On Friday, both Josh Wright and I spoke on a panel at the Michigan State University’s conference on “Governance of Social Media.” Our particular panel focused on emerging competition policy issues affecting social media and social networking sites. Also joining us on the panel were Nicolas Economides of NYU and Michael Altschul of the CTIA. The video of the panel can be found here and I have also embedded it down below. [My remarks begin around the 23-min mark of the video.]

At the event, I presented my forthcoming paper on “The Perils of Classifying Social Media Platforms as Public Utilities,” which is currently out for peer review. I outlined the rising calls for treating social media or social networking sites as public utilities, essential facilities, or natural monopolies. Next, I briefly discussed some basic law and economics of public utility / essential facilities regulation. Third, I detailed six specific problems with efforts to classify these services as such. Finally, I briefly discussed regulatory proposals set forth by Professors Jonathan Zittrain and Tim Wu to apply traditional antitrust or public utility remedies to social media or information platforms. Specifically, I address Zittrain’s call for “API neutrality” (which would apply net neutrality-like principles at the applications and device layer) and Wu’s call for a “Separations Principle” (which would forcibly segregate information providers into three buckets: creators, distributors, and hardware makers). Watch the video for more details and see this for more critiques of the Zittrain and Wu proposals.

The nice folks at the New York Times “Room for Debate” feature asked me and a group of bright lights to discuss the Verizon-Google agreement on network neutrality regulation, as it stood at various points in the day.

Read the comments of Tim Wu, Lawrence Lessig, David Gelernter, Ed Felten, Jonathan Zittrain, and myself. Much of my comment owes credit to Tim Lee’s excellent paper “The Durable Internet.”

We’re all over the place, folks . . .

Update: Late addition: Gigi Sohn.

By Berin Szoka & Adam Thierer

We learned from The Wall Street Journal yesterday that “Federal Communications Commission Chairman Julius Genachowski gets a little peeved when people suggests that he wants to regulate the Internet.” He told a group of Journal reporters and editors today that: “I don’t see any circumstances where we’d take steps to regulate the Internet itself,” and “I’ve been clear repeatedly that we’re not going to regulate the Internet.”

We’re thankful to hear Chairman Julius Genachowski to make that promise. We’ll certainly hold him to it. But you will pardon us if we remain skeptical (and, in advance, if you hear a constant stream of “I told you so” from us in the months and years to come). If the Chairman is “peeved” at the suggestion that the FCC might be angling to extend its reach to include the Internet and new media platforms and content, perhaps he should start taking a closer look at what his own agency is doing—and think about the precedents he’s setting for future Chairmen who might not share his professed commitment not to regulate the ‘net. Allow us to cite just a few examples:

Net Neutrality Notice of Proposed Rulemaking

We’re certainly aware of the argument that the FCC’s proposed net neutrality regime is not tantamount to Internet regulation—but we just don’t buy it. Not for one minute.

First, Chairman Genachowski seems to believe that “the Internet” is entirely distinct from the physical infrastructure that brings “cyberspace” to our homes, offices and mobile devices. The WSJ notes, “when pressed, [Genachowski] admitted he was referring to regulating Internet content rather than regulating Internet lines.” OK, so let’s just make sure we have this straight: The FCC is going to enshrine in law the principle that “gatekeepers” that control the “bottleneck” of broadband service can only be checked by having the government enforce “neutrality” principles in the same basic model of “common carrier” regulation that once applied to canals, railroads, the telegraph and telephone. But when it comes to accusations of “gatekeeper” power at the content/services/applications “layers” of the Internet, the FCC is just going to step back and let markets sort things out? Sorry, we’re just not buying it.

Chairman Genachowski may sincerely believe that a clear, bright line can be drawn between the “infrastructure layer” (which he’s certainly going to regulate) and what he likes to think of as “the Internet” (which he promises not to regulate). But as we warned last October, the day after the FCC launched this NPRM:

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. The reality is that regulation always spreads. The march of regulation can sometimes be glacial, but it is, sadly, almost inevitable: Regulatory regimes grow but almost never contract… The basic premise of neutrality regulation is already being proposed for other layers of the Internet….  whatever the FCC might say today, any large online intermediary with a popular platform potentially faces the threat of “network neutrality” mandates—because every platform is essentially a “network,” too. We’re not just talking about “search neutrality” (Google as well as Microsoft) but also about “device neutrality” (mobile handsets), “app neutrality” (Apple’s iTunes store, Facebook’s developers and Google’s Android mobile OS) and so on for social networking, email, instant messaging, online advertising, etc.

We explained how the intellectual foundations for this regulatory creep have already been laid by groups like Free Press and Public Knowledge and law professors like Columbia’s Tim Wu (father of “Net Neutrality”), Harvard’s Jonathan Zittrain (father of “API/device Neutrality”), and Seton Hall’s Frank Pasquale (father of “Search Neutrality”). Joining this intellectual vanguard of Internet regulation is George Washington law school professor Dawn Nunziato, whose new book, Virtual Freedom: Net Neutrality and Free Speech in the Internet Age, is a veritable manifesto for expansive neutrality regulation (especially of Google)—and how the First Amendment (“Congress shall make no law…”) should be twisted not just to allow such regulation of speech platforms, but to require it! Even Wu, whose work blazed a trail for these others, is pretty clear about the breadth of his original vision for “neutrality” regulation, as his popular Net Neutrality FAQ makes clear:

The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short-term interests of the owner do not prevent the best products or applications becoming available to end-users.

Zittrain, Pasquale, and Nunziato don’t pull any punches either: They don’t shy away from flirting with nebulous neutrality definitions and wide-ranging government powers to regulate. So we don’t have to imagine what the “slippery slope” might look like: There are plenty of very smart and highly influential legal academics out there hard at work sketching out precisely where the path Chairman Genachowski has started us down will ultimately lead.

It’s no less clear why we’ll wind up marching down that path, no matter what the current FCC leadership intends.

1. The current net neutrality rulemaking sets a profoundly dangerous legal precedent of essentially unlimited claims of “ancillary jurisdiction”: As our friends at the Electronic Frontier Foundation (who have a soft spot for net neutrality in theory) put it, “If ‘ancillary jurisdiction’ is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like).” Our PFF colleague Barbara Esbin carefully dissected this issue for the Commission in her recent filing in this proceeding.
2. As explained above, the general regulatory principle of controlling “gatekeepers” doesn’t end with infrastructure.
3. As EFF notes, “Experience shows that the FCC is particularly vulnerable to regulatory capture.”
4. Now that FCC has opened the door to micro-managing online business practices in the name of “neutrality,” the companies that have made America the leader in the Digital Revolution are already turning on each other in a dangerous game of brinksmanship, escalating demands for regulation and playing right into the hands of those who want to bring the entire high-tech sector under the thumb of government—under an Orwellian conception of “Internet Freedom” that makes corporations the real “Big Brother,” and government, our savior.

This strategy of political escalation will thus quickly steamroll over whatever promises made today to narrowly cabin the principle of neutrality regulation—and end in “Mutually Assured Destruction.” That’s why we referred to the day the FCC started down this path back in September as “The Day Internet Freedom Died.”

If that title sounds melodramatic, take a step back and consider that, back in 1996, Congress decided to enshrine in law the principle that the Internet is different from traditional media: Apart from an ill-considered effort to censor online indecency and obscenity (which was quickly struck down by the Supreme Court as unconstitutional) and the enforcement of intellectual property and criminal laws, Congress decided to take a purely laissez-faire approach to the Internet.  As Barbara reminded the Commission in her net neutrality filing, “Section 230(b)(2) flatly declares that it is the policy of the United States ― to preserve the vibrant competitive free market that presently exits for the Internet and other interactive computer services, unfettered by Federal or State regulation.”

So Chairman Genachowski’s decision to revert to the common carrier model of the railroad era marks a fundamental break with the approach Congress decided we would take to the Internet. The DC Circuit will likely soon rule that the FCC has vastly overstepped its authority in trying to set Internet policy without any clear grant of authority from Congress to do so.

Wireless Innovation & Investment Notice of Inquiry

In fact, the same kind of thinking is already being extended by this FCC in a number of other arenas using a flurry of innocuous-seeming “Notices of Inquiry.” While these notices purport only to ask questions, they either:

1. Foreshadow where the Commission intends to go in proposing new regulations based on its nearly limitless conception of its own regulatory authority;
2. Are intended to pressure Congress to give the agency more statutory authority; or
3. Are intended to intimidate industry into “playing ball” so the FCC won’t actually have to stick its neck out by trying to write rules to regulate Internet activities that are clearly beyond its existing authority and might well be unconstitutional even if Congress ever did expand that authority.

Exhibit A is the language in the Commission’s August 2009 Wireless Innovation and Investment Notice of Inquiry, (paragraph 60, pg. 21) that suggests the FCC is angling to become the Federal Cloud Commission:

As other approaches, such as cloud computing, evolve, will established standards or de facto standards become more important to the applications development process? For example, can a dominant cloud computing position raise the same competitive issues that are now being discussed in the context of network neutrality? Will it be necessary to modify the existing balance between regulatory and market forces to promote further innovation in the development and deployment of new applications and services?

Good morning, Google!  Hello, Facebook! Is anyone out there in the cloud listening to the rumbling thunder of federal regulation? What began as academic theory in a law school ivory tower is coming soon to a regulatory agency near you! But wait… there’s more!

National Broadband Plan Public Notice #21 (Cloud Computing)

Last November, as part of the Commission’s ongoing effort to develop a National Broadband Plan, the FCC released a request for information “on data portability and its relationship to broadband.”  (NBP Public Notice #21) “The Commission seeks tailored comment on broadband and portability of data and their relation to cloud computing, transparency, identity, and privacy,” the notice says.  Here was the second item on the list of things the Commission said it was investigating (p. 2):

When considering the portability of data, we also consider the processes through which data are moved. In this context, we seek comment on how to identify and understand cloud computing as a model for technology provisioning…. What types of cloud computing exist (e.g., public, hybrid, and internal) and what are the legal and regulatory implications of their use? … To what extent are consumers protected by industry self-regulation (e.g., the Cloud Computing Manifesto), and to what extent might additional protections be needed? … What specific privacy concerns are there with user data and cloud computing? What precautions should government agencies take to prevent disclosure of personal information when providing data? Is the use of cloud computing a net positive to the environment? Are there specific studies that quantify the environmental impact of cloud computing?

We suppose some might claim there’s nothing wrong with the FCC looking into these issues, and that the agency’s interest in cloud computing is entirely benign. (Never mind the fact that the Federal Trade Commission already enforces the privacy policies of cloud computing providers and is looking hard at online privacy.)  Seeing all these open-ended questions about something so obviously beyond the scope of the FCC’s authority just makes the potential for—and perhaps even inevitability of—regulatory creep hard to miss.  Eventually, when a regulatory agency asks enough questions, especially the sort of questions highlighted above… well, to paraphrase Master Yoda:

Open-ended inquiries about new regulations are the path to the Dark side. Inquiries lead to agency oversight. Agency oversight leads to regulation. Regulation leads to suffering for innovators and consumers alike.

Again, we’re not just inventing bogeymen here. It’s quite clear that regulatory advocates want to take neutrality regulation into “the Cloud.” As Jason Lanier, author of the popular book You Are Not a Gadget summarizes one of his key themes:

While there is a lot of talk about networks and emergence from the top American technologists, in truth, most of them are hoping to thrive by controlling the network that everyone else is forced to pass through. Everyone wants to be a “Lord of a Computing Cloud.”

In Lanier’s dystopia of techno-feudalism, the Lords oppressing the poor digital “peasants” certainly aren’t just those running broadband service providers. It’s the Google, Facebooks, and Twitters of the world. It’s similar to the “sharecropper” concern raised by Nick Carr in his book The Big Switch. Complaints like those will only grow in the years to come, and few will buy—or even pause to remember—the distinction Chairman Genachowski seems to stand on now between infrastructure and “the Internet.”

National Broadband Plan Public Notice #29 (Privacy)

The “Recovery Act” passed in January 2009 tasked the FCC with formulating “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure and service by the public.” The FCC seized this as an opportunity to solicit suggestions as to how regulate the use and collection of data by the private sector on the grounds that concerns about privacy might somehow be slowing broadband adoption.

Chairman Genachowski’s flurry of open-ended inquiries about new regulation are clearly intended to give a bully pulpit to regulatory advocates to demand that the FCC issue the very sort of Internet regulations the Chairman purports to abhor (or that Congress give the agency authority to do so). But most of these notices at least appear to be objective requests for comments written independently of the groups the Commission seems so eager to hear beg for Internet regulation. But in this case, the Commission dispensed with that tedious formality and just outsourced the writing of the inquiry itself to one of the outside groups clamoring the loudest for data regulation in the name of “privacy”: our friends at the Center for Democracy & Technology, with whom PFF has worked closely on many free speech issues in the past.

CDT is on to something when they write that “Consumers will not embrace broadband if they have a sense that everything they do online will be watched by government officials.” We’ll join with them in the fight to protect consumers’ privacy from the Real Big Brother—government!—but once again, as with net neutrality, advocates of regulation see government as the protector of our digital liberties (if only we can forever make sure noble civil-libertarians are in charge of the regulatory apparatus of the state!). So CDT has it exactly backwards when they say: “Consumer privacy concerns encompass not only what companies do with their data, but also the extent to which the government accesses it.” And instead of just suggesting that the FCC’s National Broadband Plan include a recommendation that Congress clean up the antiquated laws intended to limit government surveillance, CDT pushes for sweeping regulations that would affect the ability of most online services and sites to collect and use the data they need to improve their services, innovate, and maybe even try to make some money on advertising to support all the free content and services they give away.

Thus, instead of focusing on the clear harm from government, the FCC’s outsourced inquiry goes after online operators as “privacy proxies” for concerns about government action. At least Congress actually asked for the FCC’s recommendations in this case, unlike all the other inquiries the agency has launched sua sponte. But as Berin noted in his comments on this inquiry, the Recovery Act allowed the FCC to “recommend only those policies that it concludes will, on net, help achieve “affordability” and ‘maximum utilization’ of broadband.” That means the Commission would actually have to consider the many trade-offs inherent in the private sector use of data before recommending regulation: If the Internet ecosystem is impoverished by government intervention, however well-intentioned it may be, users will have that much less reason to adopt and “utilize broadband.” So the FCC would have a lot of cost-benefit analysis to do before it could actually make the kinds of regulatory recommendations CDT wants. And we suspect that, on the whole, that analysis wouldn’t turn out the way CDT thinks it would.

Child Safe Viewing Act Notice of Inquiry

In a somewhat similar vein, Congress last year asked the agency to examine how well parental control technologies work to allow parents to filter objectionable content online. So while the FCC may have had, for once, the authority to ask broad questions, it’s startling just how broad those questions were. The Commission obviously has no authority over video games or virtual worlds, online video distribution networks or video hosting sites, mobile web content, MP3 players or iPods, P2P networks, VCRs or DVD players, PVRs or TiVo, Internet filters, safe search tools, laptops, and so on. And yet, all these things (and much more) were mentioned in the Commission’s Child Safe Viewing Act Notice of Inquiry.

The proceeding raises the prospect of what Adam has called “convergence era content regulation” since it opens the doors to FCC meddling on a number of new fronts in the name of “protecting children.” Although the Commission’s final report to Congress stopped short of calling for an substantive expansion of the agency’s content regulatory regime, it teed up another proceeding, discussed next. (And if Congress hasn’t moved more quickly to grant the FCC new power in this area, it’s probably because they’re busy trying to figure out how to get around a line of First Amendment cases that consistently require government regulation to yield to “less restrictive” alternatives like parental control tools and education.)

Empowering Parents & Protecting Children Notice of Inquiry

This wide-ranging inquiry reads like the ultimate “fishing expedition” by a regulatory agency—fishing for new jurisdictional authority to regulate, that is!  The questions asked are too broad, far-flung and various to catalog here (we’ll have a big filing coming in the matter soon), but the Commission asks about extending to Internet media the model of the 1990 Children’s Television Act, which imposes “public interest” obligations on broadcasters and cable operators to offer “education” content while also strictly limiting how much advertising may be shown during children’s TV. The Commission also alludes, ominously, to the V-chip model for requiring universal ratings for television and hints that it would really like for “current laws [to] be updated to reflect this convergence and to keep pace with changes in technology” (¶ 41).

The Commission mentions only in passing at the very end of the Inquiry that it “has varying degrees of statutory authority with respect to different media. We ask commenters, in proposing any action, to discuss the source and extent of the Commission’s authority to take the action, or whether new legislation would be needed to authorize such action” (¶ 58). Translation: “Uh, yeah… so… we know we don’t have a statutory leg to stand on here, but we think it’d be really cool if we did, so let’s just all, you know, kinda brainstorm about what kind of regulation we could be imposing here and what kind of law we’d need get Congress to pass to make it all legal. Or if you have any creative ideas on how we could get away with just making up the jurisdiction thing on our own, that’d be even better!”

YouTube, you’re first on the list of targets for the kind of online video regulation the FCC is hinting at here—and none too subtly. But why stop there? The FCC’s laundry list of complaints aren’t limited just to video, but could apply to essentially all online media. But this is all in the name of “protecting the children,” and Chairman Genachowski doesn’t want to regulate the Internet, so we really don’t need to worry—right?

Future of Media Notice of Inquiry

Most recently, in late January, the Commission launched the ambitiously-named “Examination of the Future of Media and Information Needs of Communities in a Digital Age.” The FCC asks a number of good questions about how government could get out of the way of media struggling to reinvent themselves in the digital era by scrapping outdated regulations. The inquiry also tips its hat to the vital importance of advertising in supporting media. But it’s otherwise pretty bad news as a harbinger of a “Chill Wind” for the future of a free press in this country, as Ken Ferree, PFF’s former president and current board member noted.

In particular, the Commission comes right out with a “trial balloon” about imposing public interest obligations on online operators—the very thing it hinted at slightly more delicately in the “Empowering Parents” inquiry mentioned above:

Broadcasters have certain public interest obligations, including that they provide programming responsive to the needs and issues of their communities and comply with the Commission’s children’s programming requirements. Cable and satellite operators have their own responsibilities…  Should such obligations be applied to a broader range of media or technology companies, or be limited in scope?

