for it we will be” for the future. Again, the lessons from the world of chess are clear: “How professional chess changed when computers and databases arrived is a useful metaphor for how new technology is adopted across industries and societies in general.” For modern chess players, “it was a matter of adapting to survive,” he argues. “Those who quickly mastered the new methods thrived; the few who didn’t mostly dropped down the rating lists.”

 

Disrupting Education

Kasparov is particularly concerned about how a deep underlying conservatism and resistance to experimentation has become a chronic problem within the traditional educational system. “The prevailing attitude is that education is too important to take risks. My response is that education is too important not to take risks,” he says.

He again returns to the world of chess and he speaks with excitement about the ways in which young chess prodigies are tapping computers and sophisticated programs to supplement their skill-building. They do this, Kasparov says, even though they often receive little encouragement from the older guard, who often still resist the new methods of learning. “We need to find out what works and the only way to do that is to experiment,” he argues. “The kids can handle it. They are already doing it on their own. It’s the adults who are afraid.”

He’s also bullish on the globalization of these trends and the way in which “technology will enable people from all over the world to become entrepreneurs, or scientists, or anything they want despite where they live.” Kasparov believes this is already happening within the global chess community as new computing technologies help players everywhere raise the level of their skills. “Kids are capable of learning far more, far faster, than tradition educational methods allow for,” he argues. “They are already doing it mostly on their own, living and playing in a far more complex environment than the one their parents grew up in.”

Problems Ahead

Kasparov isn’t blind to the potential problems associated with new technologies, including AI and algorithmic systems. The potential for privacy violations represents one of the major concerns related to our powerful new technological capabilities. “There are countless privacy issues to be negotiated anytime [personal] data is accessed, of course, and that trade-off will continue to be one of the main battlefields of the AI revolution.”

Kasparov says he is “glad privacy advocates are on the job, especially regarding the powers of the government,” yet he also senses that we are our own worst enemies because new digital technologies and AI-enabled systems “will continue to make the benefits of sharing our data practically irresistible.” “Utility always wins,” he argues, and even if one country seeks to clamp down on innovation, others will welcome it. “When the results come back and show that the economic and health benefits are tremendous, the floodgates will open everywhere.”

He is probably right. After all, as I have noted in recent essays, we increasingly live in a world where “global innovation arbitrage” — i.e., the increasingly frictionless movement of innovations to jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity — is increasingly easy. We already know how challenging it is to control data flows in the age of the Internet, smartphones, and social media. But the combination of more sophisticated forms of machine-learning and the rise of innovation arbitrage opportunities means that formidable challenges lie ahead in terms of digital privacy and cybersecurity.

Other ethical issues will need to be worked out over time, but it is important not to imbue new AI technologies or automated systems with too much moral weight right out of the gates. “Our technology is not concerned about good or evil. It is agnostic,” Kasparov correctly notes. The real question, he says, is how we ourselves put our tools to use. “The ethics are in how we humans use it, not whether we should build it.”

Humility about the Future

Despite some concerns such as these, Kasparov is generally quite bullish about the future of humanity in an age of smart machines. Again, his core message is that, “going backwards isn’t an option” and that “it is almost always better to start looking for alternatives and how to advance the change into something better instead of trying to fight it and hold on to the dying status quo.”

He agrees with many other pundits that new skills and jobs will be needed going forward, but admits they aren’t always easy to plan for in advance. As Yogi Berra once famously said, “It’s tough to make predictions, especially about the future.” Indeed, as I pointed out in the most recent edition of my book Permissionless Innovation, when one looks back at official government labor market studies and forecasts from the 1970s and 1980s, you are struck by the way in which policymakers didn’t even have a vocabulary to describe the jobs and skills of the present. For example, you find no mention in past reports of some of today’s hottest jobs, such as software engineers and architects, UX designers, database scientists and administrators, and so on.

On one hand, therefore, pessimistic pundits and policymakers regularly underestimate the adaptability of workers and the evolution of new skills and professions. On the other hand, they make an equally egregious mistake when they overestimate the impact of technological change on many sectors and professions, or suggest that mass unemployment is just around the corner unless we slow automation down.

Just this week, the Information Technology and Innovation Foundation released a new report on the impact of technological disruption in the U.S. labor market from 1850 to present and decried the “false alarmism” often on display in debates about current and future skills and professions. “Labor market disruption is not abnormally high,” conclude authors Robert D. Atkinson and John Wu, but instead, “it’s occurring at its lowest rate since the Civil War.”

We’ve been through more turbulent labor market disruptions in the past and weathered the storm. Chances are we will do so again, so long as we embrace the potential for that change to improve our lives and economy in the long-term. “In fact,” conclude Atkinson and Wu, “the single biggest economic challenge facing advanced economies today is not too much labor market churn, but too little, and thus too little productivity growth.” This is consistent with Kasparov’s repeated call in Deep Thinking for us not to give in to our fears about a highly uncertain future but to instead embrace its potential. “Our machines will continue to make us healthier and richer as we use them wisely,” he says, while adding, “They will also make us smarter.”

Learning by Doing

What Kasparov is really doing throughout the book is making the case for building human and institutional resiliency through a constant willingness to experiment and learn through trial and error. It is certainly true that many of today’s skillsets, professions, and business models will be challenged by the rise of smarter machines and algorithmic learning. Defeatism in the face of that prospect, however, isn’t the answer; adaptation is.

Boston University economist James Bessen wrote about this process in his new book, Learning by Doing. Bessen argued that periods of profound technological change require a willingness by workers, businesses, and other institutions to adjust to new marketplace realities. For progress to occur, large numbers of ordinary workers must acquire new knowledge and skills. However, “that is a slow and difficult process, and history suggests that it often requires social changes supported by accommodating institutions and culture,” Bessen notes.

Luckily, history also suggests that we have been through this process many times before and can get through it again — and raise the standard of living for workers and average citizens alike over the long-run. The crucial part of that process is a general willingness to continue to experiment with new ways of doing things — i.e., learning by doing — and understanding that new skills and professions will emerge from all that process.

That is essentially the same point Kasparov makes in Deep Thinking. As he summarized in a new podcast conversation with Tyler Cowen:

“There will be redistribution of jobs. Many jobs today — like drone operators or 3D printer managers or social media managers — they didn’t exist 10 years ago, 15 years ago. No doubt in 10, 15 years, there will be many jobs, maybe the best-paid jobs, that don’t exist today, and we don’t even know how these jobs will look. I think that’s natural. All we have to do is realize that this process is inevitable, and we have to prepare us mentally, but also to have some sort of safety cushions to help people that will have great difficulty in adjusting.”

What about more specific public policy solutions? Considering the unclear future that lies ahead, flexibility and plenty of policy experimentation will be crucial to finding and unlocking new methods that could help us cope and adapt in the new world. “The problem comes when the government is inhibiting innovation with overregulation and short-sighted policy,” Kasparov says. Trade wars and restrictive immigration policies won’t help matters either, he argues, because they “will limit America’s ability to attract the best and brightest minds.” Hopefully the Trump Administration is listening to his advice in this regard.

AI skeptics and other technology critics will lament Kasparov’s lack of greater detail and the absence of a more precise blueprint for helping workers and institutions navigate an uncertain future. But, again, the entire point of Kasparov’s book is that there is enormous value in the very act of confronting those new challenges, learning through trial-and-error(including the many accompanying failures), and “muddling through” over time.

Much like looking out over the chessboard and pondering the wisdom of our next move, we cannot be frozen into inaction because of fear. We must be willing to make that next move. And then another, and another. And then we must learn from our experiences, and especially our mistakes, if we hope to prosper. “To keep ahead of the machines, we must not try to slow them down because that slows us down as well,” Kasparov concludes in his closing chapter. “We must speed them up. We must give them, and ourselves, plenty of room to grow. We must go forward, outward, and upward.”

Wise advice from the greatest of all grandmasters.

“The quickest way to find out who your enemies are is to try doing something new.” Thus begins Innovation and Its Enemies, an ambitious new book by Calestous Juma that will go down as one of the decade’s most important works on innovation policy.

Juma, who is affiliated with the Harvard Kennedy School’s Belfer Center for Science and International Affairs, has written a book that is rich in history and insights about the social and economic forces and factors that have, again and again, lead various groups and individuals to oppose technological change. Juma’s extensive research documents how “technological controversies often arise from tensions between the need to innovate and the pressure to maintain continuity, social order, and stability” (p. 5) and how this tension is “one of today’s biggest policy challenges.” (p. 8)

What Juma does better than any other technology policy scholar to date is that he identifies how these tensions develop out of deep-seated psychological biases that eventually come to affect attitudes about innovations among individuals, groups, corporations, and governments. “Public perceptions about the benefits and risks of new technologies cannot be fully understood without paying attention to intuitive aspects of human psychology,” he correctly observes. (p. 24)

Opposition to Change: It’s All in Your Head

Juma documents, for example, how “status quo bias,” loss aversion, and other psychological tendencies tend to encourage resistance to technological change. [Note: I discussed these and other “root-cause” explanations of opposition to technological change in Chapter 2 of my book, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, as well as in my 2012 law review article on “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.”]  Juma notes, for example, that “society is most likely to oppose a new technology if it perceives that the risks are likely to occur in the short run and the benefits will only accrue in the long run.” (p. 5) Moreover, “much of the concern is driven by perception of loss, not necessarily by concrete evidence of loss.” (p. 11)

Juma’s approach to innovation policy studies is strongly influenced by the path-breaking work of Austrian economist Joseph Schumpeter, who long ago documented how entrepreneurial activity and the “perennial gales of creative destruction” were the prime forces that spurred innovation and propelled society forward. But Schumpeter was also one of the first scholars to realize that psychological fears about such turbulent change was what ultimately lead to much of the short-term opposition to new technologies that, in due time, we eventually come to see as life-enriching or even life-essential innovations.  Juma uses Schumpeter’s insight as the launching point for his exploration and he successfully verifies it using meticulously-detailed case studies.

Case Study-Driven Analysis

My favorite case study in the book discusses how the dairy industry fought the creation and spread of margarine (excuse the pun!). I had no idea how ugly that situation got, but Juma provides all the gory details in what I consider one of the very best crony capitalist case studies ever penned.

In particular, in a subsection of that chapter entitled “The Laws against Margarine,” he provides a litany of examples of how effective the dairy industry was in convincing lawmakers to enact ridiculous anti-consumer regulations to stop margarine, even though the product offered the public a much-needed, and much more affordable, substitute for traditional butter. At one point, the daily industry successfully lobbied five states to adopt rules mandating that any imitation butter product had to be dyed pink! Other states enacted labelling laws that required butter substitutes to come in ominous-looking black packaging. Again, all this was done at the request of the incumbent dairy industry and the National Dairy Council, which would resort to almost any sort of deceptive tactic to keep a cheaper competing product out of the hands of consumers.

And so it goes in chapter after chapter of Juma’s book. The amount of detail in each of these unique case studies is absolutely stunning, but they nonetheless remain highly readable accounts of sectoral protectionism, special interest rent-seeking, and regulatory capture. In this way, Juma is plowing some familiar ground already covered by other economic historians and political scientists, such as Joel Mokyr and Mancur Olson, both of whom are mentioned in the book, as well as a long line of public choice scholars who are, somewhat surprisingly, not discussed in the text. Nonetheless, Juma’s approach is still fresh, unique, and highly informative. In fact, I don’t think I’ve ever seen so many distinct and highly detailed case studies assembled in one place by a single scholar.  What Juma has done here is truly impressive.

Related Innovation Policy Paradigms

Beyond Schumpeter’s clear influence, Juma’s approach to studying innovation policy also shares a great deal in common with two other unmentioned innovation policy scholars, Virginia Postrel and Robert D. Atkinson.

Postrel’s 1998 book, The Future and Its Enemies, contrasted the conflicting worldviews of “dynamism” and “stasis” and showed how the tensions between these two visions would affect the course of human affairs. She made the case for embracing dynamism — “a world of constant creation, discovery, and competition” — over the “regulated, engineered world” of the stasis mentality. Similarly, in his 2004 book, The Past and Future of America’s Economy, Atkinson documented how “American history is rife with resistance to change,” and in recounting some of the heated battles over previous technological revolutions he showed how two camps were always evident: “preservationists” and “modernizers.”

When Juma repeatedly recounts the fight between “innovation and incumbency” in his case studies, he is essentially describing the same paradigmatic divide that Postrel and Atkinson highlight in their works when they discuss “dynamist” vs. “stasis” tensions and the “modernizers” vs. “preservationists” battles that we have seen throughout history. [Note: In my 2014 essay on, “Thinking about Innovation Policy Debates: 4 Related Paradigms,” I discussed Postrel and Atkinson’s books and other approaches to understanding tech policy divisions and then related them to the paradigms I contrast in my work: the so-called “precautionary principle” vs. “permissionless Innovation” mindsets.]

