The ongoing ride-sharing wars in New York City are interesting to watch because they signal the potential move by state and local officials to use infrastructure management as an indirect form of innovation control or competition suppression. It is getting harder for state and local officials to defend barriers to entry and innovation using traditional regulatory rationales and methods, which are usually little more than a front for cronyist protectionism schemes. Now that the public has increasingly enjoyed new choices and better services in this and other fields thanks to technological innovation, it is very hard to convince citizens they would be better off without more of the same.

If, however, policymakers claim that they are limiting entry or innovation based on concerns about how disruptive actors supposedly negatively affect local infrastructure (in the form of traffic or sidewalk congestion, aesthetic nuisance, deteriorating infrastructure, etc.), that narrative can perhaps make it easier to sell the resulting regulations to the public or, more importantly, the courts. Going forward, I suspect that this will become a commonly-used playbook for many state and local officials looking to limit the reach of new technologies, including ride-sharing companies, electric scooters, driverless cars, drones, and many others.

To be clear, infrastructure control is both (a) a legitimate state and local prerogative; and (b) something that has been used in the past to control innovation and entry in other sectors. But I suspect that this approach is about to become far more prevalent because a full-frontal defense of barriers to innovation is far more likely to face serious public and legal challenges. For example, limiting ride-sharing competition in NYC on the grounds that it hurts local taxi cartels is unappealing to citizens and the courts alike. So, NYC is now making it all about traffic congestion. Even if that regulatory rationale is bunk, it is a much harder narrative to counter in the court of public opinion or the courts of law. For that reason, we can expect more and more state and local governments to just flip the narrative about innovation regulation going forward in this fashion.

How should defenders of innovation and competition respond to state and local efforts to use infrastructure control as an indirect form of innovation regulation? First, call them out on it if it really is just naked protectionism by another name. Second, to the extent there may be something their asserted concerns about infrastructure problems, propose alternative solutions that do not freeze innovation and new entry outright. The best approach is to borrow a page out of Coase’s playbook and use smarter pricing and property rights solutions. Or perhaps use unique funding mechanisms for new and better infrastructure that could accommodate ongoing entry and innovation.

For example, my Mercatus colleague Salim Furth recently penned a column (“Let Private Companies Pay for More Bike Lanes”) in which he noted how the electric scooter company Bird has offered cities a dollar a day per scooter to help build protected bike lanes. In doing so, Furth notes, Bird is:

offering to enter the long tradition of private provision of public goods. The original subway lines were private. Private institutions have frequently built or maintained public parks. Radio broadcasts, a textbook example of a public good, are largely private in the US. Companies often provide public entertainment because they benefit from the attraction.

In a similar way, Uber has already supported usage-based road pricing to alleviate congestion.  We could imagine still other examples like this for emerging technology companies. Drone manufacturers could help create or pay for “aerial sidewalks” or easements so they can deliver goods more efficiently. Scooter and dockless bike companies could help pay for bike and scooter paths either directly or through promotional efforts. Driverless car fleet providers could help build or cover the cost of new parking garages or for road improvements that would help make autonomous systems work better in local communities.

That is the pro-consumer, pro-innovation path forward. Hopefully, state and local officials will embrace such forward-looking reform ideas instead of seeking to indirectly control new entry and competition under the guise of infrastructure management.

Years ago it looked like the Obama FCC would make broadband deployment, especially wireless service and spectrum reform, a top priority. They accomplished plenty–including two of the largest spectrum auctions to date–but, under tremendous political and special interest pressure, FCC leadership diverted significant agency resources into regulatory battles that had very little upside, like regulating TV apps and unprecedented regulation of Internet services.

Fortunately, the Trump FCC so far has made broadband deployment the agency’s top priority, which Chairman Pai signaled last year with the creation of the Broadband Deployment Advisory Committee. As part of those deployment efforts, Commissioner Carr has led an effort to streamline some legacy regulatory obstacles, like historic preservation and environmental reviews and the FCC will vote this week on an order to expedite wireless infrastructure construction.

According to the FCC, somewhere around 96% of the US population has LTE coverage from three or more wireless operators, like Verizon, AT&T, T-Mobile, and Sprint. The operators’ job isn’t done in rural areas, but much of the future investment into broadband networks will be to “densify” their existing coverage maps with “small cells” in order to provide wireless customers more bandwidth.

Since telecom companies build infrastructure, many current projects require review under the federal National Historic Preservation Act and the National Environmental Policy Act. However, unlike for the 100-foot cellphone towers in the past, the environmental checklists currently required for small cells are largely perfunctory since small cells typically use existing infrastructure, like utility poles. For Sprint’s tens of thousands of small cell site applications, for instance, the proposed order says “every single review resulted in a finding of no significant impact.”