OK, so we’re not going to “regulate” online content operators; we’re just going to impose “public interest” obligations on them to provide certain kinds of content preferred by politicians. Right… and if Google News or YouTube don’t do enough to “serve the public interest,” what then? Will the Federal Search Commission take away Google’s search license or cloud computing license?

Of course, we don’t mean to suggest that even the “Federal Cloud Commission” would ever be so unsubtle as to create a formal licensing system when they can probably achieve the same ends with far less obvious regulation. But how is this all going to work, exactly? Again, this is exactly the kind of hopelessly vague regulatory morass Congress had in mind when it declared that the federal government would avoid “fettering” the “vibrant competitive free market … for the Internet and other interactive computer services” with regulation.

The FCC goes on to revive the kinds of broad net neutrality ideas discussed above in asking:

How would policies related to “open Internet” or “universal broadband” or other FCC policies about communications infrastructure affect the likelihood that the Internet will meet the information needs of communities? Are there search engine practices that might positively or negatively affect web-based efforts to provide news or information?

In other words, “Tell us why and precisely how we should start regulating search engines in order to help ‘save  news.'” Google, here’s looking at you, kid! You want to keep your search license, dontcha? Well, just do what the nice men from Washington want and there won’t be any trouble.

Finally, the Commission opens the door to the noxious proposal for a “public option” for media, which Adam has lambasted. Here’s what the Commission says:

In general, what categories of journalism are most in jeopardy in the digital era? What categories are likely to flourish? While much is still to be determined as media companies test various business models and payment approaches in the coming years, based on what is known now, are there news and information needs that commercial market mechanisms alone are unlikely to serve adequately?

Don’t worry, it’s not as if government will exercise control over the media companies it funds if the media-socialist fantasies of the neo-Marxist Robert McChesney and his ironically-named “Free Press” group actually come true. Nope, government’s just here to help!

We’d all do well to remember that subsidies always come with strings attached—namely, regulation. That’s the Golden Rule: “He who has the gold, makes the rules!”

Conclusion

Chairman Genachowski, with all due respect, if you don’t like people suggesting that the FCC may be positioning itself to regulate the Internet and digital media platforms, then you might want to take a careful look at what your agency has been doing. You should think hard both about the precedents that will be set by “neutrality” regulation for online content and services, and also about the quasi-regulatory effect that your agency’s flurry of open-ended inquiries will have on the operators you claim not to want to regulate.

What will future Chairmen do with these precedents? What will emerge from every “Pandora’s Box” you’ve opened with each new sweeping inquiry? The answer, we fear, is an endless parade of new Internet regulations—and the death by a thousand cuts of real Internet freedom.

Harvard Berkman Center professor Jonathan Zittrain has published another pessimistic, Steve-Jobs-is-Taking-Us-Straight-To-Cyber-Hell editorial building on the gloomy thesis he set forth in his 2008 book, The Future of the Internet and How to Stop It. His latest piece appears in the Financial Times and it’s entitled, “A Fight over Freedom at Apple’s Core. Concerning the recent Apple iPad announcement, Zittrain warns: “Mr Jobs ushered in the personal computer era and now he is trying to usher it out.”

I’m not going to go into yet another lengthy dissertation about what it so misguided about his thesis that cyberspace is becoming more “regulable” and that digital “generativity” is dying because of the rise of devices like the iPhone & iPad, or sites like Facebook.  Instead, I will just point you to the many things I’ve written before explaining just how far off the mark Prof. Zittrain is on this point. [See the complete list down below + video of our debate.]

But let me just say this… Ignoring that fact that he is an iPhone user himself — which makes no sense considering that he thinks of Apple as the font of all cyber-evil — he can’t muster any substantive empirical evidence proving that the Net and digital devices are being more “closed, sterile, and tethered,” as he repeatedly claims in his book and editorials.  And that’s not surprising because the reality is that the digital world is more open and generative than ever, and even if there are some “closed” devices and systems out there, they are actually quite innovative and not perfectly closed as Zittrain suggests. The spectrum of “open vs. closed” systems and devices is incredible diverse and nothing is perfectly “open” or “closed.”  We can have the best of both worlds: many open systems with some partial “walled gardens” here and there (or hybrid systems combining both). Regardless, we are witnessing greater digital “generativity” and innovation with each passing year. Until Zittrain can prove the opposite, his thesis must be considered a failure.

Finally, I want to associate myself with this excellent critique of the Zittrain thesis by Prof. Ed Felten, who points out that Zittrain’s argument doesn’t even work for the iPad, which I would agree is a fairly “closed appliance” in the Zittrainian scheme of the things:

For the iPad to become a Zittrain-type appliance, two things must happen. First, Apple must remain picky about which apps are available in the App Store. Second, Apple must limit the device’s browser so that it lacks the features that make today’s browsers viable application platforms. Will Apple be able to limit their product in this way, despite competition from other, more general-purpose tablets? I doubt it. But even this — even an appliance-style iPad — would not be enough to prove Zittrain’s thesis. Zittrain argued not just that appliances would exist, but that they would replace general purpose computers. Amazon’s kindle is an appliance, but it doesn’t prove Zittrain’s thesis because nobody is ditching their laptop in favor of a Kindle. Instead, the Kindle is an extra device which is used for its purpose, while the general-purpose device is used for everything else. If the iPad ends up like the Kindle — a complement to the laptop or netbook, rather than a replacement for it — this will not prove Zittrain’s thesis. It seems unlikely, then, that the iPad, even if it succeeds, will provide strong support for Zittrain’s thesis. General-purpose computers are so useful that we’re not likely to abandon them.

Exactly right. And here’s a few more things you might want to read to see why Zittrain’s thesis doesn’t add up (the first and the last one probably provide the best overview):

• Review of Zittrain’s “Future of the Internet” (3/23/08)
• Apple, Openness, and the Zittrain Thesis (3/30/08)
• Another Problem for the Zittrain Thesis — Old People! (4/12/08)
• [AUDIO] NPR “On Point” Debate over The Future of the Internet (5/13/08)
• iPhone 2.0 Cracked in Hours… What Was that Zittrain Thesis Again? (7/10/08)
• Enough anti-iPhone rants… just get another phone! (8/11/08)
• Another Review of Zittrain’s “Future of the Internet” (9/20/08)
• [VIDEO] My Debate with Jonathan Zittrain at New America Foundation (11/6/08)
• Zittrain’s Pessimistic Predictions and Problematic Prescriptions for the Net (7/20/09)
• Code, Pessimism, and the Illusion of “Perfect Control” (5/8/09)[1st part of Cato Unbound Debate “Ten Years of Code“ (featuring Lessig, Zittrain, Declan McCullagh, and me]
• Our Conflict of Cyber-Visions (5/14/09) [part 2 of the Cato Unbound debate]
• Cyber-Libertarianism: The Case for Real Internet Freedom (8/12/09)
• You’d Have to Be Smoking Dope to Believe the Zittrain-Lessig Thesis (9/15/09)
• Oh Farts! The Droid, the iPhone & the Lessig-Zittrain Thesis (11/12/09)

2009 was not as big of a year for Internet and information technology (“info-tech”) policy books as 2008 was, but there were still some notable titles released that offered interesting perspectives about the future of the Net and the impact the Digital Revolution is having on our lives, culture, and economy.  So, like last year, I figured I would throw together my list of the 10 most important info-tech policy books of the year.

First, let me repeat a few of the same caveats and disclaimers that I set forth last year.  What qualifies as an “important” info-tech policy book? Simply put, it’s a title that many people are currently discussing and that we will likely be referencing for many years to come.  However, I want to be clear that merely because a book appears on my list it does not necessarily mean I agree with everything said in it. In fact, as was the case in previous years, I found much with which to disagree in my picks for the most important books of 2009 and I find that the cyber-libertarianism I subscribe to has very few fans out there.

Another caveat: Narrowly-focused titles lose a few points on my list. For example, if a book deals mostly with privacy issues, copyright law, or antitrust policy, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues with a bearing on technology policy.

With those caveats in mind, here are my choices for the Most Important Info-Tech Policy Books of 2009.

(1) Chris Anderson – Free: The Future of a Radical Price

Chris Anderson’s 2006 book The Long Tail will be remembered as one of the most influential tech policy books of the decade.  It changed the way we talk about the digital marketplace and it instantly garnered a huge audience outside of the nerdy world of Internet policy.  While Free: The Future of a Radical Price will forever live in the shadow of The Long Tail, it too is an important book and in many ways it is a much better one.

In The Long Tail, Anderson tried too hard to invent the latest business theory du jour, and in doing so he went much too far in proclaiming that, as the subtitle of the book argued, “the future of the business is selling less of more.”  That’s just not true. While there’s certainly a lot more action in the long tail than ever before since it is so much more accessible, that does not mean the entire future of business lies in “selling less of more.”  To the contrary, the fat head of the tail is just as profitable as ever.

Free certainly contains some of the flamboyance on display in The Long Tail, but Anderson has matured as a writer and is now far more willing to point out the limitations of his theories in a business sense.  He does a splendid job in Free of creating a taxonomy of free-oriented business models to guide discussions about these issues.  And he explains how “free” can be part of many different business models and strategies. His historical treatment of the issues is outstanding and includes many entertaining examples of how these “free” strategies have been used over time to offer innovative new goods and services.

The reason his book is important for Internet policy discussions is obvious: “free” is increasingly viewed as a threat to many existing companies, industry sectors, and traditional media business models.  For example, battles about the future of journalism and search engine indexing of news sites are obviously tied up with battles over “free.”  And, it goes without saying that the traditional entertainment industry business models are increasingly challenged by “free” as many struggle to adapt to the new realities of the online world, in which “free” (primarily advertising-supported  and “freemium” models) seems to be the only model with any legs.

Much like my top pick for 2008 book of the year, Jonathan Zittrain’s The Future of the Net and How to Stop It, Chris Anderson’s Free is the most important information technology book of the year because it is the one we will still be talking about the most a decade from now.  However, unlike Zittrain’s book and thesis, which I think will be largely discredited in another ten years, Anderson’s book will likely be viewed as an important and lasting contribution to the field.

(2) Larry Downes – The Laws of Disruption: Chaos and Control in Your Virtual Future

The Laws of Disruption is the closest thing you will find to a genuine cyber-libertarian manifesto these days.  But Downes isn’t a rigid ideologue; his skepticism of government regulation of the high-tech economy is based more on practical considerations and the fundamental “law of disruption”: “technology changes exponentially, but social, economic, and legal systems change incrementally.” Downes says this law is “a simple but unavoidable principle of modern life” and that it will have profound implications for the way businesses, government, and culture evolve going forward. “As the gap between the old world and the new gets wider,” he argues, “conflicts between social, economic, political, and legal systems” will intensify and “nothing can stop the chaos that will follow.” In this sense, The Laws of Disruption reads like an addendum to one of Alvin Toffler’s old books on technology and futurism in that Downes is essentially walking us through the practical consequences of life in a “post-industrial society.”

In terms of what it all means for public policy, Downes doesn’t so much fear legal and regulatory over-reach the way many cyber-libertarians do. Rather, he thinks most regulatory schemes just won’t work. In essence, he is a technological fatalist or consequentialist: Progress happens whether we like it or not, so get used to it!  Thus, the “laws of disruption” he articulates serve primarily as “Just-Don’t-Bother” warnings to over-eager government meddlers. “The best way to regulate innovation is to leave it alone,” he counsels.

In terms of structure, The Laws of Disruption resembles Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion by Abelson, Ledeen, and Lewis, (which I reviewed here last year and named to my 2008 list). Both books survey a vast swath of territory — privacy, copyright, security, etc — and each chapter offers unique perspectives on each debate. In that sense, the book is useful to readers if for no other reason than you get a taste for how a wide variety of issues are playing out. Downes also owes much to Clayton M. Christensen and his seminal 1997 book The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail. Like that book, The Laws of Disruption is a business book with a strong policy hook.  That is, both books focus on advice-dishing for companies and innovators looking to “stay ahead of the curve” in the midst of relentless, gut-wrenching technological change, but the books also include important lessons regarding the public policies that should govern high-tech sectors.

I highly recommended The Laws of Disruption and found it to be the most enjoyable of all the books I read this year.

(3) Dawn C. Nunziato – Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

Dawn Nunziato is the perfect foil for Larry Downes. Her book is a manifesto for cyber-collectivism and “media access theory.”  (For those unfamiliar with media access theory, see my old essay: “Your Soapbox is My Soapbox! Thoughts on the Media Access Movement in General and the Media & Democracy Coalition’s ‘Bill of Media Rights’ in Particular.”)  She attempts to bring media access theory up to date by taking the ideas made famous by Jerome Barron, Owen Fiss, Cass Sunstein, and others, and applying them to the Internet and digital technologies.  Like those earlier legal thinkers, she argues for “an affirmative conception” of the First Amendment that would allow government to use the First Amendment to “facilitate the conditions necessary for democratic self-government” (whatever that means). Net neutrality regulation becomes one of many ways she would put this theory into action. Importantly, she would not stop with ISPs. She makes the case for extending the entire regulatory regime to Google and search platforms. Welcome to the Brave New World of the the FCC as the Federal Search Commission or Federal Cloud Commission!

Her attempt to cast Net neutrality as the Internet’s First Amendment is a grotesque contortion of the real First Amendment, and a complete betrayal of the Founder’s original intentions.  As I made clear in my recent essay on “Net Neutrality Regulation & the First Amendment,” the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts the Federal Communications Commission in control of the Digital Economy. Her conception of the First Amendment would convert it from a shield against government control into a sword that the government could use as it wished. It would mean that “Congress shall make no law…” would suddenly be replaced by “Congress shall make whatever law it wants” so long as it serves some amorphous “public interest.” Can you say “tyranny of the majority”?

Regardless, event though I find her views to be morally repugnant and the antithesis of true digital freedom, Nunziato’s book is a concise articulation of that vision and it deserves everyone’s attention. It serves as a blueprint for where the Net neutrality wars are taking us.

(4) David Bollier – Viral Spiral: How the Commoners Built a Digital Republic of Their Own

David Bollier’s Viral Spiral is the first major history of the “digital commons” / “free culture” movement, and despite my many person disagreements with him and this movement, it is an excellent treatment of the topic. Bollier surveys this growing intellectual movement from its early open source days to the rise of the Creative Commons and on into the present.  The cast of characters in this drama will be well-known to anyone involved in modern tech policy debates: Richard Stallman, Lawrence Lessig, Jonathan Zittrain, Yochai Benkler, et al.

There is absolutely no doubt that this intellectual movement is winning the war of ideas in cyberlaw front today, as I noted in a recent debate with Lessig and Zittrain over at Cato Unbound.  As a cyber-libertarian, I find myself occasionally at odds with these guys and this movement on a variety of policy issues, but that didn’t stop me from enjoying David Bollier’s treatment of this movement and these issues.

(5) David Post – In Search of Jefferson’s Moose: Notes on the State of Cyberspace

David Post is one of the early intellectual giants in the field of cyberlaw. Back in the days when most of us were still just trying to get our 14.4 modems to work properly to get on Al Gore’s “Information Highway,” David Post was writing essays and law review articles that were a decade ahead of their time.  In particular, his work on Internet governance and jurisdictional matters was path-breaking, and much of it is updated and extended in Jefferson’s Moose.

I must admit, however, that I was hoping for a bit more from David in this book.  Beyond just being a first-rate intellectual in this space, he is also one of the few remaining defenders of “Internet exceptionalism,” and he has genuine cyber-libertarian leanings.  After waiting almost 10 years for David to wrap this thing up after he first told me about it back around 2000, I was thinking he might come up with the sort of cyber-libertarian manifesto I’ve always hoped he would write.  Although he fell a bit short in that regard, it doesn’t mean it’s not a good book. It is. You will enjoy it no matter what cyber-philosophy you subscribe to.

Read my entire review of Jefferson’s Moose here.

(6) Dennis Baron – A Better Pencil: Readers, Writers, and the Digital Revolution

Baron’s A Better Pencil is a splendid history of techno-pessimism and the endless battles about the impact of new technologies on life and learning, something I have written about here before in my essays on “Internet optimists vs. pessimists” (See: 1, 2, 3).   Baron notes that almost as soon as people learned to put chisel to stone and then quill to paper, a great debate began about the impact of new communications technology on culture and education. And that debate rages on today with a new generation of optimists and skeptics battling over the impact that computing, the Internet, and digital technologies have on our lives and on how we learn about the world.

Baron walks us through a litany of historical examples—the printing press, the telegraph, telephones, typewriters, pocket calculators, personal computers, word processors, webpages, blogs, social-networking sites, and more—and identifies the usual pattern: we greet each new technology with deep distrust and dire warnings, but in time we adapt to the new realities. Indeed, as a species, we have an unparalleled ability to learn new ways of doing things. We don’t always like technological change, and often we deeply resent or fear it, but in the end, we learn to live with it and eventually to embrace it.  With the rise of the Internet and digital technologies, we see this pattern unfolding once again. But Baron counsels patience and understanding instead of the sort f hysteria and backlash we see from the likes of Andrew Keen, Lee Siegel and others.  It’s a refreshing and uplifting perspective.

Highly recommended. See my complete review of Baron’s A Better Pencil over at the City Journal website.

(7) Mark Helprin – Digital Barbarism: A Writer’s Manifesto

No book has been more disappointing to me in recent memory than Mark Helprin’s Digital Barbarism. As someone who still finds a lot to defend in copyright law, I was excited when I learned that one of America’s most gifted authors–and the author of my favorite literary work of the late 20th century (A Soldier of the Great War)–was taking a crack defending copyright in a short manifesto.

Alas, as I argued in my review of the book for National Review, 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 “cyber-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. Channeling the ghost of the late social critic Neil Postman, Helprin’s critique of copyright skeptics quickly turns into an all-out assault on modern digital culture and cyberspace. He argues 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 it just gets worse from there. Much like recent rants by Andrew Keen and Lee Siegel, Helprin speaks repeatedly about the “surrender of human nature” to “the machine revolution” and the corresponding need to “control the machine.”

