Washington Post – Technology Liberation Front

Skeptical Takes on Expansive Industrial Policy Efforts

Adam Thierer — Mon, 15 Mar 2021 17:09:11 +0000

[Last updated 3/25/22]

Industrial Policy is a red-hot topic once again with many policymakers and pundits of different ideological leanings lining up to support ambitious new state planning for various sectors — especially 5G, artificial intelligence, and semiconductors. A remarkably bipartisan array of people and organizations are advocating for government to flex its muscle and begin directing more spending and decision-making in various technological areas. They all suggest some sort of big plan is needed, and it is not uncommon for these industrial policy advocates to suggest that hundreds of billions will need to be spent in pursuit of those plans.

Others disagree, however, and I’ll be using this post to catalog some of their concerns on an ongoing basis. Some of the criticisms listed here are portions of longer essays, many of which highlight other types of steps that governments can take to spur innovative activities. Industrial policy is an amorphous term with many definitions of a broad spectrum of possible proposals. Almost everyone believes in some form of industrial policy if you define the term broadly enough. But, as I argued in a September 2020 essay “On Defining ‘Industrial Policy‘,” I believe it is important to narrow the focus of the term such that we can continue to use the term in a rational way. Toward that end, I believe a proper understanding of industrial policy refers to targeted and directed efforts to plan for specific future industrial outputs and outcomes.

The collection of essays below is merely an attempt to highlight some of the general concerns about the most ambitious calls for expansive industrial policy, many of which harken back to debates I was covering in the late 1980s and early 1990s, when I first started a career in policy analysis. During that time, Japan and South Korea were the primary countries of concern cited by industrial policy advocates. Today, it is China’s growing economic standing that is fueling calls for ambitious state-led targeted investments in “strategic” sectors and technologies. To a lesser extent, grandiose European industrial policy proposals are also prompting new US counter-proposals.

All this activity is what has given rise to many of the critiques listed below. If you have suggestions for other essays I might add to this list, please feel free to pass them along. FYI: There’s no particular order here.

Scott Lincicome and Huan Zhu, “Questioning Industrial Policy: Why Government Manufacturing Plans Are Ineffective and Unnecessary,” Cato Institute Working Paper, June 16, 2021.

[I]ndustrial policy – properly defined – has an extensive and underwhelming history in the United States, featuring high costs (seen and unseen), failed objectives, and political manipulation. Surely, not every U.S. industrial policy effort has ended in disaster, but facts here and abroad argue strongly against new government efforts to boost “critical” industries and workers and thereby fix alleged market failures. Such efforts warrant intense skepticism – skepticism that today is unfortunately in short supply.

Adam Thierer, “Industrial Policy as Casino Economics,” The Hill, July 12, 2021.

While some government investments will always be necessary, policymakers engaging in casino economics means bad industrial policy bets and taxpayer money squandered on risky ventures best made by private actors. We need to keep Uncle Sam’s gambling habits in check.

Adam Thierer, “Thoughts on the America COMPETES Act: The Most Corporatist & Wasteful Industrial Policy Ever,” Technology Liberation Front, January 26, 2022.

As far as industrial policy measures go, the COMPETES Act is one of the most ambitious and expensive central planning efforts in American history. It represents the triumph of top-down, corporatist, techno-mercantilist thinking over a more sensible innovation policy rooted in bottom-up competition, entrepreneurialism, private investment, and free trade.

Adam Thierer & Connor Haaland, “Does the US Need a More Targeted Industrial Policy for AI & High-Tech?” Mercatus Center at George Mason University, Special Study, November 2021.

This paper considers how both the recent history of high-tech industrial policy efforts at the national and international level—as well as some state and local economic development efforts in the United States—might better inform the wisdom of proposed efforts for AI or other high-tech sectors. That history is spotted with some limited successes alongside a long string of costly failures. We explore the reasons for those failures and recommend that the US refocus on the policy prerequisites that helped give rise to the computing and internet revolutions: a more generalized approach to economic development rooted in light-touch regulation and taxation of emerging technology.

Samuel Gregg, “Can America Build A Broad-Based Economy?” Law & Liberty, March 1, 2022

Of course, if a government decides to put enough money and resources behind a given industrial policy, it will likely produce some results. Yet the same is true of the gambler. If she stays in the casino long enough and spends enough money, she will win a few hands of cards. But the odds are that she will also lose a great deal of money, especially if she is as inept a gambler as the government is maladroit at identifying industry trends or entrepreneurial opportunities. Moreover, just as a compulsive gambler’s behavior will have numerous negative effects on her family’s well-being, so too does industrial policy risk inflicting wider damage upon a nation’s economy and political system. The harms range from gross misallocations of resources to the rampant cronyism and rent-seeking that seems inseparable from industrial policy (which, I again note, its advocates studiously avoid discussing), to name just a few.

Phil Gramm & Mike Solon, “Peace Through Strength Requires Economic Freedom,” Wall Street Journal, March 1, 2022.