The order under consideration will bring some structure to regulatory timelines and procedures. This should save carriers on unnecessary regulatory overhead and, more importantly, save time.

The order comes at a crucial time, which is why the prior FCC’s net neutrality distractions are so regrettable. Mobile broadband has huge demands and inadequate infrastructure and spectrum. According to studies, millions of Americans are going “mobile only,” and bypassing landline Internet service. Census Bureau surveys estimated that in 2015, about 20% of Internet-using households were mobile-only. (HT to Michael Horney.) That number is likely even higher today.

The construction of higher-capacity and 5G wireless, combined with repeal of the 2015 Internet regulations, will give consumers more options and better prices for Internet services, and will support new mobile applications like remote-control of driverless cars and AR “smart glasses” for blind people. Hopefully, after this order, the agency will continue with spectrum liberalization and other reforms that will expedite broadband projects.

I’m pleased to announce that the Mercatus Center at George Mason University has just released my latest working paper, “Removing Roadblocks to Intelligent Vehicles and Driverless Cars.” This paper, which was co-authored with Ryan Hagemann, has been accepted for publication in a forthcoming edition of the Wake Forest Journal of Law & Policy.

In the paper, Hagemann and I explore the growing market for both “connected car” technologies as well as autonomous (or “driverless”) vehicle technology. We argue that intelligent-vehicle technology will produce significant benefits. Most notably, these technologies could save many lives. In 2012, 33,561 people were killed and 2,362,000 injured in traffic crashes, largely as a result of human error. Reducing the number of accidents by allowing intelligent vehicle technology to flourish would constitute a major public policy success. As Philip E. Ross noted recently at IEEE Spectrum, thanks to these technologies, “eventually it will be positively hard to use a car to hurt yourself or others.” The sooner that day arrives, the better.

These technologies could also have positive environmental impacts in the form of improved fuel economy, reduced traffic congestion, and reduced parking needs. They might also open up new mobility options for those who are unable to drive, for whatever reason. Any way you cut it, these are exciting technologies that promise to substantially improve human welfare.

Of course, as with any new disruptive technology, connected cars and driverless vehicles raise a variety of economic, social, and ethical concerns. Hagemann and I address some of the early policy concerns about these technologies (safety, security, privacy, liability, etc.) and we outline a variety of “bottom-up” solutions to ensure that innovation continues to flourish in this space. Importantly, we also argue that policymakers should keep in mind that individuals have gradually adapted to similar disruptions in the past and, therefore, patience and humility are needed when considering policy for intelligent-vehicle systems.

More generally, we note that the debate over intelligent vehicle technologies foreshadows many other tech policy debates to come in that it raises the larger question of what principle will guide the future of technological progress. Will “permissionless innovation” be our lodestar, allowing individuals to pursue a world of which they can, as of now, only dream? Or will “precautionary principle”-based reasoning prevail instead, driven by a desire to preserve the status quo?

To the maximum extent possible, we argue, policymakers should embrace permissionless innovation for intelligent vehicles. Creative minds–especially those most vociferously opposed to technological change–will always be able to concoct horrific-sounding scenarios about the future. Best-case scenarios will never develop if we are gripped by fear of the worst-case scenarios and try to preemptively plan for all of them with policy interventions.

This 55-page (double-spaced) working paper is available on the Mercatus Center website as well as SSRN, Research Gate, and Scribd. In coming weeks and months, we’ll be writing more about the themes addressed in this paper. Stay tuned, things are unfolding rapidly in this highly innovative arena.

Additional Reading

• Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom (2014)
• [Video] Cap Hill Briefing on Emerging Tech Policy Issues (June 2014)
• “The Growing Conflict of Visions over the Internet of Things & Privacy,” January 14, 2012
• “Can We Adapt to the Internet of Things?” IAPP Privacy Perspectives, June 19, 2013
• My Filing to the FTC in its ‘Internet of Things’ Proceeding, May 31, 2013
• Slide Presentation: Policy Issues Surrounding the Internet of Things & Wearable Technology, September 12, 2014

Interesting article in the New York Times today about how the radical media activist group Free Press is now working with an organization called The Harmony Institute toward the goal of “Adding Punch to Influence Public Opinion.”  The way they want to “add punch” is through entertainment propaganda.  The Times article notes that Harmony’s mission is “aimed at getting filmmakers and others to use the insights and techniques of behavioral psychology in delivering social and political messages through their work.” And now they want to use such “behavioral psychology” and “political messaging” (read: propaganda) techniques in pursuit of Net neutrality regulation.