How a man who has penned some of the most beautiful prose in modern times could craft an off-the-rails screed of this magnitude remains incomprehensible  to me.  What’s worse is that he set back the cause of defending what’s best about copyright in the process. Luckily for Helprin, there’s plenty of hysteria on the other side, as the next book on my list makes clear.

(8) William Patry – Moral Panics and the Copyright Wars

Bill Patry is an angry man. He is the anti-Helprin. The vitriol that Helprin directs against the copyright-haters is reversed in this screed and turned against not just copyright holders and content creators, but against the entire capitalist system. Patry, who is the author of a multi-volume treatise on copyright law, has done the intellectual equivalent of “going postal” within his own intellectual community. He has turned his intellectual guns on anyone and everyone who has ever had a kind word to say about copyright. He cannot find one nice thing to say about copyright or anyone who defends copyright in this book. Not one.

What’s most ironic about the book is that Patry seems utterly oblivious to the fact that in the process of critiquing the inflammatory rhetoric and “misuse of language” occasionally emanating from some copyright defenders, he goes completely over the top himself and engages in even more egregious rhetorical flourishes. Choice gems from the book include: “digital guillotines,” copyright as “cancer,” “copyright dwarves,” Maoism, the “sins” of copyright, “socialism for the wealthy,” and a comparison of the DMCA to “Mussolini’s Fascist Italy.”  Apparently when it comes to the “misuse of language,” Patry believes that two wrongs make a right.

And then there is his mind-boggling conclusion that: “I cannot think of a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries.”  Apparently, every great book, every great movie, every great video game, and ever great musical composition of the past century was done solely for the love of it all. Copyright had apparently had absolutely nothing to do with it according to Patry’s logic. That is just an astonishingly naive notion, in my opinion. Apparently this man’s hatred for copyright-related industries is so intense that it has blinded him to any potentially positive effects of copyright law. If nothing else, it would have been nice to see Mr. Patry address how it is that America is the world’s leading creator and exporter of creative arts.  Certainly copyright law must have had something to do with that!

Chapter 5 of his book makes it clear that Patry’s critique of copyright is actually rooted in a much deeper suspicion about capitalism itself.  He speaks of “the myth of economic freedom” and claims that “free market fundamentalism… destroyed much of the world’s economies.”  He then launches into a neo-Marxist critique of property rights more generally, treating property as a zero-sum game of winners and losers.  At times it all begins to sound like a rant from an old Herbert Marcuse book with questions like: “why are the interests of one social group favored over another?” and “What social objective is being furthered by the decision to privilege one group over another?”  And there’s all sorts of talk about “regulation in the public interest,” which I have critique as a meaningless non-standard here many times before.

In the end, Patry’s book will–along with Helprin’s–long be remember as marking the nadir in the “copyright wars;” a moment when grown men of great intelligence decided to trade in their integrity for the opportunity to engage in below-the-belt rhetorical cheap shots that would typically be reserved for college student debating politics over beers and shots at two in the morning.  They should both be ashamed of themselves.

(9) Gary Reback – Free the Market!  Why Only Government Can Keep the Marketplace Competitive

Gary Reback’s over-the-top ode to antitrust as the great savior of capitalism reads like an extended love letter. As I noted in my lengthy critique of his book, his fairy tale narrative of antitrust as the savior of capitalism is hopelessly one-sided, and his recommendations to expand antitrust enforcement wouldn’t “Free the Market” as he argues in his book’s shameful title, but would instead wrap it in regulatory chains.

He repeatedly insults the intelligence of the reader by claiming antitrust is supposedly not a form of economic regulation and that is can only have beneficial effects. He wants antitrust officials to intervene early and often in high-tech markets to guide markets to a supposedly better place. Reback considers just about everything “the Chicago School” taught us to be antitrust apostasy and he would like to erase four decades worth of economic literature and evidence that suggests antitrust law is a form of economic regulation and does have unintended consequences that often hurt consumer welfare.  Even if you are not an inherent antitrust skeptic like me, I think most people would hope for a better treatment of the other side of this story.

Read my lengthy review of Reback’s Strangle Free the Market here.

(10) tie – Tyler Cowen – Create Your Own Economy: The Path to Prosperity in a Disordered World and John Freeman – The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox

OK, so I just couldn’t figure out which of these two to cut from the list so I took the easy way out by having them tie for the last slot!  In this case, however, there’s another reason it makes sense for both of them to round out the list: Both Freeman and Cowen explore how humans are coping with information overload–albeit from two very different perspectives.

As I noted in my lengthy essay on the topic earlier this year, Cowen is an unrepentant optimist. He believes humans have the ability to adapt to new technological realities and a world of information abundance. In fact, Cowen argues, new tools and information gathering and processing technologies actually “lengthens our attention spans in another way, namely by allowing greater specialization of knowledge.”

John Freeman, by contrast, wants us all to take a high-tech time out. Like other Internet skeptics, he is worried that cyberspace and digital technologies are reshaping humanity–and not for the better. “If we are to step off this hurtling machine, we must reassert principles that have been lost in the blur,” he argues. “It is time to launch a manifesto for a slow communication movement, a push back against the machines and the forces that encourage us to remain connected to them.”

Unlike most other Internet pessimists, however, Freeman’s tone is more measured and his recommendations more reasonable.  Of course, it helps that he is magical wordsmith. Even if you find yourself disagreeing with many of his ultimate conclusions–as I did–you should read The Tyranny of E-Mail for a lesson in how to construct an argument and to appreciate the gift of fine writing. It’s easily the best tract by any Net skeptic since Nick Carr’s The Big Switch, and a much better one in many ways. It will force you to ask tough questions about the impact of the Information Age on you and the world around you.  Nonetheless, I remain an unrepentant techno-optimist (albeit a pragmatic one)!

Honorable Mentions: Here are a couple of other books that I couldn’t fit on my list but that you might want to also consider adding to your bookshelf:

• Manuel Castells – Communication Power
• James Boyle – The Public Domain: Enclosing the Commons of the Mind
• Randall Stross – Planet Google: One Company’s Audacious Plan to Organize Everything We Know [my review]
• Ken Auletta – Googled: The End of the World As We Know It [my review]
• Scott Rosenberg- Say Everything: How Blogging Began, What It’s Becoming, and Why It Matters
• John W. Dozier Jr. and Sue Scheff – Google Bomb

Please let me know what titles might be missing from this list and which books you think are the best of the year.

And speaking of bookshelves, here’s my Shelfari digital bookshelf in case anyone is interested. If you hadn’t figured it out yet, I am a bit of book nerd!  My life is spent swimming through oceans of paper.  My friends often ask me, “How can you spend so much time reading?” My question back to them is: “How can you not?”

Arik Hesseldahl has an interesting piece in Business Week about Apple’s control of the iPhone App approval process in which he asks: “Is a smartphone gatekeeper needed?” Plenty of people don’t think so and have raised a stink about Apple trying to play that role for the iPhone. It certainly could be true, as some critics suggest, that Apple is being too heavy-handed on occasion when rejecting apps, but it’s always easy for those of us on the outside of the process to think that.  Hesseldahl notes that:

it’s tempting to consider the implications of a less hands-on approach, as is the case with Macs, Microsoft (MSFT) Windows PCs, or other smartphones, including those running the Google (GOOG)-backed Android operating system. The software market for personal computing has existed in this way for nearly three decades, and while there have certainly been some problems along the way, I’d argue that overall we’re better off without Microsoft or Apple or some other organization approving software applications before they’re released to the market. PC users have learned to be careful about what they put on their computers through unhappy trial and error.

But he also notes that there is another side to the story:

My hunch is that greater vigilance is needed with smartphones, in part because they’re a relatively recent phenomenon. The iPhone has been on the market only 28 months. Users take them everywhere and are quickly inserting them into daily life in ways the personal computer never could have fit. Malware on smartphones could do significantly more damage than malware on a PC. Imagine a nasty application that records every word you speak—both on and off the phone—without your knowledge, and then e-mails the audio to a stranger. Or picture one that surreptitiously tracks your movements and sends them to a stalker.

Hesseldahl interviewed Phil Schiller, Apple’s senior vice-president for worldwide product marketing, for his piece and Schiller confirmed that malware [think iPhone worms] and and other safety & security concerns topped the list of problems that Apple was trying to head-off by managing the applications process. There’s also various types of illegal content that Apple has to contend with.

Anyway, my only interest in bringing this to everyone’s attention is because I have spent the last few years debating a growing crop of academics (Zittrain, Lessig, Wu) and policy shops (Public Knowledge, Free Press, etc) who suggest that proprietary devices and app stores constitute the revival of online “walled gardens” from the early Internet era (like AOL, Prodigy & CompuServe).  Personally, I don’t see any solid evidence that Apple’s model is indicative of a mass trend toward online “gatekeepers.” As Hesseldahl points out, there’s still plenty of other devices and stores out there from which to choose.  Moreover, as I pointed out in my first review of Zittrain’s book The Future of the Internet and How to Stop It, we should be thankful that we have a range of device and store options to choose from.  That’s a great thing. If you don’t like Apple’s style, then don’t get an iPhone.  It’s one of the reasons I didn’t.  Vote with your pocketbooks, people!

Seems like everywhere I turn someone is gushing about their new Droid phone, including my TLF colleagues Berin Szoka, Braden Cox, and Ryan Radia, who all had great fun rubbing their new toys in my nose over the past couple of days. And why not, it’s a very cool little device.  It makes my HTC Touch seems positively archaic in some ways, and it’s only a year old.  Apparently, 100,000 people already picked up a Droid in just its first weekend on the market.

But here’s the first thing that pops in my mind every time I see someone showing off their new Droid: How can a device like this even exist when America’s leading cyberlaw experts have been telling us that the whole digital world is increasingly going to hell because of “closed” devices, proprietary code, and managed networks?  I’m speaking, of course, about the lamentations of Harvard professors Lawrence Lessig, Jonathan Zittrain, and their many disciples.  As faithful readers will recall, I have relentlessly hammered this crew for their unwarranted cyber-Chicken Little-ism and hyper techno-pessimism. (See my many battles with Zittrain [1, 2, 3, 4, 5, 6 + video] and my 2-part debate with Lessig earlier this year).

“Left to itself,” Lessig warned in Code, “cyberspace will become a perfect tool of control.”  He went on to forecast a dystopian future in which nefarious corporate schemers would quash our digital liberties unless benevolent public philosopher kings stepped in to save our poor souls. Code was the Old Testament of cyber-collectivism. The New Testament arrived last year with Zittrain’s The Future of the Internet and How to Stop It. In it, we hear the grim prediction that “sterile and tethered” digital technologies and networks will triumph over the more “open and generative” devices and systems of the past.  The iPhone and TiVo are cast as villains in Zittrain’s drama since they apparently represent the latest manifestations of Lessig’s “perfect control” paranoia.

Apple’s “Angel of Death”

How completely out-of-control has this thinking gotten?  Well, here’s David Weinberger — another Harvard Berkman Center worrywart — talking about that supposed satanic font of all evil, the Apple AppStore:

The AppStore is the seductive angel of death for computing. It enables Apple to keep quality up and, more important, to keep support costs down. But a computer that can’t be programmed except by its manufacturer (or with the permission of its manufacturer) isn’t a real computer. The success of the AppStore is a gloomy, scary harbinger. From controlling the apps that can go on its mobile phone, it’s a short step for Apple to decide to control the apps that can go on its rumored slate/netbook device. And since so much of the future of computing will occur on mobiles and netbooks, this portends a serious de-generation of computing, as predicted by Jonathan Zittrain in The Future of the Internet and How to Stop It.

The “angel of death”? A “gloomy, scary harbinger”? Wow, who knew!  In Weinberger’s world, Apple is guilty of the heinous crime of “keep[ing] quality up and, more important, [keeping] support costs down.”  OH MY GOD, how dare they.  Somebody make them stop!  No, seriously, how silly is all this? It’s like those Republicans who, in their zeal to do anything to defeat health care nationalization, decide it’s OK to make up spooky stories about “death panels” hidden deep inside congressional bills.

I find Weinberger’s claim that “a serious de-generation of computing” is looming because of the iPhone to be especially ridiculous. It’s the same sort of rubbish Lessig was spewing in Code when he predicted that AOL’s walled garden model was going to take over the entire cyber-world and ensure “perfect control,” just one of the many things Lessig got wrong in the book.  And it’s the same silliness we see at work in Zittrain’s work when he claims that we’re doomed to live in a world of closed “sterile and tethered” digital technologies and networks. Similarly, last year, Public Knowledge analyst Alex Curtis managed to reach the zenith of this rhetorical insanity when he likened the Apple App Store to an Orwellian Big Brother that was bringing us a “1984 kind of total control.”  You know, because Apple is forcing us all to own iPhones and locking us into re-education camps.  Right.

I Fart, Therefore I Am (Generative)

Which brings me back to the Droid.  If all these dour predictions about the death of digital generativity and the rise of closed networks and walled gardens were true, how in the world does a phone with an open source operating system and a completely open applications process for developers even exist? (Android devices like the Droid don’t require users to rely exclusively on the Android Marketplace for apps; you can run other apps if you like).

Moreover, it’s not just that a remarkably innovative and generative device like the Droid gets widespread release and praise, it’s the fact that there are countless other mobile devices and applications on the market today much like it. On the Zittrainian “generative-vs.-sterile appliance” spectrum, the range of mobile devices just continues to grow and grow in both directions. You can decide exactly what type of device you want.  But here’s the more important point: How much of a difference does it even make how “open” these phones and app stores are?  You’ve got more “closed” systems like Apple’s iPhone and Palm’s Pre on one end of the spectrum and then more “open” systems like the Droid and even many Windows Mobile devices on the other end, but do these competing models really result in many difference in terms of functionality and innovation?  The reality is this: tons of innovation is occurring across all of these devices and platforms regardless of how “open” or “closed” they may be.

For example, when I go to Handango, a terrific mobile application marketplace, and search for “all apps” available for my HTC Touch (which runs a Windows Mobile OS), my senses are assaulted with 6,677 choices.  It’s all a bit overwhelming.  Luckily, a quick search can get me right to the important applications I really need — like the “Pocket Fart” app.  Folks, let me tell you, no “generative” device is worth its salt without a good farting application.  I don’t care how bad of a mood my kids are in, when I fire up a fart app, it puts an instant smile on their faces!

But hey, guess what… that “angel of death,” the iPhone Store, offers fart apps, too!  Dozens and dozens of fart apps, in fact.  In terms of Zittrainian generativity, the iPhone is positively fart-tastic. Just check out that video below. And in addition to those dozens of flatulence apps, the Apple AppStore has another 100,000 apps available for downloading, making it the largest applications store in the world. And back in September, Apple announced that more than two billion apps had been downloaded from the App Store in its short existence. That’s Billion with a “B”.  Does this sound like it “portends a serious de-generation of computing” as Weinberger suggests?  Incidentally, if he’s so frightened that Steve Jobs is the Grim Reaper incarnate he can always go find another phone. Seriously, Steve Jobs doesn’t force anybody to buy one of these expensive toys.

If the iPhone is Good Enough for Zittrain, Why Isn’t It Fine for the Rest of Us?

Incidentally, despite all the fear and loathing about Steve Jobs and the iPhone that one finds in Future of the Internet, I was very entertained to discover that Jonathan Zittrain is an iPhone user himself!  I used some shameless McCarthyite tactics during our debate at New America Foundation last year — “Are you now, or have you ever been, an iPhone user!” — to publicly out him. [Go to the 55:00 minute mark of the video to see.]  But my point to him that day was a serious one: If you so fear the death of generativity because of that little demonic device, than why carry one in your coat pocket?  Why not use a device that lets you break all the rules because it essentially has no rules?  There are multiple open source mobile operating systems and a thriving community of “homebrew” developers. Go spend a few minutes at PCC Geeks or Howard’s Forums and see what I mean.

But the Berkman boys don’t seem content with all that.  And I wouldn’t usually give a damn about the lunacy of these hyper-pessimistic prognostications from the Harvard crew if it was all just harmless cyber-sourpuss ramblings from the ivory tower geeks with too much time on their hands.  But the problem is that these people want regulators to take steps to correct these supposed “code failures,” as Lessig calls them.  Zittrain calls for “API neutrality” in his book, which would force net neutrality-like mandates on digital devices. And in a New York Times editorial this summer entitled “Lost in the Cloud,” he made it clear that cloud neutrality regulation was next on the list. [Others are joining that call.] I’ve got a serious problem with that, as I detailed extensively in earlier essays (here and here), and Berin Szoka and I have discussed how these escalating neutrality wars are bound to lead to the digital equivalent of “mutually assured destruction” within the tech community before it’s all over.

Finally, when the Berkman gang, which is the most respected cyberlaw shop in the land, go around casting these debates with terms like “evil” applications and “angels of death,” then I have a serious problem because the game you are playing becomes hazardous to the health of the digital economy.  This poisons the public policy debate by using absurd moralistic rhetoric about something as fundamentally agnostic as digital platforms and protocols.  These things are neither good nor evil; they are just choices.  They represent different ways of promoting innovation.  And we should be happy that our current digital marketplace is offering us a rich mosaic of business models and options that can fill almost any need and fit almost any picky user’s desires.  If that ain’t progress, I don’t what is.

Forbes.com has just published an editorial that Berin Szoka and I penned about yesterday’s net neutrality announcement from the FCC.

The Day Internet Freedom Died

by Adam Thierer & Berin Szoka

There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.

Those days are now gone; the presumption of online liberty is giving way to a presumption of regulation. A massive assault on real Internet freedom has been gathering steam for years and has finally come to a head. Ironically, victory for those who carry the banner of “Internet Freedom” would mean nothing less than the death of that freedom.

We refer to the gradual but certain movement to have the federal government impose “neutrality” regulation for all Internet actors and activities—and in particular, to yesterday’s announcement by Federal Communications Commission (FCC) Chairman Julius Genachowski that new rules will be floated shortly. “But wait,” you say, “You’re mixing things up! All that’s being talked about right now is the application of ‘simple net neutrality,’ regulations for the infrastructure layer of the net.” You might even claim regulations are not really regulation but pro-freedom principles to keep the net “free and open.”