The America Competes Act is the House’s effort to outdo the Chinese Communist Party’s latest five-year plan. The 2,900-page bill would make an old Soviet commissar blush. [. . . ] America’s success in the world economy has never depended on industrial policy or government subsidies. It has come from the relative absence of government planning and subsidies. This is hardly news. The U.S. government provided support for the efforts of Samuel Langley, the greatest aviation expert of the 1890s, in his effort to make America first in powered flight. His manned Aerodrome flopped into the Potomac River. It was the Wright brothers, two unsubsidized but determined bicycle makers from Dayton, Ohio, who flew at Kitty Hawk, N.C., and changed the world.

Scott Lincicome, “Moving Fast and Breaking Things,” Capitolism, February 2, 2022.

Adam Thierer, “The Coming Industrial Policy Hangover,” The Hill, February 16, 2022.

In the rush to pass legislation, we’ve barely heard a peep about the $250-$350 billion price tag. This follows a massive splurge of recent government borrowing, which led to the U.S. national debt hitting another lamentable new record: $30 trillion. China already owns over $1 trillion of that debt, making one wonder if we’re really countering China by adopting a massive, new and unfunded industrial policy that they will end up financing indirectly.

Podcast: “What’s Wrong with Industrial Policy,” Hold These Truths with Rep. Dan Crenshaw, February 16, 2022.

Tad DeHaven and Adam Thierer, “ The Military-Industrial Complex Offers a Cautionary Tale for Industrial Policy Planning,” Discourse, March 25, 2022.

Wayne Crews, “What To Do Instead Of The America COMPETES Act,” Forbes, February 2, 2022.

All this spending and expansion of the federal government, atop which our leaders would lay the America COMPETES Act and doubtless its own accompanying guidebook, has massive, ignored regulatory effects. Trillions in government spending (”investment”) have altered and will alter the entire trajectory and competitive environment of industries engaged in large-scale enterprises and transactions. This removes vast swaths of business activity from free competitive enterprise altogether, and creates displacements and distortions such that the restoration of free enterprise becomes a near-impossible disentanglement. The result is, after 100 years of big government and seduction of and fusion with big business, the greatest endeavors—from infrastructure to artificial intelligence, from smart cities to space—now consist of “partnerships” with governments rather than free enterprise, at scales and at costs so gigantic they can only be ignored.

Adam Thierer, “‘Japan Inc.’ and Other Tales of Industrial Policy Apocalypse,” Discourse, June 28, 2021.

Perhaps the most ironic indictment of industrial policy punditry lies in the way all the earlier books and essays about Japanese planning not only failed to forecast the many flops associated with it, but also did not foresee China as a potential future economic juggernaut. [. . .] What might that tell us about the ability of experts to predict the future course of countries and economies?

Adam Thierer, “Can Government Reproduce Silicon Valley Everywhere?” Technology Liberation Front, September 12, 2021.

government efforts to artificially try to create regional innovation hubs in a top-down, technocratic fashion will almost certainly persist. As they do, some will argue that this time will be different! Perhaps, but it is more likely that the past is prologue; these new hubs will likely cause federal politicians to jockey for position to have their regions named one of the winners and get a big cut of all the new high-tech pork being served up by Washington.

Weifeng Zhong, “Beijing Can’t Make Sense of Biden’s China Strategy. Can Biden?” Washington Examiner, July 01, 2021.

America is not China, and it would be a fatal mistake to equate competing with China with imitating what China does. Doing so would risk the advantageous U.S. position as the world’s chief innovator, whose ideas are turned into products by vibrant private sectors both domestically and internationally.

Mike Watson, “Industrial Policy in the Real World,” National Affairs, Summer 2021.

Given the nature of industrial policymaking in the United States, there’s little reason to believe future attempts at industrial planning will result in a more coherent, rational, or strategic allocation of resources than they have in the past. [. . .] In short, industrial policy in the United States cannot be steered by a small group of enlightened individuals, because a small group of enlightened individuals will never be at the helm. Indeed, in some sense, there is no single “helm” to speak of.

Samuel Gregg, “Industrial Policy Mythology Confronts Economic Reality,” Law & Liberty, September 3, 2021.

If prizes in policy debates were given out for persistence, those advocating for more widespread use of industrial policy in America would be first in line. No matter how many times it is pointed out that they don’t understand the nature and workings of comparative advantage; or avoid acknowledging how industrial policy fosters rampant cronyism and corruption; or highlight what they consider examples of countries in which industrial policy has been employed successfully (only to have it demonstrated that it didn’t quite work out the way they suggested), they don’t give up.

Elizabeth Nolan Brown, “If This Is How America COMPETES, We’re Going to Lose,” Reason, January 26, 2022.

the bill can’t simply address one main issue or a few critical needs. Instead, it tries to insert the government into every aspect of all sorts of industries and markets and pretend that bureaucrats can solve complex social and cultural issues.

Chang-Tai Hsieh, “Countering Chinese Industrial Policy Is Counterproductive,” Project Syndicate, September 15, 2021.

US political leaders have long tried to counter Chinese industrial policy. And now they seem to have decided that the best way to do that is to emulate it. But their agenda betrays a profound lack of understanding of the unique challenge posed by China’s coupling of an authoritarian political regime with a dynamic market economy.

Adam Thierer, “Industrial Policy Advocates Should Learn from Don Lavoie,” Discourse, November 5, 2021.