More on that agenda in a second.  First, I just have to note the irony of Harmony’s founder John S. Johnson citing “The Day After Tomorrow” as a model for the sort of thing he wants to accomplish. According to the Times interview with him, he says the movie’s “global warming message [and] rip-roaring story, appeared to alter attitudes among young and undereducated audiences who would never see a preachy documentary.”  I love this because “The Day After Tomorrow” was such a shameless piece of globe warming doomsday propaganda that it must have even made the people at Greenpeace blush in embarrassment.  After all, here is a movie that claims global warming will result in an instantaneous global freeze (how’s that work again?) and leave kids scurrying for the safety of New York City libraries until a quick thaw comes a couple of weeks later. (Seriously, have you seen that movie? That’s the plot!) So apparently we can expect some pretty sensational, fear-mongering info-tainment from Harmony and Free Press.

But here’s what’s better: Do you know who produced “The Day After Tomorrow”?  Oh, that’s right… Rupert Murdoch’s News Corporation financed and distributed that movie!!  The man that Free Press casts as the nefarious media overlord set to take over all media and program our brains gave us the greatest piece of radical environmental propaganda of modern times.  Now, which does that prove: (A) Rupert Murdoch is hell-bent on programming our minds to embrace a sweeping global warming regulatory agenda, or (B) Rupert Murdoch is out to entertain people and make money? If you answered B, congratulations for being a sensible person.  If you answered A, then click here now to start giving money to the Free Press!

OK, so let’s get back to Free Press and what they are up to with the Harmony Institute (which I originally thought was an online dating site).  Free Press apparently hired Harmony to research public attitudes about Net neutrality and how to influence them.  Harmony’s Johnson tells the Times they got interested in the Net neutrality because Free Press and the Pacific Foundation paid them handsomely to do so.  And it appears Free Press got their money’s worth.

The Harmony Institute’s report for Free Press is entitled, ” Net Neutrality for the Win: How Entertainment and the Science of Influence Can Save Your Internet.” It is the kind of document that would make Machiavelli and Saul Alinsky proud.  According to the Times, “the report… promises a sophisticated attempt to change attitudes on a range of issues… by using applied behavioral science.”  That ain’t the half of it.  The report is a shameless effort to completely distort the reality on the ground, which is is that, as the Harmony Institute itself admits, “The public tends to have a favorable view of their current telephone company, cable or satellite provider, mobile provider, and ISP.” (pg. 10) “Currently the public likes the way the Internet works,” the Harmony report goes on to note. “Internet users and businesses generally have a positive relationship with their ISP and believe they can access what they want, when they want it.” (p. 16) More generally, the report finds that the public just isn’t all that interested in Net neutrality regulation but that “Those who responded to the November 2009 poll generally had a favorable view of their ISP, but were split in their view of the government’s role with regard to the Internet.” (p. 11)

Yikes! This sure doesn’t sound like the Free Press doomsday narrative, which says that the public is absolutely clamoring for comprehensive regulation of the Internet via Net neutrality.  And that’s where the Harmony Institute’s propaganda machines kicks into high gear. On its website, Harmony explains how it will accomplish such behavior conditioning by claiming that:

Although the open Internet is vital to enabling ideas like Facebook and Ebay to flourish, without federal regulation, the Internet is vulnerable to discriminatory practices and corporate gate keeping that will dramatically alter its role in public life. As the web continues to permeate society, the issue of’ net’ neutrality has become integral to the preservation of the country’s most basic liberties.

I want to congratulate the folks at Harmony for at least admitting what Free Press never does, namely, that Net neutrality is a form of regulation.  An essential part of the Free Press Net neutrality narrative has always been how Net neutrality is not a form of regulation since they realize that most average Americans will not take kindly to the idea of increasing government control of the Internet.  I guess the Harmony Institute people didn’t get the Free Press memo on that one.  [BTW, let’s see how long the word “regulation” remains on the Harmony site! I bet it disappears shortly.]

Anyway, the rest of the “Net Neutrality for the Win” document is essentially a blueprint for re-engineering public opinion and to get the public panicky about various Chicken Little scenarios of corporate control.  The report talks about getting to the “persuadables” on the issue and changing their minds.  Of the checklist of ways to accomplish this, Harmony stresses how important it is to “Challenge How People View the Internet.”  Well of course you want to challenge how people view the Net when most of them are perfectly happy with it!  We can’t have that, after all. They must be reprogrammed to understand they are really not all that happy with their broadband service, regardless of what they currently think.

