“Responsible research and innovation,” or “RRI,” has become a major theme in academic writing and conferences about the governance of emerging technologies. RRI might be considered just another variant of corporate social responsibility (CSR), and it indeed borrows from that heritage. What makes RRI unique, however, is that it is more squarely focused on mitigating the potential risks that could be associated with various technologies or technological processes. RRI is particularly concerned with “baking-in” certain values and design choices into the product lifecycle before new technologies are released into the wild.

In this essay, I want to consider how RRI lines up with the opposing technological governance regimes of “permissionless innovation” and the “precautionary principle.” More specifically, I want to address the question of whether “permissionless innovation” and “responsible innovation” are even compatible. While participating in recent university seminars and other tech policy events, I have encountered a certain degree of skepticism—and sometimes outright hostility—after suggesting that, properly understood, “permissionless innovation” and “responsible innovation” are not warring concepts and that RRI can co-exist peacefully with a legal regime that adopts permissionless innovation as its general tech policy default. Indeed, the application of RRI lessons and recommendations can strengthen the case for adopting a more “permissionless” approach to innovation policy in the United States and elsewhere.

Definitional Ambiguities, Part 1: “Governance”

Before we can have a constructive conversation about these issues, however, we need to agree upon how narrowly or broadly we are defining some relevant terms, beginning with the word “governance.” When some hear the term “governance” their first reaction might be to think “government,” and formal legal and regulatory processes in particular. That is certainly one form of governance, but it is hardly the only one.

We often speak of the “governance” of corporations, schools, churches, other institutions, and even households. When we do, we usually do not mean government administration of these things; we are instead thinking of some other, more amorphous form of governance by a variety of individuals or groups. The “governance” of a company, for example, includes the interaction of shareholders, board members, corporate officials, workers, and so on. The “governance” of a church might involve clergy, the congregation, and sacred scriptures or traditions.  Household “governance” comes down to decisions made by parents and caretakers. And so on.

Thus, “governance” can certainly have the narrow connotation of being associated with formal regulatory enactments by governments, but it can also describe a much broader universe of norms and rules that are established and enforced by a wide variety of people (or groups of people) in a wide variety of ways.

When we consider questions of technological governance—and specifically the notion of “anticipatory governance,” which is prominent feature of RRI discussions—it helps to specify whether we are speaking of governance in a broad or narrow sense. Whether it is done consciously or not, in much of the literature, RRI scholars and advocates fail to make it clear what type of “governance” they are thinking of when proposing new forms of anticipatory technological governance.

Definitional Ambiguities, Part 2: “Precautionary Principle” & “Permissionless Innovation”

These distinctions are particularly important when we compare and contrast the “precautionary principle” and “permissionless innovation.” These concepts are most useful when viewed as governance dispositions or policy postures and they are usually—although not always—used in the narrow “governance” sense to describe one’s perspective on where legal and regulatory defaults should be set.

Even when applied narrowly, however, both terms are open to interpretation as applied in various policy contexts. For example, precaution could mean an outright prohibition on an innovative activity until such time as it had been proven safe (this is the way many FDA or FAA regulations work). But precaution might be imposed through somewhat less restrictive approaches, such as a set of government-established safety standards buttressed by a recall regime (think NHTSA or CPSC). Even less restrictive but still precautionary in orientation would be a mandatory labeling law or a government-led risk reduction educational campaign. In other words, there are probably as many flavors of the precautionary principle as there are flavors of ice cream.

For the longest time, both proponents and critics of the precautionary principle have failed to put a name on its opposing worldview or governance disposition. I have argued that, despite its uncertain origin and imprecise meaning, “permissionless innovation” provides a useful name for the antithesis of the precautionary principle.

As I noted in a recent speech at an Arizona State University law school conference on technological governance, critics of permissionless innovation sometimes like to imply that it is synonymous with anarchy. (In fact, a few people at that event leveled that accusation at me.) But I’ve written an entire book on this notion and surveyed countless essays and articles that cite the term, and I have never once seen any advocate of permissionless innovation going to such an extreme. In fact, those advocates often don’t even bother calling for the abolition of any laws, programs, or agencies. As I noted in my ASU talk, “most of those defenders of permissionless innovation are using the term as a sort of shorthand when what they really mean to say is something like: ‘give innovators a bit more breathing room,’ or, ‘don’t rush to regulate.’”