“In light of the inherent deficiencies of central planning,” Lavoie said, “it might be argued that the U.S. should instead try to reduce current government interference with the competitive process to the absolute minimum consistent with other political goals.” It remains wise advice for today’s policymakers.

Anne O. Krueger, “America’s Muddled Industrial Policy,” CGTN, June 25, 2021.

Governments have a poor track record of identifying “winners” – be it a company or a category of technology – whereas private companies have proved better at transforming new discoveries into new products or cost savings. That is why the U.S. state traditionally has stuck to funding basic research.

Eric Boehm, “Massive Subsidies Won’t Solve the Semiconductor Supply Chain Crisis,” Reason, January 28, 2022.

Tracy C. Miller, “The Case for Limiting Government Semiconductor Subsidies,” The Hill, June 26, 2021.

Without the subsidies, firms would be more cautious about building or expanding foundries. If long-term production capacity is truly insufficient, high prices and anticipated profits give firms the right incentives to build or expand and satisfy demand at cost-covering prices.

Scott Lincicome, “The ‘Endless Frontier’ and American Industrial Policy,” Cato Institute Blog, May 26, 2021.

U.S. industrial policy has a long history of struggling to overcome political pressures, just as public choice predicts, and the EFA is no different. None of this means that all legislating is bad, or that politicians don’t at least occasionally vote in the national interest. Instead, the public choice framework simply adds another hurdle—along with things like the “knowledge problem,” seen and unseen costs, and misaligned incentives—to designing and implementing commercial policies specifically intended to beat the admittedly messy and imperfect situation that the market generates. It’s imperative that we understand these risks before supporting policies that, while they might look good on paper, could easily morph into a counterproductive boondoggle—one we’ve seen countless times with respect to U.S. industrial policy.

Daniel W. Drezner, “Is the United States capable of industrial policy in 2021?” Washington Post, June 14, 2021.

To believe that the United States can pursue a high-caliber industrial policy, however, requires assuming a more competent state than I have seen in the past decade.

Douglas Holtz-Eakin, “The Nicest Thing I Can Write About Supply Chain Policy,” The Daily Dish, June 10, 2021.

Nevertheless, the Senate just passed a provision for $50 billion to subsidize chip fabrication – something the president had requested – and the House will doubtlessly concur. That might seem like an industry victory, but wait until it realizes that the administration will assume it gives it the right to insist on union jobs, micromanage the design of chips, and dictate the pricing and distribution of the products. Good luck with that. As the definitive volume on policy analysis (Benjamin Franklin’s Poor Richard’s Almanack) put it, “He that lieth down with dogs shall rise up with fleas.”

Lipton Matthews, “Industrial Policy—a.k.a. Central Planning—Won’t Make America Great,” Mises Wire, November 5, 2021.

Although industrial policy is in vogue, the evidence suggests that it is not necessary for long-term development. Moreover, despite the popularity of industrial policy in China, America remains the world’s economic power, and by following China, it may lose this vaunted position.

Richard Beason, “Japanese Industrial Policy: An Economic Assessment,” National Foundation for American Policy, November 2021.

There is no evidence to support the claim that Japanese industrial policy during the 1955-1990 period enhanced growth rates by sector, industries with economies of scale (greater efficiency when produced in increased amounts), productivity growth or “competitiveness.” The reality of the political process and government spending priorities makes it very difficult for such policies to be effective. Furthermore, even if political pressures had not intervened, it seems questionable to suggest that government policymakers would be better than actual market participants in determining the most efficient allocation of resources to produce the best economic outcomes.

Douglas Irwin, “ Memo to the Biden administration on how to rethink industrial policy,” Peterson Institute for International Economics, October 2020.

The challenge for policymakers is to identify such industries without succumbing to the notion that every industry is vital to some public objective. For example, the goal of “economic security” is so broadly defined and open-ended that virtually every domestic producer could claim the need for government support on that basis. The risk is that ill-conceived government programs will encourage corrupt behavior in which industries benefit themselves without contributing to national welfare.

Jim Pethokoukis, “Will Biden’s embrace of industrial policy pay off?” AEI Blog, January 15, 2021.

The history of such efforts in advanced capitalist economies gives ample reason for skepticism about the effectiveness of such top-down government planning, from Japanese economic stagnation to the now-mothballed Concorde supersonic jet to France’s failed attempt to create a thriving tech sector. The Internet might seem like the exception that negates the rule, but what turned out to be a successful partnership of government and entrepreneurs didn’t arise out of some master plan from Washington. And what do even the smartest plans look like when filtered through the dodgy quality of American governance? Maybe as an excuse for cronyism and protectionism.

Adam Thierer & Connor Haaland, “Should the U.S. Copy China’s Industrial Policy?” Discourse, March 11, 2021.

America needs to embrace its already vibrant venture capital market, the benefits of basic science and prize competitions, and a light-touch regulatory approach instead of gambling taxpayer dollars on grandiose industrial policy schemes that would likely become boondoggles.

Connor Haaland & Adam Thierer, “Can European-Style Industrial Policies Create Tech Supremacy?” Discourse, February 11, 2021.