The document also goes on to note that “Most people think of the Internet in terms of private ownership,” but “The ultimate goal of a narrative campaign should be to update the image of the Internet from a privilege like property ownership, to a public resource like telephone networks.”  Of course, this fits in all too perfectly with the vision set forth by Free Press co-founder Robert McChesney, the prolific Marxist media theorist.  McChesney has made it clear that “the ultimate goal is to get rid of the media capitalists in the phone and cable companies and to divest them from control.”  “What we want to have in the U.S. and in every society is an Internet that is not private property, but a public utility.”  So, at least the Harmony folks got the Free Press memo about media and infrastructure control.  And killing property rights will be at the heart of this mission. No shock there.

But, according to the Harmony website, the “Net Neutrality for the Win” document is just the beginning of the Harmony-Free Press propaganda campaign:

The second phase of this project will employ the messaging recommendations outlined in the Entertainment and Messaging Guide to Net Neutrality in a six-part animated web show that informs and persuades online audiences of the need to support net neutrality. By consulting with the show’s writing and production team, HI has helped embed issue statements and calls to action within the show’s narrative to further inform the beliefs, attitudes and behaviors of the audience. The end goal is to persuade individuals to take quantifiable steps to positively impact the cause. Each episode is between three-to-ten minutes long, and will be released once a week, over the course of six weeks beginning early 2010.

This is all part of what Harmony calls its “Harmony Institute Method for Entertainment Education”, which seeks “behavior change through narrative entertainment.” (p. 25)   Oh, I can’t wait to see how terrifically entertaining this propaganda will be!  With a mission of “harnessing entertainment to create transformative action in mainstream audiences,” I can only imagine how Harmony will stop at nothing to help Free Press spread lies, rumors and innuendos in their by-any-means-necessary crusade to impose a comprehensive regulatory regime on the Internet.

The only interesting question is whether Hollywood and other entertainment providers will take the bait or if the Harmony-Free Press propaganda machine will consist mostly of homemade videos of Free Press lackeys shouting at web cams in Mom’s basement.  Only time will tell.  But I, for one, am hoping for a big screen blockbuster — “The Net After Tomorrow” — in which nefarious corporate schemers block all online speech until trusty Federal Internet Commission regulators — played by Leo DeCaprio and Megan Fox (since all regulators are that hot) — swoop in to foil the wicked scheme and put the State back in control of our media and communications infrastructure.  You know, because we can trust Big Government to do the right thing once we hand them the keys.

Joe Tighe, an IT Infrastructure Consultant, has an interesting essay up over at Circle ID.  He takes a hard look at Rep. Ed Markey’s proposed “Internet Freedom Preservation Act of 2009” and makes an argument that many of us here have made ad nauseum — regulation involves trade-offs and unintended consequences:

One of the main problems with the proposed legislation is the lack of recognition of costs to provide internet services. Some applications, such as video are bandwidth hogs and require significantly greater network infrastructure and associated costs to deliver when compared to the network infrastructure costs to deliver email access. Under the proposed legislation, services providers would have to charge the low bandwidth users (casual browsers and email readers) more to offset the higher costs of the video users. One result of the proposed legislation would be less consumer choice and a hidden “bandwidth hog tax”. Today, most service providers offer tiered products and pricing to consumers and businesses to account for the additional costs to deliver bandwidth intensive applications. You pay more if you use more under the tiered pricing model. These are not “discriminatory” practices. Rather, tiered pricing and application prioritization are sound business models delivering reliable, profitable product choices and unburdened internet ecommerce. Consumers and businesses currently have choices. The proposed legislation takes away choice and increases costs to consumers and businesses.

Quite right.  Read the whole essay here.

by Adam Thierer & Berin Szoka — (Ver. 1.0 — Summer 2009)

We are attempting to articulate the core principles of cyber-libertarianism to provide the public and policymakers with a better understanding of this alternative vision for ordering the affairs of cyberspace. We invite comments and suggestions regarding how we should refine and build-out this outline. We hope this outline serves as the foundation of a book we eventually want to pen defending what we regard as “Real Internet Freedom.” [Note:  Here’s a printer-friendly version, which we also have embedded down below as a Scribd document.]

I. What is Cyber-Libertarianism?

Cyber-libertarianism refers to the belief that individuals—acting in whatever capacity they choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their own tastes and interests online.

Generally speaking, the cyber-libertarian’s motto is “Live & Let Live” and “Hands Off the Internet!”  The cyber-libertarian aims to minimize the scope of state coercion in solving social and economic problems and looks instead to voluntary solutions and mutual consent-based arrangements.

Cyber-libertarians believe true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.

B.  Application in Social & Economic Contexts

The cyber-libertarian draws no distinction between social and economic freedom when applying this vision:

• Social Freedom: Individuals should be granted liberty of conscience, thought, opinion, speech, and expression in online environments.
• Economic Freedom: Individuals should be granted liberty of contract, innovation, and exchange in online environments.

