A growing number of conservatives are calling for Big Government censorship of social media speech platforms. Censorship proposals are to conservatives what price controls are to radical leftists: completely outlandish, unworkable, and usually unconstitutional fantasies of controlling things that are ultimately much harder to control than they realize. And the costs of even trying to impose and enforce such extremist controls are always enormous.

Earlier this year, The Wall Street Journal ran a response I wrote to a proposal set forth by columnist Peggy Noonan in which she proposed banning everyone under 18 from all social-media sites (“We Can Protect Children and Keep the Internet Free,” Apr. 15). I expanded upon that letter in an essay here entitled, “Should All Kids Under 18 Be Banned from Social Media?” National Review also recently published an article penned by Christine Rosen in which she also proposes to “Ban Kids from Social Media.” And just this week, Zach Whiting of the Texas Public Policy Foundation published an essay on “Why Texas Should Ban Social Media for Minors.”

I’ll offer a few more thoughts here in addition to what I’ve already said elsewhere. First, here is my response to the Rosen essay. National Review gave me 250 words to respond to her proposal:

While admitting that “law is a blunt instrument for solving complicated social problems,” Christine Rosen (“Keep Them Offline,” June 27) nonetheless downplays the radicalness of her proposal to make all teenagers criminals for accessing the primary media platforms of their generation. She wants us to believe that allowing teens to use social media is the equivalent of letting them operate a vehicle, smoke tobacco, or drink alcohol. This is false equivalence. Being on a social-media site is not the same as operating two tons of steel and glass at speed or using mind-altering substances. Teens certainly face challenges and risks in any new media environment, but to believe that complex social pathologies did not exist before the Internet is folly. Echoing the same “lost generation” claims made by past critics who panicked over comic books and video games, Rosen asks, “Can we afford to lose another generation of children?” and suggests that only sweeping nanny-state controls can save the day. This cycle is apparently endless: Those “lost generations” grow up fine, only to claim it’s the  next generation that is doomed! Rosen casually dismisses free-speech concerns associated with mass-media criminalization, saying that her plan “would not require censorship.” Nothing could be further from the truth. Rosen’s prohibitionist proposal would deny teens the many routine and mostly beneficial interactions they have with their peers online every day. While she belittles media literacy and other educational and empowerment-based solutions to online problems, those approaches continue to be a better response than the repressive regulatory regime she would have Big Government impose on society.

I have a few more things to say beyond these brief comments.

First, as I alluded to in my short response to Rosen, we’ve heard similar “lost generation” stories before. Rosen might as well be channeling the ghost of Dr. Fredric Wertham (author of Seduction of the Innocent), who in the 1950s declared comics books a public health menace and lobbied lawmakers to restrict teen access to them, insisting such comics were “the cause of a psychological mutilation of children.” The same sort of “lost generation” predictions were commonplace in countless anti-video game screeds of the 1990s. Critics were writing books with titles like Stop Teaching Our Kids to Kill and referring to video games as “murder simulators,” Ironically, just as the video game panic was heating up, juvenile crime rates were plummeting. But that didn’t stop the pundits and policymakers from suggesting that an entire generation of so-called “vidiots” were headed for disaster. (See my 2019 short history: “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics“).

It is consistently astonishing to me how, as I noted in 2012 essay, “We Always Sell the Next Generation Short.” There seems to be a never-ending cycle of generational mistrust. “There has probably never been a generation since the Paleolithic that did not deplore the fecklessness of the next and worship a golden memory of the past,” notes Matt Ridley, author of The Rational Optimist.

For example, in 1948, the poet T. S. Eliot declared: “We can assert with some confidence that our own period is one of decline; that the standards of culture are lower than they were fifty years ago; and that the evidences of this decline are visible in every department of human activity.” We’ve heard parents (and policymakers) make similar claims about every generation since then.

What’s going on here? Why does this cycle of generational pessimism and mistrust persist? In a 1992 journal article, the late journalism professor Margaret A. Blanchard offered this explanation:

“[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.”

In a 2009 book on culture, my colleague Tyler Cowen also noted how, “Parents, who are entrusted with human lives of their own making, bring their dearest feelings, years of time, and many thousands of dollars to their childrearing efforts.” Unsurprisingly, therefore, “they will react with extreme vigor against forces that counteract such an important part of their life program.” This explains why “the very same individuals tend to adopt cultural optimism when they are young, and cultural pessimism once they have children,” Cowen says.

Building on Blanchard and Cowen’s observation, I have explained how the most simple explanation for this phenomenon is that many parents and cultural critics have passed through their “adventure window.” The willingness of humans to try new things and experiment with new forms of culture—our “adventure window”—fades rapidly after certain key points in life, as we gradually settle in our ways. As the English satirist Douglas Adams once humorously noted: “Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you’re thirty-five is against the natural order of things.”

There is no doubt social media can create or exacerbate certain social pathologies among youth. But pro-censorship conservatives wants to take the easy way out with a Big Government media ban for the ages.

Ultimately, it’s a solution that will not be effective. Raising children and mentoring youth is certainly the hardest task we face as adults because simple solutions rarely exist to complex human challenges–and the issues kids face are often particularly hard for many parents and adults to grapple with because we often fail to fully understand both the unique issues each generation might face, and we definitely fail to fully grasp the nature of each new medium that youth embrace.  Simplistic solution–even proposals for outright bans–will not work or solve serious problems.

An outright government ban on online platforms or digital devices is likely never going to happen due to First Amendment constraints, but even ignoring the jurisprudential barriers, bans won’t work for a reason that these conservatives never bother considering: Many parents will help their kids get access to those technologies and to evade restrictions on their use. Countless parents already do so in violation of COPPA rules, and not just because they worry that their kid won’t have access to what some other kids have. Rather, many parents (like me) both wanted to make sure I could more easily communicate with them, and also ensure that they could enjoy those technologies and use them to explore the world.

These conservatives might think some parents like me are monsters for allowing my (now grown) children to get on social media when they were teens. I wasn’t blind to the challenges, but recognized that sticking one’s head in the ground or hoping for divine intervention from the Nanny State was impractical and unwise. The hardest conversations I ever had with my kids were about the ugliness they sometimes experienced online, but those conversations were also countered by the many joys that I knew online interactions brought them. Shall I tell you about everything my son learned online before 13 about building model rockets or soapbox derby cars? Or the countless sites my daughter visited gathering ideas for her arts and crafts projects when, before the age of 13, she started hand-painting and selling jean jackets (eventually prompting her to pursue an art school degree)? Again, as I noted in my National Review response, Rosen’s prohibitionist proposal would deny teens these experiences and the countless other routine and entirely beneficial interactions that they have with their peers online every day.

There is simply no substitute for talking to your kids in the most open, understanding, and loving fashion possible. My #1 priority with my own children was not foreclosing all the new digital media platforms and devices at their disposal. That was going to be almost impossible. Other approaches are needed.

Yes, of course, the world can be an ugly place. I mean, have you ever watched the nightly news on television? It’s damn ugly. Shouldn’t we block youth access to it when scenes of war and violence are shown? Newspapers are full of ugliness, too. Should a kid be allowed to see the front page of the paper when it discusses or shows the aftermath of school shootings, acts of terrorism, or even just natural disasters? I could go on, but you get the point. And you could try to claim that somehow today’s social media environment is significantly worse for kids than the mass media of old, but you cannot prove it.

Of course you’ll have anecdotes, and many of them will again point to complex social pathologies. But I have entire shelves full of books on my office wall that made similar claims about the effects of books, the telephone, radio and television, comics, cable TV, every musical medium ever, video games, and advertising efforts across all these mediums. Hundreds upon hundreds of studies were done over the past half century about the effects of depictions of violence in movies, television, and video games. And endless court battles ensued.

In the end, nothing came out of it because the literature was inconclusive and frequently contradictory. After many years of panicking about youth and media violence, in 2020, the American Psychological Association issued a new statement slowly reversing course on misguided past statements about video games and acts of real-world violence. The APA’s old statement said that evidence “confirms [the] link between playing violent video games and aggression.”  But the APA has come around and now says that, “there is insufficient scientific evidence to support a causal link between violent video games and violent behavior.” More specifically, the APA now says: “Violence is a complex social problem that likely stems from many factors that warrant attention from researchers, policy makers and the public. Attributing violence to violent video gaming is not scientifically sound and draws attention away from other factors.”

This is exactly what we should expect to find true for youth and social media. Most of the serious scholars in the field already note studies and findings about youth and social media must be carefully evaluated and that many other factors need to be considered whenever evaluating claims about complex social phenomenon.

While Rosen belittles media literacy and other educational and empowerment-based solutions to online problems, those approaches continue to represent the best first-order response when compared to the repressive regulatory regime she would impose on society.

Finally, I want to just reiterate what I said in my brief  National Review response about the enormous challenges associated with mass criminalization or speech platforms. Rosen seems to image that all the costs and controversies will lie on the supply-side of social media. Just call for a ban and then magically all kids disappear from social media and the big evil tech capitalists eat all the costs and hassles. Nonsense. It’s the demand-side of criminalization efforts where the most serious costs lie. What do you really think kids are going to do if Uncle Sam suddenly does ban everyone under 18 from going on a “social media site,” whatever that very broad term entails? This will become another sad chapter in the history of Big Government prohibitionist efforts that fail miserably, but not before declaring mass groups of people criminals–this time including everyone under 18–and then trying to throw the book at them when they seek to avoid those repressive controls. There are better ways to address these problems than with such extremist proposals.

Additional Reading from Adam Thierer on Media & Content Regulation :

• “Should All Kids Under 18 Be Banned from Social Media?”
• “Why Do We Always Sell the Next Generation Short?”
• “The APA’s Welcome New Statement on Video Game Violence“
• “Video Games and Moral Panic“
• Parental Controls & Online Child Protection: A Survey of Tools & Methods, 4th Edition.
• “Technopanics and the Great Social Networking Scare“
• “More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime“
• “Video Games, Media Violence & the Cathartic Effect Hypothesis.”)
• “The Classical Liberal Approach to Digital Media Free Speech Issues“
• “Left and right take aim at Big Tech — and the First Amendment“
• “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“
• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Conservatives & Common Carriage: Contradictions & Challenges“
• “The Great Deplatforming of 2021“
• “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School, 15 CommLaw Conspectus (Summer 2007): 431-482.
• Testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, March 3, 2010.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,”

Slate recently published an astonishing piece of revisionist history under the title, “Bring Back the Golden Age of Broadcast Regulation,” which suggested that the old media regulatory model of the past would be appropriate for modern digital media providers and platforms. In the essay, April Glaser suggests that policymakers should resurrect the Fairness Doctrine and a host of old Analog Era content controls to let regulatory bureaucrats address Digital Age content moderation concerns.

In a tweetstorm, I highlighted a few examples of why the so-called Golden Era wasn’t so golden in practice. I began by noting that the piece ignores the troubling history of FCC speech controls and unintended consequences of regulation. That regime gave us limited, bland choices–and a whole host of First Amendment violations. We moved away from that regulatory model for very good reasons.