And so, as a policy posture, permissionless innovation really comes down to a preference for setting public policy defaults closer to green lights rather than red ones. In my own book on the subject, I defined the term as follows:

“Permissionless innovation refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if any develop, can be addressed later.”

By contrast, the precautionary principle posture generally recommends keeping the light red until innovators can prove their new products and services are “safe,” however that is defined. But there are many points along the spectrum between these two policy postures. And if we can accept the idea that the “precautionary principle” and “permissionless innovation” act more as general governance dispositions instead of fixed and rigid edicts, then it is also easier to imagine how both of those dispositions can incorporate “responsible innovation” notions into their governance visions.

Definitional Ambiguities, Part 3: “Responsible Innovation”

But what exactly constitutes “responsible innovation”? Definitions of responsible research and innovation are still evolving, but a leading article on the subject by René von Schomberg from 2011 argues that it can be defined as:

“A transparent, interactive process by which societal actors and innovators become mutually responsive to each other with a view to the (ethical) acceptability, sustainability and societal desirability of the innovation process and its marketable products (in order to allow a proper embedding of scientific and technological advances in our society).”

A more streamlined definition was offered by Jack Stigloe, Richard Owen, and Phil Macnaghten in a 2013 article: “Responsible innovation means taking care of the future through collective stewardship of science and innovation in the present.” They also proposed four dimensions of responsible innovation—anticipation, reflexivity, inclusion and responsiveness—which they say “provide a framework for raising, discussing and responding to such questions.”

RRI Tools, a European consortium focused on promoting responsible innovation strategies, identifies the six core goals of RRI as: open access, gender equality in science, ethics, science education, governance, and public engagement. Other groups and individuals promoting RRI focus on privacy, safety, and security as crucial values that they hope to work into more product development processes early on.

As with “corporate social responsibility” before it, “responsible innovation” will remain a term that is open to varying interpretations and which can incorporate many distinct values that are context-dependent. What Milton Friedman said of CSR discussions in 1970—that they “are notable for their analytical looseness and lack of rigor”—continues to be somewhat true for both CSR and RRI circa 2017. Nonetheless, what both concepts hold in common is the belief that, whatever those “responsible” values are, they can be “baked in” to corporate decision-making and product design processes in an anticipatory fashion.

And while not everyone will agree on the contours of these concepts, practically speaking, I think we can expect both the CSR and RRI movement will continue to grow in coming years. That will be the case not only because of the pressures applied by various activists, stakeholders, and governments, but also because many companies and their consumers will demand more than just better products and greater profitability.

But Doesn’t RRI Necessitate the Precautionary Principle as a Policy Prerequisite?

But how precisely should RRI notions and recommendations influence policy deliberations over the future course of technological governance in the narrow sense of the term (i.e., more legalistic sense)? Here’s where things get more interesting.

The problem is that many of the advocates of RRI are seemingly more sympathetic to precautionary policy regimes and skeptical of the wisdom of permissionless innovation as a policy default. This is not always well-articulated in their writing. Instead, it is the attitude seemingly on display when I speak with RRI advocates or hear them deliver speeches.  Yet, most of these advocates just won’t ever let you nail them down on the point.

Some RRI advocates do come close to making that connection. In his seminal article, Rene von Schomberg argues that RRI, “can reduce the human cost of trial and error and make advantage of a societal learning process of stakeholders and technical innovators. It creates a possibility for anticipatory governance,” he says. “This should ultimately lead to products which are (more) societal robust.”

He then briefly raises the possibility of RRI informing the application of the precautionary principle in public policy debates:

“The precautionary principle works as an incentive to make safe and sustainable products and allow governmental bodies to intervene with Risk Management decisions (such as temporary licensing, case by case decision making etc) whenever necessary in order to avoid negative impacts.”

Yet, von Schomberg never really spells out the exact relationship between RRI and the precautionary principle as a matter of public policy .