Cyber-libertarians also argue that social and economic freedoms are inextricably intertwined:  It is not enough to support liberty of action in one sphere; foreclosing freedom in one sphere will eventually affect freedom in the other.

C.  How “Code Failures” Are to Be Addressed

The cyber-libertarian believes that “code failures” (the digital equivalent of so-called “market failures”) are better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions.   From a practical perspective, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those responses.  Stated differently, cyber-libertarians have a strong aversion to the politicization of technology issues and efforts to replace market processes with bureaucratic processes.

Importantly, the cyber-libertarian defines “markets” broadly to include monetary and non-monetary transactions as well as proprietary and non-proprietary modes of production.  To be clear, collaborative, non-proprietary technologies and efforts ( e.g., Wikipedia and open source software) are not at odds with cyber-libertarianism.  But the cyber-libertarian does reject the notion these models are the only acceptable model or that they should be imposed on us by law.  The proper policy position with regards to the “open vs. closed” or “proprietary vs. non-proprietary” debate should be one of techno-agnosticism.  Lawmakers and courts should not be tilting the balance in one direction or the other.

More generally speaking, instead of seeking to define or impose a single utopian vision, the cyber-libertarian seeks to enable what libertarian philosopher Robert Nozick called a “Utopia of Utopias:” a framework within which many different models of organizing commerce and community can flourish alongside, and in competition with, each other.

D.  General Relationship to “Internet Exceptionalism”

Internet exceptionalists are first cousins to cyber-libertarians:  They believe that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene.  [See Section IV for an expanded discussion.]

II. The Intellectual Foundations of Cyber-Libertarianism

A.  Traditional Libertarian Philosophy

• Natural Rights philosophers –John Locke, Ayn Rand, The Founders
• Utilitarian philosophers – John Stuart Mill (On Liberty), Herbert Spencer
• “Austrian School” of Economics – Ludwig von Mises, F.A.  Hayek, Murray Rothbard
• Milton Friedman (Free to Choose)
• Robert Nozick – argument for a minimalist state; “utopia of utopias” notion
• Thomas Sowell – critique of “The Vision of the Anointed”
• Richard Epstein – vision of “Simple Rules for a Complex World

B.  Modern Cyber-Libertarian Theorists

• Ithiel de Sola Pool (Technologies of Freedom)
• Alvin Toffler (The Third Wave , Future Shock)
• George Gilder (Microcosm , Telecosm)
• Peter Huber (Law & Disorder in Cyberspace)
• Tom W.  Bell
• Technology Liberation Front bloggers

C.  Internet Exceptionalists[see Sec.  IV below]

• Nicholas Negroponte (Being Digital)
• John Perry Barlow (“Declaration of the Independence of Cyberspace”)
• David Post
• Eric Goldman
• H.  Brian Holland

III. The Contrast with Cyber-Collectivism

A.  Cyber-Collectivism Defined

Cyber-collectivism is the opposite of cyber-libertarianism.  Cyber-collectivism refers to the general belief that cyber-choices should be guided by the State or an elite class according to some amorphous “general will” or “public interest.”  The distant influence of Plato, Rousseau, and Marx can often been seen in the work of cyber-collectivists.

Cyber-collectivism comes in many flavors, however.  “Left”-leaning cyber-collectivists, for example, are more focused on social concerns than economic ones.  Some “Right”-leaning cyber-collectivists are focused on controlling the impact of the Internet on culture or security.  In other words, cyber-collectivism is not as philosophically coherent as cyber-libertarianism—which, though it comes in many flavors, shares a larger core of common agreement

B.  General Relationship to “Information Commons” Movement

There is a close relationship between the Leftist variant of cyber-collectivism and the “digital commons” or “information commons” movement, which generally refers to the belief that digital resources should be shared or perhaps commonly owned instead of held privately—both because cyber-collectivists think this is more equitable and because they generally think such arrangements will ultimately work better.

Cyber-collectivists are typically not Marxists; few of them call for state ownership of the information means of production.  Rather, cyber-collectivists might better be thought of a “cyber social Democrats” (in a European sense) or “Digital New Dealers” (in the American tradition).  They advocate a generous role for law and regulation in many online matters, but do not typically resort to full-blown nationalization.

C. Exponents of Cyber-Collectivism

Some notable cyber-collectivists or information commons adherents (and their key works):

• Lawrence Lessig (Code , Free Culture)
• Tim Wu (Who Controls the Internet?)
• Yochai Benkler (The Wealth of Networks)
• Jonathan Zittrain (The Future of the Internet & How to Stop It)
• David Bollier (Viral Spiral)
• Harvard Berkman Center*
• New America Foundation*
• Public Knowledge*

(*We are, of course, generalizing a bit here. Not everyone in these institutions is a cyber-collectivist and, again, there are many flavors of cyber-collectivism, just as there are many flavors of cyber-libertarianism. Individuals in some of these organizations diverge significantly in attitudes towards technological change and the proper scope of government influence throughout the high-tech sector.)

