In previous essays here I have discussed the rise of “global innovation arbitrage” for genetic testing, drones, and the sharing economy. I argued that: “Capital moves like quicksilver around the globe today as investors and entrepreneurs look for more hospitable tax and regulatory environments. The same is increasingly true for innovation. Innovators can, and increasingly will, move to those countries and continents that provide a legal and regulatory environment more hospitable to entrepreneurial activity.” I’ve been working on a longer paper about this with Samuel Hammond, and in doing research on the issue, we keep finding interesting examples of this phenomenon.

The latest example comes from a terrific new essay (“Humans: Unsafe at Any Speed“) about driverless car technology by Wall Street Journal technology columnist L. Gordon Crovitz. He cites some important recent efforts by Ford and Google and he notes that they and other innovators will need to be given more flexible regulatory treatment if we want these life-saving technologies on the road as soon as possible. “The prospect of mass-producing cars without steering wheels or pedals means U.S. regulators will either allow these innovations on American roads or cede to Europe and Asia the testing grounds for self-driving technologies,” Crovitz observes. “By investing in autonomous vehicles, Ford and Google are presuming regulators will have to allow the new technologies, which are developing faster even than optimists imagined when Google started working on self-driving cars in 2009.” 

Alas, regulators at the National Highway Traffic Safety Administration are more likely to continue to embrace a heavy-handed and highly precautionary regulatory approach instead of the sort of “permissionless innovation” approach to policy that could help make driverless cars a reality sooner rather than later. If regulators continue to take that path, it could influence the competitive standing of the U.S. in the race for global supremacy in this arena.

Crovitz cites a recent essay by innovation consultant Chunka Mui’s on this point: “The appropriate first-mover unit of innovation is not the car, or even the car company. It is the nation.” Mui uses the example of Singapore, where “the lead government agency [is] working to enhance Singapore’s position as a global business center” and has been inviting self-driving car developers to work with the island nation to avoid what Mui describes as “the tangled web of competition, policy fights, regulatory hurdles and entrenched interests governing the pace of driverless-car development and deployment in the U.S.”

That’s global innovation arbitrage in a nutshell and it would be a real shame if America was on the losing end of this competition. To make sure we’re not, Crovitz notes that U.S. policymakers need to avoid overly-precautionary “pre-market-approval steps” that “would give bureaucrats the power to pick which technologies can develop and which are banned. If that happens,” he notes, “the winner in the race to the next revolution in transportation is likelier to be Singapore than Detroit or Silicon Valley.”

Too true. Let’s hope that policymakers are listening before it’s too late.

Additional Reading:

• Global Innovation Arbitrage: Commercial Drones & Sharing Economy Edition
• Global Innovation Arbitrage: Genetic Testing Edition
• “Removing Roadblocks to Intelligent Vehicles and Driverless Cars” [law review article with Ryan Hagemann]
• How Many Accidents Could Be Averted This Holiday if More Intelligent Cars Were on the Road?
• Driverless Cars, Privacy & Security: Event Video & Talking Points
• Making Sure the “Trolley Problem” Doesn’t Derail Life-Saving Innovation
• Embracing a Culture of Permissionless Innovation
• Europe’s Choice on Innovation
• Why Permissionless Innovation Matters
• Problems with Precautionary Principle-Minded Tech Regulation & a Federal Robotics Commission (9/22/14)

Here are a few Internet policy essays I collected over the past year which I thought were particularly well done and worth highlighting once more. They are listed in chronological order:

• L. Gordon Crovitz – “Silicon Valley’s ‘Suicide Impulse,'” Wall Street Journal, January 28. (“It’s a measure of how far Silicon Valley has strayed from its entrepreneurial roots that a top regulator is calling on technology companies to do less lobbying and more competing,” Crovitz argued. “Rather than lobby government to go after one another, Silicon Valley lobbyists should unite to go after overreaching government. Instead of the “suicide impulse” of lobbying for more regulation, Silicon Valley should seek deregulation and a long-overdue freedom to return to its entrepreneurial roots.”)
• John Gruber – “Open and Shut,” Daring Fireball, March 1. (An absolutely brutal evisceration of Tim Wu’s recent work.)
• R. U. Sirius – “Cypherpunk Rising: WikiLeaks, Encryption, and the Coming Surveillance Dystopia,” The Verge, March 7.
• Julian Sanchez – “A Reply to Epstein & Pilon on NSA’s Metadata Program,” Cato at Liberty, June 16. (A meticulous point-by-point takedown of an essay by Roger Pilon & Richard Epstein defending NSA’s online surveillance tactics.)
• Ethan Zuckerman – “Is Cybertopianism Really Such a Bad Thing?” Slate, June 17 (A “defense of believing that technology can do good.”)