Thus far, however, the Europeans don’t have much to show for their attempts to produce home-grown tech champions. Despite highly targeted and expensive efforts to foster a domestic tech base, the EU has instead generated a string of industrial policy failures that should serve as a cautionary tale for U.S. pundits and policymakers, who seem increasingly open to more government-steered innovation efforts.

Phil Levy & Christine McDaniel, “ Does the U.S. Need a Vigorous Industrial Policy?” Discourse, February 16, 2021.

we are certainly hearing new enthusiasm these days about industrial policy. It seems to have proponents or converts on both sides of the aisle. This either means that a new consensus has emerged, or it means that the term is being used so loosely that it has lost its original meaning. I’ll go with the latter; it now means different things to different people.

Wall Street Journal columnist Greg Ip discussing why “ The traditional skepticism toward industrial policy is well deserved.”

The traditional skepticism toward industrial policy is well deserved. Once Washington starts writing checks for semiconductors, other industries may get in line with the outcome determined more by political clout than economic merit. As in shipbuilding, the targeted companies may end up in perpetual need of federal protection and unable to compete internationally

David Ignatius, “The U.S. is quietly mobilizing its economy against China,” Washington Post, March 4, 2021.

The industrial policy the AI commission recommends could unlock talent and innovation. But if officials aren’t careful, government intervention could also afflict our best companies with the dead weight and dysfunction of our broken political system. We need government to spawn brainpower, not bureaucracy.

Veronique de Rugy, “Support for Industrial Policy is Growing,” AIER, January 18, 2020.

Looking at the federal government today tells me that the problems surrounding R&D programs in the past continue today, and will continue tomorrow, because they are simply a consequence of the normal functioning of government. It is hard to wish these problems away, even in the face of the private sector’s “imperfections.” Those arguing for more funding in R&D should proceed with caution.

Ben Reinhardt on concerns about The Endless Frontier Act

This bill is proposing to give money with risk-averse restrictions to a risk-averse organization (the NSF) to be dispersed among other risk-averse organizations (Universities) into a system with increasingly risk-averse incentives. Note that I’m not saying “it’s all fubar’d lets burn it to the ground!” but I am suggesting that instead of slamming on the accelerator, we should be asking “what would a tune-up and an oil change look like instead?”

Ryan Bourne, “Do Oren Cass’s Justifications for Industrial Policy Stack Up?” Cato Commentary, August 15, 2019.

Oren Cass asserts that markets cannot generally allocate resources efficiently by industry. Yet he provides no meaningful metrics to show this is the case, nor shows why his policies would deliver better outcomes. His two main claims about the benefits of a manufacturing sector — “stable employment” and “strong productivity growth” — are directly contradictory. A plethora of evidence suggests as countries’ get richer due to automation and technological improvements, they demand relatively more services, and so the industrial sector declines in employment terms.

Scott Lincicome, “ Manufactured Crisis: ‘Deindustrialization, Free Markets, and National Security,” Cato Policy Analysis No. 907, January 27, 2021.

This skepticism—mostly absent from Washington—is indeed warranted: analyses of the U.S. manufacturing sector and the relationship between trade and national security, as well as the United States’ long and checkered history of security‐related protectionism, undermine the theoretical justifications for imposing protectionism and industrial policy in the name of national defense. Instead, open trade, freer markets, and global interdependence will in almost all cases produce better outcomes in terms of national security and, most importantly, preventing wars and other forms of armed conflict.

Matthew Lau, “Trudeau government’s ‘industrial policy’ creates all the wrong incentives,” Toronto Sun, March 16, 2021.

Code Is Speech: 3D-Printed Guns Edition

Adam Thierer — Mon, 27 Aug 2018 13:39:40 +0000

Is code speech? That is one of the timeless questions that comes up again and again in the field of Internet law and policy. Many books and countless papers and essays have touched on this topic. Personally, I’ve always thought it was a bit silly that this is even a serious question. After all, if code isn’t speech, what the heck is it?

We humans express ourselves in many creative ways. We speak and write. We sing and dance. We paint and sculpt. And now we code. All these things are forms of human expression. Under American First Amendment jurisprudence, expression is basically synonymous with speech. We very tightly limit restrictions on speech and expression because it is a matter of personal autonomy and also because we believe that there is a profound danger of the proverbial slippery slope kicking in once we allow government officials to start censoring what they regard as offensive speech or dangerous expression.

Thus, we when creative people come up with creative thoughts and use computers and software to express them in code, that is speech. It is fundamentally no different than using a pencil and pad of paper to write a manifesto, or using a guitar and microphone to sing a protest song. The authorities might not like the resulting manifesto or protest song–in fact, they might feel quite threatened by it–but that fact also makes it clear why, in both cases, that expression is speech and that speech is worth defending. Moreover, the methods or mediums of speech production and dissemination–pencils, paper, guitars, microphones, etc.–are what Ithiel de Sola Pool referred to as “Technologies of Freedom.” They help people extend their voices and to communicate with the world, while also learning more about it.