For those glorifying the Fairness Doctrine, I encourage them to read the great Nat Hentoff’s excellent essay, “The History & Possible Revival of the Fairness Doctrine,” about the real-world experience of life under the FCC’s threatening eye. Hentoff notes:

Others were harassed in ways that were both humorous and horrifying. For example, go back and review the amazing FCC (and FBI!) investigation of The Kingsmen’s song “Louie Louie,” due to fears about its unintelligible lyrics:

Or go back and read former CBS president Fred Friendly’s 1975 book (The Good Guys, the Bad Guys & the First Amendment) about abuses of the Fairness Doctrine during both Republican and Democratic administrations. This stuff from Kennedy years, which I summarized in old book, is quite shocking:

And then there was the “golden era” of broadcast regulation under Nixon, where regulatory harassment intensified to counter what had happened during Democratic administrations. Here’s Jesse Walker summarizing those dark days:

Also read Tom Hazlett on the Nixon years and all the broadcast meddling that happened on a ongoing basis. “License harassment of stations considered unfriendly to the Administration became a regular item on the agenda at White House policy meetings,” he notes. And then even the Smothers Brothers became victims!

This is how Tom Hazlett perfectly summarized the choice before us regarding whether to let regulatory bureaucracies decide what is “fair” in media. This is exactly the same question we should be asking today when people suggest reviving the old “golden era” media control regime.

Keep in mind, the examples of content meddling cited here most involve the Fairness Doctrine. Indecency rules, the Financial Interest and Syndication Rules, and other FCC policies gave politicians others levers of exerting influence and control over speech. The meddling was endless.

This was no “Golden Era” or broadcast regulation–unless, that is, you prefer bland, boring, limited choices and endless bureaucratic harassment of media. No amount of wishful thinking or revisionist history can counter the hard realities of that dismal era in our nation’s history. We should wholeheartedly and vociferously reject calls to resurrect it.

Policy incentives matter and have a profound affect on the innovative capacity of a nation. If policymakers erect more obstacles to innovation, it will encourage entrepreneurs to look elsewhere when considering the most hospitable place to undertake their innovative activities. This is “global innovation arbitrage,” a topic we’ve discussed many times here in the past. I’ve defined it as, “the idea that innovators can, and will with increasingly regularity, move to those jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity.” We see innovation arbitrage happening in high-tech fields as far-ranging as drones, driverless cars, and genetics,among others.

US policymakers might want to consider this danger before the nation loses its competitive advantage in various high-tech fields. Today’s most pressing example arrives in the form of potentially burdensome new export control regulations. In late 2018, the US Department of Commerce’s Bureau of Industry and Security announced a “Review of Controls for Certain Emerging Technologies,” which launched an inquiry about whether to greatly expand the list of technologies that would be subjected to America’s complex export control regulations. Most of the long list of technologies under consideration (such as artificial intelligence, robotics, 3D printing, and advanced computing technologies) were “dual-use” in nature, meaning that they have many peaceful applications.

Nonetheless, the Trump Administration is plowing forward with the inquiry following the passage last summer of the Export Control Reform Act of 2018, which required that the President formulate an interagency process to coordinate export control rules with the goal of creating, “a regular and robust process to identify the emerging and other types of critical technologies of concern, as defined in United States foreign direct investment laws, and regulate their release to foreign persons as warranted regardless of the nature of the underlying transaction.” As part of this process, the Commerce Department is to create a list “of foreign persons and end-uses that are determined to be a threat to the national security and foreign policy of the United States . . .  and to whom exports, reexports, and transfers of items are controlled.”

As Jennifer Skees and I wrote at the time, if restrictive export controls were imposed on a broad class of dual-use emerging technologies, it would likely undermine US innovation and competitiveness. More people are waking up to that reality, as well as the specter of global innovation arbitrage kicking in if such heavy-haded regulations are imposed.

Commenting on the impact that these new export controls might have, Cade Metz of the New York Times suggested this week that “[o]verly restrictive rules that prevent foreign nationals from working on certain technologies in the United States could also push researchers and companies into other countries.” Metz also quoted international trade lawyer Jason Waite of the firm Alston & Bird who said of the rules, “It might be easier for people to just do this stuff in Europe,” if controls were imposed by the US.

That, in a nutshell, is how global innovation arbitrage works in practice. Anti-innovation policies create incentives for entrepreneurs to behave more “evasively” and shop around for better places to engage in creative endevours. You can be certain that innovators and especially investors are watching these developments closely. When policymakers are debating the imposition of burdensome new rules, it sends a clear signal to markets about where to put their money. As venture capitalist Marc Andreessen explained back in 2014:

Think of it as a sort of “global arbitrage” around permissionless innovation — the freedom to create new technologies without having to ask the powers that be for their blessing. Entrepreneurs can take advantage of the difference between opportunities in different regions, where innovation in a particular domain of interest may be restricted in one region, allowed and encouraged in another, or completely legal in still another.

Investors like Andreessen will place their bets on technologies and innovators which have the best hope in thriving in such an open environment, wherever that may be on the planet. Let’s hope that continues to be the US. If burdensome exports control regulations are imposed on America’s best and brightest entrepreneurs, that will not likely be the case.

This week I will be traveling to Montreal to participate in the 2018 G7 Multistakeholder Conference on Artificial Intelligence. This conference follows the G7’s recent Ministerial Meeting on “Preparing for the Jobs of the Future” and will also build upon the  G7 Innovation Ministers’ Statement on Artificial Intelligence . The goal of Thursday’s conference is to, “focus on how to enable environments that foster societal trust and the responsible adoption of AI, and build upon a common vision of human-centric AI.” About 150 participants selected by G7 partners are expected to participate, and I was invited to attend as a U.S. expert, which is a great honor. 

I look forward to hearing and learning from other experts and policymakers who are attending this week’s conference. I’ve been spending a lot of time thinking about the future of AI policy in recent books, working papers, essays, and debates. My most recent essay concerning a vision for the future of AI policy was co-authored with Andrea O’Sullivan and it appeared as part of a point/counterpoint debate in the latest edition of the Communications of the ACM. The ACM is the Association for Computing Machinery, the world’s largest computing society, which “brings together computing educators, researchers, and professionals to inspire dialogue, share resources, and address the field’s challenges.” The latest edition of the magazine features about a dozen different essays on “Designing Emotionally Sentient Agents” and the future of AI and machine-learning more generally.

In our portion of the debate in the new issue, Andrea and I argue that “Regulators Should Allow the Greatest Space for AI Innovation.” “While AI-enabled technologies can pose some risks that should be taken seriously,” we note, “it is important that public policy not freeze the development of life-enriching innovations in this space based on speculative fears of an uncertain future.” We contrast two different policy worldviews — the precautionary principle versus permissionless innovation — and argue that:

artificial intelligence technologies should largely be governed by a policy regime of permissionless innovation so that humanity can best extract all of the opportunities and benefits they promise. A precautionary approach could, alternatively, rob us of these life-saving benefits and leave us all much worse off.

That’s not to say that AI won’t pose some serious policy challenges for us going forward that deserve serious attention. Rather, we are warning against the dangers of allowing worst-case thinking to be the default position in these discussions.

But what about some of the policy concerns regarding AI, including privacy, “algorithmic accountability,” or more traditional fears about automation leading to job displacement or industrial disruption. Some of the these issues deserve greater scrutiny, but as Andrea and I pointed out in a much longer paper with Raymond Russell, there often exists better ways of dealing with such issues before resorting to preemptive, top-down controls on fast-moving, hard-to-predict technologies.

“Soft law” options will often serve us better than old hard law approaches. Soft law mechanisms, as I write in my latest law review article with Jennifer Skees and Ryan Hagemann, are a useful way to bring diverse parties together to address pressing policy concerns without destroying the innovative promise of important new technologies. Among other things, soft law includes multistakeholder processes and ongoing efforts to craft flexible “best practices.” It can also include important collaborative efforts such as this recent IEEE “Global Initiative on Ethics of Autonomous and Intelligent Systems,” which serves as “an incubation space for new standards and solutions, certifications and codes of conduct, and consensus building for ethical implementation of intelligent technologies.” This approach brings together diverse voices from across the globe to develop rough consensus on what “ethically-aligned design” looks like for AI and aims to establish a framework and set of best practices for the development of these technologies over time.

Others have developed similar frameworks, including the ACM itself. The ACM developed a Code of Ethics and Professional Conduct in the early 1970s and then refined it in the early 1990s and then again just recently in 2018. Each iteration of the ACM Code reflected ongoing technological developments from the mainframe era to the PC and Internet revolution and on through today’s machine-learning and AI era. The latest version of the Code “affirms an obligation of computing professionals, both individually and collectively, to use their skills for the benefit of society, its members, and the environment surrounding them,” and insists that computing professionals “should consider whether the results of their efforts will respect diversity, will be used in socially responsible ways, will meet social needs, and will be broadly accessible.” The document also stresses how, “[a]n essential aim of computing professionals is to minimize negative consequences of computing, including threats to health, safety, personal security, and privacy. When the interests of multiple groups conflict, the needs of those less advantaged should be given increased attention and priority.”

Of course, over time, more targeted or applied best practices and codes of conduct will be formulated as new technological developments make them necessary. It is impossible to perfectly anticipate and plan for all the challenges that we may face down the line. But we can establish some rough best practices and ethical guidelines to help us deal with some of them. As we do so, we need to think hard about how to craft those principles and policies in such a way so as to not undermine the potentially amazing, life-enriching — and potentially even life- saving — benefits that AI technologies could bring about.

You can hear more about these and other issues surrounding the future of AI in this 6-minute video that  Communications of the ACM put together to coincide with my debate with Oren Etzioni of the Allen Institute for Artificial Intelligence. As you will probably notice, there’s actually a lot more common ground between us in this discussion that you might initially suspect. For example, we agree that it would be a serious mistake to regulate AI at the general-purpose level and that it instead makes more sense to zero-in on specific AI applications to determine where policy interventions might be needed.

Of course, things get more contentious when we consider  what kind of policy interventions we might want for specific AI applications, and also the much more challenging question about how to define and measure “harm” in this context. And this all assumes we can even come to some general consensus about how to first define what we even mean by “artificial intelligence” or “robotics” in general. That’s harder than many realize and it is important because it has a bearing on the overall scope and practicality of regulation in various contexts.

Another thing that seems to be the source of serious ongoing debate between people in this field concerns the wisdom of creating an entirely new agency or centralized authority of some sort to oversee or guide the development AI or robotics. I’ve debated that question many times with Ryan Calo, who first pitched the idea a few years back in a working paper for Brookings. In response, I noted that we already have quite a few “robot regulators” in existence today in the form of technocratic agencies that oversee the specific development of various types of robotic and AI-oriented applications. For example, NHTSA already oversees driverless cars, FAA regulates drones, and the FDA handles AI-based medical devices and applications. Will adding another big, over-arching Robotics Commission really add much value to the process? Or will it simply add another bureaucratic layer of red tape to the process of getting life-enriching services out to the public? I doubt, for example, that the Digital Revolution would have been somehow improved much had America created a Federal Computer Commission or Federal Internet Commission 25 years ago.