Finally, Juma’s book could also be compared to another freshly released book, The Politics of Innovation, by Mark Zachary Taylor. Taylor’s book is also essential reading on this lamentable history of industrial protectionism and the resulting political opposition to change we have seen over time. [Note: Brent Skorup and provided many other high-tech cronyist case studies like these in our 2013 law review article, “A History of Cronyism and Capture in the Information Technology Sector.”]

To counter the prevalence of special interest influence and poor policymaking more generally, Juma stresses the need for evidence-based analysis and a corresponding rejection of fear-mongering and deceptive tactics by public officials and activist groups. He’s particularly concerned with “the use of demonization and false analogies to amplify the perception of risks associated with a new product.”

Accordingly, he would like to see improved educational and risk communication efforts aimed at better informing the public about risk trade-offs and the many potential future benefits of emerging technologies. “Learning how to communicate to the general public is an important aspect of reducing distrust [in new technologies],” Juma argues. (p. 312)

On the Pacing Problem

But Juma never really adequately squares that recommendation with another point he makes throughout the text about how “the pace of technological innovation is discernibly fast,” (p. 5) and how it is accelerating in an exponential fashion. “The implications of exponential growth will continue to elude political leaders if they persist in operating with linear worldviews.” (p. 14) But if it is indeed the case that things are moving that fast, then are we not potentially doomed to live in never-ending cycles of technopanics and misinformation campaigns about new technologies no matter how much education we try to do?

Regardless, Juma’s argument about the speed of modern technological change is quite valid and shared by many other scholars. He is essentially making the same case that Larry Downes did in his excellent 2009 book, The Laws of Disruption: Harnessing the New Forces That Govern Life and Business in the Digital Age. Downes argued that lawmaking in the information age is inexorably governed by the “law of disruption” or the fact that “technology changes exponentially, but social, economic, and legal systems change incrementally.”  This law, Downes said, is “a simple but unavoidable principle of modern life,” and it will have profound implications for the way businesses, government, and culture evolve going forward.  “As the gap between the old world and the new gets wider,” he argued, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.”

Again, Juma makes that same point repeatedly throughout the chapters of his book. This is also a restatement of the so-called “pacing problem,” as it is called in the field of the philosophy of technology. I discussed the pacing problem at length in my recent review of Wendell Wallach’s important new book, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. Wallach nicely defined the pacing problem as “the gap between the introduction of a new technology and the establishment of laws, regulations, and oversight mechanisms for shaping its safe development.” “There has always been a pacing problem,” he noted but, like Juma, Wallach believes that modern technological innovation is occurring at an unprecedented pace, making it harder than ever to “govern” using traditional legal and regulatory mechanisms.

New Approaches to Technological Governance Needed

Both Wallach in A Dangerous Master and Juma in Innovation and Its Enemies struggle with how to solve this problem. Wallach advocates “soft law” mechanisms or even informal “Governance Coordinating Committees,” which would oversee the development of new technology policies and advise existing governmental institutions. Juma is somewhat ambiguous regarding potential solutions, but he does stress the general need for a flexible approach to policy, as he notes on pg. 252:

It is important to make clear distinctions between hazards and risks. It is necessary to find a legal framework for addressing hazards. But such a framework should not take the form of rigid laws whose adoption needs to be guided by evidence of harm. More flexible standards that allow continuous assessment of emerging safety issues related to a new product are another way to address hazards. This approach would allow for evidence-based regulation.

Beyond that Juma wants to see “entrepreneurialism exercised in the public arena” (p. 282) and calls for “decisive leaders to champion the application of new technologies.” (p. 283) He argues such leadership is needed to ensure that life-enriching technologies are not derailed by opponents of change.

On the other hand, Juma sees a broader role for policymakers in helping to counter some of the potential side effects associated with many emerging technologies. He highlights three primary areas of concern. First, he suggests political leaders might need to find ways “to help balance the benefits and risks of automation” due to the rapid rise of robotics and artificial intelligence. Second, he notes that synthetic biology and gene-editing will give rise to many thorny issues that require policymakers to balance “potentially extraordinary benefits and the risk of catastrophic consequences.” (p. 284)  Finally, he points out that medicine and healthcare are set to be radically transformed by emerging technologies, but they are also threatened by archaic policies and practices in many countries.

In each case, Juma hopes that “decisive,” “adaptive” and “flexible” leaders will steer a sensible policy course with an eye toward limiting “the spread of political unrest and resentment toward technological innovation.” (p. 284)  That’s a noble goal, but Juma remains a bit vague on the steps needed to accomplish that balancing act without tipping public policy in favor a full-blown precautionary principle-based regime for new technologies. Juma clearly wants to avoid that result, but it remains unclear how or where he would draw clear lines in the sand to prevent it from occurring while at the same time achieving “decisive leadership” aimed at balancing potential risks and benefits.

Similarly, his repeated calls in the closing chapter for “inclusive innovation” efforts and strategies sounds sensible in theory, but Juma speaks in abstract generalities about what the term means and doesn’t provide a clear vision for how that would translate into concrete actions that would not end up giving vested interests a veto over new forms of technological innovation that they disfavor.

Nothing Ventured, Nothing Gained

Generally speaking, however, Juma wants this balance struck in favor of greater openness to change and an ongoing freedom to experiment with new technological capabilities. As he notes in his concluding chapter:

The biggest risk that society faces by adopting approaches that suppress innovation is that they amplify the activities of those who want to preserve the status quo by silencing those arguing for a more open future. […] Keeping the future open and experimenting in an inclusive and transparent way is more rewarding that imposing the dictum of old patterns. (pgs. 289, 316)

In that regard, the thing I liked most about Innovation and Its Enemies is the way throughout the text that Juma stressed the symbiotic relationship between risk-taking and progress. One of the ways he does so is by kicking off every chapter with a fun quote on that theme from some notable figure. He includes gems like these:

• “Nothing will ever be attempted if all possible objections must be first overcome.” – Samuel Johnson
• “Only those will risk going too far can possibly find out how far one can go.” – T.S. Eliot
• “If you risk nothing, then you risk everything.” – Geena Davis
• “Test fast, fail fast, adjust fast.” – Tom Peters

Of course, I was bound to enjoy his repeated discussion of this theme because that was the central thesis of my latest book, in which I made the argument that, “if we spend all our time living in constant fear of worst-case scenarios—and premising public policy upon such fears—then many best-case scenarios will never come about.” Or more simply, as the old saying goes: “nothing ventured, nothing gained.”

On Pastoral Myths

I also liked the way that Juma used his case studies to remind us how “the topics may have changed, but the tactics have not.” (p. 143) For example, much of the fear-mongering and deceptive tactics we have seen through the years are based on “pastoral ideals,” i.e., appeals to nature, farm life, old traditions, of just the proverbial “good old days,” whenever those supposedly were! “Demonizing innovation is often associated with campaigns to romanticize past products and practices,” Juma notes. “Opponents of innovation hark back to traditions as if traditions themselves were not inventions at some point in the past.” (p. 309)  So very true!

That was especially the case in battles over new farming methods and technologies, when opponents of change were frequently “championing a moral cause to preserve a way of life,” as Juma discusses in several chapters. (p. 129) New products or methods of production were repeatedly but wrongly characterized as dangerous simply because they were not supposedly “natural” or “traditional” enough in character.

Of course, if all farming and other work was to remain frozen in some past “natural” state, we’d all still be hunters and gathers struggling to find the next meal to put in our bellies. Or, if we were all still on the farms of the “good old days,” then we’d still be stuck using an ox and plow in the name of preserving the “traditional” ways of doing things.

Humanity has made amazing strides—including being able to feed more people more easily and cheaply than ever before—precisely because we broke with those old, “natural” traditions. Alas, many vested interests and even quite a few academics today still employ these same pastoral appeals and myths to oppose new forms of technological change. Juma’s case studies powerfully illustrate why that dynamic continues to be a driving force in innovation policy debates and how it has delayed the diffusion of many important new goods and services throughout history. When the opponents of change rest their case on pastoral myths and nostalgic arguments about the good old days we should remind them that the good old days weren’t really that great after all.

Conclusion

In closing, Innovation and Its Enemies earns my highest recommendation. Even though 2016 is only half done as I write this, Professor Juma’s book is probably already a shoo-in as my choice for best innovation policy book of the year. And I am certain that it will also go down as one of the decade’s most important innovation policy books. Buy the book now and read every word of it. It is well worth your time.

Additional material related to Juma’s book:

• Calestous Juma’s website at the Harvard Kennedy School
• Official book page for Innovation and Its Enemies
• Concise summary of the book from AAAS: “Why important innovations stall; understanding obstacles to change is key to future”
• Steven Overly, “Humans once opposed coffee and refrigeration. Here’s why we often hate new stuff,” Washington Post, July 21, 2016.
• Matt Ridley’s review of the book for The Times of London.

Other Related Books

In addition to the books that I already mentioned throughout this review, readers who find Juma’s book and the issues he discusses in it of interest should also consider reading these other books on innovation policy, technological governance, and regulatory capture.  Although many of them are more squarely focused on the information technology sector or other emerging technology fields, they all relate to the general subject matter and approach found throughout Juma’s book. [NOTE: Links, where provided, are to my reviews of these books.]

• The Inevitable: Understanding the 12 Technological Forces That Will Shape Our Future, by Kevin Kelly (2016)
• Innovative Governance Models for Emerging Technologies, Gary E. Marchant, Kenneth W. Abbott & Braden Allenby (eds.), (2013)
• Consent of the Networked: The Worldwide Struggle for Internet Freedom ,by Rebecca MacKinnon (2012)
• Networks and States: The Global Politics of Internet Governance, by Milton Mueller (2010)
• The Master Switch: The Rise and Fall of Information Empires, by Tim Wu (2010)
• The Rational Optimist: How Prosperity Evolves, by Matt Ridley (2010)
• Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion, by Hal Abelson, Ken Ledeen, and Harry Lewis (2008)
• Radical Evolution: The Promise and Peril of Enhancing Our Minds, Our Bodies — and What It Means to Be Human, by Joel Garreau (2005)
• The Creation of Media, by Paul Starr (2005)
• Ruling the Waves: Cycles of Discovery, Chaos, and Wealth from the Compass to the Internet, by Debora Spar (2004)
• Questioning Technology, by Andrew Feenberg (1999)
• Thinking through Technology: The Path between Engineering and Philosophy, by Carl Mitcham (1994)
• Technologies of Freedom: On Free Speech in an Electronic Age, by Ithiel de Sola Pool (1983)

Wallach’s latest book is entitled, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. And, as I’ve noted here recently, the greatly expanded second edition of my latest book, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom, has just been released.

Of all the books of technological criticism or skepticism that I’ve read in recent years—and I have read stacks of them!— A Dangerous Master is by far the most thoughtful and interesting. I have grown accustomed to major works of technological criticism being caustic, angry affairs. Most of them are just dripping with dystopian dread and a sense of utter exasperation and outright disgust at the pace of modern technological change.

Although he is certainly concerned about a wide variety of modern technologies—drones, robotics, nanotech, and more—Wallach isn’t a purveyor of the politics of panic. There are some moments in the book when he resorts to some hyperbolic rhetoric, such as when he frets about an impending “techstorm” and the potential, as the book’s title suggests, for technology to become a “dangerous master” of humanity. For the most part, however, his approach is deeper and more dispassionate than what is found in the leading tracts of other modern techno-critics.

Many Questions, Few Clear Answers

Wallach does a particularly good job framing the major questions about emerging technologies and their effect on society. “Navigating the future of technological possibilities is a hazardous venture,” he observes. “It begins with learning to ask the right questions—questions that reveal the pitfalls of inaction, and more importantly, the passageways available for plotting a course to a safe harbor.” (p. 7) Wallach then embarks on a 260+ page inquiry that bombards the reader with an astonishing litany of questions about the wisdom of various forms of technological innovation—both large and small. While I wasn’t about to start an exact count, I would say that the number of questions Wallach poses in the book runs well into the hundreds. In fact, many paragraphs of the book are nothing but an endless string of questions.

Thus, if there is a primary weakness with A Dangerous Master, it’s that Wallach spends so much time formulating such a long list of smart and nuanced questions that some readers may come away disappointed when they do not find equally satisfying answers. On the other hand, the lack of clear answers is also completely understandable because, as Wallach notes, there really are no simple answers to most of these questions.

Just Slow Down!

Moving on to substance, let me make clear where Wallach and I generally see eye-to-eye and where we part ways.

Generally speaking, we agree about the need to come up with better “soft governance” systems for emerging technologies, which might include multistakeholder process, developer codes of conduct, sectoral self-regulation, sensible liability rules, and so on. (More on those strategies in a moment.)