Another leading article on the meaning of RRI by Grace Eden, Marina Jirotka, and Bernd Stahl, says that, “The RRI focus is more on mitigating wider societal long-term risks and so favors incremental rather than radical innovation.” That seems to suggest a closer connection between RRI and a formal application of the precautionary principle in policy deliberations about emerging technologies. They also speak of the “two very different approaches to problem solving (anticipatory vs. evidence-based),” which I have argued gets to the heart of the divergence between the precautionary principle and permissionless innovation policy paradigms. Yet, these authors do not dwell on this connection at length, and most of the rest of their article is focused on the ways in which RRI can (and already does) infuse product and service development processes outside of the realm of public policy.

In a 2015 Brookings Institution white paper about RRI, Walter D. Valdivia and David H. Guston offer a more concrete answer to this question when they insist that responsible innovation “is not a doctrine of regulation and much less an instantiation of the precautionary principle; the actions it recommends do not seek to slow down innovation because they do not constrain the set of options for researchers and businesses, they expand it.” They continue on to note that:

“[responsible innovation] considers innovation inherent to democratic life and recognizes the role of innovation in the social order and prosperity. It also recognizes that at any point in time, innovation and society can evolve down several paths and the path forward is to some extent open to collective choice. What RI pursues is a governance of innovation where that choice is more consonant with democratic principles.”

Here, finally, we have a better demarcation between the general notion of RRI and the formal application of the precautionary principle. But is that line really so bright? Do other RRI scholars agree with Valdivia and Guston about this separation between the “responsible innovation” movement and the formal application of the precautionary principle in the policy realm? And, finally, what is meant by “democratic life” and “democratic principles” in this context?

I suspect that many RRI advocates would read that last line from Valdivia and Guston above (“What RI pursues is a governance of innovation where that choice is more consonant with democratic principles.”) and suggest that it favors an embrace of the precautionary principle as the default position in emerging technology policy discussions. But, again, that remains open to debate because so much of the RRI literature lacks precision regarding the connection between these concepts.

How RRI Can be Compatible with Both Visions

Regardless, I would like to suggest that parties on both sides of this debate would be wise to divorce the concept of responsible innovation from their priors regarding optimal regulatory policy toward emerging technology. Properly understood, “responsible innovation” could be a feature of the “precautionary” vision, but it could also be compatible with the “permissionless” governance vision and resulting policy regimes. To reach that understanding, both sides will need to be open to learning from the other and willing to take their concerns seriously.

Advocates of RRI should understand that, just as CSR can do a great deal of good even in the absence of formal regulatory action, the same can be true of RRI, even in a policy regime in which permissionless innovation is the general default.

If, however, the first instinct among the RRI community is to consider advocates of permissionless innovation nothing more than a bunch of uncaring anarchists, they relinquish the opportunity to work with diverse parties to instill wise guidelines into technological development processes. This would be particularly misguided in an age when the so-called “Pacing Problem”—i.e., the growing gap between the introduction of new technologies and time it takes laws and regulations to adjust or be formulated in response—has become an ever-accelerating reality, making traditional “hard law” regulatory enactment increasingly difficult. If the RRI community wants to get any of the values that they care about incorporated into technological development processes, then they will need to be open to the idea that perhaps the only way to do so will be through less formal procedures precisely because law will likely lag so far behind marketplace developments.

Likewise, if the first instinct among the permissionless innovation advocates is to regard the RRI movement as little more than repackaged Ludditism, hell-bent on derailing all the great inventions of the future, then they are foolishly forgoing the chance to work with a diverse group of well-intentioned scholars and stakeholders who could ensure that new products and services gain more widespread acceptance and public trust. More practically, permissionless innovation advocates would be wise to accept the fact that, although technological innovation is generally outpacing the ability of government to keep up, that doesn’t mean most of the traditional regulatory regimes or agencies are going away any time soon. After all, can you name a technocratic law or regulatory body that has been liberalized or eliminated in recent memory? RRI offers a chance to forge a rough peace with agencies and officials who often just want to have a small say in how innovative processes are unfolding. Of course, if regulators seek to have a BIG say in those matters, then policy fights will no doubt ensue. But in my experience, this is less often the case than some defenders of permissionless innovation suggest.