Moreover, had we adopted such entities, I worry about how the tech companies of an earlier generation might have utilized that process to keep new players and technologies from emerging. As I noted this week in a tweet that got a lot of attention, I used to have the adjoining poster from PC Computing magazine on my office wall over 20 years ago. It was entitled, “Roadmap to Top Online Services,” and showed how the powerful Big 4 online service providers — America Online, Prodigy, Compuserve, and Microsoft — were spreading their tentacles. People used to see this poster on my wall and ask me whether there was any hope of disrupting the perceived choke-hold that these companies had on the market at the time.

Of course, we now look back and laugh at the idea that these firms could have bottled up innovation and kept competition at bay. But ask yourself: When disruptive innovations appeared on the scene, what would those incumbent firms have done if they had regulators to run to for help down at a Federal Computer Commission or Federal Internet Commission? I think we know exactly what they would have done because the lamentable history of so much Federal Communication Commission regulation shows us that  the powerful will grab for the levers of power wherever they exist. Some critics don’t accept the idea that “rent-seeking” and regulatory capture are real problems, or they believe that we can find creative ways to avoid those problems. But history shows this has been a reoccurring problem in countless sectors and one that we should try to avoid as much as possible by not establishing mechanisms that could exclude beneficial forms of competition and innovation from coming about to begin with.

That could certainly happen right now with the regulatory mechanisms already in place. For example, just this week, Jennifer Huddleston Skees and I wrote about the dangers of “Emerging Tech Export Controls Run Amok,” as the Trump Administration ponders a potentially massive expansion of export restrictions on a wide variety of technologies. More than a dozen different AI or autonomous system technologies appear on the list for consideration. That could pose real trouble not just for commercial innovators in this space, but also for non-commercial research and collaborative open source efforts involving these technologies.

Again, that doesn’t mean AI and robotics should develop in a complete policy vacuum. We need “governance” but we don’t need the sort of heavy-handed, top-down, competition-killing, innovation-restricting sort of regulatory regimes of the past. I continue to believe that more flexible, adaptive “soft law” mechanisms provide the reasonable path forward for most of the concerns we hear about AI and robotics today. These are challenging issues, however, and I look forward to learning more from other experts in the field when I visit Montreal for this week’s G7 discussion.

Additional Reading:

• “Should the Government Regulate Artificial Intelligence?” Wall Street Journal debate between Ryan Calo, Julia Powles, and Adam Thierer, April 29, 2018.
• Adam Thierer, Andrea O’Sullivan & Raymond Russell, “Artificial Intelligence and Public Policy,” Research Paper, Mercatus Center at George Mason University, August 23, 2017.
• Adam Thierer, “Which Emerging Technologies are “Weapons of Mass Destruction”? Technology Liberation Front, August 26, 2016.
• Adam Thierer, ““Wendell Wallach on the Challenge of Engineering Better Technology Ethics“
• Adam Thierer, “Problems with Precautionary Principle-Minded Tech Regulation & a Federal Robotics Commission,” Technology Liberation Front, September 22, 2014.
• Adam Thierer, “Are ‘Permissionless Innovation’ and ‘Responsible Innovation’ Compatible?” Technology Liberation Front, July 12, 2017.
• Adam Thierer & Jennifer Huddleston Skees, “Emerging Tech Export Controls Run Amok,” Technology Liberation Front, November 28, 2018.
• Adam Thierer, Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom

By Adam Thierer & Jennifer Huddleston Skees

“ He’s making a list and checking it twice. Gonna find out who’s naughty and nice .”

With the Christmas season approaching, apparently it’s not just Santa who is making a list. The Trump Administration has just asked whether a long list of emerging technologies are naughty or nice — as in whether they should be heavily regulated or allowed to be developed and traded freely.

If they land on the naughty list, these technologies could be subjected to complex export control regulations, which would limit research and development efforts in many emerging tech fields and inadvertently undermine U.S. innovation and competitiveness. Worse yet, it isn’t even clear there would be any national security benefit associated with such restrictions.  

From Light-Touch to a Long List

Generally speaking, the Trump Administration has adopted a “light-touch” approach to the regulation of emerging technology and relied on more flexible “soft law” approaches to high-tech policy matters. That’s what makes the move to impose restrictions on the trade and usage of these emerging technologies somewhat counter-intuitive. On November 19, the Department of Commerce’s Bureau of Industry and Security launched a “ Review of Controls for Certain Emerging Technologies .” The notice seeks public comment on “criteria for identifying emerging technologies that are essential to U.S. national security, for example because they have potential conventional weapons, intelligence collection, weapons of mass destruction, or terrorist applications or could provide the United States with a qualitative military or intelligence advantage.”

The Commerce Department has long sought to control the use of such technologies through a combination of methods, including formal export controls. The process for establishing such controls was clumsily cobbled together over time, so Congress passed the Export Control Reform Act of 2018 (ECRA) to formalize these regulations. ECRA requires that the President formulate an interagency process to coordinate these rules with the goal of creating, “a regular and robust process to identify the emerging and other types of critical technologies of concern, as defined in United States foreign direct investment laws, and regulate their release to foreign persons as warranted regardless of the nature of the underlying transaction.” As part of this process, the Commerce Department is to create a list “of foreign persons and end-uses that are determined to be a threat to the national security and foreign policy of the United States . . .  and to whom exports, reexports, and transfers of items are controlled.”

Sweeping Breadth

That is what prompted the Trump Administration’s recent Emerging Technologies notice, which includes is a remarkably sweeping list of technologies that the Commerce Department is considering for the exports controls list. The list has 14 major categories:

(1) Biotechnology

(2) Artificial intelligence

(3) Position, Navigation, and Timing (PNT) technology

(4) Microprocessor technology

(5) Advanced computing technology

(6) Data analytics technology

(7) Quantum information and sensing technology

(8) Logistics technology

(9) Additive manufacturing / 3D printing

(10) Robotics

(11) Brain-computer interfaces

(12) Hypersonics

(13) Advanced materials

(14) Advanced surveillance technologies

The Department’s 14-category list also includes over 40 itemized examples of specific applications. For example, the “artificial intelligence” category alone includes a list of 11 applied types of AI, from AI cloud technologies and chipsets to neural networks to speech and audio processing.

The breadth of this list is remarkable in that it touches almost every emerging technology sector imaginable. It might have been easier for the Commerce Department to simply list those emerging technologies that will not be subject to review for potential export controls. It is an “everything-but-the-kitchen-sink” approach to emerging technology policy oversight and regulation that could clearly have far reaching consequences beyond national security.

There are some obvious dangers with such an open-ended review and it is important to remember these technologies have many beneficial applications as well as any potential risks.

Threatening Beneficial Uses

First, the potential export regulations create the danger of negative spillover effects that could undermine beneficial uses of each technology listed . All of the technologies listed have already been used in many ways that benefit both consumers and businesses. Limitations on their export could limit their availability or prevent improvements due to concerns that such broad interpretations of restrictions could limit the market.

For example, the regulation of AI mentioned above would not only address concerns about how AI might be used in weapons, but could even undermine the export of technology that has become a part of our everyday lives such as Siri in iPhones and Amazon’s Alexa. While the department claims that it seeks to “avoid negatively impacting U.S. leadership in the science, technology, engineering, and manufacturing sectors,” it is unlikely that any but the most narrowly tailored rules could actually avoid having a negative impact on innovation in the named technologies .

The more general purpose a technology the more difficult it will be to control the potential impact on the beneficial uses of the technology as well as the negative impacts. In fact, in some cases such as AI and robotics it can even be difficult to define what the technology is, because it is typically the applications and not the technology more generally that is being discussed and regulated. In many cases, the anti-export regulations would or could at least signal to entrepreneurial innovators that their time is better spent on other technologies or that their work should be taken elsewhere and risks the U.S. falling behind other countries in these important innovative areas.  

Undermining International Competitiveness

Second, the inquiry could undermine U.S. competitiveness by encouraging more offshoring in a world of innovation arbitrage opportunities . With our increasingly connected global economy and specifically the more mobile nature of many emerging technologies, it is becoming easier for innovators who find themselves subjected to onerous regulations in one country to move their research and development efforts to another. This is sometimes referred to as “ innovation arbitrage .”

While the U.S. remains a leader in attracting innovators, this scenario has already played out several times. For example, Amazon moved its drone testing program to the UK rather than test in the US due in large part to FAA regulations regarding drones. Similarly, 23andme also initially took its direct-to-consumer genetic testing abroad after the FDA threatened to shut down their product.

Heavily regulating the export of general applications of these technologies could actually backfire and encourage innovators to take their research to countries like China where they do not face such regulations. R. David Edelman, the director of the Project on Technology, the Economy, and National Security at MIT, has noted that while the inquiry might be “intended to help US companies be more competitive,” the reality is that “it would almost certainly give Chinese companies that don’t face those same restrictions a sizable advantage in the playing field.”

Moreover, if export controls undermine domestic innovation and competitiveness in this fashion and benefit developers in other countries, it means the U.S. will have less of a say over the ethical development of many important technologies. Bloomberg contributor Noah Smith observes that , when it comes to the global race for hegemony in genetic sciences, China is poised to take the lead. “If the U.S. shies away from developing genetic-engineering technology, these riches will flow to China, or to whatever other countries seize the technological edge,” he notes. That would be problematic not just from a competitive perspective, but also from an ethical perspective, because America would have less of a say in guiding the development of these important but controversial technologies. “Dystopian outcomes are also less likely with the U.S. at the helm,” Smith believes.

Limiting or Ending Technologies Consumers Already Enjoy

Third, the inquiry could pose a threat to everyday consumer technologies that are already widely distributed . The most interesting thing about the technologies listed in the notice is that many of them have moved well beyond the “emerging” phrase of development. They are already out in the wild and being used by people every day.

For example, among the AI technologies listed in the notice are “speech and audio processing (e.g., speech recognition and production)” as well as, “natural language processing (e.g., machine translation).” We already enjoy a great many services such as those today, including Siri and Alexa. Meanwhile, there are technologies already on the market that help disabled and autistic children communicate and interact with their peers using AI and robotics.

For example, the KASPAR robot helps children with such disabilities learn social skills to interact with their peers and teach conversational skills. Similarly, technology that translates apparently nonverbal sounds and other methods of communication into speech via apps and other technology with various voices that others can understand could be subject to development ending regulations or be unable to help children in other countries if the proposed export restrictions are phrased too broadly. Not only might new restrictions limit the development of new technologies, it could even limit or eliminate those that we have already embraced and improved the lives of many.