Such thinking is terribly short-sighted. Here is the reality: Because of the steps being taken in Washington right now, real Internet Freedom—for all Internet operators and consumers, and for economic and speech rights alike—is about to start dying a death by a thousand regulatory cuts. Policymakers and activists groups are ramping up the FCC’s regulatory machine for a massive assault on cyber-liberty. This assault rests on the supposed superiority of common carriage regulation and “public interest” mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular. Stated differently, cyber-collectivism is back in vogue—and it’s coming very soon to a computer near you!

“Net Neutrality” proponents insist, however, that only regulation can save us from nefarious corporate schemers out to quash our rights and destroy all innovation. Over the last decade, a cabal of activist-minded cyber-law professors have successfully turned the world of Internet policy upside down by persuading an entire generation of law students, policymakers, and a number of large Internet companies that “Internet Freedom” means the very opposite of what it used to mean. Borrowing tactics that would have made Orwell proud, they have convinced many in the public and the policymaking community that the old Internet Freedom is slavery, in that we are all just tools of Corporate Big Brother. Thus, they offer us a new Internet Freedom: Neutrality über alles! Their freedom, as in Orwell’s Oceania, is not a freedom from the State, but a gleaming utopia that can only be created by the State.

We see the triumph of this thinking with Chairman Genachowski’s proclamation that, “This is not about government regulation of the Internet. It’s about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity and entrepreneurial activity.”

Yet, no matter how vociferously the proponents of FCC-enforced “neutrality” insist that it is not regulation they seek, the reality is that the steps they counsel would put the FCC in the driver’s seat for a host of Internet economic and social issues. Internet companies and technologies will come to be regulated like crusty old “common carriers” and broadcast stations that must serve some amorphous “public interest.”

But as the FCC’s long history of meddling in media and communications markets makes clear, micro-management of dynamic markets is a recipe for economic stagnation, strangled innovation, and speech controls. And the path to regulation does not end with infrastructure providers. The specter of neutrality haunts not just today’s Internet service providers but also all high-tech innovators, like Google, Apple, Facebook, Microsoft and their descendents. Although the FCC’s original mandate was mostly to deal with spectrum “interference”—something that could have been, and actually was being, dealt with using property rights—the agency quickly expanded its mission: Broadcast regulation metastasized into government control over speech, innovation, campaign advertising and a “fairness doctrine” for news coverage. Likewise, Net Neutrality mandates will give rise to neutrality mandates for other areas.

The slope is slippery and we’re already heading down it: The push for “Wireless Neutrality” is already well under way and the FCC is currently investigating Apple’s rejection of the Google Voice application for the iPhone. Thus, “Net Neutrality” leads to “Device Neutrality” and “Application Neutrality,” but the same rationale would apply equally to any circumstance in which access to a communications platform is supposedly limited to a few “gatekeepers.” Some academics have already proposed a “Federal Search Commission” to deal with accusations of “search bias.” At the end of the day, we’ll need a full-blown Federal Information Commission with a Search Bureau, a Cloud Computing Division and several other ministries to micro-manage the many flavors of neutrality regulation.

The path back toward real Internet freedom lies in restoring the presumption of liberty enshrined in the First Amendment, which is not a sword with which the government can ensure fairness, diversity or openness, but a shield against government meddling in media, communications and online markets.

In response to Professor Jonathan Zittrain’s op-ed in The New York Times last Monday about online privacy and open platforms (which Adam thoroughly refuted last week) I have a letter to the editor in today’s The New York Times:

To the Editor: Re “Lost in the Cloud” (Op-Ed, July 20): In discussing the privacy risks that have accompanied the growth of the Internet, Prof. Jonathan Zittrain rightly bemoans the willingness of governments to violate individuals’ privacy rights. Unfortunately, he proposes new legal restrictions that would stifle online innovation while doing little to enhance consumer privacy. Mr. Zittrain proposes a “fair practices law” that would require companies to release personal data back to users upon request. Such a rule may sound workable, but purging specific data across globally dispersed server farms is no simple endeavor. Who is to pay for the implementation of such privacy procedures — especially for free services like Facebook or Twitter that have yet to turn a profit? A better approach to online privacy is to educate users on safeguarding personal information. Ultimately, however, the only foolproof approach to protecting sensitive data online is to simply not disclose it.

To clarify my last point, I don’t think that universal nondisclosure of sensitive data online is necessarily a wise approach to privacy. Rather, my point is that it’s important to remember that transmitting data on the Internet — a very public network — entails some degree of risk, no matter how strong the encryption or how diligent the party at the other end. And free services like Facebook and Twitter are all about making personal information public — they simply aren’t designed to provide ironclad data security or anything remotely resembling it. Other online services, like bank websites or enterprise-grade Web collaborative tools, are able to offer far stronger privacy assurances backed by strong terms of service. Privacy is not a black and white matter. It involves shades of gray, which is one reason why legislation is such an ineffective means of dealing with privacy challenges.

Well, here we go again. Harvard’s Jonathan Zittrain has penned another gloomy essay about how “freedom is at risk in the cloud” and the future of the Internet is in peril because nefarious digital schemers like Apple, Facebook, and Google are supposedly out to lock you into their services and take away your digital rights.  And so, as I have done here many times before (see 1, 2, 3, 4, 5 + video!), I will offer a response arguing that Jonathan’s cyber-Chicken Little-ism is largely unwarranted.

Zittrain’s latest piece is entitled “Lost in the Cloud” and it appears in today’s New York Times.  It closely tracks the arguments he has set forth in his book The Future of the Internet–And How to Stop It, which I named the most important technology policy book of 2008, but not because I agreed with its central thesis.  Zittrain’s book and his new NYT essay are the ultimate exposition of Lessigite technological pessimism.  I don’t know what they put in the water up at the Berkman Center to make these guys so remarkably cranky and despondent about the future of of the Internet, but starting with Lawrence Lessig’s Code in 1999 and running through to Zittrain’s Future of the Internet we have been forced to endure endless Tales of the Coming Techno-Apocalypse from these guys.  Back in the late 90s, Prof. Lessig warned us that AOL and some other companies would soon take over the new digital frontier since “Left to itself, cyberspace will become a perfect tool of control.”  Ah yes, how was it that we threw off the chains of our techno-oppressors and freed ourselves from that wicked walled garden hell?  Oh yeah, we clicked our mouses and left! And that was pretty much the end of AOL’s “perfect control” fantasies. [See my recent debate with Prof. Lessig over at Cato Unbound for more about this “illusion of perfect control,” as I have labeled it.]

But Zittrain is the equivalent of the St. Peter upon which the Church of Lessigism has been built and, like any good disciple, he’s still vociferously preaching to the unconverted and using fire and brimstone sermons to warn of our impending digital damnation. In fact, he’s taken it to all new extremes. In Future of the Internet, Jonathan argues that we run the risk of seeing the glorious days of the generative, open Net and digital devices give way to more “sterile, tethered devices” and closed networks. The future that he hopes to “stop” is one in which Apple, TiVo, Facebook, and Google — the central villains in his drama — are supposedly ceded too much authority over our daily lives because of a combination of (a) their wicked ways and (b) our ignorant ones.

First, let’s talk about those corporate wicked ways. Jonathan waxes nostalgic about a mythical time not long ago when technologies were supposedly far more “open and generative” than they are now. In Jonathan’s revisionist history of the digital olden times, we are told that the early PC era was somehow the model for openness and generativity.  That’s damn peculiar to an old-timer like me because all I remember from those days is the tall stacks of proprietary programs sitting on my desk + a keyboard and other peripherals that were all hard-wired to the monitor + a guy named Bill Gates who was typically likened to the Darth Vader of openness.  In Zittrain’s retelling of things, however, those Digital Dark Ages have suddenly become the good ol’ days!  The real threat to openness and digital freedom, however, is now right before us.. or just over our head it seems. It’s up there in the cloud, he tells us. The freedom that “tinkerers and hackers” once enjoyed in those glorious good ‘ol days “is at risk in the cloud, where the vendor of a platform has much more control over whether and how to let others write new software,” Zittrain says.

Excuse me? Why would it be the case that generativity is now somehow more at risk today than it was in the era where we had to wake up every morning and wait for a C:\ prompt before loading an operating system or $50 spreadsheet software via three different 5.25 floppy disks?  [Seriously, does anybody else besides me remember how much those days sucked?]  Well, it turns out that the answer to that question goes back to the ignorant ways of the digital hoi polloi that I mentioned above.  You see, we are all sheep who just don’t know what’s good for us. Or here’s how Jonathan puts it, albeit spinning it in such a way to make his elitist pronouncements somewhat easier to swallow:

The market is churning through these issues. […] But the dynamics here are complicated. When we vest our activities and identities in one place in the cloud, it takes a lot of dissatisfaction for us to move. And many software developers who once would have been writing whatever they wanted for PCs are simply developing less adventurous, less subversive, less game-changing code under the watchful eyes of Facebook and Apple.

Ooooo.. spooky!  Beware ye naive Netizens, for “the watchful eyes of Facebook and Apple” are upon you!

No, seriously, what the hell does all that mean and what the heck is the problem here? By no conceivable stretch of the imagination can one paint a portrait of the Digital Dark Ages for me that makes that era look better than the Digital Renaissance we are now living through. There’s never been a better time to be tinkerers, hackers, or just regular citizen-consumers in cyberspace.

So, what gives?  Why is it that two smart guys like Lessig and Zittrain always seem to fear to worst even in the midst of a cornucopia of cyber-choices?  It comes back to the hyper-pessimism and remarkable short-sightedness of the Lessig-Zittrain worldview. In terms of their myopia, here’s how I put it in that recent debate with Lessig:

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

But there’s something else which drives their reasoning, and for lack of a softer term I will just label it what I think it really is: Elitism. At the end of the day, if we are to believe the scary tales that Zittrain and Lessig try to weave in their work we have to accept the notion that neither companies not consumers can really be trusted to make sensible decisions.  Basically, cyber-companies are only out to screw us and we’re just too stupid to realize it. Luckily for us, however, the fine folks up at Berkman know what’s best for us and, guess what, it’s not Facebook, Apple, TiVo, or Google!  These companies are apparently guilty of the heinous crime of giving consumers too much of what they want, and we can’t allow that because “it takes a lot of dissatisfaction for us to move.”  Or as Jonathan noted in an earlier essay:

I think we can get locked into these platforms as we (rightly, unfortunately) fear the wildness of the open Internet and general purpose PC, and as we shift and accumulate more and more of our data and relationships there. After the markets coalesce to these tamer gated communities, governments can later come along and insist that these platforms be tuned towards surveillance and control far more successfully than the wilder Internet that preceded them.

In other words, we’re lazy fools. Or perhaps maybe — just maybe — we’re reasonably happy with the choices we have been given and don’t have a good reason to flee some of our current favorite providers. My God, could it be that markets work!  No, no, no, Zittrain tells us, for these “tamer gated communities” (tamer than what?) have lulled us into a sleep as they concoct a plan to “tame” the Net, quash software innovation, and then invite the government in to take all our info or property.

So, we’re right back at Lessig’s AOL horror story from 1999, except now it’s Facebook, Apple, and Google staring in the role of our corporate captors — again, even though they offer us constantly improving services and constantly falling prices (and are completely free of charge in the case of Facebook and Google).  Regardless, the fear of lock-in and what Lessig and Zittrain refer to as the “regulability” of some of these services and platforms, leads them to argue that something ominous lurks around every cyber-corner.  Consequently, just as Lessig counseled a fair degree of government oversight and intervention back in ’99 to deal with the AOL era (non-)problem of walled gardens, a decade later, Zittrain is ready to call in the code cops to correct for our foolish allegiances to the latest crop of popular software providers or media platforms:

If the market settles into a handful of gated cloud communities whose proprietors control the availability of new code, the time may come to ensure that their platforms do not discriminate. Such a demand could take many forms, from an outright regulatory requirement to a more subtle set of incentives — tax breaks or liability relief — that nudge companies to maintain the kind of openness that earlier allowed them a level playing field on which they could lure users from competing, mighty incumbents. We’ve only just begun to measure this problem, even as we fly directly into the cloud. That’s not a reason to turn around. But we must make sure the cloud does not hinder the creation of revolutionary software that, like the Web itself, can seem esoteric at first but utterly necessary later.

Sorry, but where is the evidence warranting this sort of techno-pessimism?  I just can’t buy into the story that Zittrain spins: That some folks in the cloud are currently “hinder[ing] the creation of revolutionary software” or that one day soon we’ll all wake up and find our digital lives and property completely controlled by cloud-based companies and we will be utterly without recourse.  Honestly, is Google locking you down? Did someone make you sign up for all their free services? Any reason you can’t use a second e-mail service or a different search provider?  Likewise, did Steve Jobs force you to buy an iPod or an iPhone?  I would think we should be celebrating the fact that in just one year’s time there has been 1.5 Billion downloads of over 65,000 free and paid apps by consumers in 77 countries.  I call that progress — and I don’t even own an iPhone!  Again, nothing is stopping consumers from exercising their right to choose from many other products besides Apple, Google, and Facebook, just as I have.

Now, do companies make mistakes? Of course they do. All the time, in fact. Amazon’s bone-headed book deletion this week is the latest exhibit. But people learn from these things. And companies do as well. Things evolve. Companies correct their mistakes or people bolt. AOL lost 20 million paying customers and billions in market share in the span of just a few years. Time Warner is still cursing the day they made that deal and has now spun it off entirely. Last time I checked, the old AOL model wasn’t a favorite among most web vendors. Moreover, does anyone really think there’s a future for Amazon if they make it a habit of deleting digital books on people’s Kindles?  Frankly, if you want more competition in the digital book market, you should be inviting Amazon to play such silly reindeer games. It would be the best incentive ever for people to switch! But the fact remains, that’s the exception to the rule. Locking down customers or playing games with their digital goodies isn’t a viable long-term business model that I see many firms adopting these days. And if they do, they are screwing themselves.

This same principle applies to Facebook and the fear that they will hold onto customers or their data.  When they get too heavy-handed, people respond. Does anyone remember the Beacon incident or the flare-up of Facebook’s changing Terms of Service?  People got pissed, and the company listened. That’s a healthy sign that consumers have real power in the social networking market.  Moreover, how hard is it to escape from Facebook Land? It’s not a maximum security data prison. I went there for all of about a day, found it wasn’t for me, and then deleted everything and set up camp over at LinkedIn instead.  (Yes, that’s right, I do NOT have a Facebook account.  Somehow the sky hasn’t fallen on me.  People still find me just fine.)

So what about those solutions that Zittrain recommends for these new non-problems? In Future of the Net, he was surprisingly short on specific solutions. But in today’s NYT editorial he gets a bit more concrete with that suggestion “the time may come to ensure that their platforms do not discriminate,” possibly through regulation or other Sunstein-ian “nudges.” Here we have the truly frightening prospect of a handful of faceless bureaucrats becoming Facebook’s overlords.  I’m not even sure what it means to have the government “ensure they do not discriminate,” but I really don’t want to find out.  For Google it’s a lot easier to figure out what Zittrain’s medicine will taste like: Can you say “Right of Reply Mandates & a Fairness Doctrine for the Internet?”  Frank Pasquale and Oren Bracha can and they’ve already sketched the blueprint for what a new Federal Search Commission might look like to address “search bias.” [See Berin’s critique here. ]  And for Apple, non-discrimination at the device level would take the form of forced commoditization of the iPhone.  They’d be required to give it to any carrier that wanted it on government-approved terms and the iPhone Store would be regulated like grain elevator and subjected to common carrier rules.  You know, because that model worked soooo well in other contexts.  And then, just for good measure, we would layer on a bunch of restrictions on all these companies in the form of online advertising regulations.  We can’t have the mindless sheep of the Internet being subjected to more targeted ads, after all!   To be clear, Zittrain hasn’t recommended these specific regulatory remedies yet, but this is where his logic is taking us. The old regulatory playbook will become the new regulatory playbook.

OK, now that I have been so snarky and dismissive of most of what Jonathan says in his editorial today and in his book, let me close by noting where I (partially) agree with him and Lessig. Are some digital technologies “regulable” such that our government could coerce them to divulge data or personal information?  Yes, this is true.  But here’s how I addressed that concern in my recent Cato Unbound debate with Lessig:

[cyber-libertarians] are in league with Lessig [and Zittrain] when it comes to the forcible surrender of personal information or technological capabilities to government officials. When the Department of Justice comes knocking on Google’s door asking for records of our search histories to see who’s looking for online porn (or anything else), that’s a problem. The “deputization of the middleman” has long been a legitimate fear because, with the threat of liability hanging over their necks, online intermediaries could be coerced into giving the state information that leads to fines, imprisonment, censorship, or some other type of government harassment. However, this is a problem we should handle by putting more constraints on our government(s), not by imposing more regulations on code or coders. While, as a general principle, I think it wise for companies to minimize the amount of data they collect about consumers or websurfers, we need not force that by law. And we should certainly hold companies to high standards when it comes to data security and breach. But, again, the way to deal with the “regulability” threat that Lessig and Zittrain raise is to tightly limit the powers of government to access private information through intermediaries in the first place. Most obviously, we could start by tightening up the Electronic Communications Privacy Act and other laws that limit government data access. More subtly, we must continue to defend Section 230 of the Communications Decency Act, which shields intermediaries from liability for information posted or published by users of their systems, because (among many things) such liability would make online intermediaries more susceptible to the kind of back-room coercion that concerns Lessig. If we’re going to be legislating about the Internet, we need more laws like that, not those of the “middleman deputization” model.

But that is the extent of my agreement with Lessig and Zittrain. All this techno-pessimism emanating out of Berkman and their books is largely unwarranted.  I suppose one could argue that they are just sounding alarms in the hope of preemptively checking bone-headed corporate moves, but the problem is that they increasingly back up their pessimism with large doses of heavy-handed political prescriptions to keep the Net “healthy.”  Instead, they’ll just poison the wonderfully free waters of cyberspace with the same regulatory nonsense that has strangled traditional media markets for decades. And unless your idea of cyber-nirvana resembles the broadcast marketplace, you have to think that won’t benefit consumers one bit.