Thus, advocates of permissionless innovation should understand that RRI is not synonymous with a formal precautionary principle-focused policy prescription and that “anticipatory governance” can mean something more generic and beneficial, so long as it does not come to mean the formal application of the precautionary principle as the public policy default.

We Are Already Going Down This Path

Perhaps I am being naïve to think this sort of common ground might exist. But the funny thing is that I know for a fact that it already does! RRI principles have been infusing various multistakeholder processes in the United States for many years now.

For example, here’s a paper I wrote back in 2009 about the various online safety task forces, blue ribbon commissions, and other collaborative efforts that were instilling “safety by design” principles into various online services and digital products. Meanwhile, “privacy by design” and “security by design” efforts are all the rage these days and a wide variety of best practices and codes of conduct have been established to make sure privacy and security values are baked-in to the product design process from the start.

Meanwhile, safety, security, and privacy best practices have increasingly been formulated by the U.S. Department of Commerce (the National Telecommunications and Information Administration in particular), the Federal Trade Commission, FDA, FCC, and the White House Office of Science and Technology Policy. These multistakeholder efforts and agency best practice reports have contained assorted “responsible innovation” principles for technologies as wide-ranging as: big data, artificial intelligence, the Internet of Things, facial recognition, online advertising, mobile phone privacy, mobile apps for kids, driverless cars, commercial drones, genetic testing, medical advertising on social media, 3D printed medical devices, medical device cybersecurity, nanotech, and much more. (I have a forthcoming paper in the works with Ryan Hagemann of the Niskanen Center in which we attempt to document many of these new “soft law” technological governance efforts. There have been so many of these efforts – many of which are still underway – that we are having a hard time cataloging them all!)

I am utterly perplexed why more RRI scholarship has not identified the many ways in which the principles they advocate already infuse multistakeholder processes such as these. Perhaps it is because those scholars feel that some of these multistakeholder processes fail to address the full range of issues or values that they feel are in play. But if you examine recent reports from these agencies and government bodies, I think you will come away quite impressed by the breadth of issues and concerns that they cover. Likewise, the values and best practices they discuss and/or recommend are exactly the sort of responsible innovation principles that the RRI movement cares about.

To some extent, therefore, RRI is already well-entrenched in the technology governance process, it’s just a bit messy. I think some RRI scholars probably fall prey to the old “Goldilocks myth” that we can get these principles just right with enough consideration and oversight. The reality on the ground is that instilling RRI values into the technological design process is a dynamic, iterative, and quite imprecise art.

In closing, there’s still more to the technological governance story that RRI advocates fail to incorporate into their work. To fully appreciate the many ways technological processes are constrained and corrected, they must take into account other governance forces and factors, including the role of:

• social norms and reputational effects (especially the growing importance of reputational feedback mechanisms);
• third-party accreditation and standards-setting bodies;
• courts and common law (including legal solutions like product liability, negligence, design defects law, failure to warn, breach of warranty, and other assorted torts and class action claims);
• insurance markets as risk calibrators and correctional mechanisms;
• federal and state consumer protection agencies (such as the FTC), which police “unfair and deceptive practices” and other harms; and
• media, academic institutions, non-profit advocacy groups, and the general public more generally, all of which can put pressure on technology developers.

Only by taking into account the full range of players and activities at work can we develop a more robust understanding of how technology is actually “governed” in our modern world. I suspect that many in the RRI community of scholars do appreciate these other factors, even though they don’t always account for all of them in their writing and advocacy. Then again, many of those advocates would perhaps decry the more remedial, ex post nature of these governance tools and insist that more ex ante anticipatory planning must be at the heart of technological design and development processes.

In reality, a mix of these two approaches is already at work today and will likely continue to dominate the governance process well into the future. So long as the anticipatory efforts don’t become formal regulatory proposals, there is no reason that this mix of “responsible innovation” governance tools and methods can’t be embraced by a diverse array of scholars and innovators.