IV. Relationship Between Cyber-Libertarianism & Internet Exceptionalism

Some non-libertarians occasionally join ranks with cyber-libertarians out of a belief that the Internet is different and deserving of special consideration and care. This is commonly referred to as “Cyber-Exceptionalism” or “Internet Exceptionalism.” John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace” was probably the earliest (and most extreme) articulation of “Internet Exceptionalism”:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions. You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions. You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

Similarly, in 1994, The Progress & Freedom Foundation brought together four leading technology visionaries (Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler) to pen A Magna Carta for the Knowledge Age. In that manifesto, the authors argued:

Cyberspace is the land of knowledge, and the exploration of that land can be a civilization’s truest, highest calling. The opportunity is now before us to empower every person to pursue that calling in his or her own way. The challenge is as daunting as the opportunity is great. The Third Wave has profound implications for the nature and meaning of property, of the marketplace, of community and of individual freedom. As it emerges, it shapes new codes of behavior that move each organism and institution—family, neighborhood, church group, company, government, nation—inexorably beyond standardization and centralization, as well as beyond the materialist’s obsession with energy, money and control. Turning the economics of mass-production inside out, new information technologies are driving the financial costs of diversity—both product and personal—down toward zero, “demassifying” our institutions and our culture. Accelerating demassification creates the potential for vastly increased human freedom. It also spells the death of the central institutional paradigm of modern life, the bureaucratic organization. (Governments, including the American government, are the last great redoubt of bureaucratic power on the face of the planet, and for them the coming change will be profound and probably traumatic.)

As that last paragraph suggests, this “Magna Carta” for cyberspace contained some hints of cyber-libertarian thinking, but the general thrust of the document was more generally of the Internet Exceptionalist school of thought.

Internet Exceptionalists are sometime critiqued for sounding like techno-utopians, but it is a mistake to conflate the two. There are not always synonymous.

V. Cyber-Libertarianism’s Early Legal Foundations & Victories

• Section 230 of the Communications Decency Act of 1996 is probably the best example of cyber-exceptionalism in practice. It grants broad immunity to online intermediaries for third party content except for criminal and IP law—breaking with traditional tort liability standards. Specifically, Sec. 230 rejected the “deputization of the middleman” model of liability.
• Overturning of the Communications Decency Act’s indecency & obscenity provisions in Reno v. ACLU decision
• Various court decisions blocking enforcement of the Child Online Protection Act (COPA) of 1999
• The encryption wars & the defeat of the “Clipper Chip”
• The Internet Tax Freedom Act of 1998

VI. Applications: How Cyber-Libertarians Think about Various Policy Issues

• Free speech & online child safety: Favor parental empowerment and industry self-regulation over censorship. “Household standards” should trump “community standards.”
• Privacy policy & online advertising: Privacy is a subjective condition and efforts to regulate to “protect privacy” could have unintended consequences for freedom of speech and the growth of online content and commerce. User empowerment and industry self-regulation represent the superior way to address privacy concerns.
• Net neutrality / infrastructure regulation: “Open access” regulation is nothing more the infrastructure socialism. Network operators should be free to own, operate, and price their systems and services as they see fit, subject only to enforcement of their terms of service and other voluntary disclosures as contracts with their users. New entry and innovation are better alternative to regulating yesterday’s networks and technologies.
• Internet taxation: No special taxes should be imposed on online services or Internet access. To the extent the Net disrupts traditional tax bases that should be seen as an opportunity to reform those tax systems.
• Online gambling: People should be free to do what they want with their money and Internet gambling is likely impossible to shut down entirely anyway, given the nature of the Internet.
• Antitrust: “Market power” and “code failures” are best dealt with by spontaneous evolution of markets and new entry, not bureaucratic micro-management of old technologies or market structures. Regulation often creates, or tends to foster, most monopolies. As Ithiel de Sola Pool once noted, “The force that preserves most monopoly privilege is law… most would vanish in the absence of enforcement.”
• IP issues: Cyber-libertarians are deeply divided over IP issues (especially copyright) and this reflects a long-standing division within libertarian ranks on these issues more generally. Some believe IP rights are a natural extension of traditional property rights and/or a sensible way to incentivize scientific and artistic creativity. Others believe no one has a right to “property-tize” intangible creations or that copyright is simply industrial protectionism. And there are many views in between.

VII. Prospects for Cyber-Libertarianism

A. The Pessimistic View

• Government’s will quash online freedom and bring the Internet under their thumbs.
• Regulatory efforts are expanding at a breathtaking pace and will not slow anytime soon.

