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.

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.

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.

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.)