Risk to Research & Open-Source Efforts

Fourth, the expansion of export controls for many of the technologies listed in the inquiry opens the door to widespread policing of open source coding and communications , but offers no explanation of how that would even work. A large number of the technologies on the Commerce Department list have both commercial and non-commercial applications. Innovation scholars use terms like “ free innovation ” and “social entrepreneurialism” to describe innovative efforts that are undertaken by individuals or groups of people to pursue a broader array of social goals or values beyond just profit-seeking.

A prominent example of social entrepreneurs engaging in free innovation involves the use of 3D printers and open source designs to voluntarily create prosthetics for children with limb deficiencies. What happens to collaborative, non-commercial innovations like that if export controls are suddenly imposed on additive manufacturing technologies by the Department of Commerce? If one participant is based outside the US, is that sufficient to subject such collaboration to export controls? What, exactly, would be subjected to controls? The 3D printers? The open source blueprints? The website hosting such information? It is difficult to imagine how such regulation would work in practice but it is easy to imagine the effect it would have if pursued: It would create a massive chilling effect on many beneficial forms of innovation and simultaneously threaten freedom of speech and academic research.

This same problem could play out in many other technology fields listed in the Commerce Department notice, including: robotics, speech recognition, biotechnology, and genetic engineering, among many others often engage in open and cross-border collaboration for open source development. Free innovation and social entrepreneurialism are expanding rapidly in these and other emerging technology arenas. Thus, export control regulation can no longer hinge on going after “deep-pocketed” corporations looking to sell physical systems. To be truly effective, regulations will need to cover bottom-up, “grassroots” innovation. But that move will have profound ramifications for the freedom to freely tinker with or even freely research important technologies and technological processes.

Dubious National Security Benefits

There’s a final danger associated with this effort: it might not help advance America’s national security objectives , and could even hinder them.

To the extent that ECRA and this new Department of Commerce effort lead to heightened scrutiny for the many dozens of technologies identified, it could undermine research and development efforts in many of those fields. It could do so directly (by formally limiting or forbidding domestic R&D efforts) or indirectly (by incentivizing many domestic emerging tech innovators to move their operations offshore, or discouraging foreign developers from setting up shop here). Not only would such actions risk the US losing its lead in innovation, it could actually result in such regulations backfiring from a national security perspective.  

At the end of the day, the problem here is that Congress is failing to clearly identify what is “essential to the national security of the United States.” ECRA just passes the buck on that thorny question to the Commerce Department for a laundry list of emerging technologies. By soliciting public input, the best hope here is that experts in these various emerging technology sectors will step forward and identify the trade-offs associated with inclusion of most of these technologies on the export controls list. Hopefully, the list would then be narrowed the much smaller class of applied technologies that have a very real, immediate, and clearly catastrophic potential for harm to the national security interests of the nation. That would have been the better way to begin this process, but Congress and the Administration have instead adopted the opposite approach here and now we must hope that they are willing to significantly pare back the list of technologies even being considered for inclusion.

Back to the Crypto Wars?

In a sense, this debate was foreshadowed by the debate in the late 1990s over export controls for encryption technologies. As encryption emerged , law enforcement and national security agencies were concerned about its potential use by bad actors to hide or destroy evidence or information by using encrypted devices or services and sought to require backdoors to be able to access encrypted data and to restrict the export of certain types of encryption and certain encrypted devices. Such requirements, as the Information Technology & Innovation Foundation’s Daniel Castro and Alan McQuinn pointed out, would actually reduce the security of everyday Americans to cyber attacks, negatively impact U.S. businesses’ global competitiveness, and reduce the competitiveness and innovation of the technology sector not only in encryption but in related fields as well.

Luckily, many of these concerns were avoided and encryption restrictions have been narrowly tailored. Recent tensions between the FBI and tech companies like Apple illustrate that this debate is far from settled. Now it seems that the Commerce Department’s proposed restrictions could create the same vulnerabilities more broadly for a great number of emerging technologies.

“Soft Law” & Next Steps

In some ways this move to regulate technologies via export restrictions shows the dark side of the growing trend of “soft law.” Soft law, as we discuss in more detail in our forthcoming paper , includes regulatory actions such as guidance documents, working groups, sandboxing, and many other informal regulatory mechanisms. Such mechanisms are often used to regulate emerging technologies in the absence of formal actions or because the traditional policymaking apparatus cannot keep pace with the rapid evolution of technology. In many cases soft law has been used to accelerate technological development that otherwise might have been limited by traditional hard law.

But where soft law thrives in the vacuum left by a lack of formal delegation and regulation, this inaction also poses risks. Agencies like the Commerce Department could extend amorphous powers over emerging technologies without the expertise to fully understand the way such regulations might negatively affect beneficial technological developments, which are typically hard to predict in advance.

A smarter approach to export controls for emerging technologies begins with a rational assessment of:

1. a more robust evaluation of what really constitutes a tangible, immediate, irreversible, and catastrophic harm to the national security interests of the United States;
2. the practicality of proposed controls for any emerging technologies considered for inclusion on the list;
3. the wisdom of placing technologies on the list which already have been developed or marketed overseas (or appear poised to be); and,
4. the potential unintended consequences that any new export controls might have on the innovative potential of American creators and companies, the future of research in important sectors, the free flow of knowledge regarding peaceful applications, and the competitive standing of the United States relative to other countries.
5. whether catastrophic concerns about emerging technologies might be better addressed through multilateral accords or agreements aimed at achieving global consensus regarding inappropriate use and applications (as has been done in chemical weapon treaties and nuclear non-proliferation efforts).

Several specific technologies may still qualify for inclusion on the export controls list after such an evaluation, but it will start with a more limited approach and then expand as necessary. Such an approach assumes that in general purpose technology is not a threat until proven otherwise. By inverting the process in this fashion, the Administration wouldn’t be treating every emerging technology under the sun as guilty until proven innocent; innovations would be allowed to flourish naturally until the potential for harm is well-documented.

Unfortunately, the Commerce Department’s proposed approach does just the opposite and risks minimizing the benefits of these emerging technologies while doing little to advance national security interests in a meaningful way.

On Thursday, it was my great pleasure to participate in a Washington Legal Foundation (WLF) event on “Online Privacy Regulation: The Challenge of Defining Harm.” The entire event video can be found on YouTube here, but down below I pasted the clip of just my remarks. Other speakers at the event included:  FTC Commissioner Maureen K. Ohlhausen, Commissioner; John B. Morris, Jr., the Associate Administrator and Director of Internet Policy athe U.S. Department of Commerce’s National Telecommunications and Information Administration; and Katherine Armstrong, Counsel at the law firm of Hogan Lovells. Glenn Lammi of the WLF moderated the session.

My remarks drew upon a few recent law review articles I have published relating digital privacy debates to previous debates over free speech and online child safety issues. (Here are those articles: 1, 2, 3).

If there are two general principles that unify my recent work on technology policy and innovation issues, they would be as follows. To the maximum extent possible:

1. We should avoid preemptive and precautionary-based regulatory regimes for new innovation. Instead, our policy default should be innovation allowed (or “permissionless innovation”) and innovators should be considered “innocent until proven guilty” (unless, that is, a thorough benefit-cost analysis has been conducted that documents the clear need for immediate preemptive restraints).
2. We should avoid rigid, “top-down” technology-specific or sector-specific regulatory regimes and/or regulatory agencies and instead opt for a broader array of more flexible, “bottom-up” solutions (education, empowerment, social norms, self-regulation, public pressure, etc.) as well as reliance on existing legal systems and standards (torts, product liability, contracts, property rights, etc.).

I was very interested, therefore, to come across two new essays that make opposing arguments and proposals. The first is this recent Slate oped by John Frank Weaver, “We Need to Pass Legislation on Artificial Intelligence Early and Often.” The second is Ryan Calo’s new Brookings Institution white paper, “The Case for a Federal Robotics Commission.”

Weaver argues that new robot technology “is going to develop fast, almost certainly faster than we can legislate it. That’s why we need to get ahead of it now.” In order to preemptively address concerns about new technologies such as driverless cars or commercial drones, “we need to legislate early and often,” Weaver says. Stated differently, Weaver is proposing “precautionary principle”-based regulation of these technologies. The precautionary principle generally 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.

Calo argues that we need “the establishment of a new federal agency to deal with the novel experiences and harms robotics enables” since there exists “distinct but related challenges that would benefit from being examined and treated together.” These issues, he says, “require special expertise to understand and may require investment and coordination to thrive.

I’ll address both Weaver and Calo’s proposals in turn.

Problems with Precautionary Regulation

Let’s begin with Weaver proposed approach to regulating robotics and autonomous systems.

What Weaver seems to ignore—and which I discuss at greater length in my latest book—is that “precautionary” policy-making typically results in technological stasis and lost opportunities for economic and social progress. As I noted in my book, if we spend all our time living in constant fear of worst-case scenarios—and premising public policy upon such fears—it means that best-case scenarios will never come about. Wisdom and progress are born from experience, including experiences that involve risk and the possibility of occasional mistakes and failures. As the old adage goes, “nothing ventured, nothing gained.”

More concretely, the problem with “permissioning” innovation is that traditional regulatory policies and systems tend to be overly-rigid, bureaucratic, costly, and slow to adapt to new realities. Precautionary-based policies and regulatory systems focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. As a result, preemptive bans or highly restrictive regulatory prescriptions can limit innovations that yield new and better ways of doing things.

Weaver doesn’t bother addressing these issues. He instead advocates regulating “early and often” without stopping to think through the potential costs of doing so. Yet, all regulation has trade-offs and opportunity costs. Before we rush to adopt rules based on knee-jerk negative reactions to new technology, we should conduct comprehensive benefit-cost analysis of the proposals and think carefully about what alternative approaches exist to address whatever problems we have identified.

Incidentally, Weaver also does not acknowledge the contradiction inherent in his thinking when he says robotic technology “is going to develop fast, almost certainly faster than we can legislate it. That’s why we need to get ahead of it now.” Well, if robotic technology is truly developing “faster than we can legislate it,” then “getting out ahead of it” would be seemingly impossible! Unless, that is, he envisions regulating robotic technologies so stringently as to effectively bring new innovation to a grinding halt (or banning altogether).

To be clear, my criticisms should not be read to suggest that zero regulation is the best option. There are plenty of thorny issues that deserve serious policy consideration and perhaps even some preemptive rules. But how potential harms are addressed matters deeply. We should exhaust all other potential nonregulatory remedies first — education, empowerment, transparency, etc. — before resorting to preemptive controls on new forms of innovation. In other words, ex post (or after the fact) solutions should generally trump ex ante (preemptive) controls.

I’ll say more on this point in the conclusion since my response addresses general failings in Ryan Calo’s Federal Robotics Commission proposal, to which we now turn.