B. The Optimistic View

• “Technologies of Freedom” (tools and methods to avoid online regulation, censorship and control) will ultimately triumph.
• Technology is evolving faster than government’s ability to regulate it.

VIII. Related Reading on Cyber-Libertarianism & Internet Exceptionalism

• John Perry Barlow, Declaration of the Independence of Cyberspace (1996).
• Tom W. Bell, Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence , 87 U. Minn. L. Rev. 743 (2003).
• Esther Dyson, George Gilder, George Keyworth, & Alvin Toffler, The Progress & Freedom Foundation, A Magna Carta for the Knowledge Age (1994).
• Eric Goldman, The Third Wave of Internet Exceptionalism, Santa Clara Magazine (Winter 2008).
• H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, Kansas L. Rev. (2007).
• Peter Huber, Law & Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm (1997).
• Ithiel de Sola Pool, Technologies of Freedom (1983).
• David Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009).
• Adam Thierer, The Pragmatic Internet Optimist’s Creed, Technology Liberation Front Blog (Nov. 11, 2008).
• Technology Liberation Front Blog, About the Technology Liberation Front (August 2004, revised 2008).

Cyber-Libertarianism: The Case for Real Internet Freedom [Ver 1.0 – Thierer & Szoka] http://d.scribd.com/ScribdViewer.swf?document_id=18490847&access_key=key-14tt6eb4f2cdcil8wnf2&page=1&version=1&viewMode=

I’ve got a new essay up over at the City Journal about John Nichols and Robert McChesney’s proposal to have the government heavily subsidize failing media enterprises to “save journalism.” It follows below:

“Socializing Media in Order to Save It“ by Adam D. Thierer

City Journal March 27, 2009

With proposals to nationalize or heavily subsidize various segments of our economy more in vogue than ever, it was probably only a matter of time before someone suggested that America’s media marketplace should be brought into the government fold. John Nichols of The Nation and the prolific neo-Marxist media theorist Robert W. McChesney have now provided the road map for media’s march to serfdom. The cost to the American taxpayer would be at least $60 billion, but the cost for the First Amendment and our democracy would be incalculable.

Nichols and McChesney have coauthored several books and essays about media policy that view the world through the prism of class struggle, “manufactured consent” (á la Noam Chomsky), and the rest of the typical Marxoid tripe about history and economics. In their view, private, for-profit media cannot be trusted. As they stated in their 2003 call to arms, Our Media, Not Theirs: The Democratic Struggle Against Corporate Media, media-reform efforts must begin with “the need to promote an understanding of the urgency to assert public control over the media.” “Our claim,” they continue, “is simply that the media system produces vastly less of quality than it would if corporate and commercial pressures were lessened.”

In a new Nation essay, “The Death and Life of Great American Newspapers,” the authors bring their earlier work to its logical conclusion. Saving journalism, they argue, essentially requires that media become an appendage of the state. Journalism, they claim, is a “public good,” which—like education and defense—requires constant government oversight and support: “A moment has arrived at which we must recognize the need to invest tax dollars to create and maintain news gathering, reporting and writing with the purpose of informing all our citizens.” They propose that government devote $60 billion to “subscription subsidies, postal reforms, youth media and investment in public broadcasting.” Think of it as a “free press ‘infrastructure project,’” they say. “It would keep the press system alive. And it has the added benefit of providing an economic stimulus.” (Isn’t it amazing how everything stimulates the economy these days?)

Perhaps most audaciously, they argue that policymakers must respond to the crisis in journalism “with the same urgency with which they would approach the threat of terrorism, pandemic, financial collapse or climate change.” And they proclaim that their subsidy proposals are entirely consistent with what the nation’s Founders would have wanted:

We have to open the door to enlightened public policies and subsidies. . . . We need an organized citizenry demanding the institutions that make self-government possible. Only then can we, like our founders, build a free press. The technologies and the economic challenges are, of course, more complex than in the 1790s, but the answer is the same: the democratic state, the government, must create the conditions for sustaining the journalism that can provide the people with the information they need to be their own governors.