Which brings us to the 3D printers and the code behind the open source blueprints that many people share to fabricate things with 3D printers. Washington Post reporter Meagan Flynn was kind enough to call me last week and ask me to comment for a story she was putting together about the ongoing legal fights over 3D-printed firearms in generally and the efforts of Cody Wilson and Defense Distributed in particular. Wilson is a self-described crypto-anarchist who has landed in hot water with federal and state officials for making available open source blueprints for the 3D-printed firearms freely available to the public. Federal efforts aimed at stopping Wilson and Defense Distributed haven’t worked and now state attorneys general are seeking to impose legal restrictions on him.

Flynn’s WashPo article offered an outstanding overview of everything that is happening on this front, so I won’t rehash it all here. But I wanted to reproduce my portions of her story here and just add a few more thoughts. Here’s the block of the story that mentioned my thoughts:

Adam Thierer, who specializes in the intersection of free speech and technology at George Mason University’s Mercatus Center, said the debate over the computer code for the 3-D-printable guns is the same song he heard during the Crypto Wars — but more like a remix. Guns, of course, pose different risks than encryption technology. Thierer said he thinks the Defense Distributed code is almost certainly speech, but the question is whether the government can demonstrate a compelling interest to regulate it.

The problem with the states’ argument, he contended, is that it would be a “stretch” for the judge to decide that the computer code itself skirts the states’ gun laws, as those laws generally center on possession of actual guns. It would be easier for the states to regulate 3-D-printed guns themselves through new laws, he said, rather than seeking to regulate the code that creates them. “They would have to make the argument that the speech itself is essentially the device,” he said. “Nothing is stopping them from regulating firearms. But the underlying speech is not in their purview. There has to be a distinction made between the speech and the byproduct of speech.”

In our recent essay, “3D Printers, Evasive Entrepreneurs and the Future of Tech Regulation,” Andrea O’Sullivan and I offered more extensive discussion of the legal issues at play here. And in a 2016 law review article entitled, “Guns, Limbs, and Toys: What Future for 3D Printing?” my co-author Adam Marcus and I discussed several examples of how additive manufacturing and the “maker” revolution are making the governance of various emerging technologies quite challenging.

The key points my co-authors and I try to make in these articles is that:

These controversies aren’t going away; they are only going to expand as “evasive entrepreneurs” find new interesting ways to use 3D printers to express themselves.
Regardless of what is being produced with 3D printers, the code and blueprints behind them are speech and deserve protection. And under American free speech jurisprudence, such code will almost certainly win such protections from courts when legislators or regulators seek to censor or regulate them.
The better way to regulate 3D printing is to focus on the physical manifestations of speech/expression. That is, focus on the user and the use, not the speech behind it. As Marcus and I put it in our law review article, “the proper focus of regulation should remain on the user and uses of firearms, regardless of how they are manufactured.” The U.S. has an extensive array of federal and state firearm regulations, and they can and should continue to apply to 3D-printed weapons. Likewise, a 3D-printed prosthetic limb is still a medical device, and the Food and Drug Administration can regulate it according if it sees fit. But in neither case should the underlying speech (i.e., the code) behind such inventions be censored.

In a World Where Kids Can 3D-Print Their Own Retainers, What Should Regulators Do?

Adam Thierer — Mon, 04 Apr 2016 13:52:50 +0000

As “software eats the world,” the reach of the Digital Revolution continues to expand to far-flung fields and sectors. The ramifications of this are tremendously exciting but at times can also be a little bit frightening.

Consider this recent Washington Post headline: “A College Kid Spends $60 to Straighten His Own Teeth. What Could Possibly Go Wrong?” Matt McFarland of the Post reports that, “A college student has received a wealth of interest in his dental work after publishing an account of straightening his own teeth for $60.” The student at the New Jersey Institute of Technology, “had no dentistry experience when he decided to create plastic aligners to improve his smile,” but was able to use a 3D printer and laser scanner on campus to accomplish the job. “After publishing before-and-after pictures of his teeth this month, [the student] has received hundreds of requests from strangers, asking him to straighten their teeth.”

McFarland cites many medical professionals who are horrified at the prospect of patients taking their health decisions into own hands and engaging in practices that could be dangerous to themselves and others. Some of the licensed practitioners cited in the story come across as just being bitter losers as they face the potential for the widespread disintermediation of their profession. After all, they currently charge thousands of dollars for various dental procedures and equipment. Thanks to technological innovations, however, those costs could soon plummet, which could significantly undercut their healthy margins on dental services and equipment. On the other hand, these professionals have a fair point about untrained citizens doing their own dental work or giving others the ability to do so. Things certainly could go horribly wrong.

This is another interesting case study related to the subject of a forthcoming Mercatus paper as well as an upcoming law review article on 3D printing of mine, both of which pose the following question: What happens when radically decentralized technological innovation (such as 3D printing) gives people a de facto “right to try” new medicines and medical devices? In one sense, decentralized, democratized innovation of this sort presents us with an exciting new world of possibilities. On the other hand, we know that when average citizens take their health into their own hands, the results could be disastrous. The question is, what do want policymakers to do about it? Ban 3D printers? Restrict the distribution of 3D printed blueprints freely shared online? Try to license average users? Or regulate the materials used to make these medical devices?