But while we both believe it is wise to consider how we might “bake-in” better ethics and norms into the process of technological development, Wallach seems much more inclined than me to expect that we will be able to pre-ordain (or potentially require?) all this happens before much of this experimentation and innovation actually moves forward. Wallach opens by asking:

Determining when to bow to the judgment of experts and whether to intervene in the deployment of a new technology is certainly not easy. How can government leaders or informed citizens effectively discern which fields of research are truly promising and which pose serious risks? Do we have the intelligence and means to mitigate the serious risks that can be anticipated? How should we prepare for unanticipated risks? (p. 6)

Again, many good questions here! But this really gets to the primary difference between Wallach’s preferred approach and my own: I tend to believe that many of these things can only be worked out through ongoing trial and error, the constant reformulation of the various norms that govern the process of innovation, and the development of sensible ex post solutions to some of the most difficult problems posed by turbulent technological change.

By contrast, Wallach’s generally attitude toward technological evolution is probably best summarized by the phrases: “Slow down!” and, “Let’s have a conversation about it first!” As he puts it in his own words: “Slowing down the accelerating adoption of technology should be done as a responsible means to ensure basic human safety and to support broadly shared values.” (p. 13)

But I tend to believe that it’s not always possible to preemptively determine which innovations to slow down, or even how to determine what those “shared values” are that will help us make this determination. More importantly, I worry that there are very serious potential risks and unintended consequences associated with slowing down many forms of technological innovation, which could improve human welfare in important ways. There can be no prosperity, after all, without a certain degree of risk-taking and disruption.

Getting Out Ahead of the Pacing Problem

Yet, what concerns Wallach most is the much-discussed issue from the field of the philosophy of technology, the so-called “pacing problem.” Wallach concisely defines the pacing problem as “the gap between the introduction of a new technology and the establishment of laws, regulations, and oversight mechanisms for shaping its safe development.” (p. 251) “There has always been a pacing problem,” he notes, but he is concerned that technological innovation—especially highly disruptive and potentially uncontrollable forms of innovation—is now accelerating at an absolutely unprecedented pace.

(Just as an aside for all the philosophy nerds out there…  Such a rigid belief in the “pacing problem” represents a techno-deterministic viewpoint that is, ironically, sometimes shared by technological skeptics like Wallach as well as technological optimists like Larry Downes and even many in the middle of this debate, like Vivek Wadhwa. See, for example, The Laws of Disruption by Downes and “Laws and Ethics Can’t Keep Pace with Technology” by Wadhwa. Although these scholars approach technology ethics and politics quite differently, they all seem to believe that the pace of modern technological change is so relentless as to almost be an unstoppable force of nature. I guess the moral of the story is that, to some extent, we’re all technological determinists now!)

Despite his repeated assertions that modern technologies are accelerating at such a potentially uncontrollable pace, Wallach nonetheless hopes we can achieve some semblance of control over emerging technologies before they reach a critical “inflection point.” In the study of history and science, an inflection point generally represents a moment when a situation and trend suddenly changes in a significant way and things begin moving rapidly in a new direction. These inflections points can sometimes develop quite abruptly, ushering in major changes by creating new social, economic, or political paradigms. As it relates to technology in particular, inflection points can refer to the moment with a particular technology achieves critical mass in terms of adoption or, more generally, to the time when that technology begins to profoundly transform the way individuals and institutions act.

Another related concept that Wallach discusses is the so-called “Collingridge dilemma,” which refers to the notion that it is difficult to put the genie back in the bottle once a given technology has reached a critical mass of public adoption or acceptance. The concept is named after David Collingridge, who wrote about this in his 1980 book, The Social Control of Technology. “The social consequences of a technology cannot be predicated early in the life of the technology,” Collingridge argued. “By the time undesirable consequences are discovered, however, the technology is often so much part of the whole economics and social fabric that its control is extremely difficult.”

On “Having a Discussion” & Coming Up with “a Broad Plan”

These related concepts of inflection points and the Collingridge dilemma constitute the operational baseline of Wallach’s worldview. “In weighing speedy development against long-term risks, speedy development wins,” he worries. “This is particularly true when the risks are uncertain and the perceived benefits great.” (p. 85)

Consequently, throughout his book, Wallach pleads with us to take what I will call Technological Time Outs. He says we need to pause at times so that we can have “a full public discussion” (p. 13) and make sure there is a “broad plan in place to manage our deployment of new technologies” (p. 19) to make sure that innovation happens only at “a humanly manageable pace” (p. 261) “to fortify the safety of people affected by unpredictable disruptions.” (p. 262) Wallach’s call for Technological Time Outs is rooted in his belief that “the accelerating pace [of modern technological innovation] undermines the quality of each of our lives.” (p. 263)

That is Wallach’s weakest assertion in the book and he doesn’t really offer much evidence to prove that the velocity of modern technological is hurting us rather than helping us, as many of us believe. Rather, he treats it as a widely accepted truism that necessitates some sort of collective effort to slow things down if the proverbial genie is about to exit the bottle, or to make sure those genies don’t get out of their bottles without a lot of preemptive planning regarding how they are to be released into the world. In the following passage on pg. 72, Wallach very succinctly summarizes his approach recommended throughout A Dangerous Master:

this book will champion the need for more upstream governance: more control over the way that potentially harmful technologies are developed or introduced into the larger society. Upstream management is certainly better than introducing regulations downstream, after a technology is deeply entrenched or something major has already gone wrong. Yet, even when we can access risks, there remain difficulties in recognizing when or determining how much control should be introduced. When does being precautionary make sense, and when is precaution an over-reaction to the risks? (p. 72)

Those who have read my Permissionless Innovation book will recall that I open by framing innovation policy debates in almost exactly the same way as Wallach suggests in that last line above. I argue in the first lines of my book that:

The central fault line in innovation policy debates today can be thought of as ‘the permission question.’  The permission question asks: Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions and risk-taking, more generally.  Two conflicting attitudes are evident. One disposition is known as the ‘precautionary principle.’ Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harm to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions. The other vision can be labeled ‘permissionless innovation.’ It refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if any develop, can be addressed later.

So, by contrasting these passages, you can see what I am setting up here is a clash of visions between what appears to be Wallach’s precautionary principle-based approach versus my own permissionless innovation-focused worldview.

How Much Formal Precaution?

But that would be a tad bit too simplistic because just a few paragraphs after Wallach makes the statement just above about “upstream management” being superior to ex post solutions formulated “after a technology is deeply entrenched,” Wallach begins slowly backing away from an overly-rigid approach to precautionary principle-based governance of technological processes and systems.

He admits, for example, that “precautionary measures in the form of regulations and governmental oversight can slow the development of research whose overall society impact will be beneficial,” (p. 26) and that can “be costly” and “slow innovation.” For countries, Wallach admits, this can have real consequences because “Countries with more stringent precautionary policies are at a competitive disadvantage to being the first to introduce a new tool or process.” (p. 74)

So, he’s willing to admit that what we might call a hard precautionary principle usually won’t be sensible or effective in practice, but he is far more open to soft precaution. But this is where real problems begin to develop with Wallach’s approach, and it presents us with a chance to turn the tables on him a bit and begin posing some serious questions about his vision for governing technology.

Much of what follows below are my miscellaneous ramblings about the current state of the intellectual dialogue about tech ethics and technological control efforts. I have discussed these issues at greater length in my new book as well as a series of essays here in past years, most notably: “On the Line between Technology Ethics vs. Technology Policy; “What Does It Mean to “Have a Conversation” about a New Technology?”; and, “Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation.”

As I’ve argued in those and other essays, my biggest problem with modern technological criticism is that specifics are in scandalously short supply in this field! Indeed, I often find the lack of details in this arena to be utterly exasperating. Most modern technological criticism follows a simple formula:

TECHNOLOGY –>> POTENTIAL PROBLEMS –>> DO SOMETHING!

But almost all the details come in the discussion about the nature of the technology in question and the apparent many problems associated with it. Far, far less thought goes into the “DO SOMETHING!” part of the critics’ work. One reason for that is probably self-evident: There are no easy solutions. Wallach admits as much at many junctures throughout the book. But that doesn’t excuse the need for the critics to give us a more concrete blueprint for identifying and then potentially rectifying the supposed problems.

Of course, the other reason that many critics are short of specifics is because what they really mean when they quip how much we need to “have a conversation” about a new disruptive technology is that we need to have a conversation about stopping that technology.

Where Shall We Draw the Line between Hard and Soft Law?

But this is what I found most peculiar about Wallach’s book: He never really gives us a good standard by which to determine when we should look to hard governance (traditional top-down regulation) versus soft governance (more informal, bottom-up and non-regulatory approaches).

On one hand, he very much wants society to exercise greatly restraint and precaution when it comes to many of the technologies he and others worry about today. Again, he’s particularly concerned about the potential runaway development and use of drones, genetic editing, nanotech, robotics, and artificial intelligence. For at least one class of robotics—autonomous military robots—Wallach does call for immediate policy action in the form of an Executive Order to ban “killer” autonomous systems. (Incidentally, there’s also a major effort underway called the “Campaign to Stop Killer Robots” that aims to make such a ban part of international law through a multinational treaty.)

But Wallach also acknowledges the many trade-offs associated with efforts to preemptively controls on robotics and other technology. Perhaps for that reason, Wallach doesn’t develop a clear test for when the Precautionary Principle should be applied to new forms of innovation.

Clearly there are times when it is appropriate, although I believe it is only in an extremely narrow subset of cases. In the 2 ^nd Edition of my Permissionless Innovation book, I tried to offer a rough framework for when formal precautionary regulation (i.e., highly-restrictive policy defaults are necessary, such as operational restrictions, licensing requirements, research limitations, or even formal bans) might be necessary. I do not want to interrupt the flow of this review of Wallach’s book too much, so I have decided to just cut-and-paste that portion of Chapter 3 of my book (“When Does Precaution Make Sense?”) down below as an appendix to this essay.

The key takeaway of that passage from my book is that all of us who study innovation policy and the philosophy of technology—Wallach, myself, the whole darn movement—have done a remarkably poor job being specific about precisely when formal policy precaution is warranted. What is the test? All too often, we get lazy and apply what we might call an “I-Know-It-When-I-See-It” standard. Consider the possession of bazookas, tanks, and uranium. Almost all of us would agree that citizens should not be allowed to possess or use such things. Why? Well, it seems obvious, right? They just shouldn’t! But what is the exact standard we use to make that determination.

In coming years, I plan on spending a lot more time articulating a better test by which Precautionary Principle-based policies could be reasonably applied. Those who know me may be taken aback by what I just said. After all, I’ve spend many years explaining why Precautionary Principle-based thinking threatens human prosperity and should be rejected in the vast majority of cases. But that doesn’t excuse the lack of a serious and detailed exploration of the exact standard by which we determine when we should impose some limits on technological innovation.

Generally speaking, while I strongly believe that “permissionless innovation” should remain the policy default for most technologies, there certainly exists some scenarios where the threat of harm associated with a new innovation might be highly probable, tangible, immediate, irreversible, and catastrophic in nature. If so, that could qualify it for at least a light version of the Precautionary Principle. In a future paper or book chapter I’m just now starting to research, I hope to fuller develop those qualifiers and formulate a more robust test around them.

I would have very much liked to see Wallach articulate and defend a test of his own for when formal precaution would make sense. And, by extension, when should we default to soft precaution, or soft law and informal governance mechanisms for emerging technologies.

We turn to that issue next.

Toward Soft Governance & the Engineering of Better Technological Ethics

Even though Wallach doesn’t provide us with a test for determining when precaution makes sense or when we should instead default to soft governance, he does a much better job explaining the various models of soft law or informal governance that might help us deal with the potential negative ramifications of highly disruptive forms of technological change.

What Wallach proposes, in essence, is that we bake a dose of precautionary directly into the innovation process through a wide variety of informal governance/oversight mechanisms. “By embedding shared values in the very design of new tools and techniques, engineers improve the prospect of a positive outcome,” he claims. “The upstream embedding of shared values during the design process can ease the need for major course adjustments when it’s often too late.” (p. 261)

Wallach’s favored instrument of soft governance is what he refers to as “Governance Coordinating Committees” (GCCs). These Committees would coordinate “the separate initiatives by the various government agencies, advocacy groups, and representatives of industry” who would serve as “issue managers for the comprehensive oversight of each field of research.” (p. 250) He elaborates and details the function of GCCs as follows:

These committees, led by accomplished elders who have already achieved wide respect, are meant to work together with all the interested stakeholders to monitor technological development and formulate solutions to perceived problems. Rather than overlap with or function as a regulatory body, the committee would work together with existing institutions. (p. 250-51)

Wallach discussed the GCC idea in much greater detail in a 2013 book chapter he penned with Gary E. Marchant for a collected volume of essays on Innovative Governance Models for Emerging Technologies. (I highly recommend you pick up that book if you can afford it! Many terrific essays in that book on these issues.) In their chapter, Marchant and Wallach specify some of the soft law mechanisms we might use to instill a bit of precaution preemptively. These mechanisms include: “codes of conduct, statements of principles, partnership programs, voluntary programs and standards, certification programs and private industry initiatives.”