Problems with a Federal Robotics Commission

Moving on to Calo, it is important to clarify what he is proposing because he is careful not to overstate his case in favor of a new agency for robotics. He elaborates as follows:

“The institution I have in mind would not “regulate” robotics in the sense of fashioning rules regarding their use, at least not in any initial incarnation. Rather, the agency would advise on issues at all levels—state and federal, domestic and foreign, civil and criminal—that touch upon the unique aspects of robotics and artificial intelligence and the novel human experiences these technologies generate. The alternative, I fear, is that we will continue to address robotics policy questions piecemeal, perhaps indefinitely, with increasingly poor outcomes and slow accrual of knowledge. Meanwhile, other nations that are investing more heavily in robotics and, specifically, in developing a legal and policy infrastructure for emerging technology, will leapfrog the U.S. in innovation for the first time since the creation of steam power.”

Here are some of my concerns with Calo’s proposed Federal Robotics Commission.

Will It Really Just Be an Advisory Body?

First, Calo claims he doesn’t want a formal regulatory agency, but something more akin to a super-advisory body. He does, however, sneak in that disclaimer that he doesn’t envision it to be regulatory “at least not in any initial incarnation.” Perhaps, then, he is suggesting that more formal regulatory controls would be in the cards down the road. It remains unclear.

Regardless, I think it is a bit disingenuous to propose the formation of a new governmental body like this and pretend that it will not someday very soon come to possess sweeping regulatory powers over these technologies. Now, you may well feel that that is a good thing. But I fear that Calo is playing a bit of game here by asking the reader to imagine his new creation would merely stick to an advisory role.

Regulatory creep is real. There just aren’t too many examples of agencies being created solely for their advisory expertise and then not also getting into the business of regulating the technology or topic that is included in that agency’s name. And in light of some of Calo’s past writing and advocacy, I can’t help but think he is actually hoping that the agency comes to take on a greater regulatory role over time. Regardless, I think we can bank on that happening and I that there are reasons to worry about it for reasons noted above and which I will elaborate on below.

Incidentally, if Calo is really more interested in furthering just this expert advisory capacity, there are plenty of other entities (including non-governmental bodies) that could play that role. How about the National Science Foundation, for example? Or how about a multi-stakeholder body consisting of many different experts and institutions? I could go on, but you get the point. A single point of action is also a single point of failure. I don’t want just one big robotics bureaucracy making policy or even advising. I’d prefer a more decentralized approach, and one that doesn’t carry a (potential) big regulatory club in its hand.

Public Choice / Regulatory Capture Problems

Second, Calo underestimates the public choice problems of creating a sector-specific or technology-specific agency just for robotics. To his credit, he does admit that, “agencies have their problems, of course. They can be inefficient and are subject to capture by those they regulate or other special interests.” He also notes he has criticized other agencies for various failings. But he does not say anything more on this point.

Let’s be clear. There exists a long and lamentable history of sector-specific regulators being “captured” by the entities they regulate. To read the ugly reality, see my compendium, “Regulatory Capture: What the Experts Have Found.” That piece documents what leading academics of all political stripes have had to say about this problem over the past century. No one ever summarized the nature and gravity of this problem better than the great Alfred Kahn in his masterpiece, The Economics of Regulation: Principles and Institutions (1971):

“When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition. [. . . ] Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.” (pgs. 12, 46)

The history of the Federal Communications Commission (FCC) is highly instructive in this regard and was documented in a 66-page law review article I penned with Brent Skorup entitled, “A History of Cronyism and Capture in the Information Technology Sector,” (Journal of Technology Law & Policy, Vol. 18, 2013). Again, it doesn’t make for pleasant reading. Time and time again, instead of serving the “public interest,” the FCC served private interests. The entire history of video marketplace regulation is one of the most sickening examples to consider since there have almost eight decades worth of case studies of the broadcast industry using regulation as a club to beat back new entry, competition, and innovation. [Skorup and I have another paper discussing that specific history and how to go about reversing it.] This history is important because, in the early days of the Commission, many proponents thought the FCC would be exactly the sort of “expert” independent agency that Calo envisions his Federal Robotics Commission would be. Needless to say, things did not turn out so well.

But the FCC isn’t the only guilty offender in this regard. Go read the history about how airlines so effectively cartelized their industry following World War II with the help of the Civil Aeronautics Board. Thankfully, President Jimmy Carter appointed Alfred Kahn to clean things up in the 1970s. Kahn, a life-long Democrat, came to realize that the problem of capture was so insidious and inescapable that abolition of the agency was the only realistic solution to make sure consumer welfare would improve. As a result, he and various other Democrats in the Carter Administration and in Congress worked together to sunset the agency and its hideously protectionist, anti-consumer policies. (Also, please read this amazing 1973 law review article on “Economic Regulation vs. Competition,” by Mark Green and Ralph Nader if you need even more proof of why this is a such a problem.)

In other words, the problem of regulatory capture is not something one can casually dismiss. The problem is still very real and deserves more consideration before we casually propose creating new agencies, even “advisory” agencies. At a minimum, when proposing new agencies, you need to get serious about what sort of institutional constraints you might consider putting in place to make sure that history does not repeat itself. Because if you don’t, various large, well-heeled, and politically-connected robotics companies could come to capture any new “Federal Robotics Commission” in very short order.

Can We Clean Up Old Messes Before Building More Bureaucracies?

Third, speaking of agencies, if it is the case that the alphabet soup collection of regulatory agencies we already have in place are not capable of handling “robotics policy” right now, can we talk about reforming them (or perhaps even getting rid of a few of them) first? Why must we just pile yet another sector-specific or technology-specific regulator on top of the many that already exist? That’s just a recipe for more red tape and potential regulatory capture. Unless you believe there is value in creating bureaucracy for the sake of creating bureaucracy, there is no excuse for not phasing out agencies that failed in their original mission, or whose mission is now obsolete, for whatever reason. This is a fundamental “good government” issue that politicians and academics of all stripes should agree on.

Calo indirectly addresses this point by noting that “we have agencies devoted to technologies already and it would be odd and anomalous to think we are done creating them.” Curiously, however, he spends no time talking about those agencies or asking whether they have done a good job. Again, the heart of Calo’s argument comes down the assertion that another specialized, technology-specific “expert” agency is needed because there are “novel” issues associated with robotics. Well, if it is true, as Calo suggests, that we have been down this path before (and we have), and if you believe our economy or society has been made better off for it, then you need to prove it. Because the objection to creating another regulatory bureaucracy is not simply based on distaste for Big Government; it comes down to the simple questions: (1) Do these things work; and (2) Is there a better alternative?

This is where Calo’s proposal falls short. There is no effort to prove that technocratic or “scientific” bureaucracies, on net, are worth their expense (to taxpayers) or cost (to society, innovation, etc.) when compared to alternatives. Of course, I suspect this is where Calo and I might part ways regarding what metrics we would use to gauge success. I’ll save that discussion for another day and shift to what I regard as the far more serious deficiency of Calo’s proposal.

Do We Become Global Innovation Leaders Through Bureaucratic Direction?

Fourth, and most importantly, Calo does not offer any evidence to prove his contention that we need a sector-specific or technology-specific agency for robotics in order to develop or maintain America’s competitive edge in this field. Moreover, he does not acknowledge how his proposal might have the exact opposite result. Let me spend some time on this point because this is what I find most problematic about his proposal.

In his latest Brookings essay and his earlier writing about robotics, Calo keeps suggesting that we need a specialized federal agency for robotics to avoid “poor outcomes” due to the lack of “a legal and policy infrastructure for emerging technology.” He even warns us that other countries who are looking into robotics policy and regulation more seriously “will leapfrog the U.S. in innovation for the first time since the creation of steam power.”

Well, on that point, I must ask: Did America need a Federal Steam Agency to become a leader in that field? Because unless I missed something in history class, steam power developed fairly rapidly in this country without any centralized bureaucratic direction. Or how about a more recent example: Did America need a Federal Computer Commission or Federal Internet Commission to obtain or maintain a global edge in computing, the Internet, or the Digital Economy?

To the contrary, we took the EXACT OPPOSITE approach. It’s not just that no new agencies were formed to guide the development of computing or the Internet in this country. It’s that our government made a clear policy choice to break with the past by rejecting top-down, command-and-control regulation by unelected bureaucrats in some shadowy Beltway agency.

Incidentally, it was Democrats who accomplished this. While many Republicans today love to crack wise-ass comments about Al Gore and the Internet while simultaneously imagining themselves to be the great defenders of Internet freedom, the reality is that we have the Clinton Administration and one its most liberal members—Ira Magaziner—to thank for the most blessedly “light-touch,” market-oriented innovation policy that the world has ever seen.

What did Magaziner and the Clinton Administration do? They crafted the amazing 1997 Framework for Global Electronic Commerce, a statement of the Administration’s principles and policy objectives toward the Internet and the emerging digital economy. It recommended reliance upon civil society, contractual negotiations, voluntary agreements, and ongoing marketplace experiments to solve information age problems. First, “the private sector should lead. The Internet should develop as a market driven arena not a regulated industry,” the Framework recommended. “Even where collective action is necessary, governments should encourage industry self-regulation and private sector leadership where possible.” Second, “governments should avoid undue restrictions on electronic commerce” and “parties should be able to enter into legitimate agreements to buy and sell products and services across the Internet with minimal government involvement or intervention.”

I’ve argued elsewhere that the Clinton Administration’s Framework, “remains the most succinct articulation of a pro-freedom, innovation-oriented vision for cyberspace ever penned.” Of course, this followed the Administration’s earlier move to allow the full commercialization of the Internet, which was even more important. The policy disposition they established with these decisions resulted in an unambiguous green light for a rising generation of creative minds who were eager to explore this new frontier for commerce and communications. And to reiterate,they did it without any new bureaucracy.

If You Regulate “Robotics,” You End Up Regulating Computing & Networking

Incidentally, I do not see how we could create a new Federal Robotics Commission without it also becoming a de facto Federal Computing Commission. Robotics and the many technologies and industries it already includes — driverless cars, commercial drones, Internet of Things, etc. — is becoming a hot policy topic, and proposals for regulation are already flying. These robotic technologies are developing on top of the building blocks of the Information Revolution: microprocessors, wireless networks, sensors, “big data,” etc.

Thus, I share Cory Doctorow’s skepticism about how one could logically separate “robotics” from these other technologies and sectors for regulatory purposes:

I am skeptical that “robot law” can be effectively separated from software law in general. … For the life of me, I can’t figure out a legal principle that would apply to the robot that wouldn’t be useful for the computer (and vice versa).

In his Brookings paper, Calo responded to Doctorow’s concern as follows:

the difference between a computer and a robot has largely to do with the latter’s embodiment. Robots do not just sense, process, and relay data. Robots are organized to act upon the world physically, or at least directly. This turns out to have strong repercussions at law, and to pose unique challenges to law and to legal institutions that computers and the Internet did not.

I find this fairly unconvincing. Just because robotic technologies have a physical embodiment does not mean their impact on society is all that more profound than computing, the Internet, and digital technologies. Consider all the hand-wringing going on today in cybersecurity circles about how hacking, malware, or various other types of digital attacks could take down entire systems or economies. I’m not saying I buy all that “technopanic” talk (and here are about three dozens of my essays arguing the contrary), but the theoretical ramifications are nonetheless on par with dystopian scenarios about robotics.