Further Reading:

• Jack Stilgoe, Richard Owen, and Phil Macnaghten, “Developing a Framework for Responsible Innovation,” Research Policy, Vol. 42, No. 9 (2013): 1568–80.
• Rene Von Schomberg (ed.), Towards Responsible Research and Innovation in the Information and Communication Technologies and Security Technologies Fields, A Report from the European Commission Services, (Luxembourg: Publications Office of the European Union, 2011).
• Grace Eden, Marina Jirotka, and Bernd Stahl, “Responsible Research and Innovation,” (IEEE: 2013).
• Walter D. Valdivia and David H. Guston, “Responsible Innovation: A Primer for Policymakers,” Center for Technology Innovation at Brookings Institution, (May 2015),
• “Rethinking the Social Responsibility of Business,” A Reason debate featuring Milton Friedman, Whole Foods’ John Mackey, and Cypress Semiconductor’s T.J. Rodgers, Milton Friedman, John Mackey & T.J. Rodgers,Oct. 1, 2005.
• Milton Friedman, “The Social Responsibility of Business is to Increase its Profits,” The New York Times Magazine, September 13, 1970.
• Adam Thierer, “Wendell Wallach on the Challenge of Engineering Better Technology Ethics,” Technology Liberation Front, April 20, 2016.

Here’s a presentation I’ve been using lately for various audiences about “Cronyism: History, Costs, Case Studies and Solutions.” In the talk, I offer a definition of cronyism, explain its origins, discuss how various academics have traditionally thought about it, outline a variety of case studies, and then propose a range of solutions. Readers of this blog might be interested because I briefly mention the rise of cronyism in the high-tech sector. Brent Skorup and I have a huge paper in the works on that topic, which should be out early next year.

Yesterday’s Supreme Court decision in Citizens United v. FEC essentially stands for the proposition that free speech is free speech regardless of the speaker. The 5-4 majority for the Court ruled that “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.” (at 25)  Echoing its early decision in Bellotti, the Court noted that “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.’” (at 33) “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.” (at 35) “There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations.” (at 37)

Somehow this has proven controversial, even radical, to some.  But, as George Will correctly notes, “This was radical only because after nearly four decades of such ‘reform’ the First Amendment has come to seem radical. Which, indeed, it is. The Supreme Court on Thursday restored First Amendment protection to the core speech that it was designed to protect — political speech.”  Essentially, the decision gets Congress out of the game of picking who, or what platform, deserves full First Amendment protection when it comes to uttering political speech. And there’s nothing radical about that.

Indeed, as Justice Kennedy noted for the majority, there is nothing surprising about this reasoning once you realize that almost every other type legislative or regulatory speech restriction has been struck down as a violation of the First Amendment. “The law before us is an outright ban [on political speech], backed by criminal sanctions,” Kennedy noted (at 20).  “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” (at 33)  Think about this for a second: Criminal sanctions or jail time for political speech! How in the world did we get to the point in this nation where criminalizing political speech became acceptable to our legislators?  Ignoring the obvious answer—it’s all about protecting incumbents—what is really “radical” here is not that the Supreme Court setting us back on the right path, but that our legislative branch has veered so far off of it.

I also agree with Tim Lee and Eugene Volokh who note that corporate money has always been part of politics and it is silly to think the restrictions in play here would really do much to change things in Washington in terms of diminishing “corruption.” Frankly, if you want less corruption in government, you need to begin by shrinking the powers of government to a more sensible level.  Big government breeds corruption opportunities simply because the “return on investment” for dollars spent trying to influence politics depends on how much money politicians can control through spending and regulation.

And political advertising or “electioneering communications” in the days leading up to an election are about the last thing you should be worrying about if you really want to “clean up the system.”  You don’t strengthen democracy by stifling freedom of speech or issue advocacy. That’s the equivalent of burning the village in order to save it.

For technology policy, the most important part of the decision is probably the following passage:

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers… Today, 30-second television ads may be the most effective way to convey a political message… Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues…The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech…[viii][viii]

As Seth Cooper correctly argues:

These passages… are clearly at odds with Red Lion Broadcasting v. FCC’s assertion sixty years ago that “differences in the characteristics of news media justify different in the First Amendment standards applied to them.”