If done properly, GCCs could provide exactly the sort of wise counsel and smart recommendations that Wallach desires. In my book and many law review articles on various disruptive technologies, I have endorsed many of the ideas and strategies Wallach identifies. I’ve also stressed the importance of many other mechanisms, such as education and empowerment-based strategies that could help the public learn to cope with new innovations or use them appropriately. In addition, I’ve highlighted the many flexible, adaptive ex post remedies that can help when things go wrong. Those mechanisms include common law remedies such as product defects law, various torts, contract law, property law, and even class action lawsuits. Finally, I have written extensively about the very active role played by the Federal Trade Commission (FTC) and other consumer protection agencies, which have broad discretion to police “unfair and deceptive practices” by innovators.

Moreover, we already have a quasi-GCC model developing today with the so-called “multistakeholder governance” model that is often used in both informal and formal ways to handle many emerging technology policy issues.  The Department of Commerce (the National Telecommunications and Information Administration in particular) and the FTC have already developed many industry codes of conduct and best practices for technologies such as biometrics, big data, the Internet of Things, online advertising, and much more. Those agencies and others (such as the FDA and FAA) are continuing to investigate other codes or guidelines for things like advanced medical devices and drones, respectively. Meanwhile, I’ve heard other policymakers and academics float the idea of “digital ombudsmen,” “data ethicists,” and “private IRBs” (institutional review boards) as other potential soft law solutions that technology companies might consider. Perhaps going forward, many tech firms will have Chief Ethical Officers just as many of them today have Chief Privacy Officers or Chief Security Officers.

In other words, there’s already a lot of “soft law” activities going on in this space. And I haven’t even begun an inventory of the many other bodies or groups that already exist in each sector today that has set forth their own industry self-regulatory codes, but they exist in almost every field that Wallach worries about.

So, I’m not sure how much his GCC idea will add to this existing mix, but I would not be opposed to them playing the sort of coordinating “issue manager” role he describes. But I still have many questions about GCC’s, including:

• How many of them are needed and how we will know which one is the definitive GCC for each sector or technology?
• If they are overly formal in character and dominated by the most vociferous opponents of any particular technology, a real danger exists that a GCC could end up granting a small cabal a “heckler’s veto” over particular forms of innovation.
• Alternatively, the possibility of “regulatory capture” could be a problem for some GCCs if incumbent companies come to dominate their membership.
• Even if everything went fairly smoothly and the GCCs produced balanced reports and recommendations, future developers might wonder if and why they are to be bound by older guidelines.
• And if those future developers choose not to play by the same set of guidelines, what’s the penalty for non-compliance?
• And how are such guidelines enforced in a world where what I’ve called “global innovation arbitrage” is an increasing reality?

Challenging Questions for Both Hard and Soft Law

To summarize, whether we are speaking of “hard” or “soft” law approaches to technological governance, I am just not nearly as optimistic as Wallach seems to be that we will be able to find consensus on these three things:

(1) what constitutes “harm” in many of these circumstances;

(2) which “shared values” should prevail when “society” debates the shaping of ethics or guiding norms for emerging technologies but has highly contradictory opinions about those values (consider online privacy as a good example, where many people enjoy hyper-sharing while other demand hyper-privacy); and,

(3) that we can create a legitimate “governing body” (or bodies) that will be responsible for formulating these guidelines in a fair way without completely derailing the benefits of innovation in new fields and also remaining relevant for very long.

Nonetheless, as he and others have suggested, the benefit of adopting a soft law/informal governance approach to these issues is that it at least seeks to address these questions in more flexible and adaptive fashion. As I noted in my book, traditional regulatory systems “tend to be overly rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things.” ( Permissionless Innovation, p. 120)

So, despite the questions I have raised here, I welcome the more flexible soft law approach that Wallach sets forth in his book. I think it represents a far more constructive way forward when compared to the opposite “top-down” or “command-and-control” regulatory systems of the past. But I very much want to make sure that even these new and more flexible soft law approaches leave plenty of breathing room for ongoing trial-and-error experimentation with new technologies and systems.

Conclusion

In closing, I want to reiterate that not only did I appreciate the excellent questions raised by Wendell Wallach in A Dangerous Master, but I take them very seriously. When I sat down to revise and expand my Permissionless Innovation book last year, I decided to include this warning from Wallach in my revised preface: “The promoters of new technologies need to speak directly to the disquiet over the trajectory of emerging fields of research. They should not ignore, avoid, or superficially dampen criticism to protect scientific research.” (p. 28–9)

As I noted, in response to Wallach: “I take this charge seriously, as should others who herald the benefits of permissionless innovation as the optimal default for technology policy. We must be willing to take on the hard questions raised by critics and then also offer constructive strategies for dealing with a world of turbulent technological change.”

Serious questions deserve serious answers. Of course, sometimes those posing those questions fail to provide many answers of their own! Perhaps it is because they believe the questions answer themselves. Other times, it’s because they are willing to admit that easy answers to these questions typically prove quite elusive. In Wallach’s case, I believe it’s more the latter.

To wrap up, I’ll just reiterated that both Wallach and I share a common desire to find solutions to the hard questions about technological innovation. But the crucial question that probably separates his worldview and my own is this: Whether we are talking about hard or soft governance, how much faith should we place in preemptive planning vs. ongoing trial and error experimentation to solve technological challenges? Wallach is more inclined to believe we can divine these things with the sagacious foresight of “accomplished elders” and technocratic “issue managers,” who will help us slow things down until we figure out how to properly ease a new technology into society (if at all). But I believe that the only way we will find many of the answers we are searching for is by allowing still more experimentation with the very technologies that he and others seek to control the development of. We humans are outstanding problem-solvers and have the uncanny ability among all mammals to adapt to changing circumstances. We roll with the punches, learn from them, and become more resilient in the process. As I noted in my 2014 essay, “Muddling Through: How We Learn to Cope with Technological Change”:

we modern pragmatic optimists must continuously point to the unappreciated but unambiguous benefits of technological innovation and dynamic change. But we should also continue to remind the skeptics of the amazing adaptability of the human species in the face of adversity. [. . .] Humans have consistently responded to technological change in creative, and sometimes completely unexpected ways. There’s no reason to think we can’t get through modern technological disruptions using similar coping and adaptation strategies.

Will the technologies that Wallach fears bring about a “techstorm” that overwhelms our culture, our economy, and even our very humanity? It’s certainly possible, and we should continue to seriously discuss the issues that he and other skeptics raise about our expanding technological capabilities and the potential for many of them to do great harm. Because some of them truly could.

But it is equally plausible—in fact, some of us would say, highly probable—that instead of overwhelming us, we learn how to bend these new technological capabilities to our will and make them work for our collective benefit. Instead of technology becoming “a dangerous master,” we will instead make it our helpful servant, just as we have so many times before.

APPENDIX: When Does Precaution Make Sense?

[excerpt from chapter 3 of Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom. Footnotes omitted. See book for all references.]

But aren’t there times when a certain degree of precautionary policymaking makes good sense? Indeed, there are, and it is important to not dismiss every argument in favor of precautionary principle–based policymaking, even though it should not be the default policy rule in debates over technological innovation.

The challenge of determining when precautionary policies make sense comes down to weighing the (often limited) evidence about any given technology and its impact and then deciding whether the potential downsides of unrestricted use are so potentially catastrophic that trial-and-error experimentation simply cannot be allowed to continue. There certainly are some circumstances when such a precautionary rule might make sense. Governments restrict the possession of uranium and bazookas, to name just two obvious examples.

Generally speaking, permissionless innovation should remain the norm in the vast majority of cases, but there will be some scenarios where the threat of tangible, immediate, irreversible, catastrophic harm associated with new innovations could require at least a light version of the precautionary principle to be applied.  In these cases, we might be better suited to think about when an “anti-catastrophe principle” is needed, which narrows the scope of the precautionary principle and focuses it more appropriately on the most unambiguously worst-case scenarios that meet those criteria.

But most cases don’t fall into this category. Instead, we generally allow innovators and consumers to freely experiment with technologies, and even engage in risky behaviors, unless a compelling case can be made that precautionary regulation is absolutely necessary.  How is the determination made regarding when precaution makes sense? This is where the role of benefit-cost analysis (BCA) and regulatory impact analysis is essential to getting policy right.  BCA represents an effort to formally identify the tradeoffs associated with regulatory proposals and, to the maximum extent feasible, quantify those benefits and costs.  BCA generally cautions against preemptive, precautionary regulation unless all other options have been exhausted—thus allowing trial-and-error experimentation and “learning by doing” to continue. (The mechanics of BCA are discussed in more detail in section VII.)

This is not the end of the evaluation, however. Policymakers also need to consider the complexities associated with traditional regulatory remedies in a world where technological control is increasingly challenging and quite costly. It is not feasible to throw unlimited resources at every problem, because society’s resources are finite.  We must balance risk probabilities and carefully weigh the likelihood that any given intervention has a chance of creating positive change in a cost-effective fashion.  And it is also essential to take into account the potential unintended consequences and long-term costs of any given solution because, as Harvard law professor Cass Sunstein notes, “it makes no sense to take steps to avert catastrophe if those very steps would create catastrophic risks of their own.”  “The precautionary principle rests upon an illusion that actions have no consequences beyond their intended ends,” observes Frank B. Cross of the University of Texas. But “there is no such thing as a risk-free lunch. Efforts to eliminate any given risk will create some new risks,” he says.

Oftentimes, after working through all these considerations about whether to regulate new technologies or technological processes, the best solution will be to do nothing because, as noted throughout this book, we should never underestimate the amazing ingenuity and resiliency of humans to find creative solutions to the problems posed by technological change.  (Section V discusses the importance of individual and social adaptation and resiliency in greater detail.) Other times we might find that, while some solutions are needed to address the potential risks associated with new technologies, nonregulatory alternatives are also available and should be given a chance before top-down precautionary regulations are imposed. (Section VII considers those alternative solutions in more detail.)

Finally, it is again essential to reiterate that we are talking here about the dangers of precautionary thinking as a public policy prerogative—that is, precautionary regulations that are mandated and enforced by government officials. By contrast, precautionary steps may be far more wise when undertaken in a more decentralized manner by individuals, families, businesses, groups, and other organizations. In other words, as I have noted elsewhere in much longer articles on the topic, “there is a different choice architecture at work when risk is managed in a localized manner as opposed to a society-wide fashion,” and risk-mitigation strategies that might make a great deal of sense for individuals, households, or organizations, might not be nearly as effective if imposed on the entire population as a legal or regulatory directive.

Finally, at times, more morally significant issues may exist that demand an even more exhaustive exploration of the impact of technological change on humanity. Perhaps the most notable examples arise in the field of advance medical treatments and biotechnology. Genetic experimentation and human cloning, for example, raise profound questions about altering human nature or abilities as well as the relationship between generations.

The case for policy prudence in these matters is easier to make because we are quite literally talking about the future of what it means to be human.  Controversies have raged for decades over the question of when life begins and how it should end. But these debates will be greatly magnified and extended in coming years to include equally thorny philosophical questions.  Should parents be allowed to use advanced genetic technologies to select the specific attributes they desire in their children? Or should parents at least be able to take advantage of genetic screening and genome modification technologies that ensure their children won’t suffer from specific diseases or ailments once born?

Outside the realm of technologically enhanced procreation, profound questions are already being raised about the sort of technological enhancements adults might make to their own bodies. How much of the human body can be replaced with robotic or bionic technologies before we cease to be human and become cyborgs?  As another example, “biohacking”—efforts by average citizens working together to enhance various human capabilities, typically by experimenting on their own bodies —could become more prevalent in coming years.  Collaborative forums, such as Biohack.Me, already exist where individuals can share information and collaborate on various projects of this sort.  Advocates of such amateur biohacking sometimes refer to themselves as “grinders,” which Ben Popper of the Verge defines as “homebrew biohackers [who are] obsessed with the idea of human enhancement [and] who are looking for new ways to put machines into their bodies.”

These technologies and capabilities will raise thorny ethical and legal issues as they advance. Ethically, they will raise questions of what it means to be human and the limits of what people should be allowed to do to their own bodies. In the field of law, they will challenge existing health and safety regulations imposed by the FDA and other government bodies.