• Jill Lepore – “The Prism: Privacy in an Age of Publicity,” New Yorker, June 24. (An examination of the evolution of privacy norms over the past 150 years. Lepore argued that “As a matter of historical analysis, the relationship between secrecy and privacy can be stated in an axiom: the defense of privacy follows, and never precedes, the emergence of new technologies for the exposure of secrets. In other words, the case for privacy always comes too late. The horse is out of the barn.”)
• Michael Nelson – ” Six Myths of Innovation Policy,” The European Institute Blog, July 2013. (An interesting examination of some myths about innovation policy with a discussion about how it impacts policy in both U.S. and E.U.)
• Daniel O’Connor – “Rent Seeking and the Internet Economy (Part 1): Why is the Internet So Frequently the Target of Rent Seekers?” DisCo blog, August 15. (Nice overview of what rent-seeking is and why it is increasing in the tech economy.)
• Bruce Schneier – “Our Decreasing Tolerance To Risk,” Forbes, August 23. (Good exploration of the psychology of risk by one of the great experts on the topic. It’s not strictly about information technology policy, but it has profound ramifications for it. He notes: “We need to relearn how to recognize the trade-offs that come from risk management, especially risk from our fellow human beings.  We need to relearn how to accept risk, and even embrace it, as essential to human progress and our free society.  The more we expect technology to protect us from people in the same way it protects us from nature, the more we will sacrifice the very values of our society in futile attempts to achieve this security.”)
• Clive Thompson – “Googling Yourself Takes on a Whole New Meaning,” New York Times Magazine, August 30, 2013. (I’d be hard-pressed to find a more gifted and insightful technology pundit than Clive Thompson and he delivers yet again in this interesting piece. My review of his excellent new book was published by Reason. Needless to say, I loved it.)
• Eli Noam – “Towards the Federated Internet,” InterMEDIA, Autumn 2013. (A provocative essay advocating for an “internet of internets” to replace the current unified global Internet. Noam argues that the time has come to abandon our slavish allegiance to the dream of a single, uniform global network and “we should instead think about a system of federated internets working together in some form of technological coexistence of interoperability.”)

And my vote for worst Internet policy essay of the year goes to Washington Post columnist Robert J. Samuelson for his astonishing essay, “Beware the Internet and the Danger of Cyberattacks,” in which he says, “If I could, I would repeal the Internet. It is the technological marvel of the age, but it is not — as most people imagine — a symbol of progress. Just the opposite. We would be better off without it.”  Where does one even begin with such logic?!  Well, I responded here.  [A close runner-up for the Worst of Year prize would be this essay by Benjamin Kunkel, “Socialize Social Media! A Manifesto.” But it’s so hard to take that essay seriously that it should probably just be disqualified from the competition entirely.]

Anyway, let me know some of your favorite (or even least favorite) Net policy essays of 2013. (And yes, I fully expect some of you to list some of my essays as candidates for Worst of Year honors!)

The Mercatus Center at George Mason University has just released a new paper by Brent Skorup and me entitled, “A History of Cronyism and Capture in the Information Technology Sector.” In this 73-page working paper, which we hope to place in a law review or political science journal shortly, we document the evolution of government-granted privileges, or “cronyism,” in the information and communications technology marketplace and in the media-producing sectors. Specifically, we offer detailed histories of rent-seeking and regulatory capture in: the early history of the telephony and spectrum licensing in the United States; local cable TV franchising; the universal service system; the digital TV transition in the 1990s; and modern video marketplace regulation (i.e., must-carry and retransmission consent rules, among others.

Our paper also shows how cronyism is slowly creeping into new high-technology sectors.We document how Internet companies and other high-tech giants are among the fastest-growing lobbying shops in Washington these days. According to the Center for Responsive Politics, lobbying spending by information technology sectors has almost doubled since the turn of the century, from roughly $200 million in 2000 to $390 million in 2012.  The computing and Internet sector has been responsible for most of that growth in recent years. Worse yet, we document how many of these high-tech firms are increasingly seeking and receiving government favors, mostly in the form of targeted tax breaks or incentives.