The Alternative Approach

Of course, it certainly may be the case that some worst-case scenarios are worth worrying about in both cases—for robotics and computing, that is. Still, is a Federal Robotics Commission or a Federal Computing Commission really the sensible way to address those issues?

To the contrary, this is why we have a Legislative Branch! So many of the problems of our modern era of dysfunctional government are rooted in an unwise delegation of authority to administrative agencies. Far too often, congressional lawmakers delegate broad, ambiguous authority to agencies instead of facing up to the hard issues themselves. This results in waste, bloat, inefficiencies, and an endless passing of the buck.

There may very well be some serious issues raised by robotics and AI that we cannot ignore, and which may even require a little preemptive, precautionary policy. And the same goes for general computing and the Internet. But that is not a good reason to just create new bureaucracies in the hope that some set of mythical technocratic philosopher kings will ride in to save the day with their supposed greater “expertise” about these matters. Either you believe in democracy or you don’t. Running around calling for agencies and unelected bureaucrats to make all the hard choices means that “the people” have even less of a say in these matters.

Moreover, there are many other methods of dealing with robotics and the potential problems robotics might create than through the creation of new bureaucracy. The common law already handles many of the problems that both Calo and Weaver are worried about. To the extent robotic systems are involved in accidents that harm individuals or their property, product liability law will kick in.

On this point, I strongly recommend another new Brookings publication. John Villasenor’s outstanding April white paper, “Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation,” correctly argues that,

“when confronted with new, often complex, questions involving products liability, courts have generally gotten things right. … Products liability law has been highly adaptive to the many new technologies that have emerged in recent decades, and it will be quite capable of adapting to emerging autonomous vehicle technologies as the need arises.”

Thus, instead of trying to micro-manage the development of robotic technologies in an attempt to plan for every hypothetical risk scenario, policymakers should be patient while the common law evolves and liability norms adjust. Traditionally, the common law has dealt with products liability and accident compensation in an evolutionary way through a variety of mechanisms, including strict liability, negligence, design defects law, failure to warn, breach of warranty, and so on. There is no reason to think the common law will not adapt to new technological realities, including robotic technologies. (I address these and other “bottom-up” solutions in my new book.)

In the meantime, let’s exercise some humility and restraint here and avoid heavy-handed precautionary regulatory regimes or the creation of new technocratic bureaucracies. And let’s not forget that many solutions to the problems created by new robotic technologies will develop spontaneously and organically over time as individuals and institutions learn to cope and “muddle through,” as they have many times before.

Additional Reading

• Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom (2014)
• Muddling Through: How We Learn to Cope with Technological Change, June 30, 2014
• New Paper: “Removing Roadblocks to Intelligent Vehicles and Driverless Cars,” September 17, 2014
• Slide Presentation: Policy Issues Surrounding the Internet of Things & Wearable Technology, September 12, 2014
• [Video] Cap Hill Briefing on Emerging Tech Policy Issues (June 2014)
• The Growing Conflict of Visions over the Internet of Things & Privacy, January 14, 2012
• Can We Adapt to the Internet of Things? IAPP Privacy Perspectives, June 19, 2013
• My Filing to the FTC in its ‘Internet of Things’ Proceeding, May 31, 2013

We spend a lot of time here defending the simple proposition that flexible free-market pricing is a good thing. You would think that in 2012 we wouldn’t need to do so, but there’s a growing movement afoot today by some academics, regulatory activists, and public policymakers to have government start asserting more authority over broadband pricing. In particular, they want Congress, the FCC, or state officials to investigate and possibly even regulate efforts by wireline and wireless broadband carriers to use usage-based pricing and data caps as a method of calibrating supply and demand. This was the focus of my last weekly Forbes column, “The Specter Of Broadband Price Controls.” In the piece I note that:

Data caps and usage-based pricing are forms of what economists refer to as price discrimination. Although viewed with suspicion by some policymakers and regulatory-minded academics and activists, price discrimination is widely recognized to improve consumer welfare. Price-differentiated and prioritized services are part of almost every industrial sector in our capitalist economy. Notable examples include airline and hotel reservations, prioritized shipping services, amusement park passes, and fuel and energy pricing. Economists agree that price discrimination represents a sensible way to calibrate supply and demand while ensuring the fixed costs of doing business get covered. Consumers benefit from such pricing experimentation by gaining more options while firms gain more certainty about investment and service decisions.

This is confirmed by an excellent new Mercatus Center working paper on “The Impact of Data Caps and Other Forms of Usage-Based Pricing for Broadband Access,” by Daniel A. Lyons, an assistant professor of law at Boston College Law School. Lyons explains why a return to price controls for communications would be monumentally misguided. Lyons notes that “data caps and other forms of metered consumption are not inherently anti-consumer or anticompetitive. Rather, they reflect different pricing strategies through which a broadband company may recover its costs from its customer base and fund future infrastructure investment.” He notes that “by aligning costs more closely with use, usage-based pricing may effectively shift more network costs onto those consumers who use the network the most.”

What I find most interesting about the debate over broadband pricing flexibility is the way some so-called “consumer advocates” cannot seemingly wrap their heads around the fact that price discrimination can actually benefit most consumers by creating more and better pricing options and service alternatives. As I noted in my Forbes essay, “if policymakers lock-in flat rate pricing or regulate pricing such that it is not allowed to fluctuate with demand or investment needs, then it is likely that light users (including many lower income users) will end up paying more than they need to for their overall share of network costs. If that is also disallowed through rate regulation, then network investment will suffer and further innovation will be discouraged. Something has to give because, again, there really is no free lunch.”

It remains to be seen whether true free market pricing will be allowed to continue in this context, but make no doubt about it, this is the most important aspect of the ongoing debate about modern information economics. If America returns to price and rate controls for communications, innovation and investment will suffer greatly.

Oh, and here’s a video featuring Eli Dourado, who can explain this much more eloquently than me! …

Additional Reading

• More on Net Neutrality, the Importance of Business Model Experimentation & Pricing Flexibility (May 9, 2012)
• Real Talk on Net Neutrality (May 9, 2012)
• Netflix Falls Prey to Marginal Cost Fallacy & Pleads for a Broadband Free Ride (July 8, 2011)
• Smartphones & Usage-Based Pricing: Are Price Controls Coming? (July 12, 2011)
• Why Congestion Pricing for the iPhone & Broadband Makes Sense (October 7, 2009)
• The (Un)Free Press Calls for Internet Price Controls: “The Broadband Internet Fairness Act” (June 17, 2009)
• Free Press Hypocrisy over Metering & Internet Price Controls (June 18, 2009)
• Bandwidth Cap Hysteria & the Alternative (October 4, 2008)
• Once Again, Why Not Meter Broadband Pipes?  (September 7, 2007)
• Why Not Meter? (March 12, 2007)
• The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation (October 27, 2005)

This week, we’ve seen reports in both The New York Times (“Stage Set for Showdown on Online Privacy“) and The Wall Street Journal (“Watchdog Planned for Online Privacy“) that the Obama Administration is inching closer toward adopting a new Internet regulatory regime in the name of protecting privacy online.  In this essay, I want to talk about information control regimes, not from a normative perspective, but from a practical one.  In doing so, I will compare the relative complexities associated with controlling various types of information flows to protect against four theoretical information harms: objectionable content, defamation, copyright, and privacy.

From a normative perspective, there are many arguments for and against various forms of information control.  Here, for example, are the reasons typically given for why society might want to impose regulations on the Internet (or other communications channels) to address each of the four issues identified above:

1. Content control / Censorship: We must control information flows to protect children from objectionable content or all citizens against some other form of supposedly harmful speech (hate speech, terrorist recruitment, etc).
2. Defamation control: We must control information flows to protect people’s reputations.
3. Copyright control: We must control information flows to protect the property rights of creators against unauthorized use / distribution.
4. Privacy control: We must control information flows to protect against information flows that include information about individuals.

Again, there are plenty of good normative arguments in the opposite direction, many of which are based on free speech considerations since, by definition, information control regimes limit the flow of forms of speech.  For privacy, I discussed such speech-related considerations in my essay on “Two Paradoxes of Privacy Regulation.”  But what about the administrative or enforcement burdens associated with each form of information control?  I increasingly find that question as interesting as the normative considerations.

Let’s begin with a self-evident statement about which most of us can (hopefully) agree: Information control can be complex and costly.  This was true even in the scarcity era with its physical and analog distribution methods of information dissemination.  All things considered, however, the challenge of controlling information in the past paled in comparison to the far more formidable challenges nation-states face in the digital era when they seek to limit information flows.

The movement of bits across electronic networks and digital distribution systems creates unique problems I have previously discussed in my essay on “The End of Censorship.” To recap, efforts to control information today are greatly complicated by problems associated with:

• Convergence: Media content and information distribution outlets are blurring together today thanks to the rise of myriad new technologies and competitors. These new technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. In other words, convergence means that media content is increasingly being “unbundled” from its traditional distribution platforms and finding many paths to the consumers. As a result of these developments, it is now possible to disseminate, find, or consume the same content / information via multiple devices or distribution networks.  In this way, convergence complicates efforts to create effective information control regimes.
• Scale: In the past, the reach of speech and information was limited by geographic, technological, and cultural / language considerations. Today, by contrast, media can now flow across the globe at the click of a button because of the dramatic expansion of Internet access and broadband connectivity.  While restrictions by nation-states are still possible, the scale of modern digital speech and content dissemination greatly complicates government efforts to control information flows.
• Volume:  The sheer volume of media and communications activity taking place today also complicates regulatory efforts. In simple terms, there is just too much stuff for regulators to police today relative to the past. As a 2002 blue ribbon panel assembled by the National Research Council to examine the regulation objectionable content concluded: “The volume of information on the Internet is so large — and changes so rapidly — that it is simply impractical for human beings to evaluate every discrete piece of information for inappropriateness.”  While it may have been possible to oversee a handful of newspapers or TV and radio stations in each community or country in the past, today’s electronic media universe is so diverse and enormous—and evolving so quickly—that content controls significantly complicate enforcement burdens.
• Unprecedented individual empowerment / user-generation of content: In this new world in which every man, woman and child can be a one-person publishing house or self-broadcaster, restrictions on viewing, listening or uploading and downloading will be become increasingly difficult to devise and enforce.   By comparison, few of those opportunities were available to the citizenry in the past.

Now, let’s go back to the four issues I identified above and think abut the implications.  In terms of content controls, defamation, and copyright, it’s fairly clear how these considerations complicate enforcement efforts.  Of course, some regulatory efforts have succeeded after governments pushed back aggressively enough, and I certainly don’t mean to suggest that governments are powerless to control information flows in the Informati0n Age.  Read through Access Controlled and you’ll find plenty of examples of how nations across the globe are doing so using various methods of control: Surveillance, centralized filtering, strict liability regimes, government ownership of key facilities / companies, etc.   Let me also make clear that  I am not entirely against all information control efforts.  Generally speaking, I want strict limits placed on governments efforts to control information flows, but I’ve also endorsed efforts to use some of these regulatory approaches to deal with child pornography and extreme forms of copyright piracy.