Again, most innovation policy debates—including most of the technologies discussed throughout this book—do not involve such morally weighty questions. In the abstract, of course, philosophers might argue that every debate about technological innovation has an impact on the future of humanity and “what it means to be human.” But few have much of a direct influence on that question, and even fewer involve the sort of potentially immediate, irreversible, or catastrophic outcomes that should concern policymakers.

In most cases, therefore, we should let trial-and-error experimentation continue because “experimentation is part and parcel of innovation” and the key to social learning and economic prosperity.  If we froze all forms of technological innovation in place while we sorted through every possible outcome, no progress would ever occur. “Experimentation matters,” notes Harvard Business School professor Stefan H. Thomke, “because it fuels the discovery and creation of knowledge and thereby leads to the development and improvement of products, processes, systems, and organizations.”

Of course, ongoing experimentation with new technologies always entails certain risks and potential downsides, but the central argument of this book is that (a) the upsides of technological innovation almost always outweigh those downsides and that (b) humans have proven remarkably resilient in the face of uncertain, ever-changing futures.

In sum, when it comes to managing or coping with the risks associated with technological change, flexibility and patience is essential. One size most certainly does not fit all. And one-size-fits-all approaches to regulating technological risk are particularly misguided when the benefits associated with technological change are so profound. Indeed, “[t]echnology is widely considered the main source of economic progress”; therefore, nothing could be more important for raising long-term living standards than creating a policy environment conducive to ongoing technological change and the freedom to innovate.

First, I attempt to show how the central fault line in almost all modern technology policy debates revolves around “the permission question,” which asks: Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions. Two conflicting attitudes are evident.

One disposition is known as the “precautionary principle.” Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

The other vision can be labeled “permissionless innovation.” It refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if they develop at all, can be addressed later.

I argue that we are witnessing a grand clash of visions between these two mindsets today in almost all major technology policy discussions today.

The second major objective of the book, as is made clear by the title, is to make a forceful case in favor of the latter disposition of “permissionless innovation.” I argue that policymakers should unapologetically embrace and defend the permissionless innovation ethos — not just for the Internet but also for all new classes of networked technologies and platforms. Some of the specific case studies discussed in the book include: the “Internet of Things” and wearable technologies, smart cars and autonomous vehicles, commercial drones, 3D printing, and various other new technologies that are just now emerging.

I explain how precautionary principle thinking is increasingly creeping into policy discussions about these technologies. The urge to regulate preemptively in these sectors is driven by a variety of safety, security, and privacy concerns, which are discussed throughout the book. Many of these concerns are valid and deserve serious consideration. However, I argue that if precautionary-minded regulatory solutions are adopted in a preemptive attempt to head-off these concerns, the consequences will be profoundly deleterious.

Mye central thesis is this: Living in constant fear of hypothetical worst-case scenarios — and premising public policy upon them — means that best-case scenarios will never come about. When public policy is shaped by precautionary principle reasoning, it poses a serious threat to technological progress, economic entrepreneurialism, social adaptation, and long-run prosperity.

Again, that doesn’t mean we should ignore the various problems created by these highly disruptive technologies. But how we address these concerns matters greatly. If and when problems develop, there are many less burdensome ways to address them than through preemptive technological controls. The best solutions to complex social problems are almost always organic and “bottom-up” in nature. Luckily, there exists a wide variety of constructive approaches that can be tapped to address or alleviate concerns associated with new innovations. These include:

• education and empowerment efforts (including media literacy, digital citizenship efforts);
• social pressure from activists, academics, and the press and the public more generally.
• voluntary self-regulation and adoption of best practices (including privacy and security “by design” efforts); and,
• increased transparency and awareness-building efforts to enhance consumer knowledge about how new technologies work.

Such solutions are almost always superior to top-down, command-and-control regulatory edits and bureaucratic schemes of a “Mother, May I?” (i.e., permissioned) nature. The problem with “top-down” traditional regulatory systems is that they often tend to be overly-rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things. It raises the cost of starting or running a business or non-business venture, and generally discourages activities that benefit society.

To the extent that other public policies are needed to guide technological developments, simple legal principles are greatly preferable to technology-specific, micro-managed regulatory regimes. Again, ex ante (preemptive and precautionary) regulation is often highly inefficient, even dangerous. To the extent that any corrective legal action is needed to address harms, ex post measures, especially via the common law (torts, class actions, etc.), are typically superior. And the Federal Trade Commission will, of course, continue to play a backstop here by utilizing the broad consumer protection powers it possesses under Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” In recent years, the FTC has already brought and settled many cases involving its Section 5 authority to address identity theft and data security matters. If still more is needed, enhanced disclosure and transparency requirements would certainly be superior to outright bans on new forms of experimentation or other forms of heavy-handed technological controls.

In the end, however, I argue that, to the maximum extent possible, our default position toward new forms of technological innovation must remain: “innovation allowed.” That is especially the case because, more often than not, citizens find ways to adapt to technological change by employing a variety of coping mechanisms, new norms, or other creative fixes. We should have a little more faith in the ability of humanity to adapt to the challenges new innovations create for our culture and economy. We have done it countless times before. We are creative, resilient creatures. That’s why I remain so optimistic about our collective ability to confront the challenges posed by these new technologies and prosper in the process.

If you’re interested in taking a look, you can find a free PDF of the book at the Mercatus Center website or you can find out how to order it from there as an eBook. Hardcopies are also available.

The Mercatus Center also recently hosted a book launch party for the release of the 2nd edition. The event was very well-attended and many of those present asked me to forward along specific slides or the entire deck. So, for those who asked, or others who may be interested in seeing the slides, here ya go!

And here’s the video from the event, which also incorporates these slides:

Also, back in September 2015, Sonal Chokshi was kind enough to invite me on the a16z podcast and we discussed, “Making the Case for Permissionless Innovation.” You can listen to that conversation here:

Finally, I put together a paper summarizing the major policy recommendations contained in the book. It’s entitled, “Permissionless Innovation and Public Policy: A 10-Point Blueprint.”  And then, along with Michael Wilt, I published condensed version of the paper as an essay over at  Medium. 

Materials mentioned in this post related to Permissionless Innovation project:

• BOOK: Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom 
• SLIDES: ‘Permissionless Innovation’ & the Clash of Visions over Emerging Technologies
• VIDEO: Permissionless Innovation & the Clash of Visions over Emerging Technologies
• PAPER: “Permissionless Innovation and Public Policy: A 10-Point Blueprint.”
• SUMMARY ESSAY: “Permissionless Innovation: A 10-Part Policy Checklist“
• WEBSITE: PermissionlessInnovation.org

Related Essays:

• Embracing a Culture of Permissionless Innovation
• How Attitudes about Risk & Failure Affect Innovation on Either Side of the Atlantic
• Tech Policy Threat Matrix  [see image down below]
• The Innovator’s Defense Fund: What it is and why it’s needed
• Thinking about Innovation Policy Debates: 4 Related Paradigms
• Muddling Through: How We Learn to Cope with Technological Change
• A Section 230 for the “Makers” Movement
• FTC’s Ohlhausen on Innovation, Prosperity, “Rational Optimism” & Wise Tech Policy
• A Nonpartisan Policy Vision for the Internet of Things
• What Cory Booker Gets about Innovation Policy
• CFTC’s Giancarlo on Permissionless Innovation for the Blockchain
• Problems with Precautionary Principle-Minded Tech Regulation & a Federal Robotics Commission
• Global Innovation Arbitrage: Genetic Testing Edition
• UK Competition & Markets Authority on Online Platform Regulation
• What Should the FTC Do about State & Local Barriers to Sharing Economy Innovation?
• Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation
• On the Line between Technology Ethics vs. Technology Policy
• What Does It Mean to “Have a Conversation” about a New Technology?
• Defining “Technology”
• Don Boudreaux on What Fueled the “Orgy of Innovation”

Journal articles and book chapters:

• “US Medical Devices: Choices and Consequences,” (with Richard Williams and Robert Graboyes), October 21, 2015.
• “How the Internet, the Sharing Economy, and Reputational Feedback Mechanisms Solve the ‘Lemons Problem,’” (with Christopher Koopman, Anne Hobson, and Chris Kuiper), May 26, 2015.
• “The Sharing Economy and Consumer Protection Regulation: The Case for Policy Change,” (with Christopher Koopman and Matthew Mitchell), The Journal of Business, Entrepreneurship & the Law 8, no. 2 (2015).
• “The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation,” Richmond Journal of Law and Technology 21, no. 6 (2015).
• “Removing Roadblocks to Intelligent Vehicles and Driverless Cars,” (with Ryan Hagemann), Wake Forest Journal of Law & Policy 5, no. 2 (2015): 339–91.
• “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” Minnesota Journal of Law, Science & Technology 14 (2013): 309–86.
• “Privacy Law’s Precautionary Principle Problem,” Maine Law Review 66, no. 2 (2014).
• “The Pursuit of Privacy in a World Where Information Control Is Failing,” Harvard Journal of Law & Public Policy 36 (2013): 409–55.
• “A Framework for Benefit-Cost Analysis in Digital Privacy Debates,” George Mason University Law Review 20, no. 4 (Summer 2013): 1055–105.
• “The Case for Internet Optimism, Part 1: Saving the Net from Its Detractors,” in The Next Digital Decade: Essays on the Future of the Internet, ed. Berin Szoka and Adam Marcus (Washington, DC: Tech Freedom, 2010), 57–87.

Few people have been more tireless in their defense of the notion of “permissionless innovation” than Wall Street Journal columnist L. Gordon Crovitz. In his weekly “Information Age” column for the Journal (which appears each Monday), Crovitz has consistently sounded the alarm regarding new threats to Internet freedom, technological freedom, and individual liberties. It was, therefore, a great honor for me to wake up Monday morning and read his latest post, “The End of the Permissionless Web,” which discussed my new book “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.”

“The first generation of the Internet did not go well for regulators,” Crovitz begins his column. “Despite early proposals to register websites and require government approval for business practices, the Internet in the U.S. developed largely without bureaucratic control and became an unstoppable engine of innovation and economic growth.” Unfortunately, he correctly notes:

Regulators don’t plan to make the same mistake with the next generation of innovations. Bureaucrats and prosecutors are moving in to undermine services that use the Internet in new ways to offer everything from getting a taxi to using self-driving cars to finding a place to stay.

This is exactly why I penned my little manifesto. As Crovitz continues on to note in his essay, new regulatory threats to both existing and emerging technologies are popping up on almost a daily basis. He highlights currently battles over Uber, Airbnb, 23andme, commercial drones, and more. And his previous columns have discussed many other efforts to “permission” innovation and force heavy-handed top-down regulatory schemes on fast-paced and rapidly-evolving sectors and technologies. As he argues:

The hardest thing for government regulators to do is to regulate less, which is why the development of the open-innovation Internet was a rare achievement. The regulation the digital economy needs most now is for permissionless innovation to become the default law of the land, not the exception.

Amen, brother! What we need to do is find more constructive ways to deal with some of the fears that motivate calls for regulation. But, as I noted in my little book,  how we address these concerns matters greatly. If and when problems develop, there are many less burdensome ways to address them than through preemptive technological controls. The best solutions to complex social problems are almost always organic and “bottom-up” in nature. Luckily, there exists a wide variety of constructive approaches that can be tapped to address or alleviate concerns associated with new innovations. I get very specific about those approaches in Chapter 5 of my book, which is entitled, “Preserving Permissionless Innovation: Principles of Progress.”

So, I hope you’ll download a free copy of the book and take a look. And my sincerest thanks to Gordon Crovitz for featuring it in his excellent new column.

Additional Reading:

• I summarized the major themes and conclusions of my book in this Medium essay, “Why Permissionless Innovation Matters” (4/24/14).
• A short essay I penned for the R Street Blog, “Bucking the ‘Mother, May I?’ Mentality.”
• I discussed my book on the “New Books in Technology” podcast (4/4/14).
• Konstantinos Komaitis discusses my book in his essay, “Permissionless Innovation: Why It Matters” (4/24/14).

In his latest weekly Wall Street Journal column, Gordon Crovitz has penned a review of the new Jeff Jarvis book, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live . Gordon’s review closely tracks my own thoughts on the book, which I laid out last week in my Forbes essay, “Is Privacy Overrated?”  Gordon’s essay is entitled “Are We Too Hung Up on Privacy” and he finds, like I do, that Jarvis makes compelling case for understanding the benefits of publicness as the flip-side of privacy. Instead of repeating all the arguments we make in our reviews here, I’ll just ask people go check out both of our essays if they are interested.

I did, however, want to elaborate on one thing I didn’t have time to discuss in my review of the Jarvis book. While I like the approach he used in the book, I thought Jarvis could have spent a bit more time exploring some the thorny legal issues in play when advocates of privacy regulation look to enshrine into law quite expansive views of privacy “rights.”