For the reasons I suggest in my forthcoming paper, none of these options are likely to work very well in practice. It will prove too complex and costly to employ top-down, command-and-control regulation in a world of such decentralized innovation. Moreover, many people will also find it highly offensive if the government takes steps to limit their personal autonomy and ability to self-treat themselves at a much lower cost than our currently health care system typically demands for similar treatments. The example in McFarland’s story is quite powerful in that regard because, as it makes clear, even young kids could be engaging in this sort of innovation and self-experimentation, at greatly reduced cost to themselves or their families. Again, this is both wonderful and a little bit scary.

The best hope, I argue in my forthcoming papers, lies in improved risk education. The goal should be to help create a more fully-informed citizenry that is empowered with more and better information about relative risk trade-offs. The Food & Drug Administration already engages in various product labeling efforts as well as public education campaigns and strategies. But this has always been a secondary mission for the agency, which has instead focused on trying to preemptively guarantee the safety and efficacy of drugs and devices. And much of the “education” the FDA does is basically explaining to companies and the public how to comply with its voluminous body of regulation.

This is going to have to change, and change quickly. Going forward, the FDA will likely have to reorient its focus in this way to cope with the rapidly evolving universe of not just mobile medical apps and 3D-printed technologies, but also all the wearable technologies that are part of the larger Internet of Things. For example, the FDA recently released a guidance document for “Management of Cybersecurity in Medical Devices,” encouraging innovators and other stakeholders to address security vulnerability in a collaborative, flexible fashion. This same model could be applied to 3D printing and many other new technologies. As I continue on to note in my forthcoming paper:

Guidance documents should be crafted that suggest various best practices for developers as well as risk education and communication messaging for the general public. The downside of such guidance documents, however, is that they leave unanswered the question of exactly what regulatory authority the agency might bring to bear against companies who are found to violate the “voluntary” principles or best practices in the documents. On the other hand, those guidance documents are usually superior to the alternative path of overly-rigid, top-down, preemptive controls on innovation. Congress should monitor the FDA’s use of such guidance documents closely to ensure that the agency does not abuse its broad regulatory discretion through arbitrary guidance actions.

My forthcoming papers also suggests that other non-governmental bodies will need to play a more active role in this risk education process and help explain safe and sensible uses of new technologies to the public, especially kids. And product developers will need to step-up their “safety-by-design” efforts to try to make sure that the products they release into the wild are as safe as possible. Of course, as with other general purpose technologies (like computers and smartphones), there is only so much that can be done preemptively to make sure devices like 3D printers are “safe and secure” out of the box. The reality is that, the more open and generative a new technology or platform, the harder it is to preemptively design it in such a way to foresee and limit all its uses–for better or for worse.

We live in exciting times, but serious risks exist when radical technological decentralization places tools and capabilities in the hands of average citizens. The goal of public policy should not be to retard the development or distribution of all these wonderful new tools, but instead to redouble efforts to education citizens about proper and improper uses of them.

10 Notable Tech Policy Essays from 2015

Adam Thierer — Wed, 23 Dec 2015 14:22:38 +0000

Throughout the year, I collect some of the more notable tech policy-related essays that I’ve read and then publish an end-of-year list here. (Here, for example, are my end-of-year lists from 2014 and 2013.) So, here are some of my favorite essays and editorials from 2015. (Note: They are just in chronological order. No ranking here.)