We argue that the creeping cronyism could have two major negative ramifications. First, it could dull entrepreneurialism and competition in this highly innovative sector since time and resources spent on influencing politicians and capturing regulators cannot be spent competing and innovating in the marketplace. Cronyism will also negatively impact consumer welfare by denying consumers more and better products and services. Additionally, consumers might end up paying higher prices or higher taxes due to government privileges for industry.

Second, cronyism also raises the specter of greater government control of the Internet and of the digital economy. When policymakers dispense favors, they usually expect something in return. They also become accustomed to having greater informal powers over the sector receiving favors, and contribute to DC’s infamous “revolving door” problem.

High-tech America’s recent embrace of Washington could take it down the familiar path followed by the agriculture, telecommunications, and automotive sectors (among many others), with government becoming both protector and punisher of industry. Today’s dynamic tech industries will increasingly come under the “Mother, may I?” permission-based regulatory regime that encumbered the older information technology sectors.

Finally, this paper offers strategies for stalling and diminishing the cronyism already taking root in the high-tech sector. We suggest several targeted reforms to limit or undo cronyism. Generally speaking, however, we note that, as economist David R. Henderson argued in an earlier Mercatus Center report, “There is only one way to end, or at least to reduce, the amount of cronyism, and that is to reduce government power.”

The paper can be downloaded from the Mercatus website, SSRN, or Scribd. The Scribd version is embedded down below. (Also, here’s some coverage of the paper over at the Washington Post’s “Wonkblog” from our old colleague Tim Lee. Here’s more coverage from Bloomberg Businessweek and the San Francisco Chronicle. And here’s a U.S. News oped that Brent and I wrote condensing our paper into just 600 words. Finally, a short 3-minute video of me discussing the problem of tech cronyism is also embedded below.)

A History of Cronyism and Capture in the Information Technology Sector [Thierer and Skorup – July 2013] by Adam Thierer

In an important essay this week entitled “Silicon Valley’s ‘Suicide Impulse’,” Wall Street Journal columnist L. Gordon Crovitz warns that “Silicon Valley has long prided itself on avoiding the lumbering relationship between big government and most industries, but somehow it has become one of the top lobbyists in Washington.” Crovitz is worried that Internet and technology companies are falling prey to what Milton Friedman labeled “The Business Community’s Suicidal Impulse”: the persistent propensity to persecute one’s competitors using regulation or the threat thereof. “Rather than lobby government to go after one another,” Crovitz argues, “Silicon Valley lobbyists should unite to go after overreaching government. Instead of the ‘suicide impulse’ of lobbying for more regulation, Silicon Valley should seek deregulation and a long-overdue freedom to return to its entrepreneurial roots.”

Crovitz’s essay touches upon a dangerous trend I have written about here and elsewhere in the past: the increasing politicization of the Internet and information technology sectors and the gradual rise of rent-seeking (i.e., favor-seeking) over time. I’ve written about this problem in essays like:

• “The Sad State of Cyber-Politics” (Cato, 2010)
• “The Troubling Growth of High-Tech Regulation, Lobbying, and Rent-Seeking” (Dec. 2, 2012)
• “On Facebook ‘Normalizing Relations’ with Washington” (March 29, 2011)
• “DC’s LivingSocial Cronyism Experiment Already Going off the Rails” (Nov. 29, 2012)

These essays have documented how tech companies are increasingly vying for the attention of legislators and regulators in Washington, statehouses, and international capitals across the globe.

Why should we care about the increasing politicization of the information technology sector? In a forthcoming Mercatus Center working paper entitled, “A History of Cronyism & Capture in the Information Technology Sector,” Brent Skorup and I explain how “time and resources spent focusing on influencing politicians and capturing regulators represent time and resources that could better be spent competing and innovating in the marketplace. This can negatively impact consumer welfare in two ways: Not only are consumers denied more and better products and services, but they also may pay higher prices or higher taxes extracted by the corporate-government agreement.”

We document how rent-seeking and cronyism have had a corrupting influence on older information sectors and technologies, especially broadcasting and communications. We develop lengthy case studies from each sector to illustrate the costs that rent-seeking imposes on consumers, competitors, and ongoing innovation.

It’s a miserable history but one that is essential to recount if we hope to avoid it for newer sectors and technologies. That’s why Brent and I devote the closing section of our paper to a list of “Strategies to Limit Cronyism” in the Internet world before things get as bad as they have in the communications and media sectors. We argue that it is essential that we use a combination of institutional safeguards and market/social norms if we hope to head-off incessant rent-seeking and avoid the ‘suicidal impulse’ problem that Milton Friedman and Gordon Crovtiz identified.