Signed,

An Unrepentant Techno-Optimist

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

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

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

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

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

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

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

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

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

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

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

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

A few months ago, Adam Thierer penned The Pragmatic (Internet) Optimist’s Creed in response to calls from “Internet pessimists” for increased regulation of the Internet on many fronts. Adam‘s recent 4-way debate with pessimists Larry Lessig and Jonathan Zittrain (as well as optimist Declan McCullagh) inspired me to pen the following cheeky homage to Lessig, the Father of Internet Pessimism, whose work has launched a thousand efforts to increase government control of the Internet in the name, ironically, of “freedom:”

Our Lessig, who art in Harvard, Hallowed be thy blog. Thy Free Culture come. Thy Code be done, In Washington as it is in thy Ivory Tower.

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

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

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

I go on to argue that:

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

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

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

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

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

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

As I mentioned on Monday,  the folks over at Cato Unbound have put together an online debate about the impact of Lawrence Lessig’s Code and Other Laws of Cyberspace as it turns 10 this year.

The opening essay from Declan McCullagh, “What Larry Didn’t Get,” took Lessig to task for favoring rule by “technocratic philosopher kings” over the spontaneous invisible hand of code.   In Round 2 of the debate, Harvard’s Jonathan Zittrain comes to Lessig’s defense and suggests that the gap between Lessig and libertarians is not as wide as Declan suggests:

The debate between Larry and the libertarians is more subtle. Larry says: I’m with you on the aim — I want to maintain a free Internet, defined roughly as one in which bits can move between people without much scrutiny by the authorities or gatekeeping by private entities. Code’s argument was and is that this state of freedom isn’t self-perpetuating. Sooner or later government will wake up to the possibilities of regulation through code, and where it makes sense to regulate that way, we might give way — especially if it forestalls broader interventions.

Run over to Cato Unbound to read the rest.  My response will be going up next (on Friday) and then Prof. Lessig’s will be up next Monday.

Harvard’s Jonathan Zittrain has launched an interesting new project called “HerdictWeb,” which “seeks to gain insight into what users around the world are experiencing in terms of web accessibility; or in other words, determine the herdict.”  It’s a useful tool for determining whether governments are blocking certain websites for whatever reason.  Here’s Zittrain’s sock puppet video with all the details!

The website is quite slick and very user-friendly, and they’ve even created a downloadable Firefox button that will automatically check site accessibility while you’re surfing the Net.

The information gathered from this effort will be useful for the OpenNet Initiative that Zittrain and John Palfrey co-created (with others from Univ. of Toronto, Oxford Univ., and Univ. of Cambridge) and wrote about in their excellent book, Access Denied: The Practice and Policy of Global Internet Filtering, which was one of my favorite technology policy books of the past year.  The data collected will give them, and us, a fuller picture of just how widespread global filtering and censorship efforts really are.  I encourage you to take a look and spread the word, especially to those in foreign countries who could probably use it more than us. (Of course, their governments will likely block Herdict once the word gets around!)

What would it take to create a more secure Internet?  That’s what John Markoff explores in his latest New York Times article, “Do We Need a New Internet?”  Echoing some of the same fears Jonathan Zittrain articulates in his new book The Future of the Internet, Markoff wonders if online viruses and other forms of malware have gotten so out-of-control that extreme measures may be necessary to save the Net.  Compared to when cyber-security attacks first started growing over 20 years ago, Markoff argues that:

[T]hings have gotten much, much worse. Bad enough that there is a growing belief among engineers and security experts that Internet security and privacy have become so maddeningly elusive that the only way to fix the problem is to start over.

Like many others, Markoff fingers anonymity as one potential culprit:

The Internet’s current design virtually guarantees anonymity to its users. (As a New Yorker cartoon noted some years ago, “On the Internet, nobody knows that you’re a dog.”) But that anonymity is now the most vexing challenge for law enforcement. An Internet attacker can route a connection through many countries to hide his location, which may be from an account in an Internet cafe purchased with a stolen credit card. “As soon as you start dealing with the public Internet, the whole notion of trust becomes a quagmire,” said Stefan Savage, an expert on computer security at the University of California, San Diego.

Consequently, Markoff suggests that:

A more secure network is one that would almost certainly offer less anonymity and privacy. That is likely to be the great tradeoff for the designers of the next Internet. One idea, for example, would be to require the equivalent of drivers’ licenses to permit someone to connect to a public computer network. But that runs against the deeply held libertarian ethos of the Internet.

Indeed, not only does it run counter to the ethos of the Net, but as Markoff rightly notes, “Proving identity is likely to remain remarkably difficult in a world where it is trivial to take over someone’s computer from half a world away and operate it as your own. As long as that remains true, building a completely trustable system will remain virtually impossible.”  I’ve spent a lot of time writing about that fact here and won’t belabor the point other than to say that efforts to eliminate anonymity for the entire Internet would prove extraordinarily intrusive and destructive — of both the Internet’s current architecture and the rights of its users.  There’s just something about a “show-us-you-papers,” national ID card-esque system of online identification that creeps most of us out. That’s why I spend so much time fighting age verification mandates for social networking sites and other websites; it’s the first step down a very dangerous road.

But what if we could apply such solutions in a narrower sense?  That is, could we create more secure communities within the overarching Internet superstructure that might provide greater security?  Markoff starts thinking along those lines when he suggests…

What a new Internet might look like is still widely debated, but one alternative would, in effect, create a “gated community” where users would give up their anonymity and certain freedoms in return for safety.

… but he is still thinking in terms of a replacement model for the entire Internet, which would be misguided for the reasons I stated above.  We don’t want to force a single, intrusive, anonymity-killing replacement model on the entire online universe.  Starting over isn’t even possible in a practical sense.

It’s a shame that Markoff didn’t interview my old colleague Wayne Crews for his story because Wayne has outlined an alternative framework worth considering. For many years, Wayne has been preaching about “spinternets,” or the notion that we need to start thinking about how develop not just one better Internet, but many better Internets. In a visionary piece for Forbes back in early 2001, Wayne argued that the solution to the growth of various online concerns “is more Internets, not more regulations”:

The Internet needs borders beyond which users can escape damaging political resolutions of these battles, which are rooted in the Internet’s nonowned, common-property status. Conflicting legislative visions in a cyberspace populated by exhibitionists at one extreme and would-be inhabitants of gated communities on the other, reveal the basic truth that not everybody wants or needs to be connected to everybody else.

Again, there’s that notion of “gated communities” that Markoff brought up. It’s not for everybody, but those seeking greater security could perhaps find it inside such online communities. Of course, others who wanted a different experience could start a completely different gated community under Wayne’s model.

But the problem with this notion, quite obviously, is that very few people want to stay inside their gated communities all the time. In the physical world of gated communities, for example, members of it still like to get out of there once and awhile to visit shops, events, parks, friends and family, etc.  The same goes for the Internet.  Just ask all those former denizens of AOL’s gated community.  For awhile, many of them — over 25 million strong at the zenith of its popularity — were content to spend most of their digital day inside the walls of Case’s Castle.  Gradually, however, they felt the need to explore outside those walls.  And so they did.  A mass exodus ensued and the walls came crumbling down around AOL’s gated community.

But that doesn’t necessarily mean the idea of online gated communities is entirely dead. There are certainly many closed, tightly-controlled networks out there already — mostly in corporate or government environments — that offer a glimpse of how such a model might work in practice.  Also, smaller social networking sites aimed at kids provide another example since they are usually tightly-controlled walled gardens that offer much greater security.

But Wayne was always thinking of something bigger — much bigger — than just closed corporate / government networks. He was thinking about a world of many different Internet s that didn’t necessarily have a back door to the broader Internet. Think of it as many parallel, but unconnected digital systems and networks, each serving a different set of values and cultures with unique rules.

Wayne envisioned the primary critique of this model in his original piece, noting that “it will be criticized as Balkanization.”  Indeed, Sonia Arrison called it “techno-isolationism, which goes against the very spirit that makes the Internet great.”  Indeed, it certainly would destroy something very precious about the current Internet — universal connectivity and openness.  But that’s sort of the point, isn’t it!  Universal connectivity and openness have given us many wonderful things, but some troubling things, too.  That’s what Markoff was getting at in his NYT piece, and it’s part of what Wayne was aiming to address with his splinternets idea.

But do we really want to encourage a world of multiple Internets where, presumably, they are split right down to the root? In other words, there wouldn’t be a common language for networks to communicate or a way to access many sites and services outside the particular Net you are on at any given time. It would be the equivalent of living on different digital planets that never linked or communicated.

I think it’s unlikely we’ll ever get there, and if we did it would likely be driven by global governments challenging ICANN and existing Internet governance structures. In other words, the DNS root would be completely split by some countries (China?) who didn’t want to play by the same rules as the rest of the interconnected world, or who wanted to try to impose a different vision upon a new, competing global network.

But might there be a way to find a happy middle ground between the Wild West commons of the current Net and the “techno-isolationism” of Wayne’s splinternet model?  Perhaps “Splinternet-lite” is the solution.  Within the confines of the existing Internet superstructure, there are ways to create walled gardens today and limit the number of back doors to the broader Net.  Again, the smaller social networking sites and virtual worlds aimed at kids already do that. Once you’re in there, you’re in a very different world. You have to be fully verified before you’re even let in the door, and once you’re inside their are tight limits on what you say, do, and explore. And you’ll get booted out pretty quickly if you break the rules.  The result is greater safety and peace-of-mind for kids and parents alike. It’s a less clear, however, how that model would “scale up” and apply to the entire universe of online networks.  I think we’ll have to be content with small patches of security within a world of insecurity. That’s the cost of the openness and interconnectivity that the Net current gives us.

In sum, there is no clear answer to John Markoff’s question, “Do we need a new Internet?”  We certainly could do more to address the problems with the current Net, but upending it and starting over isn’t likely an option.  More micro-splinternets within the overarching Net superstructure, however, might help those who are particularly risk-conscious find safe haven from various cyber-security fears. But it won’t shelter them from those problems completely.

I’ve been hammering Jonathan Zittrain pretty hard here over the past year for the thesis he sets forth in The Future of the Internet and How to Stop It that digital “generativity” is at risk today. The reason I have been doing so is because all signs point in the exact opposite direction, and more so with each passing day. Contrary to Jonathan’s fear that the Internet and digital technologies are growing more closed, tethered, and sterile, I have argued that the facts on the ground show us how the world is actually becoming far more open, untethered, and innovative.  And that’s true even for the technology that Jonathan singles out in the book for special scorn — the iPhone.

Consider David Pogue’s post today on the New York Times‘ technology blog today entitled “So Many iPhone Apps, So Little Time.” Pogue reports that:

there are now 15,000 programs available on the App Store, and so many more are flooding in that Apple’s army of screeners can’t even keep up. I keep meaning to write a thoughtful, thorough roundup of the very best of these amazing programs, but every day that I don’t do it, the job becomes more daunting. […] Apple, which runs the store, keeps 30 percent of each sale. Even so, Ocarina [an application Pogue discusses in his essay] demonstrates that a programmer can make a staggering amount of money from the iPhone store. It’s a crazy new software model that I don’t remember seeing anywhere else. It’s not a boxed software program for $600, or even a shareware program you download for $25. It’s a buck a copy. The beauty here is that at these prices, there’s very little risk in trying something out. How many software programs have you bought for your Mac or PC? Two? Four? Well, the average iPhone owner may wind up installing 10, 20 or 30 programs. In all, according to Apple, iPhone owners have downloaded 500 million copies of these programs. Half a billion–since last July. There’s a lot of gloom in the tech industry (and every industry, for that matter). But even when the economy is crashing down around us, there’s still amazing power in a single good idea. And the one on display here–pricing software so low that millions of people buy it without batting an eye–is turning a few clever programmers into millionaires.

I ask you: Does this sound like a world that is growing less generative, as Zittrain argues? Because it sure doesn’t sound like it to me.  Moreover, if you still don’t think the iPhone is open enough, then there’s always a simple solution to that: just buy another phone!

I used to have a (semi-crazy) uncle who typically began conversations with lame jokes or bad riddles. This sounds like one he might have used had he lived long enough: What do Thomas Jefferson, a moose, and cyberspace have in common?

The answer to that question can be found in a new book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, by David G. Post, a Professor of Law at Temple University. Post, who teaches IP and cyberspace law at Temple, is widely regarded as one of the intellectual fathers of the “Internet exceptionalist” school of thinking about cyberlaw.  Basically, Post sees this place we call “cyberspace” as something truly new, unique, and potentially worthy of some special consideration, or even somewhat different ground rules than we apply in meatspace. More on that in a bit.

[ Full disclosure: Post’s work was quite influential on my own thinking during the late 1990s, so much so that when I joined the Cato Institute in 2000, one of the first things I did was invite David to become an adjunct scholar with Cato. He graciously accepted and remains a Cato adjunct scholar today. Incidentally, Cato is hosting a book forum for him on February 4th that I encourage you to attend or watch online. Anyway, it’s always difficult to be perfectly objective when you know and admire someone, but I will try to do so here.]

Post’s book is essentially an extended love letter — to both cyberspace and Jefferson. Problem is, as Post even admits at the end, it’s tough to know which subject this book is suppose to teach us more about. The book loses focus at times — especially in the first 100 pages — as Post meanders between historical tidbits of Jefferson’s life and thinking and what it all means for cyberspace. But the early focus is on TJ.  Thus, those who pick up the book expecting to be immediately immersed in cyber-policy discussions may be a bit disappointed at first.  As a fellow Jefferson fanatic, however, I found all this history terrifically entertaining, whether it was the story of Jefferson’s Plow and his other agricultural inventions and insights, TJ’s unique interest in science (including cryptography), or that big moose of his.

OK, so what’s the deal with the moose? When TJ was serving as a minister to France in in the late 1780s, at considerable expense to himself, he had the complete skeleton, skin and horns of a massive American moose shipped to the lobby of his Paris hotel. Basically, Jefferson wanted to make a bold statement to his French hosts about this New World he came from and wake them up to the fact that some very exciting things were happening over there that they should be paying attention to. That’s one hell of way to make a statement!

Questions about Frontiers, Both Old and New

Now you see the connection to Post’s investigation into the state of cyberspace. Like Jefferson, Post is very excited about a new frontier and he wants to alert people to it. Importantly, however, Post isn’t at all ashamed to admit when he doesn’t understand why some things are the way they are in this new world.  And so Post begins asking questions — lots and lots of questions — to guide our investigation.

Thus, in much the same way that Jefferson penned Notes on the State of Virginia as guidebook for newcomers to the strange new world of his time, David Post has penned this slender volume as a guidebook to our modern cyber-frontier. If you’re looking for a book with concrete positions on all of cyberspace’s pressing policy problems, this book is not it. Instead, it is meant to help us frame the issues and questions properly and consider how this new frontier is unfolding in the early years of its existence. As Post puts it:

We are at the very beginning of what will become a centuries-long conversation about these questions, and my goal here was not to put anything to rest but to put everything in play, not to conclude any part of that conversation but to help you get started. We need, more than answers to today’s questions about law and policy on the network, new ways of thinking about the questions themselves, new vocabularies, new visions of the possible, new ways of identifying and organizing what we know and what we don’t know about the new place. (p. 209)

Post does a very nice job of giving us “new ways of thinking about questions” in his book. These questions generally fall into two categories.  First, Post wants to know why cyberspace works the way it does, or more profoundly, why it works at all. How did this little experiment with networking protocols turn into the most revolutionary global communications and information distribution system of modern times?  Second, Post wants to know “Who makes the rules ‘there’… and what should they be? What does the law look like there? How does it get made, and by whom? Who governs? By what means, and by what right?” (p. 4)

What Jefferson (and Hamilton) Can Teach Us

Post brings Jefferson into the story in the hope that TJ’s profound thinking on the issues of his time might help us getter a better handle on the cyber-controversies of our own time. After all, Jefferson was a man who spent much of his life thinking about uncharted subjects and frontiers. And law, of course!

Using this approach to help us explore cyberspace and cyberlaw works quite well in many cases. It works particularly well when Post brings TJ’s leading intellectual nemesis into the drama — Alexander Hamilton.  “Their feud the longest-running in American political history,” Post correctly notes, “for they stood on opposite shores of the great intellectual divide, a divide that encapsulates something fundamental in the way we think about society and government.” (p. 107). Jefferson desired liberty above all else; Hamilton stressed order and authority. Whereas Jefferson trusted decentralization and wanted diffuse communities making political decisions, Hamilton looked to a strong central authority to guide the nation.

Many modern cyberspace disputes, Post suggests, can be viewed through this same Jeffersonian vs. Hamiltonian philosophical dichotomy. Post continues:

Cyberspace is not the American West of 1787, of course. But like the American West of 1787, cyberspace is (or at least it has been) a Jeffersonian kind of place. Jeffersonians always predominate in new places, because new places attract people who find new places attractive and retell people who do not. […] Hamiltonians, though, inevitably make their way to Jeffersonian places (certainly once gold is discovered there!), claims of order and authority and power assert themselves, and struggles over the shape of the place begin in earnest. And like the West of 1787, cyberspace poses some hard questions, and could use some new ideas, about governance, and law, and order, and scale. The engineers have bequeathed to us a remarkable instrument, one that has managed to solve prodigious technical problems associated with communication on a global scale. The problem is the one that Jefferson and his contemporaries faced: How do you build “republican” institutions — institutions that respect the equal worth of all individuals and their right to participate in the formation of the rules under which they live — that scale? (p. 116-117)

Will Jeffersonian or Hamiltonian thinking prevail as this process unfolds? That remains to be seen, and although Post clearly falls in the Jeffersonian camp on these issues, he doesn’t really place odds on the outcome. Moreover, I would have liked to see Post offer a more full-throated defense of cyber-Jeffersonianism and Interent exceptionalism, or at least better explain to the reader how the debate between exceptionalism and unexceptionalism — or Jeffersonianism vs. Hamiltonianism — has progressed since the mid-1990s.

I think it’s clear that the cyber-Hamiltonians (i.e., the Internet unexceptionalists) are in the midst of a major “Empire Strikes Back” moment today as cyberspace is coming under increasing political pressure from many corners, and calls for more centralized authority abound — whether we are talking about domain name regulation, net neutrality mandates, speech controls, or whatever else. I just wish Post would have spent more time developing a “Return of the Jedi” defense of cyber-Jeffersonianism in this book.