Larry Downes – “Take note Republicans and Democrats, this is what a pro-innovation platform looks like,” Washington Post, January 7. (Downes explains how governments need to adapt to accommodate and embrace new forms of technological innovation. He notes: “Here at home, the opportunity to wrap themselves in the flag of innovation is knocking for both parties, but so far there are few takers. Republicans and Democrats regularly invoke the rhetoric of innovation, entrepreneurship, and the transformative power of technology. But in reality neither party pursues policies that favor the disruptors. Instead, where lawmakers once took a largely hands-off approach to Silicon Valley, as the Internet revolution enters a new stage of industry transformation, the temptation to intervene, to usurp, to micromanage, to circumscribe the future — becomes irresistible.”) Equally excellent was Larry’s essay later in the year, “Fewer, Faster, Smarter.” (“As the technology revolution proceeds, the concept of government may return to its pre-industrial roots, setting the most basic rules of the economy and standing by as regulator of last resort when markets fail for some or all consumers over an extended period of time. Even then, the solution may simply be to tweak the incentives to encourage better behavior, rather than more full-fledged—and usually ill-fated—micromanagement of fast-changing industries.”)
Bryant Walker Smith – “Slow Down That Runaway Ethical Trolley,” CIS Blog, January 12. (Smith, a leading expert on autonomous vehicle systems, notes that, while serious ethical dilemmas will always be present with such technologies, we should not allow the perfect to be the enemy of the good. “The fundamental ethical question, in my opinion, is this: In the United States alone, tens of thousands of people die in motor vehicle crashes every year, and many more are injured. Automated vehicles have great potential to one day reduce this toll, but the path to this point will involve mistakes and crashes and fatalities. Given this stark choice, what is the proper balance between caution and urgency in bringing these systems to the market? How safe is safe enough?”)
Tim Worstall – “Google gets my data, I get search and email and that. Help help, I’m being OPPRESSED!” The Register, February 4. (A wicked tongue-lashing of the critics of the data-driven economy.)
Aki Ito – “Six Things Technology Has Made Insanely Cheap: Behold the power of American progress,” Bloomberg Business, February 5. (The title says it all.)
Andrew McAfee – “Who are the humanists, and why do they dislike technology so much?” Financial Times, July 7, 2015. (A brief but brilliant exploration of the philosophical fight over differing conceptions of “humanism.” McAfee, appropriately in my opinion, calls into question technological critics who self-label themselves “humanists” and then suggest that those who believe in the benefits of technological innovation and progress are somehow opposed to humanity. In reality, of course, nothing could be further from the truth!)
Jocelyn Brewer – “Techno-Fear is Hurting Kids, Not Their Use of Digital Devices,” July 7, 2015. (A beautiful piece that makes it clear why “the Internet… is not addictive. Technology is not a drug.” Brewer continues on to make the case for avoiding fear-based messaging about Internet problems and instead adopting a more sensible approach: “Rather than trotting out interminable lists of the negative consequences of our adoption of technology lets raise awareness of how to avoid the pitfalls of not approaching this new era with solutions and proactive thinking.” Amen, sister!)
Evan Ackerman – “We Should Not Ban ‘Killer Robots,’ and Here’s Why,” IEEE Spectrum, July 29, 2015, (A thought-provoking piece about a controversial subject in which Ackerman argues that “banning the technology is not going to solve the problem if the problem is the willingness of humans to use technology for evil”)
Tim O’Reilly – “Networks and the Nature of the Firm,” Medium, August 14, 2015. (Explores the economics of the sharing economy and “the huge economic shift led by software and connectedness.”)
Joe Queenan – “America’s Need for Pointless Updates and Cat Videos,” Wall Street Journal, December 3, 2015. (“The back-to-nature, turn-off-your-cellphone movement is based on a false assumption. . . . Time not spent doing dumb stuff would otherwise be wasted doing other dumb stuff. It’s called ‘play,’ without which Jack is a dull boy. It is a variation on the old saying that nature abhors a vacuum. So nature created the Internet.”)
Dominic Basulto – “Can we just stop with all these tech dystopia stories?” Washington Post, Dec 8, 2015. (“Yes, a dystopian future is possible, but so is a utopian future. Most likely, the answer is somewhere in the middle, the way it’s been for millennia.”)

DRM for Drones Will Fail

Adam Thierer — Wed, 28 Jan 2015 22:00:18 +0000

I suppose it was inevitable that the DRM wars would come to the world of drones. Reporting for the Wall Street Journal today, Jack Nicas notes that:

In response to the drone crash at the White House this week, the Chinese maker of the device that crashed said it is updating its drones to disable them from flying over much of Washington, D.C.SZ DJI Technology Co. of Shenzhen, China, plans to send a firmware update in the next week that, if downloaded, would prevent DJI drones from taking off within the restricted flight zone that covers much of the U.S. capital, company spokesman Michael Perry said.

Washington Post reporter Brian Fung explains what this means technologically:

The [DJI firmware] update will add a list of GPS coordinates to the drone’s computer telling it where it can and can’t go. Here’s how that system works generally: When a drone comes within five miles of an airport, Perry explained, an altitude restriction gets applied to the drone so that it doesn’t interfere with manned aircraft. Within 1.5 miles, the drone will be automatically grounded and won’t be able to fly at all, requiring the user to either pull away from the no-fly zone or personally retrieve the device from where it landed. The concept of triggering certain actions when reaching a specific geographic area is called “geofencing,” and it’s a common technology in smartphones. Since 2011, iPhone owners have been able to create reminders that alert them when they arrive at specific locations, such as the office.

This is complete overkill and it almost certainly will not work in practice. First, this is just DRM for drones, and just as DRM has failed in most other cases, it will fail here as well. If you sell somebody a drone that doesn’t work within a 15-mile radius of a major metropolitan area, they’ll be online minutes later looking for a hack to get it working properly. And you better believe they will find one.

Second, other companies or even non-commercial innovators will just use such an opportunity to promote their DRM-free drones, making the restrictions on other drones futile.

Perhaps, then, the government will push for all drone manufacturers to include DRM on their drones, but that’s even worse. The idea that the Washington, DC metro area should be a completely drone-free zone is hugely troubling. We might as well put up a big sign at the edge of town that says, “Innovators Not Welcome!”

And this isn’t just about commercial operators either. What would such a city-wide restriction mean for students interested in engineering or robotics in local schools? Or how about journalists who might want to use drones to help them report the news?

For these reasons, a flat ban on drones throughout this or any other city just shouldn’t fly.

Moreover, the logic behind this particular technopanic is particularly silly. It’s like saying that we should install some sort of kill switch in all automobile ignitions so that they will not start anywhere in the DC area on the off chance that one idiot might use their car to drive into the White House fence. We need clear and simple rules for drone use; not technically-unworkable and unenforceable bans on all private drone use in major metro areas.

[ Update 1/30: Washington Post reporter Matt McFarland was kind enough to call me and ask for comment on this matter. Here’s his excellent story on “The case for not banning drone flights in the Washington area,” which included my thoughts.]

