Sometimes the most revealing conversations about policy issues happen with our loved ones at the breakfast table. Although loyal TLF readers may remember my partner Michael as my “Posterboy for Advertising’s Pro-Consumer Quid Pro Quo,” he doesn’t usually get into the policy issues I cover.  But this morning, we fell into a conversation about the bitterly contentious issue of marketing to kids:

Michael: Growing up in South Korea, on a military base, we didn’t have any commercials on television. We had three channels and all they showed was public service announcements.

Sounds like paradise for anti-advertising zealots like Jeff Chester and the media reformistas who want to re-create the old media scarcity in the name of “media democracy“! Anyway:

We moved back to the U.S. when I was nine, and suddenly, during all my favorite cartoons, there were ads for toys. It was exciting—and more than a little bit overwhelming! It wasn’t just that I wanted these toys; it was that felt this incredible sense of urgency: I thought we had to go get the toys right now or they’d be gone! What did Rousseau call his innocent man, the Noble Savage? That’s what we were: The noble savage, coming into this world of sophisticated toy advertisements. But it didn’t take long for me to get over this initial bewilderment. My parents explained to me that we didn’t really have to go to the store  right away. (They also explained to me that I couldn’t haggle with the staff at Toys ‘R Us the same way I’d haggled with street vendors back in Korea—something that utterly mystified the staff.) After one trip to Toys Toys ‘R Us, I got the toys I wanted most and, over the next few months, realized that they weren’t anywhere near as exciting as I had imagined. After that, I enjoyed the toy ads on TV, but I lost interest in many of the toys I already had, preferring to create my own toys or play outside.

I explained that advertising of toys to kids has long been the cause celebre of anti-advertising crusaders:

Michael: But kids are acquisitive, too! How are they supposed to know about the latest toys if you can’t advertise to them? And what’s the big deal, anyway? I got used to toy ads and I think most kids would, too. The thing that’s different is incentive programs at stores.

My sister was really into the Limited Too‘s incentive program from the ages of about 7 to 11. She knew all the saleswomen by name at the Limited Too in our mall. It was like our mothers at Bloomingdale’s! She had a huge wardrobe for an elementary school kid.  I don’t think it was unhealthy, but it’s not exactly a fair game. Me: So why did your parents let her do it? Michael: Because they were indulgent! Her friends didn’t have wardrobes like she did—it was just my mom. My dad just wasn’t around much, so we spent a lot of time shopping. It shouldn’t really have been that way. Me: Do you think it was bad for your sister? Michael: No, but it’s a good thing she’s so sensible and practical now, because otherwise her acquisitiveness about clothes might get out of hand. I think she learned that at the Limited Too.

So maybe shopping incentive programs could really teach some kids bad habits and maybe those habits are hard (but certainly not impossible) to kick later on in life. Those are good reasons for parents not to let their kids sign up for such rewards programs! We certainly don’t need a law to fix this problem: We just need parents to exercise their power of the purse and learn to say “No!”—as the parents of Michael’s sister’s friends apparently did. Relying on parental responsibility instead of banning such programs means that parents would have the opportunity to teach their kids to shop responsibly—and still benefit from the discounts such programs offer on clothes they’d buy anyway.

In the meantime, let’s stop pretending kids are helpless drones just waiting to be programmed by evil marketers who get them “hooked on capitalism” by showing them ads for GI Joe, Barbie, digital penguins, Hannah Montanna or whatever it is kids these days care about. Oh, and lest anyone insist that kids don’t really “need” toys or clothes from Limited Too, let me simply point to this brilliant 1959 magazine ad by the ad firm Young & Rubicam:

There is no chestnut more overworked than the critical whinny: “Advertising sells people things they don’t need.” We, as one agency, plead guilty. Advertising does sell people things they don’t need. Things like television sets, automobiles, catsup, mattresses, cosmetics, ranges, refrigerators, and so on and on. People don’t really need these things. People don’t really need art, music, literature, newspapers, historians. wheels, calendars, philosophy, or, for that matter, critics of advertising, either. All people really need is a cave, a piece of meat and, possibly, a fire. The complex thing we call civilization is made up of luxuries. An eminent philosopher of our time has written that great art is superior to lesser art in the degree that it is “life-enhancing.” Perhaps something of the same thing can be claimed for the products that are sold through advertising. They enhance life, to whatever degree they can.

I’d much rather have parents deciding what their kids “need” than some paternalist bureaucrat!

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

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

I. What is Cyber-Libertarianism?

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

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

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

B.  Application in Social & Economic Contexts

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

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

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

C.  How “Code Failures” Are to Be Addressed

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

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

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

D.  General Relationship to “Internet Exceptionalism”

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

II. The Intellectual Foundations of Cyber-Libertarianism

A.  Traditional Libertarian Philosophy

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

B.  Modern Cyber-Libertarian Theorists

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

C.  Internet Exceptionalists[see Sec.  IV below]

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

III. The Contrast with Cyber-Collectivism

A.  Cyber-Collectivism Defined

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

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

B.  General Relationship to “Information Commons” Movement

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

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

C. Exponents of Cyber-Collectivism

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

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

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

IV. Relationship Between Cyber-Libertarianism & Internet Exceptionalism

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

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

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

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

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

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

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

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

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

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

VII. Prospects for Cyber-Libertarianism

A. The Pessimistic View

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

B. The Optimistic View

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

VIII. Related Reading on Cyber-Libertarianism & Internet Exceptionalism

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

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

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.