One of the things that both Crovitz and I appreciated about the Jarvis book was the way he tries to get us to think about privacy in the context of ethics instead of law. “Privacy is an ethic governing the choices made by the recipient of someone else’s information,” Jarvis argues, while “publicness is an ethic governing the choices made by the creator of one’s own information,” he says. In my review, I explained why this was so important:

Jarvis’ approach to thinking about privacy and publicness in terms of ethics is particularly smart precisely because privacy is such a subjective human condition—a “conceptual jungle” and a “concept in disarray,” says law professor Daniel J. Solove, author of Understanding Privacy. Thus, a good case can be made for restraint when it comes to legislating to define and protect privacy. That doesn’t mean privacy isn’t important—it is. But how we go about “protecting” it needs to be balanced against other rights and responsibilities. For example, we’d all agree with Thomas Jefferson and the Founders that we have a “right to pursue happiness,” but a right to happiness would be a different matter altogether. Government can’t guarantee happiness. It wouldn’t even be able to define it. The same is largely true of privacy. We certainly have the right to pursue private lives and take steps to secure facts about ourselves. At the margins, law can sometimes help us do so—most often by safeguarding us against fraudulent activities. And there are plenty of tools on the market that can help people protect their personal data. By contrast, legalistic efforts to define privacy as a strict “right” leads us back into that “conceptual jungle,” which is full of unintended consequences.

Let’s unpack this a bit more because if one agrees with the argument that Jarvis makes–that privacy is better thought of as a matter of ethics and social norms–it has important ramifications for ongoing efforts to speak of privacy in legalistic ways. It’s not that I’m against any sort of privacy “rights,” but I do believe it is important to acknowledge that other important values are at stake here and we must appreciate how increased privacy controls could conflict with them.  “Recognizing that we are legislating in the shadow of the First Amendment suggests a powerful guiding principle for framing privacy regulations,” argues Kent Walker, a privacy expert who now serves as a general counsel at Google. “Like any laws encroaching on the freedom of information, privacy regulations must be narrowly tailored and powerfully justified.”

Ironically, many privacy advocates are strongly critical of copyright law and claim that, as currently structured, it represents an unjust or excessive information control regime. Yet, privacy regulation would constitute a stronger information control regime by creating the equivalent of copyright law for personal information, which would, in turn, conflict mightily with the First Amendment. [See my essays, “Two Paradoxes of Privacy Regulation” and “Privacy as an Information Control Regime: The Challenges Ahead.” The rest of this essay borrows from those pieces as well as this big filing I submitted to the FTC in February.]

In his recent book Skating on Stilts, Stewart Baker reminds us that the famous 1890 Samuel Warren and Louis Brandeis Harvard Law Review essay on “The Right to Privacy”—which is tantamount to a sacred text for many modern privacy advocates—was heavily influenced by copyright law.  As Baker explains:

Brandeis wanted to extend common law copyright until it covered everything that can be recorded about an individual. The purpose was to protect the individual from all the new technologies and businesses that had suddenly made it easy to gather and disseminate personal information: “the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.”  […] Brandeis thought that the way to ensure the strength of his new right to privacy was to enforce it just like state copyright law. If you don’t like the way “your” private information is distributed, you can sue everyone who publishes it.

Incidentally, it is important to recall that their call for such a regime was essentially driven by a desire to censor the press. In their article, Warren and Brandeis argued that:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.

So angered were Warren and Brandeis by reports in daily papers of specifics from their own lives that they were led to conclude that:

man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

It is unclear how one could have greater “pain and distress” inflicted by words than “by mere bodily injury,” and yet the law review article that essentially gave birth to American privacy law articulated such a theory of harm.  And it only follows, then, that they would advocate fairly draconian controls on speech and press rights if they felt this strongly.

Taken to the extreme, however, giving such a notion the force of law would put privacy rights on a direct collision course with the First Amendment and freedom of speech.  As Eugene Volokh argued in a 2000 law review article entitled, “Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking about You”:

The difficulty is that the right to information privacy—the right to control other people’s communication of personally identifiable information about you—is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of “fair information practices”) generally bars the government from “control[ling the communication] of information,” either by direct regulation or through the authorization of private lawsuits.

This is what makes efforts to untether privacy regulation from a harms-based model or mode of analysis so troubling. For example, the Federal Trade Commission’s recent privacy review says that “the FTC’s harm-based approach also has limitations [because] it focuses on a narrow set of privacy-related harms—those that cause physical or economic injury or unwarranted intrusion into consumers’ daily lives.”  The Commission then suggests that “for some consumers, the actual range of privacy-related harms is much wider and includes reputational harm, as well as the fear of being monitored or simply having private information ‘out there,’” and suggests “consumers may feel harmed when their personal information… is collected, used, or shared without their knowledge or consent or in a manner that is contrary to their expectations.”

Not only does the Commission fail to offer any data on how this supposed harm manifests itself, how severe it is, or what trade-offs it presents to society, but it utterly fails to account for the dangerous slippery slope of speech control it puts us on. If appeals for regulation are based on emotion instead of concrete evidence of consumer harm, where will this take us next? If, for example, the Commission is to regulate based upon the fact that “consumers may feel harmed… when their personal information… in a manner that is contrary to their expectations,” how long will it be before some suggest this standard should trump First Amendment rights in other contexts?

For example, this more emotional approach to privacy regulation brings us one step closer to a “right not to be offended” or a “right to be forgotten,” as some in Europe favor. Here in the U.S., we see a similar effort underway with the so-called “Internet Eraser Button” idea, which has even been floated in federal legislation. How could a journalist even conduct their business in such a world? By their very nature, good reporters are nosy and, to some extent, disregard the privacy of the people and institutions they report on.

This is why privacy regulation must not be reduced to amorphous claims of “dignity” rights, where an assertion by a small handful that they “feel harmed” comes to replace a strict showing of actual harm to persons or property. To go down that path would have grave consequences for the future of freedom of speech, transparency, openness, and accountability.

Of course, there are many different types of privacy concerns, each of which demands its own analysis and legal consideration.  While I think most privacy concerns should be left to the realm of personal responsibility, user empowerment, and industry self-regulation, other privacy issues are more serious and should be elevated to the level of “rights.” When we speak of government search and seizure or surveillance concerns, “rights” talk certainly makes more sense. Likewise, identity theft is more than just a violation of privacy, it’s a violation of personal property rights.

With such notable exceptions, however, I prefer we speak of privacy in terms of ethics and norms. Legalistic, rights-based conceptions of privacy invite excessive government interventions with myriad unintended consequences.

Tim Wu’s new book, The Master Switch: The Rise and Fall of Information Empires, will be released next week and it promises to make quite a splash in cyberlaw circles.  It will almost certainly go down as one of the most important info-tech policy books of 2010 and will probably win the top slot in my next end-of-year list.

Of course, that doesn’t mean I agree with everything in it.  In fact, I disagree vehemently with Wu’s general worldview and recommendations, and even much of his retelling of the history of information sectors and policy.  Nonetheless, for reasons I will discuss in this first of many critiques, the book’s impact will be significant because Wu is a rock star in this academic arena as well as a committed activist in his role as chair of the radical regulatory activist group, Free Press. Through his work at Free Press as well as the New America Foundation, Professor Wu is attempting to craft a plan of action to reshape the Internet and cyberspace.

I stand in opposition to almost everything that Wu and those groups stand for, thus, I will be spending quite a bit of time addressing his perspectives and proposals here in coming months, just as I did when Jonathan Zittrain’s hugely important The Future of the Internet & How to Stop It was released two years ago (my first review is here and my latest critique is here).  In today’s essay, I’ll provide a general overview and foreshadow my critiques to come.  (Note: Tim was kind enough to have his publisher send me an advance uncorrected proof of the book a few months ago, so I’ll be using that version to construct these critiques. Please consult the final version for cited material and page numbers.)

The Master Switch & the Cyber-Collectivist Trilogy of Terror

As I noted in my essay on “Two Schools of Internet Pessimism,” what I find most lamentable about the state of cyberlaw and high-tech policy debates today is the foreboding sense of gloom and doom that haunts so many narratives.  To crack open most Net policy books these days is to step into a world of corporate conspiracies, nefarious industry schemers, closed systems, “kill switches,” squashed consumer rights, and so on.  Let’s face it, Chicken Little doesn’t need an agent; pessimism sells. The world loves a good tale of villainy and misery, and that’s exactly what Columbia Law School professor Tim Wu delivers in his new book, The Master Switch: The Rise and Fall of Information Empires.

Wu’s book is important if for no other reason than he is considered one of the intellectual godfathers of modern cyberlaw and The Master Switch is best understood as the final installment in an important trilogy that began with the publication of Lawrence Lessig’s seminal 1999 book, Code and Other Laws of Cyberspace and then was continued on in Jonathan Zittrain’s much-discussed 2008 book, The Future of the Internet & How to Stop It.

To better understand where Wu wants to take us in The Master Switch, we must first return to the central tenant of Lessig’s Code:  “Left to itself,” Lessig predicted, “cyberspace will become a perfect tool of control.” (pg 5-6)  Code quickly became a sort of cyber-collectivist Bible and today Lessig’s many disciples in academia and a wide variety of public policy regulatory advocacy organizations continue to preach this gloomy gospel of impending digital doom and “perfect control.”  Zittrain and Wu are Lessig’s most notable intellectual descendants; the Peter and Paul of the Church of Cyber-Doom that he founded.  And despite their insistence that they really aren’t all that pessimistic—or, more humorously, that they are actually libertarians in disguise—this crew persists with frightful tales and lugubrious warnings that unless someone or something—quite often, the State—intervenes to set us on a better course or protect those things that they regard as sacred.

Zittrain’s Future of the Internet, for example, brought Lessig’s Code up date by giving us a fresh set of villains.  Gone was Lessig’s old foil AOL and its worrisome walled gardens. Instead, the new face of evil became Apple, Facebook, and TiVo.  Zittrain worries about “sterile and tethered” digital “appliances” that foreclose digital generativity and the rise of “a handful of gated cloud communities whose proprietors control the availability of new code.”

Wu simply extends this narrative in The Master Switch when he ominously warns that there are “forces threatening the Internet as we know it” (p. 7) and then goes on to craft an enemies list that reads like a “Who’s Who” of high-tech corporate America. No one, it seems, can be trusted—at least not if that someone has a “.com” behind their name.  Wu hopes to convince us that history proves that concentrations of private power in information industries are inevitably follow a period of openness and competition.  He refers to this as “The Cycle.” Thus, he trots out the old collectivist saw that freedom is really slavery — slavery to The Man:

If the stories in this book tell us anything… it is that the free market can also lead to situations of reduced freedom. Markets are born free, yet no sooner are they born than some would-be emperor is forging chains.  Paradoxically, it sometimes happens that the only way to preserve freedom is through judicious controls on the exercise of private power.  If we believe in liberty, it must be freedom from both private and public coercion. (p. 310)

This is the heart of Wu’s critique in The Master Switch: The real threat is not Big Brother but Big Corporate Brother. It’s certainly not a new critique. Wu is simply steering the Lessig-ite, cyber-collectivism school of cyberlaw in line with traditional “progressive” perspectives and recommendations.  Indeed, although he and other so-called progressives don’t always come right out and say it, they often suggest that private power – however defined – is so insidious and threatening that greatly amplified State power to counter it becomes essential, even a good.

The cyber-collectivist movement that Lessig began with Code and Zittrain and Wu continue in their books, is fueled by that dour, depressing “the-Net-is-about-to-die” fear. Again and again their message comes down to this: “Enjoy the good old days of the open Internet while you can, because any minute now it will be crushed and closed-off by corporate marauders!”  This crowd want us to believe that the corporate big boys are — someday very soon — going to toss the proverbial “master switch,” suffocating Internet innovation and digital freedom, and making us all cyber-slaves within their commercialized walled gardens.

We might think of this fear as “The Great Closing,” or the notion that, unless radical interventions are pursued — usually of a regulatory nature – a veritable Digital Dark Age of Closed Systems will soon unfold, complete with myriad AOL-like walled gardens, “sterile and tethered devices,” corporate censorship, and consumer gouging. Again, it’s really just a restatement of the old Lessig vision of an unfettered cyberspace leading to “perfect (corporate) control.”  In other words, most information systems, networks and devices will be bottled up by corporate “gatekeepers” if markets aren’t steered in a better direction by wise philosopher-regulators.  And these “Openness Evangelicals,” as I will call them, believe they are the sagacious chosen few who will serve as the self-appointed janissary of the supposed dying order of openness.