Central Planning vs. Self-Governing Communities

Incidentally, Post has put forward such a defense elsewhere. Along with my former Cato colleague Wayne Crews, I co-edited a beefy book on Net governance issues back in 2003 entitled Who Rules the Net? Internet Governance and Jurisdiction. It contained some truly wonderful essays and they are all still quite relevant today. Jonathan Zittrain’s essay on “Reconciling a Global Internet and Local Law” remains one of the best primers on the subject you can find. But the exchange about Internet governance between David Post and Jack Goldsmith in that book is really a classic Jeffersonian-Hamiltonian debate about cyberlaw. [You can read their chapters at the link above.]

In Jefferson’s Moose, Post comes closest to developing a fuller theory of Internet exceptionalism in his excellent chapter “Governing Cyberspace III: Law.” In that chapter, he takes the unexceptionalists to task for their troubling logic, which “leads inexorably to the conclusion that (just about) everything you do on the Web may be subject to (just about) everybody’s law.” (p. 167). Indeed, the unexceptionalist vision is quite a miserable one when you get right down to it; one that treats this new frontier as a plaything in an endless power struggle between competing political bodies. Meanwhile, as Post points out, the rule of law loses its meaning and becomes less about the consent of the governed and more like a game of “Jurisdictional Whack-a-Mole,” with countless “sovereigns” asserting authority and trying to beat cyberspace and digital denizens into submission in one way or another.

Because Post believes that the unexceptionalists are wrong in their assertion that the Internet is merely the “functional equivalent of mail, or telephone, or smoke signals,” he offers — but does not fully develop — an alternative framework based on Jefferson’s vision for how to settle the Western frontier: Give settlers maximum flexibility to create free, independent, self-governing communities. In Jefferson’s words, “an empire of liberty.. built not on conquest, but on principles of compact and equality.” And this empire of liberty would be, in Post’s words, “held together by consensual bonds and adherence to republican principles, not coercive power, an ever-expanding union of self-governing commonwealths joined together as peers.”

Now that is a beautiful vision for cyberspace!  And, in many ways, it partially explains why cyberspace has been such a special place — at least so far in its early history. But as more and more Hamiltonians assert the need for greater “order,” all that could change. Again, I wish Post would have put some more meat on the bones of his beautiful cyber-Jeffersonian framework to counter the increasing calls we hear for more cyber-Hamiltonianism.  Specifically, Post needs to better address the accusation made by the Digital Age Hamiltonians that Internet exceptionalism is little more than cyber-anarchism. In reality, Internet exceptionalism is essentially something akin to decentralized federalism for the Internet; a federalism that the Founders — or at least Jefferson — would have likely strongly supported.  As I wrote here recently, I like to think of Internet exceptionalism as a variation on Robert Nozick’s “utopia of utopias” vision of an ideal society: “a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.” (Nozick, 1974)

Post begins a sketch of that Nozickian vision for cyberspace in Jefferson’s Moose, but he doesn’t really finish painting his masterpiece. To be fair, however, Post did make it clear right from the start of the book that it was going to be about asking the right questions, not necessarily providing all the answers.

Two Big Issues, Both Then and Now

Incidentally, using Jefferson as a guide to understanding modern cyberlaw controversies also works well when it comes to “the two issues [that] have been featured in virtually all of the Internet’s Big Cases” — free speech and intellectual property. As Post reminds us, Jefferson had a bit to say about those issues during his own lifetime.

“Jefferson was America’s first, and probably its greatest, First Amendment absolutist”  Post says, (p. 188), because Jefferson viewed free speech as part of a greater “interconnected whole”:

republican self-government, freedom of speech, freedom of conscience, and freedom of speech. You couldn’t have any without the others; they were inextricably bound together into a single system, and they would stand, or fall, together. (p. 189-190)

Consequently:

To a Jeffersonian, then, free speech questions are always simultaneously (a) of supreme importance and (b) pretty easy. The answer to free speech questions is always (or almost always) simple:  The more protection for, and the fewer the restrictions on, speech, the better. (p. 194)

And Jefferson held true to that principle throughout his life, most notably with his strenuous opposition to the horrendous Sedition Act of 1798.

But intellectual property is a far thornier issue — for both Jefferson and modern cyberlaw. Jefferson was a great inventor himself and keenly interested in the topic. But he also saw IP rights in a different light than speech rights.  Post explains Jefferson’s position:

Unlike free speech rights, intellectual property… cannot, in nature, be a subject of property; they do derive from the “social law,” from the laws of England, or Virginia, or whatever; they’re not antecedent to the law, but entirely dependent on it. That doesn’t mean we shouldn’t have intellectual property rights. It only means that we get to decide (and we have to decide) whether to have them or not, and how much of them to have. (p. 198) […] Intellectual property law in a Jeffersonian world, then, is always a matter of degree, of finding that balance, of drawing the line… Protection for intellectual property shouldn’t be too weak (or it won’t give creators enough of an incentive to create) or too strong (or it will choke off future creativity), but just right. We’ll never get it exactly right, but it is what we are always aiming for — in a Jeffersonian world, at least. (p. 201)

Of course, finding that “balance” is easier said than done and efforts to strike it engender even more controversy today in the digital world than they did during Jefferson’s time.

Conclusion

David Post has given us an enlightening map to help us navigate the new frontier of cyberspace and cyberlaw. I’m confident Jefferson’s Moose will be on my next end-of-year list of important tech policy books. And I hope my handful of small nitpicks here about the lack of details or answers regarding Post’s beautiful Jeffersonian vision for cyberspace will inspire him to pen yet another book on the subject! We need more friends of true cyber-freedom like David Post.

P.S. David Post is also the co-author of an outstanding treatise on cyberlaw with Patricia L. Bellia and Paul Schiff Berman: Cyberlaw: Problems of Policy and Jurisprudence in the Information Age. The text sits on top of my desk at all times, never far from reach when I need to a quick refresher on some arcane aspect of early Internet jurisprudence. A highly recommended resource.

Jason Kuznicki of the Cato Institute is asking some very sharp questions about Jonathan Zittrain’s book The Future of the Internet and How to Stop. He’s echoing a lot of the same concerns and criticisms I have raised here many times before about how overblown Zittrain’s fears are regarding the supposed death of digital generativity and online openness. Kuznicki argues:

First, the example he uses is far from perfect. The Internet abounds with descriptions of iPhone hacks, many of them well-documented and remarkably successful. The menacing control exists, but it’s often a paper tiger. And although Apple didn’t originally publish an iPhone software development kit, it does now. So which one is it? Is the iPhone still not hacky enough? Or should we find another, better example? But the hacking community delights in finding supposedly uncrackable devices, and in cracking them — often within days of release. Offhand, I can’t think of a single recently released Internet-enabled device that someone hasn’t hacked. (Another of Zittrain’s purported bad examples, the Xbox 360, supports an avid hacking community, albeit with far less support from Microsoft. It isn’t a community for everyone, but then, hacking isn’t for everyone. Neither is macrame.)

Second, it seems pretty obvious that there’s room, and demand, for both kinds of devices, relatively secure and relatively open. It’s not got to be an all-or-nothing proposition. It’s not like “the Internet” is ever only going to be one thing. We can’t expect every user of every new device to master the very steep learning curves entailed by the wide-open do-it-yourself user interfaces that Zittrain clearly favors.

Some products will sell to some markets because they are relatively secure, common-sense, and uniform. Other products will sell to other markets because they are open to change, because they require high-level knowledge, and because with that knowledge comes the power to extensively modify the device itself, often at your own risk. So much the better — let everyone take their choice. Indeed, the very same person may want devices at opposite ends of the continuum. … We need not be afraid of any of this.

Amen. Read the whole thing. Zittrain’s book may be the most important of 2008, but his thesis is fatally flawed. Generativity is alive and well.

As Berin and I have noted here before (here and here), there seems to be no shortage of competition and innovation in the mobile operating system (OS) space. We’ve got:

1. Apple’s iPhone platform,
2. Microsoft’s Windows Mobile,
3. Symbian,
4. Google’s Android,
5. BlackBerry,
6. Palm OS (+ Palm’s new WebOS),
7. the LiMo platform, and
8. OpenMoko.

I am missing any? I don’t think so. Even if I have, this is really an astonishing degree of platform competition for a network-based industry. Network industries are typically characterized by platform consolidation over time as both application developers and consumers flock to just a couple of standards — and sometimes just one — while others gradually fade away. But that has not yet been the case for mobile operating systems.  I just can’t see it lasting, however. As I argued in my essay on “Too Much Platform Competition?,” I would think that many application providers would be clamoring for consolidation to make it easier to develop and roll out new services.  Some are, and yet we still have more than a half-dozen mobile OS platforms on the market.

Regardless, the currently level of platform competition also seems to run counter to the thesis set forth by Jonathan Zittrain and others who fear the impending decline or death of digital “generativity.” That is, technologies or networks that invite or allow tinkering and all sorts of creative uses are supposedly “dying” or on the decline because companies are trying to exert more control over proprietary or closed systems. You will recall that in his book The Future of the Internet and How to Stop It, Zittrain casts the iPhone as the enemy of generativity and suggests that more and more devices will look like it in the future. (Ignore the fact that the iPhone becomes more open to 3rd party apps with each passing day and that Apple’s latest iPhone OS was cracked in a matter of hours after release). Zittrain and many others have been beating this gloomy ‘generativity-is-dying’ drum now for awhile, so you would think that they would have some substantive evidence to point to in defense of their thesis.

But today’s mobile OS market certainly doesn’t seem to help them make their case — whether we are talking about OS-level competition or innovation at the applications level by third parties. Indeed, take a look at the latest PC World magazine in which Harry McCracken conducts a “Smart Phone OS Smackdown” to see how the the current mobile operating systems stack up and what they offer consumers in terms of both built-in functionality and third-party add-ons. It’s the third-party stuff that is most of interest to our inquiry here regarding the Zittrain-ian fear of declining mobile generativity. Here’s what PC World reports about the third-party apps available for 5 major mobile OS platforms:

Apple iPhone: “Just months after Apple opened up the iPhone to other developers, thousands of programs are available, and downloading them directly via the App Store is a cakewalk.”

Windows Mobile: “The best thing about this OS is the sheer variety of available applications in every category. Utilities such as Lakeridge Software’s WisBar Advance let you tweak the interface’s look, feel, and functionality, compensating for some of its deficiencies. But you get no built-in app store à la iPhone OS and Android.”

Google Android: “Developers are just beginning to hop on the Android bandwagon. The iPhone-like Market service lets you download apps directly to the phone from Google; unlike with the iPhone, you can also snag programs from third-party merchants such as Handango. …   Android’s potential is gigantic, especially if it winds up on scads of phones.”

BlackBerry: “Once upon a time, users didn’t have many BlackBerry programs to choose from, but recently the market has boomed–thousands, from productivity apps to games, are available now. Windows Mobile and S60 have even more bountiful selections, though. Currently BlackBerry has no over-the-air storefront comparable to Apple’s App Store or Android Market. RIM’s BlackBerry storefront is expected to launch in March 2009.”

Symbian: “A profusion of useful S60-compatible applications is available at sites such as Handango–one of the deepest libraries for any platform, thanks to Symbian’s long life span and wide usage.”

Importantly, McCracken didn’t even take a look at the Palm OS or Palm’s aftermarket offerings, and he failed to mention the significant “home brew” market for hacks and add-ons that countless people like me take advantage of through sites like PPC Geeks and Howard’s Forums. Regardless, as the PC World article illustrates, there’s lots of innovation and generativity out there in the mobile space today. Of course, it’s true that Apple’s iPhone isn’t quite as open as the rest of the platforms out there.  As McCracken notes of the iPhone:

But the limitations that Apple puts on third-party apps–they can’t run in the background or access data other than their own–place major obstacles in the way of everything from instant messengers to office suites. And Apple, the sole distributor of iPhone software, has declined to make available some useful applications that developers have submitted.

But as I have said before, there is a simple solution to that: Just buy a different phone!!  No one has any sort of God-given right to a perfectly “open” OS. You know what you’re getting when you buy an iPhone and realize that it may not be perfectly open to all third-party apps or hacks. But hey, it’s still a pretty damn spectacular phone. Apparently it’s even good enough for the generativity-worshiping Jonathan Zittrain, who I outed at this New America Foundation debate as an iPhone user himself!

Bottom line: Generativity in the mobile marketplace is alive and well. And, contrary to what worrywarts like Zittrain and other critics claim, the trend is clearly in the direction of MORE openness and generativity over time, not less.

Update: I just caught Tim Lee’s post on “The Perpetual Peril of Open Platforms” over at Freedom to Tinker. Worth reading if you are interested in more on this subject.

It’s been a big year for tech policy books. Several important titles were released in 2008 that offer interesting perspectives about the future of the Internet and the impact digital technologies are having on our lives, culture, and economy. Back in September, I compared some of the most popular technology policy books of the past five years and tried to group them into two camps: “Internet optimists” vs. “Internet pessimists.” That post generated a great deal of discussion and I plan on expanding it into a longer article soon. In this post, however, I will merely list what I regard as the most important technology policy books of the past year.

What qualifies as an “important” tech policy book? Basically, it’s a title that many people in this field are currently discussing and that we will likely be talking about for many years to come. I want to make it clear, however, that merely because a book appears on this list it does not necessarily mean I agree with everything said in it. In fact, I found much with which to disagree in my picks for the two most important books of 2008, as well as many of the other books on the list. [Moreover, after reading all these books, I am more convinced than ever that libertarians are badly losing the intellectual battle of ideas over Internet issues and digital technology policy. There’s just very few people defending a “Hands-Off-the-Net” approach anymore. But that’s a subject for another day!]

Another caveat: Narrowly focused titles lose a few points on my list. For example, as was the case in past years, a number of important IP-related books have come out this year. If a book deals exclusively with copyright or patent issues, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues that have a bearing on digital technology policy. The same could be said of a book that deals exclusively with privacy policy, like Solove’s Understanding Privacy. It’s an important book with implications for the future of tech policy, but I demoted it a bit because of its narrow focus.

With those caveats in mind, here are my Top 10 Most Important Tech Policy Books of 2008 (and please let me know about your picks for book of the year):

(1) Jonathan Zittrain ­– The Future of the Internet, and How to Stop It

Zittrain’s book is the most important of 2008 because it’s the one we will still be talking the most about a decade from now. However, I think we’ll be talking about how wrong his thesis was that the “generative” Internet and general purpose PCs are dying.  Indeed, I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5).  We’ve also debated his book on the an NPR-Boston [audio is here] and we debated in person at New America Foundation in early November [video is here].

Despite my serious reservations, Jonathan’s book is important, well-written, and absolutely deserves your attention if you care about the future of technology policy.

(2) Nick Carr – The Big Switch: Rewiring the World, From Edison to Google

Part 1 of Nick Carr’s book is an eloquent early history of cloud computing, nicely comparing it to previous technological revolutions. It’s beautifully done. In Part 2 of the book, however, Carr turns sour and argues that the impact of cloud computing will be quite miserable for our economy, culture, and society. The Big Switch probably makes the best case than any Net pessimist has been penned thus far, and for that reason alone it deserves your attention. Ultimately, however, I found his case unconvincing.

You can find my complete review of Carr’s book here.

(3) John Palfrey and Urs Gasser – Born Digital: Understanding the First Generation of Digital Natives

Palfrey and Gasser’s fine early history of this generation of “Digital Natives” serves as a starting point for any conversation about how to mentor and interact with the children of the Web. It’s a comprehensive and very even-handed discussion about a variety of concerns or Internet pathologies, including: online safety, personal privacy, copyright piracy, offensive content, classroom learning, and much more. Despite a few nitpicks, I really enjoyed this book and highly recommend it. Importantly, it is a very accessible book that even the non-tech layman can pick up and appreciate. [Note: Don Tapscott’s Grown Up Digital: How the Net Generation is Changing Your World, shares a lot in common with Born Digital, but Tapscott doesn’t spend much time on policy issues and that’s why his book isn’t on my list.]

My review of Palfrey and Gasser’s Born Digital is here. [Update Feb 2009: I also hosted a podcast about the book featuring Prof. Palfrey.]

(4) Clay Shirky – Here Comes Everybody: The Power of Organizing without Organizations

While Nick Carr [see #2 above] and Lee Siegel [see #5 below] are leading the “techno-pessimist” parade this year, Clay Shirky is this year’s leading cheerleader for “cyber-optimism.” Shirky argues that the falling costs and growing ease of digital distribution are making it increasingly easy for individuals to engage in group-forming and collective action endeavors. The resulting rise of “mass amateurization” poses a significant challenge to old media operations and traditional business models and practices. In this sense, Shirky is building on many of the themes and arguments previously set forth in books like The Wealth of Networks (Benkler), Wikinomics (Tapscott and Williams), and Convergence Culture (Jenkins). If you’ve already read those titles, you’ll find a great deal of familiar thinking here.

I never got around to putting together a full review of Here Comes Everybody, but Tim Lee had a nice write-up over at Ars earlier this year.

(5) Lee Siegel – Against the Machine: Being Human in the Age of the Electronic Mob

Siegal is this year’s Andrew Keen; a cyber-sourpuss who thinks the whole world is going to hell and that the Internet is to blame. Like Keen’s Cult of the Amateur, Siegel’s Against the Machine is an anti-Web 2.0 screed that finds no redeeming qualities about the Internet or user-generated content.  In particular, Wikipedia and amateur production are blasted as being detrimental to professional media.

Both Siegel and Keen are essentially channeling the ghost of the late Neil Postman, whose 1992 book Technopoly remains the classic statement of techno-pessimism. They prove worthy disciples as they preach the Gospel According to Chicken Little and push for a neo-Luddite revival. But Siegel’s techno-pessimism is boundless and his hatred for all things digital is truly breathtaking. For that reason, however, his book deserves attention.

My lengthy critique of Siegel’s book can be found here.

(6) Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds.) – Access Denied: The Practice and Policy of Global Internet Filtering

This is essential reading for anyone studying the methods governments are using to stifle online expression. The contributors provide a regional and country-by-country overview of the global state of online speech controls and discuss the long-term ramifications of increasing government filtering of online networks. Even if you don’t read the whole thing, this is a must-have title for your bookshelf since there is no other resource out there like this. And it should be required reading in every cyberlaw class in America. [Note: It also contains a very helpful chapter on the mechanics of Net filtering.]  Very highly recommended.