Anyway, I want to just make two more points here about how this relates to privacy regulation as an information control regime.  First, while I think most people understand the complexities associated with information control efforts in the content, defamation, and copyright fields, I don’t think scholars or policymakers are spending nearly enough time considering the complexities of enforcing an information control regime for privacy.  All too often, privacy advocates seem to suggest that privacy regulation will be frictionless and cost-free.  Once they jump to the assumption that privacy is a “human right,” or must be protected in the name of “human dignity,” any discussion of enforcement hassles or the costs of regulation seemingly goes right out the window.  In reality, of course, privacy regulation will have profound consequences for online sites and services by potentially undermining the goose that lays the Internet’s golden (and mostly free) eggs: online advertising and the data collection that powers it.  Again, this is somewhat secondary to my point in this essay, which is just to suggest that the complexities associated with the mechanics of information control are not being fully considered in the privacy context.  Either way, it’s time we stop pretending privacy regulation is a free lunch.

Second, I would like to suggest — but I cannot prove at this time — that enforcing a privacy information control regime will be more complex than the regimes needed to control information flows for content, defamation, and copyright.  Now how can that possibly be, you ask?  It requires a much deeper dive into the specifics of various privacy regulatory proposals, but consider two recent privacy-related regulatory regimes: a “Do Not Track” list and a “right to be forgotten.” Both sound simple enough in theory, but the details are quite devilish.

How, for example, would government go about verifying proper compliance with such regulations without also ensuring some sort of online authentication system is in place to verify people are who they say they are?  Must every browser be retooled to comply and then regulated accordingly?  What about apps downloaded on tablets or smartphones that don’t require browsers at all?  Are IP addresses “personal information” that are also subject to regulation? Which agencies are responsible for creating authentication systems, policing online data flows, and reviewing new innovations and sites to ensure they are complying?  Who in government has access to the data about individuals that is collected for such purposes, and what else are they doing with it?  What systems will need to be put into place by online operators, large and small alike, to ensure compliance?  And so on.  Enforcement problems will also be complicated by the subjectivity of privacy norms from one individual to another as well as the fact that these norms change over time (and seem to be changing quite rapidly in recent years).

Again, more research needs to be done to better document the potential costs associated with a privacy information control regime, but I would hope we could begin by accepting that fact that it is an information control regime and that it will be complicated to enforce and will have costs — both in economic and speech-related terms.  Advocates of such a regulatory regime for the Internet should at least be mature enough to admit that what they are proposing is comparable in complexity and cost to the censorship and copyright regulatory regimes they typically oppose.

The Parents Television Council (PTC) released a new report today entitled Women in Peril: A Look at TV’s Disturbing New Storyline Trend. The report argues that “by depicting violence against women with increasing frequency, or as a trivial, even humorous matter, the broadcast networks may ultimately be contributing to a desensitized atmosphere in which people view aggression and violence directed at women as normative, even acceptable,” said PTC President Tim Winter.  As evidence the report cites… Nicole Kidman.  OK, it cites more than Nicole Kidman, but the 7-page report and accompanying press release does seem to place a lot of stock in the fact that, while being questioning by a House Foreign Affairs subcommittee hearing about violence against women overseas, “Ms. Kidman conceded that Hollywood has probably contributed to violence against women by portraying them as weak sex objects, according to the Associated Press.”  I’m not sure what Ms. Kidman was doing testifying before Congress on the matter of violence against women overseas — dare I suggest some congressmen were out for another photo-op with a Hollywood celeb? — but the better question is whether Ms. Kidman’s opinion has any bearing on the question of what relationship, if any, there is between televised violence and real-world violence against women. (Incidentally, if she really feels passionately about all this, is she prepared to go back and recut some of her old scenes in “Dead Calm,” “To Die For,” and “Eyes Wide Shut“?)

But let’s not nitpick about the credentials Ms. Kidman brings to the table or whether it makes any sense for PTC to elevate her opinions to proof of theory when it comes to a supposed connection between depictions of violence against women in film or television and real world acts of violence against women. PTC, however, suggests that’s exactly what is going on today. They allude to a few lab studies which are of the “monkey see, monkey do” variety — where the results of artificial lab experiments are used to claim that watching depictions of violence will turn us all into killing machines, rapists, robbers, or just plain ol’ desensitized thugs.

There’s just one problem with such studies, and the PTC report:  Reality.  Whatever lab experiments might suggest, the evidence of a link between televised media violence and the real-world equivalent just does not show up in the data. The FBI produces ongoing Crime in the United States reports that document violent crimes trends. Here’s what the data tells us about overall violent crime, forcible rape, and juvenile violent crime rates over the past two decades: They have all fallen.  Perhaps most impressively, the juvenile crime rate has fallen an astonishing 36% since 1995.

Now, let me be perfectly clear about something.  When analyzing such things it is vitally important to recall one of the first rules of statistical analysis: correlation does not necessarily equal causation. This works in both directions. Even if an increase in real-world violence was closely tracking depictions of violence on television or in video games, it wouldn’t necessarily mean there is a connection. But it would also be wrong to state that, on its own, an inverse correlation (with the trends moving in opposite directions) meant that there was absolutely no connection between these things.

At the margin, I believe that some media can have negative impacts on some people. Certainly, in heavy enough doses, watching non-stop depictions of sex or violence probably would have some sort of negative effect on some people — loss of sleep, if nothing else. Perhaps more.

Then again, I just cannot entirely dismiss the real-world evidence being so starkly at odds with the “monkey see, monkey do” theories bandied about by PTC and some researchers or regulatory proponents. At a minimum, the real-world evidence should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation, who all too often make casual inferences about the relationship between media exposure and various social indicators. Such a causal relationship is even more dubious today since all Americans, especially youngsters, are surrounded by a much wider variety of media than ever before. Even though television viewing has gone down slightly in recent years, it has been due to the rise of other media substitutes that command the attention of children, including the Internet, cell phones and video games. Overall, therefore, it appears that children are “consuming” as much, if not more, media than ever before. One would think that if depictions of violence in media really were leading to increased aggression among youth it would start showing up in some of these indicators at some point. But that’s just not occurring. [If you’re interested, I’ve discussed all these issues at much greater detail here, here, here, and here.]

Another argument I often here is: ‘Well, the numbers would be even better if not for media violence!’  But there’s just no way to prove that one way or the other. Would the juvenile crime rate be down 46% instead of the 36% decrease we’ve actually since 1995?  I don’t know. Nobody can know. But I certainly hope that media critics and regulatory proponents aren’t so foolish as to suggest that the crime rate would drop to zero if we just forced everybody to watch “Mary Poppins” all day long.

Finally, let’s assume that the PTC is right and that depictions of violence against women are on the rise on TV. I can actually accept that statement. With all the forensic science shows and crime dramas on TV today, it’s clear that some of the plot lines are going to involve people dying in some fashion and many of those people will be women. And yes, some of the depictions will get pretty gritty. “Fringe” and the various “CSI” shows are clearly showing things we didn’t see on “Quincy” back in the day. (Bring back Jack Klugman! He was awesome.)

But, hey, culture has changed.  Envelopes have been pushed a bit.  A little less is left to the imagination.  But most of us can live with that fact.  Indeed, many of us actually enjoy that fact!  And for those who do not share that worldview or who have heightened sensitivities about depictions of violence in TV shows, movies, or games, I would like to tell them that I really do understand and appreciate where they are coming from.

Yet, there are many other ways you can deal with that without forcing us all to forgo content we might enjoy consuming. And, you guessed it, this is where I remind the world for the umpteenth time that I have written a whole book about parental control tools and methods! [The shameless self-promotion never ends here, folks!]  In fact, part of the reason I have invested so much time in that project — and my ongoing efforts to get companies and other third parties to expand the range of tools, ratings, and other information that we have access to — is because I genuinely want to make sure that those individuals and families who have different needs and values than I have the ability to craft their own “household media standard.”   I want each family to be empowered to make media content decisions for themselves such that they can find the media content they want and discard all the rest. Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

I know that some critics including the PTC feel that the tools aren’t good enough, but I just don’t buy it. Sure, there’s always some room for improvement regarding parental control tools and rating systems, but the existing panoply of tools and methods offer families unprecedented control over their media consumption habits. And that includes tools and methods which enable them to find enriching and educational content, which we have more of than ever before.

I understand PTC doesn’t share my worldview on these matters.  But the difference between us is that they want to take something away from me (the right to watch certain types of content) while I want to give something to them (the ability to block that which they find distasteful).  To be fair, however, their report did not rush to the regulatory solution, even though they did call for more hearings and they warn that:

if the television industry is unwilling or unable to take serious steps to reduce or tone down such graphic images, then we will urge the Congress and the FCC, by virtue of their regulatory authority over the public airwaves, to step in and take action.

The problem is, I don’t think PTC will ever rest until all this content is removed from the airwaves altogether, even if millions of Americans actually enjoy that programming.  Again, the better solution is for PTC to work with others to improve the tools and methods available to families to more effectively make this decision for themselves.  I certainly don’t want others making these determinations for my wife and me and our two kids.  We’ve got the job handled, thank you very much.

Yesterday up on Capitol Hill, I hosted a very interesting discussion about “Next-Generation Parental Controls & Child Safety Efforts.”  I thought I’d provide a quick recap here for those who couldn’t attend. [Note: audio of the event will be up shortly at the link above and transcript is in the works.] The event featured Steve Crown, Vice President and Deputy General Counsel of Microsoft Corporation’s Entertainment & Devices Division; Dane Snowden, Vice President of External & State Affairs of CTIA – The Wireless Association; and Stephen Balkam, Chief Executive Officer of Family Online Safety Institute.

Steve Crown of Microsoft kicked the show off with a terrific overview of some the current and next-generation parental control tools and awareness efforts that Microsoft is deploying to help empower parents and keep kids safer both online and in gaming environments. Crown outlined Microsoft’s 5-prong strategy regarding how they have approached these issues on the gaming front, and I think it represents an excellent model of how sensible industry self-regulation and “best practices” can go a long way toward addressing concerns that many parents and policymakers have. The five strategies Crown outlined were: (1) Respect both the freedom of game creators and freedom of choice for game consumers; (2) empower parents with ratings, tools, and information; (3) use independent ratings (like the ESRB) to label content; (4) require all games be rated before they can be used on a platform so that parents can implement blocking controls; and (5) respect regional laws and rating systems in different parts of the globe.