My critique of this cyber-collectivist thinking and “Great Closing” thesis was more fully developed in these two essays [1, 2] and will be more robustly developed in a chapter for an upcoming book that will be published shortly.  Much of what I’ll have to say in response to Wu’s new book will be drawn from those essays as well as my two-part exchange [1, 2] with Lessig upon the 10^th anniversary of the publication of Code. Basically, I do not buy – not for one minute – the notion that “the Internet is dying” or that “openness” is evaporating.  The Internet has never been more vibrant or open.  Again, please read those previous essays for my completely response.  I’ll be teasing out some of those themes in future essays here.

More specifically, my response to Wu’s new book comes down to this:

1. Rarely is there any discussion of the nature of the respective forms of “power” or the coercive nature of State power, in particular.  The fact that the State has a monopoly on force in society and, thus, can penalize or even imprison, is either ignored or treated as irrelevant compared to the supposed “power” of private actors.
2. Rarely in their analysis — and never in Wu’s book — is there a serious cost-benefit analysis of the trade-off associated with an aggrandizement of State power in the name of countering the supposed evils of private power.  The solutions offered – to the extent they rise above amorphous calls to “do something” – are presented as cost-free options.
3. There isn’t enough focus on the dangers of “regulatory capture” or the massive inefficiencies associated with the sort of regulatory regimes that progressives and modern cyber-collectivists like Wu would substitute for market mechanisms.

In my next installment, I’ll take on Wu’s critique of the fictional “purely economic laissez-faire approach” he derides – an approach that has never existed in American communications or media markets.  In a forthcoming installment, I’ll also be challenging Tim to a Simon-Ehrlich wager on this front and ask him to put his money where his mouth is to see just how serious he is about his dour worldview and extreme technological pessimism!  So, stay tuned.

[Jump to Part 2 in the series.]

Last month, National Review magazine published a review that I penned of Mark Helprin’s new book, Digital Barbarism: A Writer’s Manifesto.  Helprin’s book is both a passionate defense of copyright law as well as a mini-autobiography.  Helprin is one of the great novelists and essayists of the past half-century, and his book A Soldier of a Great War is one of my all-time favorite novels.  I cannot in strong enough words encourage you to read that book; it is profoundly moving. (I almost named my son after the lead character in the book!)

Thus, I was quite excited when I learned that Helprin had penned a defense of copyright and I jumped at the chance to review it when the folks at National Review asked me to do so.  Alas, as you will see in my review, I was terribly disappointed.  I wish Helprin would have stuck with the very reasonable tone he adopted in this excellent podcast interview he did recently with John J. Miller of National Review Online. Unfortunately, he went a different direction in the book, as I make clear in my review:

National Review July 20, 2009

“Man, Machine, and Copyright” a review of Digital Barbarism: A Writer’s Manifesto, by Mark Helprin by Adam Thierer

It would be difficult to think of anyone more ideally suited to pen a passionate defense of copyright law than novelist Mark Helprin.  Helprin has written several of the finest works of modern literature, including his masterpiece, A Soldier of the Great War, a narrative of transcendent beauty. In Digital Barbarism, Helprin sets out to use his formidable gift for the written word to repel the “cyber mob” that has attacked copyright law and called for its curtailment, or even abolition.

Unfortunately, while Helprin occasionally rises to great heights in his defense of copyright, he too often sinks to lamentable lows — by resorting to the same unbecoming rhetorical tactics used by the mob he seeks to condemn. Indeed, his book is filled with gratuitous vitriol and neo-Luddite ramblings about the Internet and Information Age that severely detract from his defense of copyright. This is a shame, because, in places, Digital Barbarism makes a fine case against those critics who wrongly view copyright as an impediment to the creation and diffusion of content. “The availability of information is not and will not be restrained by the copyright system any more than it is or will be restrained by the delivery systems that make it possible,” Helprin argues. Why, he asks, “must ‘content’ be free” when everything else — access to the Internet, digital devices, etc. — costs good money? He notes that the movement that advocates “free,” universal access to all copyrighted material in the name of “openness” and “the public good” would, ironically, “destroy the dream it advocates”:

By insistence upon unhindered access without regard for rights and incentives that have been carefully balanced over centuries, the hurried new order will diminish the substance over which it demands sovereignty. It will have its access, but, as time passes, to less and less, and eventually perhaps to almost nothing, the means having grossly overpowered the ends. The past may be brilliantly cataloged and made accessible as never before, but at the cost of making the culture of the present relatively barren. Though it may never be entirely extinguished, it can be made as eerily quiet as if without the beat of a single heart.

The power of Helprin’s defense of copyright is that it is grounded in both this sort of utilitarian rationale and a Lockean, natural-rights-based conception of man’s moral right to the fruit of his mental labor. But there are many thorny issues Helprin fails to address in setting forth his dual defense of copyright.

To begin with, things just aren’t as black-and-white as he makes them out to be. There’s a certain inherent messiness to “intellectual property,” at least when compared with tangible property. As an abstract concept, it’s easy enough to defend. In practice, however, it often proves exceedingly challenging to delimit and enforce, since intangible creations cannot be enclosed the same way our back yards can.

This does not mean, however, that the opposite approach — a collectivized “commons” for intellectual creations — is more sensible. That intangible property is harder to enclose and protect doesn’t mean the law shouldn’t seek to do so. “Copyright is important because it is one of the guarantors of the rights of authorship,” Helprin argues, “and the rights of authorship are important because without them the individual voice would be subsumed in an indistinguishable and instantly malleable mass.”

American copyright law has generally cast this right in utilitarian terms, ever since the Founders gave Congress the power under Article I, Section 8 of the Constitution “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But how much “limited time” is enough time to incentivize creativity and invention? Under the first Copyright Act, enacted by Congress in 1790, the term of protection was just 14 years plus a right to renew for an additional 14 if the author was still alive.

There are many legitimately difficult questions about the enforceability of copyright in an age of ubiquitous digital connectivity and instantaneous information flows. I came to appreciate these challenges several years ago after transferring my entire 30-year CD collection to a portable music player that was smaller than a box of cards. How can copyright coexist with the giant copying machine represented by the combination of personal computers, digital devices, and the Internet? What sorts of restrictions on devices and networks are required to ensure that we continue to reward intellectual creativity without destroying the forms of technological innovation? How should copyright law define “fair use” in a culture that increasingly enables collaboration and encourages “remixing”? Will we need to create new “compulsory licensing” schemes — already in place for radio and television — to ensure that creators are compensated through mandatory fees embedded in digital devices or our monthly broadband bills?

These are challenging questions that deserve a fair hearing. But Helprin rarely bothers with these details because he’s too busy trading jabs with “the mob.” Unfortunately, his manifesto goes off the rails as his defense of copyright quickly morphs into an indictment of the Internet and all things digital.

At times, Helprin seems to be channeling the ghost of the late social critic Neil Postman, who, in his 1992 anti-technology screed, Technopoly: The Surrender of Culture to Technology, heaped contempt upon the unfolding Information Age. Recently, Internet critics such as Lee Siegel (Against the Machine: Being Human in the Age of the Electronic Mob) and Andrew Keen (The Cult of the Amateur: How Today’s Internet Is Killing Our Culture) have continued this tradition of deep techno-skepticism. With Digital Barbarism, Helprin joins this cause, arguing that we are witnessing “the decline of culture,” the “mechanization of the soul,” our “intellectual and spiritual destruction,” and the rise of a movement of “wacked-out muppets led by little professors in glasses” that “threatens in a decade or two to dissolve the accomplishments of millennia, reordering the ways in which we think, write, and communicate.”

And Helprin is just getting started. While he claims that he is “not decrying the digital revolution per se,” it often sounds that way. He speaks repeatedly about the “surrender” of human nature to “the machine revolution” and the corresponding need to “control the machine.”

Much of Helprin’s Internet ire seems to originate with the anonymous “blogging-ants” who have attacked his earlier essays in defense of copyright-term extension. Digital Barbarism becomes his chance for payback. “It would be one thing if [the digital] revolution produced Mozarts, Einsteins, or Raphaels,” Helprin says, “but it doesn’t. . . . It produces mouth-breathing morons in backward baseball caps and pants that fall down; Slurpee-sucking geeks who seldom seek daylight; pretentious and earnest hipsters who want you to wear bamboo socks so the world won’t end . . . beer-drinking dufuses who pay to watch noisy cars driving around in a circle for eight hours at a stretch,” and so on.

Unfortunately for Helprin, would-be rappers, basement-dwelling geeks, enviro-hippies, and NASCAR fans all predate the rise of the Internet, so one wonders if he has fingered the right culprit for civilization’s supposed decline. The fundamental problem with Digital Barbarism is that the cultural decay Helprin laments cannot be so easily tied to the battle over copyright. Indeed, most of what Helprin condemns in modern culture has come about during a time when copyright’s protections — at least as defined by law — have been expanded considerably in both length of term and breadth of coverage.

Moreover, he is simply too quick to proclaim the decline of modern civilization by looking only to the baser elements of the blogosphere. The Internet is a cultural and intellectual bazaar where one can find both the best and the worst of humanity on display at any given moment. True, “brutishness and barbarism” can be found on many cyber-corners, but not all of its corners. And, contrary to Helprin’s assertion that blogging “begins the mad race to the bottom,” one could just as easily cite countless instances of the healthy, unprecedented conversations that blogs have enabled about a diverse array of topics. Finally, even if one concedes, for the sake of argument, that blogging produces more cultural trash than treasure, would greatly enhanced copyright protection really turn things around?

There are strong moral and utilitarian arguments for protecting copyright and, during his calmer moments, Helprin articulates some of them quite effectively. He is surely right that “theft is ugly,” and that far too many people (especially in academia) are turning a blind eye to the injustices of the widespread copyright infringement taking place online today. There’s a lot of good sense buried underneath the angry rhetoric of this book; it’s regrettable — and surprising — that someone of Mark Helprin’s literary prowess didn’t make a better effort to persuade his readers.

Additional Reading about Digital Barbarism: A Writer’s Manifesto:

• Mark Helprin’s home page, his Claremont Institute page, and his Wikipedia entry
• Helprin’s New York Times editorial that prompted a backlash and led him to write the book
• Helprin podcast interview with National Review Online
• Russ Roberts interviews Helprin for the Econ Talk podcast
• Lawrence Lessig’s written response at the Huffington Post and an NPR interview with Lessig about the book
• Helprin’s recent Wall Street Journal editorial, “Copyright Critics Rationalize Theft,” which is condensed from the book
• the Amazon page and HarperCollins page for the Digital Barbarism
• a review by Jeremy Philips, and executive with News Corp, which appeared in the Wall Street Journal
• a review by Gordon Crovitz of the Wall Street Journal (+ lots of good comments)
• a review by Patrick Ross of the Copyright Alliance (Part 1, Part 2)
• a review by Jonathan Bailey that appeared on the Plagiarism Today blog
• a review by Nate Anderson of Ars Technica

Berin recently encouraged me to re-read Thomas Sowell’s The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, which I hadn’t looked at since I first read it back in 1995 or 96.   I’m glad I did since Sowell’s work has always been profoundly influential on my thinking (especially his masterpiece, A Conflict of Visions) and I had forgotten how useful The Vision of the Anointed was in helping me understand the reoccurring model that 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,” Sowell noted in the book.  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.” (p. 5)  These elitist, 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.

You can see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but I think this model is equally applicable to debates over social policy and speech control.  In particular, the various “technopanics” I have been writing about recently fit this model. (See 1, 2, 3, 4, 5).  For example, consider how this 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 [online age verification or the Deleting Online Predators Act] 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 [state Attorneys General].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [basically, child safety researchers and others are told that their research is meaningless and that they should just buzz off].

And I think you can see how the model has played out in other debates, such as efforts to regulate “excessively violent” video games and television.

Or 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 [stupid people who share information online!], in response to the prescient conclusions of the few [handful of over-zealous privacy advocacy groups].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [basically, any suggestion that the issues are being overblown and that most information-sharing is socially beneficial is dismissed out-of-hand].

Again, it’s all blatant elitism when you get right down to it.  And facts are usually the first casualty of the war.

I was over at the Federal Communications Commission (FCC) the other day chatting with someone about various regulatory issues and Rush Limbaugh’s WSJ editorial came up.  The person I was speaking with made a comment about how conservatives have really been energized and unified in opposition to the re-imposition to the Doctrine.  I reminded them, however, that it wasn’t always the case that conservatives stood together in the fight over the Fairness Doctrine.  In fact, when I first came to town almost 20 years ago, there were still plenty of conservatives who actually favored it.  I was reminded of that fact when reading a new piece in Engage about “Broadcast ‘Fairness’ in the Twenty-First Century” by my friend Robert Corn-Revere.  Bob is one America’s great First Amendment defenders and his new essay offers an excellent history of efforts to micro-manage speech on the broadcast airwaves over the years.  In it, he reminds us that:

Given the recent vocal opposition to the Fairness Doctrine in the interest of preserving conservative talk radio, it is easy to forget that many prominent conservatives championed the doctrine before its demise. Phyllis Schlafly was a vocal proponent of the Fairness Doctrine because of what she described as “the outrageous and blatant anti-Reagan bias of the TV network newscasts,” and she testified at the FCC in the 1980s in support of the policy “to serve as a small restraint on the monopoly power wielded by Big TV Media.” Senator Jesse Helms was another long-time advocate of the Fairness Doctrine, and conservative groups Accuracy in Media and the American Legal Foundation actively pursued fairness complaints at the FCC against network newscasts.