Generally speaking, we must begin by acknowledging that, as economist David Henderson correctly notes, “There is only one way to end, or at least to reduce, the amount of cronyism, and that is to reduce government power.” Special interest rent-seeking and the chronic cronyism problems of modern America are fundamentally tied up with the constantly expanding horizons of government power. As Mancur Olson taught us in his 1965 book, The Logic of Collective Action, when benefits are concentrated and costs are dispersed (across all taxpayers or ratepayers, for example), we can expect groups to form to take advantage of those benefits. Those groups have a powerful motivation to create, preserve, and perpetuate government programs that favor their narrow interests at the expense of others, while those bearing the true costs of those policies or programs do not have the same incentive (or resources) to lobby government to reduce or end those burdens.

This leads to what economist Gordon Tullock called the “transitional gains trap”: once a policy or program is put in place to favor a certain interest, most of their gains come upfront and are factored into future earnings. Those benefiting from the policies would face large transitional losses if reform is undertaken, even if these policies impose large deadweight costs on society as a whole. This “trap” can frustrate beneficial reform efforts because the interest benefiting from the cronyist policies and programs will fight to the death to preserve them, no matter how costly or inefficient they may be for society as a whole.

There are several steps we can take if we hope to overcome the collective action problem in the tech sector and avoid Tullock’s transitional gains trap.

First, we must limit the scope of technology regulation whenever possible, and where existing rules open the door to cronyism, streamline or eliminate as many of them as possible. When policymakers deregulated other sectors in past—airlines, railroads, trucking, etc.—it helped eliminate the legal levers that industry could capture or influence. Consequently, deregulation forced companies to spend more time satisfying consumers as opposed to lawmakers and regulators.

Second, whenever possible we should rely on auctions and property rights to ensure that resources are being allocated according to market demand instead of political influence. The ugly history of spectrum cronyism is rooted in the misguided reliance upon the so-called “public interest” theory of regulation, which claimed that supposedly enlightened and benevolent regulators would steer resources and markets in more pro-consumer directions. The reality was just the opposite: the “public interest” became synonymous with the private interest of regulated entities, who largely “gamed” the system for their own ends. It was only when policymakers finally embraced the logic of auctions to allocate spectrum that America began to see cronyism dissipate in this sector. Auctions ensured faster allocation and more efficient distribution and development of this important resource. While full-blown spectrum property rights have not yet taken hold, the gradual movement in that direction helps minimize cronyism opportunities.

Third, the use of vouchers can help limit corporate gaming of social programs that are deemed essential. For example, America’s universal service program, which subsidizes phone and now broadband service, is a permanent fixture of communications policy. Unfortunately, cronyism is a permanent fixture of the system as well. Because the universal service system delivers assistance to end-users indirectly through favored local providers, it limits the potential for new entry and undermines competition. A means-tested voucher could have targeted assistance to those who needed it without creating an inefficient, unsustainable hidden tax or undermining competition.

Fourth, sunsetting provisions for new and existing laws and regulations can greatly limit cronyism opportunities. All new technology proposals should include a provision sunsetting the law or regulation within a few years of enactment and existing technology laws and regulations should be reopened and reassessed on a regular timetable as well to ensure they are not being abused. (Here’s a Forbes column I wrote last year with details about how to do so.)

Fifth, we need serious limits on congressional delegations of power to regulatory bodies and executive branch agencies. Too often, lawmakers “pass the buck” on to agencies and expect them to figure out how to interpret and administer arcane technology policy statutes. The result is abuse both by over-zealous regulators and interests looking to game the system. Congress should be more accountable and, at a minimum, must make their regulatory intent and standards clearer before delegating authority.

Finally, we need to encourage better norms inside the tech industry itself and encourage them to hold themselves to a higher standard. We should ask them to promise not to exploit government power that would discourage innovation or crush competition. Better yet, we should ask them to consider “strategic disengagement” with Washington and politics in general. Yes, I understand that sounds like a pipe dream since where power exists interests will likely look to exploit it. And, again, that’s the best reason for serious deregulation and strong limits on government power to begin with. But social pressure and market norms can also help in the absence of more sweeping reforms. Some firms already adopt the right approach. For example, Apple and Sony have largely shunned political engagement and instead focused on satisfying their customers in the marketplace. While their hands aren’t entirely clean, we should encourage more tech innovators to follow their general lead of not sending small armies of lobbyists to Washington and state capitals.