The Founders cared about a free press, of course, but they didn’t call for massive public subsidies to achieve it. They did put in place one rather important provision—the First Amendment—suggesting what they believed constituted a truly free press: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

Nichols and McChesney seem utterly naive, however, about the dangers to the First Amendment of putting government in control of media’s purse strings. “We must have a system that prohibits state censorship and that minimizes commercial control over journalistic values and pursuits,” they maintain. Well, good luck with that. If eight decades of Federal Communications Commission meddling in media markets have taught us anything, it’s that if you give bureaucrats the power to regulate the size and the shape of a soapbox, they will inevitably use their authority to regulate the speech delivered on that soapbox—indecency regulation, educational-television mandates, public-access rules, and the Fairness Doctrine are only a few examples. If the FCC received grant-making authority to dole out subsidies to media operators as Nichols and McChesney desire, it’s hard to imagine how journalists won’t be expected to surrender something in exchange. (Consider in this light the bill that Senator Benjamin L. Cardin (D-MD) introduced this week that would allow newspapers to become nonprofit organizations in an effort to help them stay afloat, but would also disallow political endorsements on their editorial pages.)

Nichols and McChesney in fact do envision strings being attached to public financing. They call, for example, for an annual tax credit for the first $200 each American spends on daily newspapers. To be eligible for this indirect subsidy, though, the reader must purchase media that meet criteria set by . . . Nichols and McChesney: “Newspapers would have to publish at least five times per week and maintain a substantial ‘news hole,’ say at least twenty-four broad pages each day, with less than 50 percent advertising.” Missing, moreover, is any mention of who defines what constitutes “news.” It wouldn’t take long for such a process to become a politicized nightmare.

Nichols and McChesney would also require that recipients of this “stimulus subsidy” make at least 90 percent of their content immediately available, free of charge, online. That’s an underhanded way of converting journalism into a giant, government-sponsored commons. (Incidentally, I can’t help but notice how many of Nichols’s essays are locked down on the Nation website, available only to subscribers.)

Nichols’s and McChesney’s argument shouldn’t simply be dismissed as radical, pie-in-the-sky theorizing. The authors have successfully spearheaded an increasingly influential media-reform movement through Free Press, the activist group they cofounded in 2002. The organization’s boisterous band of reformistas work tirelessly to mobilize troops whenever the slightest whiff of media liberalization is in the air. Nichols’s and McChesney’s new article gives us a taste of what we might expect their reform allies in Congress to propose next.

Nichols and McChesney are right about one thing: America’s media operators are struggling in the face of unprecedented competition and unexpected technological change. But the medicine they prescribe is far worse than the disease—for both the profession of journalism and for democracy itself.

Some sensible thinking here about broadband pork stimulus plans from Saul Hansell of the New York Times. In his piece on the NYT Bits blog this week, “Does Broadband Need a Stimulus?” he argues that people should stop grumbling about the “relatively small sum” of $6 billion that the new administration has proposed for wiring rural areas and urban centers. Hansell argues:

This also seems to be a rather sound policy choice because, as I look at it, the noise about a broadband gap is hooey. With new cable modem technology becoming available, 19 out of 20 American homes eventually will be able to have Internet service that is faster than any available now anywhere in the world. And that’s without one new cable being laid. That fact hasn’t prevented a lot of folks involved in telecommunications policy from calling for a lot of money to be spent on backhoes and cable riggers. For example, the Communications Workers of America and the Telecommunications Industry Association called for $25 billion in subsidies to network providers as well as tax breaks. The Free Press, a group that advocates for media diversity, recommended spending $44 billion, with an emphasis on subsidizing companies to compete with existing cable and phone companies. Running a new fiber-optic cable to every American home may well increase competition in broadband providers, but it isn’t needed to deliver high-speed Internet service. Current cable modems use just one of the more than 100 channels on a typical cable system and can often offer speeds of 16 megabits per second or more. The next generation of modems, using a technology called Docsis 3, allows several of those video channels to be combined to offer what ultimately can be Internet service as fast as 1 gigabit per second — 10 times faster than is offered in Japan, which generally is regarded as having the fastest broadband infrastructure.

What is most significant about Docsis 3 is that it turns out to be quite inexpensive to upgrade existing cable systems to use it. As a result, Comcast and other cable systems are already deploying the technology rather quickly. In other words, with no government intervention, the country is going to have the infrastructure very soon to provide almost everyone with the fastest possible Internet service. To be sure, Verizon and, to a much lesser degree, AT&T, are already building out fiber-optic-based networks that compete with the cable companies in broadband, voice and video. Clearwire, a venture that includes Sprint, is building a wireless broadband network. Certainly, competition often lowers prices and increases choices. But it is hardly clear that the country would get an adequate return from subsidizing what is essentially duplicate capacity.

Amen to all that. Plus, Hansell might have cited the 70 years of experience we have with universal service programs, which have proven to be the very model of waste, fraud, and abuse that many tax-and-spenders claim they now wish to avoid. Moreover, those inefficient subsidies have discouraged competition in rural areas. If we only subsidized McDonalds in rural area, do you think Burger King, Taco Bell or any other fast-food chain would have ever come to town?  But that’s basically the way this racket has worked in the telecom world for years.