Likewise, in our book, A Manifesto for Media Freedom, Brian Anderson and I note that some other prominent right-leaning politicians, such as Sen. Trent Lott, favored the Fairness Doctrine.  Moreover, even though most of those conservative individuals and groups have now turned against the Fairness Doctrine, some Republicans still defend (or even seek to expand) the same underlying regulatory concepts that served as the foundation of the Fairness Doctrine.  As Corn-Revere notes:

More recently, a Republican-controlled FCC under Kevin Martin has advocated far more extensive controls over broadcast and cable programming, including news and public affairs. These proposed regulations include requirements governing local programming, restrictions on the use of video news releases, and other new rules that would extend content controls beyond broadcasting. These initiatives have been embraced by liberal media activists, who have said they will seek to ensure that the FCC under the Democrats will adopt and enforce the proposals of the Martin Commission.  The common denominator of the liberal and conservative factions is the overriding belief that traditional First Amendment protections should not be applied to broadcasting or other electronic media.

Unfortunately, Bob’s got it exactly right: You really can’t trust anyone on the Left or Right to make a principled or consistent argument in favor of First Amendment freedoms across the board, including for broadcasting. I have made that point in greater detail in my recent essay on “FCC v. Fox and the Future of the First Amendment” as well as this old law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”

Simply stated, proposals to regulate speech — especially speech delivered over broadcast TV and radio platforms — can emanate from either side of the political aisle.  Of course, each side has their own set of rationales for imposing controls on speech and violating the First Amendment. It often comes down to content restraint (the conservative justification) versus content promotion (the liberal justification).  In his excellent book, The Creation of Media: Political Origins of Modern Communications, media historian Paul Starr labels these different groups the “advocates of repression” (those in favor of content restraint), versus the “advocates of uplift” (those in favor of promoting specific types of content). Typically, conservatives and Republicans have dominated the “advocates of repression” camp, while most liberals and Democrats fall in the “advocates of uplift” category.  Ford Rowan, author of the book Broadcast Fairness, put it this way: “Many liberals want regulation to make broadcasting do wonderful things; many conservatives want regulation to restrain broadcasting from doing terrible things.”

Increasingly, however, the ideological divide is disappearing between these two camps. Congressional lawmakers such as former Sen. Hillary Clinton (D-NY) and Sen. Joseph Lieberman (D-Conn.) on the political Left often favor the same content controls and mandates that Sen. John McCain (R-Ariz.) and Sen. Sam Brownback (R-Kan.) on the political Right. That’s true not just of broadcast regulation, but for proposals to censor video games, the Internet, and social networking sites.  And, even when it comes to the Fairness Doctrine, until just recently there was “a vast bipartisan conspiracy” to keep it on the books, as Corn-Revere argues.  I’m glad those conservatives who once favored the Fairness Doctrine came around to seeing the error in the ways.  Nonetheless, this episode illustrates how, once again, those of us who care about free speech and expression must remain vigilant in defending the First Amendment from attacks by both conservatives and liberals.

This afternoon at the New America Foundation, Jonathan Zittrain and I engaged in a spirited debate about his provocative new book, The Future of the Internet and How to Stop It. As always, Jonathan gave an us an interesting and highly entertaining show, and it was a great honor for me to be given the opportunity to provide some feedback about his book. I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5).

Jonathan opens with about 45 minutes of remarks and I come into the conversation around the 49 mark of the video. Michael Calabrese of NAF also has some comments about Jonathan’s book after I speak and then there is some interaction with the audience.

I’m pleased to announce the publication of A Manifesto for Media Freedom, which I co-authored with Brian C. Anderson of the Manhattan Institute. Brian serves as editor of Manhattan Institute’s excellent City Journal and he is the author of best-selling books like South Park Conservatives and Democratic Capitalism and Its Discontents.

In this little manifesto, we highlight one of the central ironies of the Information Age.  Namely, that despite “the breathtaking abundance of new and old media outlets for obtaining news, information, and entertainment…”

many people hate this profusion, and never more than when it involves political speech. The current media market, they charge, doesn’t represent true diversity, or isn’t fair, or is subject to manipulation by a small and shrinking group of media barons. They want the government to regulate it into better shape, which just happens to be a shape that benefits them. Doing so… would be a disaster, a kind of soft or not-so-soft tyranny that would wipe out whole sectors of media, curtailing free speech and impoverishing our democracy.

In other words, instead of celebrating the unprecedented cornucopia of media choices at our collective disposal, many policymakers and media critics are calling for just as much media regulation as ever. We itemize these threats in our chapters and they include: efforts to revive the “Fairness Doctrine”, media ownership regulations, “localism” requirements, Net neutrality mandates, a la carte regulations, cable and satellite censorship, video game censorship, regulation of social networking sites, campaign finance-related speech restrictions, and so on.

In each case, we advance a pro-freedom paradigm to counter the advocates of media control. What do we mean by the “media freedom” that we advocate as the alternative to these new regulatory crusades? Here’s how we put it in the book:

For media consumers, it’s the freedom to consume whatever information or entertainment we want from whatever sources we choose, without government restricting our choices. For media creators and distributors, it’s the freedom to structure their business affairs as they wish in seeking to offer the public an expanding array of media options, for both news and entertainment. And for both consumers and creators,media freedom is being able to speak one’s mind without restraint and without the threat of FCC or FEC bureaucrats telling us what is “fair.”

It doesn’t seem like much to ask until you realize how many people in Washington and academia today are calling for these various flavors of media regulation.  Of course, it doesn’t help that media-bashing has always been a bipartisan sport.  Indeed, depsite the fact that most of these efforts are lead by the Left, our book highlights how some folks on the Right are still guilty of joining some of these misguided regulatory crusades.

Republican presidential candidate John McCain, for example, has sponsored “a la carte” mandates for cable and satellite operators and sponsored the draconian campaign finance law that will forever bear his name, McCain-Feingold. He has also proposed a follow-up law: McCain-Feingold II. Although it did not pass, McCain’s measure would have required broadcasters to run 12 hours of “candidate-centered and issue-centered programming” in the six weeks prior to primary and general elections — without giving broadcasters any control over those 12 hours (half of which would have had to run during prime time). The bill would have created a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee on all broadcast license holders. In sum, the legislation would have forced broadcast stations to pay a tax to the federal government that would in turn finance a pool of funds that politicians could turn around and spend to run ads on those very stations!

Others on the Right have favored the Fairness Doctrine in the past, and more recently, some have joined the Net neutrality effort. And many conservatives have long been in favor of various forms of media censorship.

That being said, the most serious threats to media freedom today arise from the Left and our book serves primarily as a response to the many Leftist efforts to regulate media today. As we argue in the introduction:

The left seems certain that a media problem ails our society; it just can’t decide what that problem is. Some contend that real media choices are as limited or biased as ever, while others argue that our democracy is imperiled by too many media choices, making it hard to share common thoughts or feelings. What unites these two types of critics is their elitist presumption that they know what’s best for the rest of us. They would love to rewrite regulations to tilt the media in the direction they prefer; and if they are allowed to do so, what is shaping up to be America’s Golden Age of media could come to a sudden end.

The Left’s obsession with reinstating the Fairness Doctrine is particularly telling in this regard. [You can read our history of the Fairness Doctrine here] But, as we go on to note:

Some liberals suggest that even a new Fairness Doctrine wouldn’t be enough to correct a “structural imbalance” in the media marketplace. They want tightened ownership regulations, mandates ensuring “greater local accountability” over radio and TV broadcasters, and a significant ramping up of subsidies for public radio and TV stations. One leading leftist proposal would even force private broadcasters to fund public broadcasters! These proposals expose the left’s true goal: to regulate private media outlets comprehensively and drive out those owners who dare to offer right-leaning alternatives.

This movement is being driven by a wide variety of Left-leaning think tanks and advocacy groups, especially Free Press, Media Access Project, and the New America Foundation. These organizations will likely have a strong voice in an Obama administration regarding media law and Internet policy issues. And we fear that means that new regulatory shackles will be placed on the media and free speech as a result. That’s why we penned this manifesto at this time. As we conclude in our book:

Motivated by the naked desire for political control, a reactionary fear of the new, or genuine if misguided views on equality and fairness in the media, [these liberal media activists] threaten to enact regulations that will strangle or at least cripple this social development before it can begin to reach its potential. Those on the right are not free from these impulses, either. But they, as the prime beneficiaries of media abundance — of all the conservative and libertarian talk shows and websites that would suffer in a media landscape remade by the Democratic Party and liberal activists — should embrace, defend, and expand the freedom that made it possible.

Anyway, if you care about free speech and media freedom, I do you hope you will consider giving the book a look. The main page for our book is here. And you can find it on Amazon here.

Today, PFF has released my latest book: Parental Controls and Online Child Protection: A Survey of Tools and Methods. The entire publication is online and can be downloaded at http://www.pff.org/parentalcontrols (Note: I will be making constant updates to the book in coming months and will post them to that site).

As the title implies, the report provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. I put this report together to show policymakers, the press and the public that many constructive options exist that can help parents control media in their homes and in the lives of their children.

While it can be a formidable challenge to be a parent in an “always-on,” interactive, multimedia world, luckily, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms. In the past, the OFF button was the only technical control at a parent’s disposal. Today, by contrast, parents (like me!) have myriad tools and methods to restrict or tailor media content to their own household tastes and values. Those restrictive tools include: the V-Chip and TV ratings; cable and satellite set-top box screening tools; DVD blocking controls; cell phone blocking tools; video game console controls; Internet filtering and monitoring tools, instant messaging monitoring tools; operating system controls; web browser controls; search engine “safe search” tools; media time management devices, and so on. You will find an exhaustive discussion of all these tools and many others in my book.

But that’s just part of what I discuss in the report. I also highlight how enabling or tailoring tools are what makes today’s parental control market so exciting. By enabling or tailoring tools I mean any tool or method that a parent might use to enable their families to see, hear, or consume content they would regard as more appropriate, ethical or enriching. For example, for televised media, VCRs, DVD players, and personal video recorders have emerged as important parental control devices. These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when and where it will be viewed. Pay-per-view options also help parents better tailor viewing choices for their kids. And don’t forget about the huge and growing market for educational DVDs, video tapes and computer software.

I also spend an entire section of the report discussing the importance of informal household media rules. Oftentimes, debates about inappropriate content get so caught up with disputes about technical controls, ratings or even regulation that we forget that parents often view all these things merely as backup plans. In my book, I identify four categories of household media rules that surveys show almost all parents use some combination of to control their children’s media consumption. These household media rules include:

(1) “where” rules (assigning a place for media consumption); (2) “when and how much” rules (creating a media allowance); (3) “under what conditions” rules (carrot-and-stick incentives); and, (4) “what” rules (specifying the programming kids can and cannot watch).

Certainly most of us are familiar with widely used household media rules like, “No watching TV or playing games until your homework is done,” or “You can’t watch that movie until you complete your chores.” Such household media rules can actually be more effective in controlling children’s media habits than technical controls. But debates about parental controls and media policy treat these informal media rules almost as an afterthought, if they are mentioned at all.

Finally, and most importantly, I discuss the importance of education and media literacy. As I discussed here last week, education is a vital part of parental controls and online child protection efforts. In fact, if there is one point I try to get across in my new book, it is that, regardless of how robust they might be today, parental control tools and rating systems are no substitute for education–of both children and parents. The best answer to the problem of unwanted media exposure is for parents to rely on a mix of technological controls, informal household media rules, and, most importantly, education and media literacy efforts. And government can play an important role by helping educate and empower parents and children to help prepare them for our new media environment.

I also spend a lot of time in the book debunking myths about social networking sites and online dangers in general, which I believe are greatly overstated. Part V of the book deals with those myths and fears and shows why regulatory proposals like age verification, data retention and mandatory website labeling won’t help matters any.

If you’re a parent, I hope you find this book to be a useful resource and will let me know if there are ways I can improve it since, as I noted before, I will be posting occasional updates online to keep it fresh. And I hope I will have proven to you (and to policymakers) that there are many constructive alternatives at your disposal that you can tap before turning to government and asking for regulation “for the children.” Parents have been empowered. It is now their responsibility to take advantage of the tools and controls at their disposal to determine what is acceptable in their homes and in the lives of their children.