Eugene Volokh makes much the same point. Perhaps we are finally seeing an end to America’s “First Amendment Twilight Zone” as I have called it [see this video presentation] and, with any luck, a consistent First Amendment for the Information Age.

The week-long Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with Prof. Lessig’s response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” Jonathan Zittrain’s follow-up essay, and my essay on, “Code, Pessimism, and the Illusion of ‘Perfect Control.’”  Needless to say, Prof. Lessig isn’t too happy with my response. You should jump over to the Cato site to read the entire thing, but here are a couple of excerpts and my response.

To my suggestion that there is a qualitative difference between law and code, Prof. Lessig says:

I’ve argued that things aren’t quite a simple as some libertarians would suggest. That there’s not just bad law. There’s bad code. That we don’t need to worry just about Mussolini. We also need to worry about DRM or the code AT&T deploys to help the government spy upon users. That public threats to liberty can be complemented by private threats to liberty. And that the libertarian must be focused on both.  […] Of course, law is law. Who could be oblivious to that? And who would need a book to explain it?  But the fact that “law is law” does not imply that it has a “much greater impact in shaping markets and human behavior.” Sometimes it does — especially when that “law” is delivered by a B1 bomber. But ask the RIAA whether it is law or code that is having a “greater impact in shaping markets” for music. Or ask the makers of Second Life whether the citizens of that space find themselves more constrained by the commercial code of their geo-jurisdiction or by the fact that the software code of Second Life doesn’t permit you simply to walk away (so to speak) with another person’s scepter. Whether and when law is more effective than code is an empirical matter — something to be studied, and considered, not dismissed by banalities spruced up with italics.

Well, I beg the professor’s pardon for excessive use of italics.  [I won’t ask for an apology for misspelling my last name in his piece!] Regardless, it’s obvious that we’ll just never see eye-to-eye on the crucial distinction between law and code. Again, as I stated in my essay: “With code, escape is possible. Law, by contrast, tends to lock in and limit; spontaneous evolution is supplanted by the stagnation of top-down, one-size-fits-all regulatory schemes.”

Lessig largely dismisses much of this with that last line above, suggesting that we just need to keep studying the matter to determine the right mix of what works best.  To be clear, while I’m all for studying the impact of law vs. code as “an empirical matter,” that in turn begs the question of how we define effectiveness or success. I suspect that the professor and I would have a “values clash” over some rather important first principles in that regard.  This is, of course, a conflict of visions that we see throughout the history of philosophy; a conflict between those who put the individual and the individual’s rights at the core of any ethical political system versus those who would place the rights of “the community,” “the public” or some other amorphous grouping(s) at the center of everything.  It’s a classic libertarian vs. communitarian / collectivist debate.

Lessig, however, makes it clear in his response that he doesn’t take kindly to being called a cyber-collectivist, even accusing me of “red-baiting” by using the term.  But the collectivism of which I speak is a more generic type; not the hard-edged Marxist brand of collectivism of modern times.   What separates Lessig’s brand of cyber-collectivism from the cyber-libertarianism that I espouse is a general preference for who calls the shots most of the time.  Quite obviously, I place an enormous amount of faith in largely unfettered markets in code to generally advance the values of individual liberty, freedom of speech, and economic innovation more often than rule by politics and public officials will.  Prof. Lessig is obviously far more enamored with the potential of the state and politics to play a beneficial role in shaping things.

Thus, even though Prof. Lessig rejects the association, Declan McCullagh was right to point to the distant influence of Plato on Code and much of Lessig’s other work.  (And there’s a bit of Rousseauian influence there, too.)  In any event, if Prof. Lessig takes offense at this label and wants to call his approach something other than cyber-collectivism, than by all means be my guest; invent a new term and I’ll use it.  But to me, as a student of political philosophy, I see his philosophy as just another variant of collectivism and just don’t know what else to call it.  This isn’t “red-baiting;” it’s simply an exercise in philosophical classification.