(7) Hal Abelson, Ken Ledeen, and Harry Lewis – Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion

Think of this book as “Internet Policy for the Educated Layman.” Abelson, Ledeen, and Lewis survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a nice history and technology primer on each topic. Like Palfrey and Gasser’s Born Digital [see #3 above], Blown to Bits is very accessible and each chapter contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. Recommended.

My review of Blown to Bits can be found here.

(8) Lawrence Lessig – Remix: Making Art and Commerce Thrive in the Hybrid Economy

Remix treads a lot of ground already covered in Lessig’s other books and essays (perhaps it should have been called “Rehash”), but it more fully develops his thinking on the legal treatment of derivative works. Actually, in some ways (especially in the second half of the book), it’s more of a restatement of much of what is found in Benkler’s Wealth of Networks, albeit in a far less verbose fashion. Regardless, Prof. Lessig has attained rock-star status in tech policy circles and the release of each of his new books or papers becomes a bit of an event. Remix has been no different. It has already attracted a great deal of attention and deserves to be on this list for that reason alone. But if you have read his previous work, you’ll already be familiar with much of what you find in Remix.

Generally speaking, I thought Prof. Lessig made a good case regarding the benefits of remix culture and why copyright law should leave breathing room for the various derivative works of amateur creators. But he too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it). To solve that latter problem, he endorses a “simple” blanket licensing scheme for the Internet. In this essay, I addressed why blanket online licensing would be anything but simple.

(9) James Bessen and Michael J. Meurer – Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk

Bessen and Meurer argue that America’s patent system is in trouble because “it fail[s] to provide clear and efficient notice of the boundaries of the rights granted.” Patent litigation has exploded, they say, and the costs of the system now outweigh the benefits. Generally speaking, with the exception of the chemical and pharmaceutical industries, Bessen and Meurer don’t feel the patent system does a lot of good.”[I]t seems unlikely that patents today are an effective policy instrument to encourage innovation overall,” they conclude. They detail several reforms to help improve notice and to “make patents work as property” again the way they claim they once did.

Although the authors deal with patents broadly, the book has great relevance to digital technology policy because of their discussion of business method patents and software patents. (Incidentally, that chapter from the book is available online). They argue that software technology is especially prone to problems of “abstraction” and obviousness. As a result, software patenting has been a major contributor to the litigation explosion we have seen in recent years.

Although I agree with their case against software patents, I remain unconvinced that the patent system is failing as badly as Bessen and Meurer claim. Nonetheless, they present a powerful case that deserves to be taken seriously. Patent Failure will have an enormous impact on these debates going forward.

For more opinions on the book… Tim Lee posted a favorable review of Patent Failure over at Ars this summer. And, back in March, there was a lively discussion about the book over at Patently-O. Finally, at last year’s PFF “Aspen Summit,” Michael Meurer debated these issues with some of America’s leading patent law experts. Bronwyn H. Hall, Professor of Economics at Cal-Berkeley, challenges his findings. The video of that panel is here.

(10) Daniel Solove – Understanding Privacy

Daniel Solove’s book — and his approach to classifying and dealing with privacy problems — will have a profound impact on all future privacy debates. In that sense, it is a vital text; a must read for all who follow, or engage in, privacy debates.  On the other hand, Solove’s claim that he can construct a new paradigm based strictly on a pragmatic, utilitarian, “?problem-solving” approach, is ultimately a failure. There is just no getting around the fact that, at some point, you are going to have to provide a more robust theory of rights or justice to explain why one right trumps another. I elaborate in this lengthy critique of Solove’s Understanding Privacy.

Honorable Mentions: Here are a couple of titles that I couldn’t fit on my list but that you might want to also consider reading: Neil Netanel – Copyright’s Paradox; Matt Mason – The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism; David Friedman – Future Imperfect: Technology and Freedom in an Uncertain World; Cory Doctorow — Content; and Don Tapscott — Grown Up Digital: How the Net Generation is Changing Your World.

Please let me know if there are other titles I have overlooked, and let me know your opinion about the best technology policy book(s) of 2008 by voting in our poll and commenting more down below.

[poll id=”3″]

“Hasn’t Steve Jobs learned anything in the last 30 years?” asks Farhad Manjoo of Slate in an interesting piece about “The Cell Phone Wars” currently raging between Apple’s iPhone and the Google’s new G1, Android-based phone. Manjoo wonders if whether Steve Jobs remembers what happen the last time he closed up a platform: “because Apple closed its platform, it was IBM, Dell, HP, and especially Microsoft that reaped the benefits of Apple’s innovations.” Thus, if Jobs didn’t learn his lesson, will he now with the iPhone? Manjoo continues:

Well, maybe he has—and maybe he’s betting that these days, “openness” is overrated. For one thing, an open platform is much more technically complex than a closed one. Your Windows computer crashes more often than your Mac computer because—among many other reasons—Windows has to accommodate a wider variety of hardware. Dell’s machines use different hard drives and graphics cards and memory chips than Gateway’s, and they’re both different from Lenovo’s. The Mac OS, meanwhile, has to work on just a small range of Apple’s rigorously tested internal components—which is part of the reason it can run so smoothly. And why is your PC glutted with viruses and spyware? The same openness that makes a platform attractive to legitimate developers makes it a target for illegitimate ones.

I discussed these issues in greater detail in my essay on”Apple, Openness, and the Zittrain Thesis” and in a follow-up essay about how the Apple iPhone 2.0 was cracked in mere hours. My point in these and other essays is that the whole “open vs. closed” dichotomy is greatly overplayed. Each has its benefits and drawbacks, but there is no reason we need to make a false choice between the two for the sake of “the future of the Net” or anything like that.

In fact, the hybrid world we live in — full of a wide variety of open and proprietary platforms, networks, and solutions — presents us with the best of all worlds. As I argued in my original review of Jonathan Zittrain’s book, “Hybrid solutions often make a great deal of sense. They offer creative opportunities within certain confines in an attempt to balance openness and stability.”  It’s a sign of great progress that we now have different open vs. closed models that appeal to different types of users.  It’s a false choice to imagine that we need to choose between these various models.

Which raises a second point I always stress: There are an infinite number of points along the “open vs. closed” spectrum.  In reality, there are very few products that are perfectly “open” or “closed” out there. These are terms of art, not science.  The iPhone is becoming more “open” with each passing day.  Granted, it’s not as open as the Windows Mobile and certainly not as open as Android, but many people feel those platforms aren’t perfectly open either, or have that they have their own sets of problems.  Bottom line is, you can shop around and find the phone (and level of “openness”) that is right for you. No one is forcing you to buy an iPhone.

Third, efforts to tightly bottle up any technology or business model these days are usually doomed to fail. It’s not just the iPhone that is cracked in mere hours these days; seemingly every new gadget and service has a small army of hackers waiting to pounce when the product doesn’t do everything that consumers want it to. It’s getting harder and harder for product developers to “cripple” or limit functionality out of the gate.  They either offer it immediately or someone else we make sure it is offered for them.

Fourth and final point: The proper policy position with regards to the “open vs. closed” debate should be one of techno-agnosticism.  Lawmakers and courts should not be tilting the balance in one direction or the other.  Let the great experiment (and debate) continue.

Sorry if it seems like I am beating a dead horse here, but the folks at the City Journal asked me a pen a review of Jonathan Zittrain’s new book, The Future of the Internet and How to Stop It.  Faithful readers here will no doubt remember that I have already penned a review of the book and several follow-up essays. (Part 1, 2, 3, 4). I swear I am not picking on Jonathan, but his book is probably the most important technology policy book of the year–Nick Carr’s Big Switch would be a close second–and deserves attention.  Specifically, I think it deserves attention because I believe that Jonathan’s provocative thesis is wildly out of touch with reality.  As I state in the City Journal review of his book:

[C]ontrary to what Zittrain would have us believe, reports of the Internet’s death have been greatly exaggerated. […] Not only is the Net not dying, but there are signs that digital generativity and online openness are thriving as never before. […] Essentially, Zittrain creates a false choice regarding the digital future we face. He doesn’t seem to believe that a hybrid future is possible or desirable. In reality, however, we can have a world full of some tethered appliances or even semi-closed networks that also includes generative gadgets and open networks. After all, millions of us love our iPhones and TiVos, but we also take full advantage of the countless other open networks and devices at our disposal. […]

Further, while it’s true that the creators of iPhone and TiVo maintain a high degree of control over the guts of the devices or their operating systems, the technologies themselves are hardly sterile or non-generative. In fact, these devices have amazing uses, and they have both recently become more open to third-party add-ons and applications. Geeks who demand still more are also hacking away at these and other digital devices to get them to do everything but wash their dishes.Most of us want networks and digital devices that work.

Zittrain, by contrast, seems to long for the era when we all had to load floppy disks into our PCs each morning to get our operating systems running. But those were hardly the good old days. Device makers realized that only techno-geeks would tolerate such hassles, and so our PCs and phones now come with more software and services built in to make our lives easier. Nothing stands in the way of those who still prefer the rugged individualist approach to conquering cyber-frontiers and digital devices. But what Zittrain does in The Future of the Internet is generalize his personal preferences to the whole of cyber-society. What’s good for the ivory-tower digerati may not be what the rest of us want or need.

If you are interested you can read the entire review here.  Again, I encourage you to read Zittrain’s entire book and decide for yourself if my critique is unfair.  Despite my criticisms, it’s a very well-written and interesting book.  As with everything Jonathan does, he has a special gift for making nerdy tech policy issues both interesting and entertaining.

Channeling Jonathan Zittrain, Alex Curtis of Public Knowledge continues his incessant ranting against Apple and the iPhone for supposedly not being open enough and, therefore, somehow harming consumers and 3rd party developers. In his essay today about the supposed evils of the iPhone App Store, he accuses Apple of an “1984 kind of total control.”

Hmmm, let’s see… Apple creates a great new product that is so insanely sexy and innovative that even Apple-haters like me are forced to admit that it is the most brilliant tech gadget of the decade. Millions of people have flocked to Apple stores, stood in lines so long that you’d think they were giving away free pot and floor bongs inside, and then voluntarily handed over seemingly all their disposable monthly income to get their hands on one of these things.

OK, so how is this like 1984 again? Is evil Steve Jobs forcing the masses to buy this product? Of course not. So it strikes me that we can easily dispense with analogies to a book about coercive, totalitarian government control like 1984.

And if all this anti-iPhone ranting is just about the degree of control that Steve Jobs and Apple exercise over product add-ons then hey, I’ve got an easy answer for you: go get a different phone! My current phone — and I tend to cycle through phones pretty quickly in the search of increasing functionality and 3rd party app-friendliness — is the wonderful HTC Touch. Specifically, I have the newer model that Verizon is offering with the oh-so-clunky moniker XV6900. (The Verizon branding / marketing department isn’t going to win any awards with robotic phone names like that!) Anyway, despite the silly name, this phone is a masterpiece. It has more functions than I know what to do with. And did you say you want 3rd party apps? Well, head over to Handango and check out the HTC Touch store there. I hope you have some time on your hands because you’ll be sorting through 5,100+ software apps available there for the device. But that just scratches the surface. There are so many other apps and freeware I have pulled off the Net for this phone that I can’t even begin to count them all. Hell, spend a couple of hours over on the Howard Forums trying to sort through all the stuff that you can do with this phone and your head will start to spin. It’s insane. And, as I’ve found out with this phone and my previous and equally app-friendly HTC XV6700, it’s also an easy way to quickly eat up all your storage and slow your memory down to a crawl.

The bottom line is, Apple offers people a choice. Yes, there is a little more hand-holding in their world than I can stand. I wrote about that in my original review of Zittrain’s book; a book that makes Apple out to be some sort of evil anti-consumer nemesis because their products aren’t perfectly open to tinkering. But that’s not what everyone is looking for in a phone. Many people just want stability, sexiness, and a somewhat smart device with a degree of tinkerability. Thus, Apple creates some trade-offs for its consumers, but it’s a deal most of them will gladly take.

Again, if Curtis doesn’t like the sound of that deal, then he should just go get a different device. There are millions of people who would happily buy his old iPhone, or take his place in line the next time Jobs rolls out another upgraded iPhone at an even lower price.

Well, I actually didn’t exactly get a chance to say quite enough for this to qualify as much of a “debate,” but I was brought in roughly a half hour into this WBUR (Boston NPR affiliate) radio show featuring Jonathan Zittrain, author of the recently released: The Future of the Internet–And How to Stop It. Jonathan was kind enough to suggest to the producers that I might make a good respondent to push back a bit in opposition to the thesis set forth in his new book.

Jonathan starts about 6 minutes into the show and they bring me in around 29 minutes in. Although I only got about 10 minutes to push back, I thought the show’s host Tom Ashbrook did an excellent job raising many of the same questions I do in my 3-part review (Part 1, 2, 3) of Jonathan’s provocative book.

In the show, I stress the same basic points I made in those reviews: (1) he seems to be over-stating things quite a bit in saying that the old “generative” Internet is “dying”; and in doing so, (2) he creates a false choice of possible futures from which we must choose. What I mean by false choice is that Jonathan doesn’t seem to believe a hybrid future is possible or desirable. I see no reason why we can’t have the best of both worlds–-a world full of plenty of tethered appliances, but also plenty of generativity and openness.

If you’re interested, listen in.

I swear I’m not trying to pick on Jonathan Zittrain, but I continue to find examples that create problems for his thesis from The Future of the Internet–And How to Stop It that the whole world is going to hell because of the rise of what he contemptuously calls “sterile, tethered devices.” Again, in his provocative book, Zittrain argues that, for a variety of reasons, the glorious days of the generative, open Internet and general-purpose PCs are supposedly giving way to closed networks and closed devices. In my lengthy review of his book, I argued that Zittrain was over-stating things and creating a false choice of possible futures from which we must choose. I see no reason why we can’t have the best of both worlds–a world full of plenty of tethered appliances, but also plenty of generativity and openness. In a follow-up essay, I pointed out how Apple’s products create a particular problem for Zittrain’s thesis because even though they are “sterile and tethered,” there is no doubt that the company’s approach has produced some wonderful results. As I said..

Personally… I prefer all those “general purpose” devices that Zittrain lionizes. But, again, we can have both. Let Steve Jobs be a control freak and keep those walls around Apple’s digital garden high and tight if he wants. There are plenty of other wide open gardens for the rest of us to play in.

In my original review, I briefly mentioned another problem for the Zittrain thesis: old people! I was reminded about this when I was reading this New York Times article today entitled, “At a Certain Age, Simplicity Sells in High-Tech Gadgets,” by Alina Tugend. Tugend argues:

All right, everyone under the age of 40, go run around the block or something. This column is not for you. It is for people like me, inching toward 50, who are, let us say, not technology-averse, but do not embrace it with the unquestioning love that our children do. For them, no gadget is unnecessary, no add-on excessive, no upgrade superfluous. Now, I know this is not just a generational divide. Some people of any age — we all know a few — buy every new gizmo, the more bells and whistles and buttons, the better. And some people in their 20s and 30s are not enamored with the high-tech side of life. But for those of us who remember getting off the couch to change the channel, technology is not necessarily as innate a part of our lives as it is for those chronologically behind us. I’m sure many of you have played the game with your children, seeing what most shocks them: “We had to watch movies in theaters!” “Phones were attached to the wall!” “We only had an AM-FM radio in the car!” And my personal favorite, “I typed my college senior thesis on an electric typewriter, and used Wite-Out for mistakes!” O.K., enough dawdling on memory lane. The point is that technology does not always come naturally. And everything seems to be getting more diminutive and more complex just as I am getting older and slower. “There are folks who are feeling that things are getting too complicated,” said Jim Barry, a spokesman for the Consumer Electronics Association. “The good news is that you have a lot of choices. The bad news is that you have a lot of choices.”

What this proves is that preferences cannot be generalized. What’s good for tech geeks and the digerati may not be best for everyone else. Here’s how I put it in my original review of Zittrain’s book:

put yourself in the shoes of a mere mortal. It’s easy for many us who are tech geeks to look down our noses at those who seem to want to have the hand held through cyberspace or digital experiences. But there’s nothing wrong with those people who seek stability and security in digital devices and their networking experiences—even if they find those solutions in the form of “tethered appliances.” Not everyone wants to have the same cyber-experiences we do. Not everyone wants to reprogram their mobile phones, hack their consoles, write their own code, or even just write a blog or join a social networking site. Millions upon millions of people live perfectly normal lives without ever doing any of these things! (It’s true, I even met a couple of these people… They are called my parents!) Still, many of those mere mortals WILL want to use many of the same toys we tech geeks use, or take cautious steps into the occasional cold pool called cyberspace—one tippy toe at a time. Why shouldn’t those folks be accommodated with “lesser” devices?

Tugend’s NYT article points out that the market for such devices is developing rapidly because there is hot demand for “simpler” devices (i.e., Zittrain’s much-lamented “sterile, tethered devices”):

Consider the ubiquitous cellphone. Two models of phones, Jitterbug by GreatCall Inc. and Coupe by Verizon, offer the most basic services available. One version of the Samsung Jitterbug, for example, has only three buttons: one you can program to call one number, say a friend, work or home; another to call a live operator; and a third to call 911. The other Jitterbug is more like a regular phone, but both have dial tones and larger keypads. Each Jitterbug costs $147, with minutes extra. There is no contract required. Although the Jitterbug is being marketed primarily to older people (hearing aid compatible), with no cameras, games or confusing icons, I can certainly see the appeal. My children, however, laughed when they heard about the phone. “What’s the point with no games?” my older son asked. Consumer Reports, in fact, called the Jitterbug a cellphone “for the technology weary.” The Coupe ($40 with a two-year calling plan) is aimed at a similar market. It has a few more features than the Jitterbug. Both phones have received mixed reviews from users. Microsoft and Apple have certainly noticed this growing market. Last year, Microsoft began selling the SeniorPC (Memo: may want to think about a name change). Hewlett-Packard’s computers, available as desktops or laptops, come with mental acuity games, prescription software (that provides reminders when to take medication at the correct dosage and when to reorder, as well as medical history), financial software and the option of a keyboard with larger buttons. They can also be used with a simplified desktop screen that hides options, for those who need just a few functions, said Rob Sinclair, director for accessibility at Microsoft. “A lot of technology was originally developed for people with severe disabilities,” Mr. Sinclair said. “But these solutions are proving valuable to a much broader range of people.” Many of these features, known as “ease of access settings,” are automatically available with Windows Vista, like screen readers that audibly describe what is on the screen, screen magnifiers, colors and fonts for easy reading and speech recognition, which allows you to direct the computer with your voice. We have Windows XP, the earlier version of the operating system, and it is easy to click into the accessibility options, which do not include speech recognition, through the control panel. But it has a wheelchair icon, which has been eliminated in the later version. “We now talk about ‘ease of access’ to a computer rather than ‘accessibility,’ ” Mr. Sinclair said. “The subtle change in language reflects a significant change in our approach.”