In my book on Parental Controls & Online Child Safety: A Survey of Tools & Methods, I’ve documented many of the empowerment tools that Microsoft has deployed in recent years to make this empowerment vision a reality. One of the most important things MS does on its XBox 360 console is to provide an immediate “out-of-the-box” prompt for parents to set up parental controls and establish other limitations on online chat, spending, or Internet access. Microsoft announced another cool new feature in November 2007, the “Family Timer.” It lets parents limit how and when children play games on the console. This is similar to the time management tools Microsoft offers in its Vista operating system for PCs.  Incidentally, my wife has asked me to start using the Family Timer on our XBox — not for our kids, but for me!  This particular 40-year-old man is still a big kid at heart.

Crown also stressed the importance of “deep cooperation and coordination” when it comes to making parental empowerment a reality.  For example, when announcing the Family Timer, Microsoft also launched a new awareness campaign in conjunction with the Parent Teacher Association (PTA) referred to as the “Is Your Family Set?” campaign At the same time, Microsoft and the PTA also rolled out a new “P.A.C.T.” agreement form that parents and their children could sign to reach an agreement on acceptable video game usage in the home.

To bring all these efforts together and give parents a sort of “one-stop shop” for all these gaming tools and information, in early 2009, Microsoft launched a new portal, “Get Game Smart.com.”  The GetGameSmart site provides instructions and video tutorials about how to set up parental controls and family settings, tips and advice from child safety experts, a frequent newsletter, and much more.

Again, “cooperation and coordination” was central to the Get Game Smart effort, with over 15 partners being involved. Moreover, Crown pointed out, cooperation and coordination has also been essential to the efforts of Microsoft and others in the gaming industry when it comes to “point of sale” awareness-building about game ratings.  Obviously, game developers and console makers can’t have staff on hand at every store where games or consoles might be sold. Consequently, it often falls to sales clerks and others in retail stores to convey ratings info.  Luckily, because of the partnerships that have been struck between various stakeholders all along the food chain, public awareness and use of ratings has grown rapidly. Microsoft, the ESRB, and others in the gaming industry have worked with retailers like Best Buy, WalMart, and many online vendors to make sure relevant ratings information is used at the point of sale to inform parents or limit underage access to games rated for more mature audiences.

The chart below illustrates the dramatic increase in ratings use and awareness since 1999 — from 49% awareness in 1999 to 86% by 2008.  That’s an incredible success story in terms of how industry self-regulation and best practices can go all long way toward addressing the concerns of parents and policymakers without denying the public access to a broad range of games for all ages.

Also on hand at our Hill event yesterday was Dane Snowden of the CTIA – The Wireless Association. Snowden also stressed the importance of partnerships and coordination among many diverse players to build awareness about parental controls and online safety in the mobile context. Snowden pointed out that there are well over 600 different mobile communications devices on the market today, which makes devising controls a daunting task. But both the wireless industry and independent vendors are responding with a wave of new integrated tools and add-on services that can help parents control handset use and online interactions.

For example, beginning in November 2005, CTIA unveiled new “Wireless Carrier Content Guidelines” that industry members would follow “to proactively provide tools and controls to manage wireless content offered by the carriers or available via Internet-enabled wireless devices.  According to an April 2009 filing by CTIA to the FCC, the guidelines work as follows:

Under these guidelines, participating carriers agree to develop content classification standards and educate consumers about the meaning of the chosen categories and ratings. The Notice describes the bifurcation in these content classification guidelines between “Carrier Content” and content available from other sources. The guidelines for Carrier Content cover materials that are available through a carrier’s managed content portal as well as third-party materials for which customers may be billed directly by their wireless carrier. These materials are divided into “Generally Accessible Carrier Content,” which is available to all consumers, and “Restricted Carrier Content,” which is not available to wireless users under 18 years of age without specific parental authorization.

Many major wireless carriers have already announced their plans or policies regarding such content or developed family tools to help parents protect their children. Market leaders AT&T (“SmartLimits” and “Media Net”),Verizon Wireless (“Family Locator”), T-Mobile (“Web Guard”), and Sprint (“Net Safety“) already have excellent parental control services and websites up and running.

Dane Snowden also noted that a vibrant marketplace of independent parental control tools is now thriving on many platforms, including Apple iTunes apps and Windows Mobile apps. Thus, just as was the case in the traditional PC world, we can expect to see parental control tools integrated within networks and devices and then also on top of networks and devices. That’s the best of both worlds since it gives parents a lot of flexibility and options.

Finally, my old friend Stephen Balkam of Family Online Safety Institute placed all these developments in a broader historical context. He believes we are finally seeing a shift from a “fear-based approach” to online safety toward a “fact-based approach.” Balkam cited the early fears and techno-panics that motivated misguided and ultimately unconstitutional laws such as the Communications Decency Act of 1996 and the Child Online Protection Act of 1998. He also pointed out just how irrelevant such laws would have been even if they had remained on the books in light of the recent rise of problems like cyberbullying and “sexting.”

To address such concerns, Balkam stressed the importance of media literacy and digital citizenship and the need for a “Web 3.0” approach along the lines of what Anne Collier and Larry Magid have outlined in their work on the issue. Balkam also put in a plug for the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047), which was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that would be administered by the Department of Justice.  Balkam argued, and I agree, that such education and counseling-based approaches represent the better approach to a “criminalization” solution.

In closing, I think the 3 key take-aways from yesterday’s discussion were:

1. Cooperation and coordination are essential when devising parental control solutions and trying to build awareness of them.
2. Additional parental empowerment tools are great, but focusing on striking the right balance is crucial.  Parental empowerment tools must be both sophisticated and simple to use at the same time.
3. Education is absolutely essential in every child safety context. Whether it’s potentially objectionable content or unwanted forms of communications, we must talk to our kids and better prepare them for life in the Digital Age.  The best “parental control” is parental interaction and ongoing conversation with our kids.

Today I was invited to the Federal Communications Commission (FCC) to testify at one of the agency’s Broadband Working Group workshops. This particular workshop was on “Broadband Consumer Context,” which focused on “a range of challenges and opportunities as the internet becomes a focal point for commercial transactions, social networking, and a host of activities pertaining to information gathering and exchange.”

I was asked to address the issue of whether there is a relationship between online safety concerns and broadband uptake. In my testimony, I noted that, in my 15 years of research in this area, I have never unearthed any substantive empirical evidence suggesting a correlation between parental concerns about online activity and overall household broadband uptake. I have seen occasional anecdotal news stories discussing the concerns some parents have had about their kids online that led them to reject online connectivity, but these stories have been exceedingly rare (and I haven’t seen any in recent memory).

I also argued that I did not think it at all surprising that such anecdotes are harder to find, or that empirical evidence on this front seems non-existent. I argued that there were four logical explanations for why parental concerns about online safety haven’t “moved the broadband needle” much in the negative direction:

1. Not every home has children present
2. Parents use a variety of household media rules to control media & Internet usage
3. A vibrant marketplace of parental control technologies exists
4. Likely that most parents believe that the benefits of broadband outweigh the potential downsides

For all the details on each of those, read my entire testimony or check out the presentation embedded below that I made to the FCC today.

Is There a Relationship Between Online Safety Concerns and Broadband Uptake? (Adam Thierer – PFF) http://d.scribd.com/ScribdViewer.swf?document_id=19575851&access_key=key-1igiha619z8f15dm6hg5&page=1&version=1&viewMode=

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

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

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

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

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

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

I. The Elitism of Speech Regulation

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

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

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

II. The Elitism of Privacy Regulation

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

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

III. Intellectual Schizophrenia on Both the Left & Right

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

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

IV. Common Tactics & Regulatory Mechanisms

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

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

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

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

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

V. The Crisis Mentality that Drives Regulation

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

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

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

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

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

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

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

VI. Third-Person Effect Hypothesis as an Explanation

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

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

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

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

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

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

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

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

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

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

VII. The Principled Alternative: Trust People & Empower Them

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

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

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

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

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

#

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[27] . See id. at 2.

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

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

[30] . Supra note 13.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As anyone who has spent time searching for comments on the FCC’s website can tell you, the agency doesn’t exactly have the most user-friendly website.  In the interest of making it easier for others to read the comments that came in last week in the agency’s “Child Safe Viewing Act” Notice of Inquiry, I have compiled all the major comments (those over 3 or 4 pages) and provided links to them below the fold.

Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  I filed 150+ pages worth of comments in this matter last week, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.

• Association of National Advertisers (ANA)
• AT&T
• Center for Democracy & Technology (Individual Comments)
• CDT (Joint Comments with other Public Interest Groups)
• Children’s Media Policy Coalition
• Coalition for Independent Ratings
• Comcast
• Common Sense Media
• Consumer Electronic Association (CEA)
• CTIA – The Wireless Association
• Cox Communications
• CustomPlay
• Digimarc Corp
• Digital Watermarking Alliance
• Digital Media Association
• Dish Network
• DirecTV
• Entertainment Software Association (ESA)
• Family Online Safety Institute (FOSI)
• Google (+ attachments A, B, C)
• Motion Picture Association of America (MPAA)
• Microsoft
• NAB + NCTA + MPAA (0n TV Guidelines)
• National Cable & Telecommunications Association (NCTA)
• Progress & Freedom Foundation (PFF)
• Sanyo
• Smart Television Alliance
• Sprint-Nextel
• TiVo
• TV Guardian
• TV Watch
• U.S. Telecom Association
• Verizon & Verizon Wireless
• Wi-LAN V-Chip Corp

Today I filed comments with the Federal Communications Commission (FCC) in its proceeding examining the marketplace for “advanced blocking technologies.”  This proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  My colleagues will no doubt laugh about the fact that I have dropped an absurd 150 pages worth of comments on the FCC in this matter, but I had a lot to say on this topic!  Parental controls, child safety, and free speech issues have been the focus of much of my research agenda over the past 10 years.

In my filing, I argue that the FCC should tread carefully in this matter since the agency has no authority over most of the media platforms and technologies described in the Commission’s recent Notice of Inquiry.  Moreover, any related mandates or regulatory actions in in this area could diminish future innovation in this field and would violate the First Amendment rights of media creators and consumers alike.  The other major conclusions of my filing are as follows:

• There exists an unprecedented abundance of parental control tools to help parents decide what constitutes acceptable media content in their homes and in the lives of their children.
• There is a trade-off between complexity and convenience for both tools and ratings, and no parental control tool is completely foolproof.
• Most homes have no need for parental control technologies because parents rely on other methods or there are no children in the home.
• The role of household media rules and methods is underappreciated and those rules have an important bearing on this debate.
• Parental control technologies work best in combination with educational efforts and parental involvement.
• The search for technological silver-bullets and “universal” solutions represent a quixotic, Holy Grail-like quest and it will destroy innovation in this marketplace.
• Enforcement of “household standards” made possible through use of parental controls and other methods negates the need for “community standards”-based content regulation.

My entire filing can be found here and down below in a Scribd reader.  All comments in the matter are due tomorrow and then reply comments are due on May 18th.

[FCC FILING] Adam Thierer-PFF Re Child Safe Viewing Act NOI (MB 09-26) http://d.scribd.com/ScribdViewer.swf?document_id=14264143&access_key=key-2nrvjm96q9cl5vep567l&page=1&version=1&viewMode=