To some extent, Prof.  Lessig undercuts my arguments here in concluding his essay by asking that we “focus on a large number of difficult questions that remain… about how to preserve the liberty of society and the Net against the ever-expanding harm caused by the captured corruption that we call democratic government.”  Hey, now that sounds like something a true libertarian might say! (Except that we would have likely used the phrase “preserve the liberty of the individual” instead of “society”!) Regardless, Lessig is at least willing to admit that there may be some problems in paradise for Platonist thinking or Rousseauian romanticism.

Alas, for reasons articulated quite nicely here by Tim Lee in the past, “Lessig clearly understands what it takes to catch the interest of conservative- and libertarian-minded readers, and he’s not above spinning his arguments to maximize their appeal to the people he’s addressing.” For the libertarian, there is only one fool-proof solution to the problem of government corruption: You shrink the Leviathan. From what I’ve seen of Lessig’s proposals so far to address corruption, however, he’s not really willing to have that conversation. It’s all about the old “getting money out of politics” and “kill all the lobbyists” approach. Unfortunately, as Tim notes:

The problem isn’t that there’s a discrete list of corrupt practices that we can identify and prohibit. The problem is that if politicians are willing to be corrupted, and special interests are willing to spend resources to corrupt them, they’ll find ways to get it done. You can certainly reduce the effect on the margin — by banning overt bribery, for example — but once you’ve banned the really obvious categories of back-scratching, it becomes more and more difficult to make any further progress. What’s going on in Washington is disgusting, to be sure, but it’s not new or unique to the United States. And I think fixing it is going to be a lot more challenging than Lessig imagines.

I couldn’t agree more.  Nonetheless, I eagerly await more details from Prof. Lessig regarding his new effort to address corruption in our political system, however he defines it.  He may set forth some reform proposals that we libertarians find quite sensible and ultimately endorse.  But if “reform” instead comes in the form of layers of additional campaign finance regulations, well then, I think we’ll find ourselves disagreeing once again. Because many of those so-called reforms are simply free-speech violating restrictions on the rights of both individuals to petition their government.

But to conclude this exchange on a good note, let me just say that — at least in theory — I wholeheartedly endorse Lawrence Lessig’s call to protect “the Net against the ever-expanding harm caused by the captured corruption that we call democratic government.”   And I hope someday he will be more open to the notion that limits on the power of the state are the ultimate key to accomplishing that goal.

The Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with my response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” as well as Jonathan Zittrain’s follow-up.

In my response, “Code, Pessimism, and the Illusion of ‘Perfect Control,'” I begin by arguing that:

The problem with peddling tales of a pending techno-apocalypse is that, at some point, you may have to account for your prophecies — or false prophecies as the case may be. Hence, the problem for Lawrence Lessig ten years after the publication of his seminal book, Code and Other Laws of Cyberspace.

I go on to argue that:

Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code.

After providing several examples of just how wrong Lessig’s predictions were, I then ask:

[W]hy have Lessig’s predictions proven so off the mark? Lessig failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. With the exception of some of the problems identified above, a largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. Oh, and did I mention it’s all pretty much free-of-charge? Say what you want about our cyber-existence, but you can’t argue with the price!

I am forced to admit, however, that Lessig’s book has had enormous impact of the field of cyberlaw and digital technology policy:

This brings me to what I believe is the most important impact of Code: the philosophical movement it has spawned. As Declan noted in his opening essay, Code “offered a burgeoning protest movement [a] unifying theme and philosophy” in that it was both a polemic against cyber-libertarianism and a sort of call-to-arms for cyber-collectivism. It gave this movement its central operating principle: Code and cyberspace can be bent to the will of the collective, and it often must be if we are to avoid any number of impending disasters brought on by those nefarious (or just plain incompetent) folks in corporate America. Led by a gifted, prolific set of disciples such as Jonathan Zittrain and Tim Wu, as well as increasingly influential activist groups such as Public Knowledge and Free Press, Lessig’s cyber-collectivists continue to preach skepticism regarding markets and property rights, and a general openness to — and frequent embrace of — government solutions to digital-era dilemmas. […]  Prof. Lessig and his movement are winning the battle of ideas on the cyber-front today. We have Code to thank — or blame — for that.

Please head over to the Cato Unbound website to read the entire thing.  Prof. Lessig’s response is scheduled to be posted on Monday.