In the end, there is no silver-bullet solution that can forever cure cronyism. It would be foolish to pretend that we’ll be able to significantly curtail the scope of government powers in the short-term. Nonetheless, there are many sensible institutional reforms and marketplace norms that can help us keep cronyism in check before it begins running rampant in this important sector of our economy.

(Brent and I have just sent our paper on this topic off for peer review from some academic experts in this field, but we welcome thoughts from others about strategies to limit and reduce cronyism in this arena. We hope to publish this paper in a law review or poly sci journal later this Summer or Fall.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Information overload is a hot topic these days. I’ve really enjoyed recent essays by Aaron Saenz (“Are We Too Plugged In? Distracted vs. Enhanced Minds”), Michael Sacasas (“Technology Sabbaths and Other Strategies for the Digitized World“), and Peggy Noonan (“Information Overload is Nothing New“) discussing this concern in a thoughtful way.   Thoughtful discussion about this issue is sometimes hard to find because, as I’ve noted here before, information overload is a subject that bitterly divides Internet optimists and pessimists. The pessimists tend to overplay the issue and discuss it in apocalyptic terms. The optimists, by contrast, often dismiss the concern out of hand. Certainly there must be some reasonable middle ground on this issue, no?

There is, and some of it can be found in a fine new book, Hamlet’s BlackBerry: A Practical Philosophy for Building a Good Life in the Digital Age, by William Powers.  Powers, a former staff writer for the Washington Post, is a gifted storyteller and his walk though the history of philosophy and technology makes this slender volume an enjoyable, quick read.  He begins by reminding us that:

whenever new devices have emerged, they’ve presented the kinds of challenges we face today — busyness, information overload, that sense of life being out of control.  These challenges were as real two millennia ago as they are today, and throughout history, people have been grappling with them and looking for creative ways to manage life in the crowd. (p. 5)

His key insight is that humans can adapt to new technology, but it takes time, patience, humility, and a little effort. “The key is to strike a balance,” he says, between “the call of the crowd” and the “need for time and space apart” from it. (p. 4) The problem we face today is that all the pressure is on us to be what he calls “Digital Maximalists.”  That is, many of us are increasingly out to maximize the time spent in front of various digital “screens” whether we have made the determination that is really in our best interest or not. It has just gradually happened, Powers argues, because “The goal is no longer to be ‘in touch’ but to erase the possibility of ever being out of touch.” (p. 15)

Echoing the concern displayed in Nick Carr’s new book The Shallows: What the Internet Is Doing to Our Brains [review here], as well as John Freeman, The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox [review here], Powers fears that time for focus and introspection “is lost when your days are spread so thin, busyness itself is your true occupation. If every moment is a traffic jam, it’s impossible to engage any experience with one’s whole self. More and more, that’s how we live.” (p. 13)

Even though Powers clearly leans more toward the techno-pessimist camp in this regard, what I like best about his book is that he generally avoids a preachy tone and excessive hand-wringing.  He isn’t one of those techno-pessimists who adopts a holier-than-thou, the-rest-of-you-just-don’t-get-it attitude. In fact, there’s a great deal of self-deprecating humor in the book as Powers explains how he is struggling with the same issues the rest of us are and trying to figure out how to strike the right balance in his own life.  Importantly, he notes that each of us will strike that balance differently. “[E]veryone has to work that out for himself. We’re all different, and there’s no one-size-fits-all way to balance the outward life and the inward one.” (p. 203)  That is a crucial insight. There’s nothing worse than a techno-skeptic who tells us they have discovered the one true path to enlightenment or happiness — especially when it entails giving up new technologies that can have so many beneficial upsides.  Indeed, Powers argues that “It’s never a good idea to buy into the dark fears of the techno-Cassandras, who generally turn out to be wrong. Human beings are skillful at figuring out the best uses of new tools. However, it can take awhile.” (p. 3)