And what’s wrong with this? Answer: Nothing! People are getting the choices and configurations they want. Older generations are simply not comfortable with the “general purpose” devices that tinker-happy gadgeteers like Zittrain and me prefer. Shouldn’t those people get to enjoy some of the same digital experiences and communications options that the rest of us do without being expected to configure their cell phones or program their PCs?

Again, markets are responding to these needs, but not in ways that Prof. Zittrain prefers. Perhaps in another 25 years, when today’s generation of techno-geeks are grandparents, we’ll all be perfectly comfortable with the devices and networks that Zittrain (and I) prefer. For now, that is not enough. People demand more choices–even if they are “sterile and tethered.” They should get them, and luckily they are.

[Note: You might want to first read my review of Jonathan Zittrain’s book to give this essay some context.]

Jonathan Zittrain must have been smiling as he read Leander Kahney’s excellent Wired cover story this month, “How Apple Got Everything Right By Doing Everything Wrong.” In a sense, the article vindicates Zittrain’s thesis in The Future of the Internet–And How to Stop It. Again, in his provocative book, Zittrain argues that, for a variety of reasons, the glorious days of the generative, open Internet and general-purpose PCs are supposedly giving way to closed networks and a world of what he contemptuously calls “sterile, tethered devices.” And Apple products such as the iPhone, the iPod, and iTunes serve as prime examples of the troubling world that await us. And Kahney’s article confirms that Apple is every bit as closed and insular as Zittrain suggests. Kahney nicely contrasts Apple with Google, a company that “embraces openness,” trusts “the wisdom of crowds,” and has its famous “Don’t be evil” philosophy:

It’s ironic, then, that one of the Valley’s most successful companies ignored all of these tenets. Google and Apple may have a friendly relationship — Google CEO Eric Schmidt sits on Apple’s board, after all — but by Google’s definition, Apple is irredeemably evil, behaving more like an old-fashioned industrial titan than a different-thinking business of the future. Apple operates with a level of secrecy that makes Thomas Pynchon look like Paris Hilton. It locks consumers into a proprietary ecosystem. And as for treating employees like gods? Yeah, Apple doesn’t do that either.

On the other hand, Kahney’s article serves as vindication of my response to Zittrain’s book since the article illustrates how, despite breaking all the typical rules of Silicon Valley, the company is more successful than ever and has legions of happy customers. Again, in my review of his book, I argued that there is no reason that we can’t have the best of both worlds. Much of the time, “open” systems produce the best results. Other times, more closed, proprietary models give rise to great products. Today’s digital marketplace is full of wonderful devices and services of both flavors. Apple’s success proves that point, as Kahney’s Wired article shows:

by deliberately flouting the Google mantra, Apple has thrived. When Jobs retook the helm in 1997, the company was struggling to survive. Today it has a market cap of $105 billion, placing it ahead of Dell and behind Intel. Its iPod commands 70 percent of the MP3 player market. Four billion songs have been purchased from iTunes. The iPhone is reshaping the entire wireless industry. Even the underdog Mac operating system has begun to nibble into Windows’ once-unassailable dominance; last year, its share of the US market topped 6 percent, more than double its portion in 2003. It’s hard to see how any of this would have happened had Jobs hewed to the standard touchy-feely philosophies of Silicon Valley. Apple creates must-have products the old-fashioned way: by locking the doors and sweating and bleeding until something emerges perfectly formed. It’s hard to see the Mac OS and the iPhone coming out of the same design-by-committee process that produced Microsoft Vista or Dell’s Pocket DJ music player. Likewise, had Apple opened its iTunes-iPod juggernaut to outside developers, the company would have risked turning its uniquely integrated service into a hodgepodge of independent applications — kind of like the rest of the Internet, come to think of it.

Importantly, it’s not just that Apple has thrived, it’s that consumers have loved their products to the point that there is a sort of “cult of Apple” out there. I should make clear that I am no Apple fanboy. As my TLF colleagues Tim Lee and Jerry Brito can attest, I am constantly making fun of them for their love of Apple products. I am willing to deal with the warts associated with the PC environment because I love the more open-ended nature of it. That being said, there are times when I have to swallow my pride and admit to Tim and Jerry that, in many ways, their Apple products are superior to my PC and Windows-based toys. It’s impossible to spend a few minutes with the iPhone or the latest iPods and Macs and not fall in love with those devices and their interfaces. They are truly spectacular. Thus, as Kahney’s article makes clear, whether you love him or hate him, you have to admit that Jobs is on to something:

No other company has proven as adept at giving customers what they want before they know they want it. Undoubtedly, this is due to Jobs’ unique creative vision. But it’s also a function of his management practices. By exerting unrelenting control over his employees, his image, and even his customers, Jobs exerts unrelenting control over his products and how they’re used. And in a consumer-focused tech industry, the products are what matter.

Indeed they are. And even though Zittrain labels Apple’s products “sterile and tethered,” there is no doubt that the company’s approach has produced some wonderful results. Personally, they are not for me since I prefer all those “general purpose” devices that Zittrain lionizes. But, again, we can have both. Let Steve Jobs be a control freak and keep those walls around Apple’s digital garden high and tight if he wants. There are plenty of other wide open gardens for the rest of us to play in.

Jonathan Zittrain, who is affiliated with Oxford University and Harvard’s Berkman Center, recently released a provocatively titled book: The Future of the Internet–And How to Stop It. It’s an interesting read and I recommend you pick it up despite what I’ll say about it in a moment. (Incidentally, if you ever have a chance to hear Jonathan speak, I highly recommend you do so. He is, bar none, the most entertaining tech policy geek in the world. Imagine Dennis Miller with a cyberlaw degree.)

Jonathan’s book contrasts two different paradigms that he argues could define the Net’s future: The “generative” Net versus what he refers to as a world of “tethered, sterile appliances.” By “generative” he means technologies or networks that invite or allow tinkering and all sorts of creative uses. Think general-purpose personal computers and the traditional “best efforts” Internet. “Tethered, sterile appliances” by contrast, are technologies or networks that discourage or disallow tinkering. Basically, “take it or leave it” proprietary devices like Apple’s iPhone or the TiVo, or online walled gardens like the old AOL and current cell phone networks.

Jonathan’s thesis is that, for a variety of reasons [viruses, Spam, identify theft, etc], we run the risk of seeing the glorious days of the generative, open Net give way to more tethered devices and closed networks. He states:

“Today, the same qualities that led to [the success of the Internet and general-purpose PCs] are causing [them] to falter. As ubiquitous as Internet technologies are today, the pieces are in place for a wholesale shift away from the original chaotic design that has given rise to the modern information revolution. This counterrevolution would push mainstream users away from the generative Internet that fosters innovation and disruption, to an appliancized network that incorporates some of the most powerful features of today’s Internet while greatly limiting its innovative capacity—and, for better or worse, heightening its regulability. A seductive and more powerful generation of proprietary networks and information appliances is waiting for round two. If the problems associated with the Internet and PC are not addressed, a set of blunt solutions will likely be applied to solves problems at the expense of much of what we love about today’s information ecosystem.” [p. 8].

In other words, Jonathan fears that many people will flock to tethered appliances in a search for stability or security. That’s bad, in his opinion, because those tethered appliances are less “open” and more likely to be “regulable,” either by large corporate intermediaries or government officials. Thus, the “future of the Internet” he is hoping to “stop” is a world dominated by tethered digital appliances because it is too limiting and too easy for others to control.

My primary objection to Jonathan’s thesis is that (1) he seems to be over-stating things quite a bit; and in doing so, (2) he creates a false choice of possible futures from which we must choose. What I mean by false choice is that Jonathan doesn’t seem to believe a hybrid future is possible or desirable. I see no reason why we can’t have the best of both worlds–a world full of plenty of tethered appliances, but also plenty of generativity and openness.

Importantly–and Jonathan acknowledges this point to some extent–the boundaries between “generative” and “tethered appliances” are growing increasingly murky. Social networking sites, for example, allow a great deal of generative activity, but they also impose some limitations on what can be posted, or limit the porting of profiles / information over to other sites. Similarly, the iPhone—which Jonathan calls a “sterile” technology—was completely closed at first, but is now growing more open to tinkering with the SDK rollout. But it’s unlikely it will ever be perfectly open. Finally, the TiVo, which Jonathan also throws into the “sterile” bucket, is a tightly controlled technology in some ways, but allows consumers to do some truly wonderful things with it within certain confines.

And there’s a good reason for all of this: Hybrid solutions often make a great deal of sense. They offer creative opportunities within certain confines in an attempt to balance openness and stability. And this brings us back to how Jonathan is over-stating his thesis, in my opinion; he just doesn’t convince me that the old order—of open networks & general-purpose PCs—is dying. It’s still around and always will be. It’s just that a new crop of characters—let’s call them “mere mortals”—have joined us in cyberspace and are increasingly part of the ongoing digital experience. But those of us who are true-blue tech geeks and tinker-happy gadgeteers still have plenty of generative toys at our disposal even though the mere mortals now walk among us.

For example, like many other tech geeks, I have an outrageously expensive mobile phone that allows me to add just about any application I want to it. Problem is, the more I muck with it, the slower and less reliable it gets in some ways, which is precisely why some mere mortals just want a good old-fashion “sterile” phone that won’t give them any hassles. Regardless, on the “generative-vs.-sterile appliance” spectrum, the range of mobile devices just continues to grow and grow in both directions. You can decide what type of device you want. I want something more generative—warts and all. My wife—a true mere mortal if there ever was one—just wants something that works, even if has far fewer options in terms of generative capabilities. (Of course, she’s not trying to compose blog posts like this on her phone like I am! She just wants to check e-mail on occasion and make phone calls. Imagine that: using a phone just to make calls. Crazy!)

So, my question to Jonathan is—to quote the great philosopher Rodney King—Why can’t we all just get along? Isn’t it a sign of progress that we now have different models that appeal to different types of users? After all, those supposedly “sterile” applications like the iPhone and Tivo are loved by millions. Even calling them “sterile” seems a bit silly to me. After all, those devices have “fostered innovation and disruption” just like PCs and the Net have, just in a different way. Regardless, does Jonathan think all those people would really be better off if they were forced to fend for themselves with completely open iPhones and TiVos? Should the iPhone be shipped to market with no apps loaded on the main screen, forcing everyone to get them for on their own? Should TiVos have no interactive menus out-of-the-box, forcing you to go online and find some homebrew that someone whipped up to give you an open source guide in all its blocky ugliness?

Again, before you answer that question for yourself, put yourself in the shoes of a mere mortal. It’s easy for many us who are tech geeks to look down our noses at those who seem to want to have the hand held through cyberspace or digital experiences. But there’s nothing wrong with those people who seek stability and security in digital devices and their networking experiences—even if they find those solutions in the form of “tethered appliances.” Not everyone wants to have the same cyber-experiences we do. Not everyone wants to reprogram their mobile phones, hack their consoles, write their own code, or even just write a blog or join a social networking site. Millions upon millions of people live perfectly normal lives without ever doing any of these things! (It’s true, I’ve even met a couple of these people… They are called my parents!) Still, many of those mere mortals WILL want to use many of the same toys we tech geeks use, or take cautious steps into the occasional cold pool called cyberspace—one tippy toe at a time. Why shouldn’t those folks be accommodated with “lesser” devices?

I fear that Jonathan has spent a little too much time in the ivory tower surrounded by countless people like me who are almost part cyborg in that they use so much technology that they are practically at one with their devices. (If I don’t have a laptop in my backpack and a mobile phone in my pocket I start to experience phantom pains, like I am missing appendages). If one finds themselves stuck in an echo chamber with enough of these other cyborg-humans, they can start to fear the consequences of what might happen when the mere mortals start walking in the front door and asking asinine questions about how to boot up their devices or log on to certain websites. But we have nothing to fear from these aliens. They can have their closed systems and we can have our open systems. We can tinker; they can just play with what they are given. We can be highly interactive cyber-goobers; they can be utterly passive couch potatoes. And so on.

Moreover, a big part of the gap here is simply generational and will pass with time. Once today’s tech geeks are grandparents, most of our kids and grandkids will largely demand the same sort of systems we do because they will be more accustomed to the occasional downsides that accompany the Wild West that cyberspace can sometimes be. But there will always be a crowd who demands some hand-holding and added security.

Jonathan’s short-term concern about how the desire for more stable and secure systems will lead to a more “regulable” world, is understandable. Concerns about privacy, child safety, defamation, identity theft and so on, will continue to lead to calls for more intervention. At the corporate level, however, some of that potential intervention makes a great deal of sense. For example, if ISPs are in a position to help do something to help alleviate some of these problems—especially Spam and viruses—what’s wrong with that? Of course, it gets a lot trickier with things like child safety and copyright issues. That’s where excessive intervention by ISPs could create serious speech and privacy problems—namely in the form of a forced surrender of anonymity.

But, again, I think there is a happy balance here. Bruce Owen, one of my intellectual heroes, really nails it in his response to Jonathan’s thesis:

“Why does Zittrain think that overreaction is likely, and that its costs will be unusually large? Neither prediction is self-evident. Faced with the risk of infection or mishap, many users already restrain their own taste for PC-mediated adventure, or install protective software with similar effect. For the most risk-averse PC users, it may be reasonable to welcome “tethered” PCs whose suppliers compete to offer the most popular combinations of freedom and safety. Such risk-averse users are reacting, in part, to negative externalities from the poor hygiene of other users, but such users in turn create positive externalities by limiting the population of PCs vulnerable to contagion or hijacking. As far as one can tell, this can as easily produce balance or under reaction as overreaction—it is an empirical question. But, as long as flexibility has value to users, suppliers of hardware and interconnection services will have incentives to offer it, in measured ways, or as options.”

That’s exactly right. We can find happy middle-ground solutions. By contrast, Jonathan’s alternative solutions to these problems are quite amorphous. He speaks of the need for a “latter-day Manhattan project, not to build a bomb but to design the tools and conventions by which to continuously defuse one.” (p. 173). That seems like a strange metaphor or paradigm for him to choose since the Manhattan project was highly secretive and centrally planned, the exact opposite of what he seems to desire. But, again, what he desires remains very murky. It seems he wants to solve the problems brought about by openness with more openness—primarily in the form of collective intelligence and action. If we all just find smart ways to work together, we can improve open systems, he argues. Well, sure we can.. sorta. But it will never work perfectly on its own. Some people are going to want more safety and security. They should get it, even if comes in the form of “sterile appliances and tethered devices.” Because, again, the rest of us always have the option to choose something else.

One proposed solution that Jonathan does spell out in a bit more detail troubles me greatly. When discussing the future of Net neutrality, he makes some interesting arguments similar to those we often make here about how unlikely it is that network intermediaries will really be able to stifle the free flow of bits. But then Jonathan goes on to say:

“If there is a present worldwide threat to neutrality in the movement of bits, it comes not from restrictions on traditional Internet access that can be evaded using generative PCs, but from enhancements to traditional and emerging appliancized services that are not open to third-party tinkering.” (p. 181)

He then blasts cable and satellite boxes as being “walled gardens” and creating “mediated experiences” and goes on to ask: “So when should we consider network neutrality-style mandates for appliancized systems?” I would have hoped the answer would be NEVER, since we don’t want pesky FCC bureaucrats making those sort of calls for us and stifling device innovation as a result. Alas, Jonathan seems to feel differently, and responds to his own question as follows:

“The answer lies in that subset of appliancized systems that seeks to gain the benefits of third-party contributions while reserving the right to exclude it later. … Those who offer open APIs on the Net in an attempt to harness the generative cycle ought to remain application-neutral after their efforts have succeeded, so all those who built on top of their interface can continue to do so on equal terms.” (p. 184)

I have many problems with that logic. First, most developers who offer open APIs aren’t likely to close them later precisely because they don’t want to incur the wrath of “those who built on top of their interface.” But, second, for the sake of argument, let’s say they did want to abandoned previously open APIs and move to some sort of walled garden. So what? Isn’t that called marketplace experimentation? Are we really going to make that illegal? Finally, if they were so foolish as to engage in such games, it might be the best thing that ever happened to the market and consumers since it could encourage more entry and innovation as people seek out more open, pro-generative alternatives.

Consider this example: Now that Apple has opened to door to third-party iPhone development a bit with the SDK, does that mean that under Jonathan’s proposed paradigm we should treat the iPhone as the equivalent of commoditized common carriage device? That seems incredibly misguided to me. If Steve Jobs opens the development door just a little bit only to slam it shut a short time later, he will pay dearly for that mistake in the marketplace. For God’s sake, just spend a few minutes over on the Howard Forums or the PPC Geeks forum if you want to get a taste for the insane amount of tinkering going on out there in the mobile world right now on other systems. If Apple tries to roll back the clock, Microsoft and others will be all too happy to take their business by offering a wealth of devices that allow you to tinker to your heart’s content. We should let such experiments continue and let the future of the Internet be determined by market choices, not regulatory choices such as forced API neutrality.

Anyway, read Jonathan’s book. I’ve probably gone a bit too hard on him here, but it’s an important and enlightening book about one possible vision of the Net’s future. In the end, I guess my outlook is just a little rosier than his.

( Update: Following this review, I discussed my reservations in a series of follow-up essays. (Part 2, 3, 4, 5).  We’ve also debated his book on the an NPR-Boston [audio is here] and we debated in person at New America Foundation in early November [video is here]. Finally, I named Jonathan’s book the “most important tech policy book of 2008” on my end-of-year Top 10 list.)