That very much reflects my own position on this issue, even if I tend to lean a bit more in the “pragmatic optimist” direction whereas Powers is more of a pragmatic pessimist.  Nonetheless, my own struggle with information overload and gadget addiction continues. As I have written here before in essays like, “Can Humans Cope with Information Overload?” I’ve been formulating a variety of strategies to cope and find the right balance. For me, the most successful strategy is what I refer to as “mini sabbaticals.”  I try “unplugging” for short spells each day (turning off email & phone, close web browsers, and just generally get away from my computer and other gadgets). Usually I’m offline for an hour in morning and then also in afternoon, and then a couple hours offline during evening. My wife and kids certainly appreciate it!  But it also helps me spend more “quality time” with books, writing, and other pursuits. And I’ve even started telling people not to expect a quick response from me when they call or write.  When I tell people this face-to-face, their reaction is often one of puzzlement, and in some cases even offense. I suppose some of them imagine I’m just saying this to avoid them (which may be the case!)  But I try to stick with the rule and avoid gadgets and connections for little spurts each day and it has been terrifically beneficial for me thus far.  I am able to read even more than I used to and can focus on getting other things done that are important.

Earlier this summer, I went even further.  During a week-long vacation in Germany, I decided to take day-long digital sabbaticals, only checking emails, Twitter, and RSS feeds after 10:00 at night, if at all. It was terrifically refreshing. Simply not having to carry a smartphone with me all day long was a huge relief.  But ignoring email for days at a time was wonderful too. Of course, things had really piled up upon my return to the States.  But that’s another thing I’ve learned to do to cope: Hit that delete button a little more frequently!  Do I really need to read through the hundreds of emails I get each day?  No, not really. Neither do you, I bet.

In Hamlet’s BlackBerry, Powers offers some possible solutions of his own, but they are generally in the form of practical advice about how to lead a good life. “The best solutions serve as a kind of bridge to the tech future, one that ensures that we’ll arrive with our sanity intact.” (p. 155) To find those solutions, he draws upon the wisdom of the ages from figures as diverse as Plato, Aristotle, Seneca, Shakespeare, Ben Franklin, Thoreau, and Marshall McLuhan.  For example, from Thoreau he borrows the notion of finding or creating “a zone of inner simplicity and peace” to create “Walden time” or “Walden zones.”  This could take the form of daily digital sabbaticals, or an area of the home that is free of technology at all times.  I already use variants of this rule in my own home.  Many years ago, my wife and I instituted “Media-Free Mondays” in our house so that the kids understand at least one night every week will be free of TVs, computers, video games, etc.  We use the time to play board games, do arts and crafts, or play outside more.  In other words, Mondays are the Thierer family’s “Walden Zone.”  Again, every family could come up with their own variant of the Walden Zone rule to fit their needs.  At the end of his book, Powers says that his family unplugs their modem each Friday night at bedtime and doesn’t turn it back on until Monday morning — a weekend “Internet Sabbath,” he calls it.  That seems a bit extreme to me but, again, to each his own.

I should be clear that I am not quite as pessimistic as Powers about the impact of technology on humans.  I’m not persuaded by his argument that information overload is having as deleterious of an impact on creative thinking and that “the best human creativity… happens only when we have the time and the mental space to take a new thought and follow it wherever it leads.”  And I think he goes much too far when he makes pronouncements such as “We’re living less and giving less, and the world is the worse for it.” (p. 210, italics in original.)  In both cases, I think there are plenty of counter-examples and positive trends that can be cited that prove such sweeping generalities are off the mark.  Yes, it’s certainly true that many people are struggling from data deluge and that it has complicated their lives in many ways. But the presence of these new tools and the rise of information abundance have alleviated many of the problems that previous generations lamented.  Indeed, for many centuries the primary problem we humans have faced was information poverty. We were starving for informational inputs.  That problems has been largely alleviated and instead replaced by concerns about information overload.  But my point is always a simple one: Isn’t abundance a better dilemma for society to face than scarcity?  As I told Gordon Crovitz of the Wall Street Journal recently, I’ll take information overload over information poverty any day!

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

Other Views / Additional Reading:

• official website for the book
• a review of the book by Laurie Winer in The New York Times
• a review by David Harsanyi that appeared in The Wall Street Journal
• Jennifer Howard’s review of the book + Carr’s “The Shallows”
• a review by Heller McAlpin in The Christian Science Monitor
• a review from the Good Experience blog
• my essays on “Internet Optimists vs. Pessimists,” an earlier piece on information overload, and my reviews of related books on this subject by Carr, Lanier, Siegel, Keen, Helprin, Baron, and Shirky.
• NPR radio spot on the book
• and two videos embedded below, one from a bookstore appearance by Powers and the other is an interview with the PBS “News Hour”

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

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

National Review July 20, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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