Robert Samuelson Engages in a Bit of Argumentum in Cyber-Terrorem

Adam Thierer — Mon, 01 Jul 2013 14:44:00 +0000

Washington Post columnist Robert J. Samuelson published an astonishing essay today entitled, “Beware the Internet and the Danger of Cyberattacks.” In the print edition of today’s Post, the essay actually carries a different title: “Is the Internet Worth It?” Samuelson’s answer is clear: It isn’t. He begins his breathless attack on the Internet by proclaiming:

If I could, I would repeal the Internet. It is the technological marvel of the age, but it is not — as most people imagine — a symbol of progress. Just the opposite. We would be better off without it. I grant its astonishing capabilities: the instant access to vast amounts of information, the pleasures of YouTube and iTunes, the convenience of GPS and much more. But the Internet’s benefits are relatively modest compared with previous transformative technologies, and it brings with it a terrifying danger: cyberwar.

And then, after walking through a couple of worst-case hypothetical scenarios, he concludes the piece by saying:

the Internet’s social impact is shallow. Imagine life without it. Would the loss of e-mail, Facebook or Wikipedia inflict fundamental change? Now imagine life without some earlier breakthroughs: electricity, cars, antibiotics. Life would be radically different. The Internet’s virtues are overstated, its vices understated. It’s a mixed blessing — and the mix may be moving against us.

What I found most troubling about this is that Samuelson has serious intellectual chops and usually sweats the details in his analysis of other issues. He understands economic and social trade-offs and usually does a nice job weighing the facts on the ground instead of engaging in the sort of shallow navel-gazing and anecdotal reasoning that many other weekly newspaper columnist engage in on a regular basis.

But that’s not what he does here. His essay comes across as a poorly researched, angry-old-man-shouting-at-the-sky sort of rant. There’s no serious cost-benefit analysis at work here; just the banal assertion that a new technology has created new vulnerabilities. Really, that’s the extent of the logic at work here. Samuelson could have just as well substituted the automobile, airplanes, or any other modern technology for the Internet and drawn the same conclusion: It opens the door to new vulnerabilities (especially national security vulnerabilities) and, therefore, we would be better off without it in our lives.

Samuelson does admit that “Life would be radically different… without some earlier breakthroughs: electricity, cars, antibiotics,” so it is obvious he thinks their benefits outweigh their costs. But I could just as well say that new technologies such as cars and planes bring death and destruction, both in the theater of war and in everyday life. So, one might conclude of modern transportation technology that the “virtues are overstated, its vices understated. It’s a mixed blessing — and the mix may be moving against us,” just as Samuelson concludes of the Net. Of course, such an assertion would be absurd without reference to the many benefits that accrue to us from these technologies. I don’t think I need to cite them all here. But Samuelson is certainly a sharp enough guy that he would engage in such a cost-benefit analysis if someone made such an assertion about other technologies.

When it comes to the Internet, however, all he can say about benefits is that “the instant access to vast amounts of information, the pleasures of YouTube and iTunes, the convenience of GPS and much more.” (GPS? Really? Strictly speaking, that’s not an Internet technology, Bob. But perhaps you have something against satellite technology, too! Looking forward to your column, “Is Satellite Communication Worth It?”)

Of course the first benefit of the Internet that Samuelson cites — “instant access to vast amounts of information” — is nothing to sneeze at! The fact that he so casually dismisses that benefit is rather troubling. For the vast majority of civilization, humans have lived in a what we might think of as a state of extreme information poverty. Today, by contrast, we are blessed to live in amazing times. An entire planet of ubiquitous, instantly accessible media and information is now at our fingertips. We are able to share culture and engage with others — both socially and commercially — in ways that were unthinkable and impossible even just a few decades ago.

It’s hard to quantify the benefits associated with these facts, but I would think most of us would agree they are enormous. But it’s hardly the only sort of benefit that comes from the Internet and modern digital communications technologies. The fact that Samuelson can’t think of anything more is either a serious failure of imagination or, more troubling, an intentional effort to minimize and ignore those benefits in order to prey on people’s worst fears.

I’ve spent a lot of time thinking about “technopanics” and the role that journalists sometimes play in hyping them. See, for example, my essay last summer, “Journalists, Technopanics & the Risk Response Continuum,” which is based on my Minnesota Journal of Law, Science & Technology law review article, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.” As I explain in that article, the model for what Samuelson has done in his essay is actually a very old logical fallacy: a so-called “appeal to fear.” Here’s how I explain it in my law review article:

Rhetoricians employ several closely related types of “appeals to fear.” Douglas Walton, author of Fundamentals of Critical Argumentation, outlines the argumentation scheme for “fear appeal arguments” as follows:

Fearful Situational Premise: Here is a situation that is fearful to you.

Conditional Premise: If you carry out A, then the negative consequences portrayed in the fearful situation will happen to you.

Conclusion: You should not carry out A.

This logic pattern here is referred to as argumentum in terrorem or argumentum ad metum. A closely related variant of this argumentation scheme is known as argumentum ad baculum, or an argument based on a threat. Argumentum ad baculum literally means “argument to the stick,” an appeal to force. Walton outlines the argumentum ad baculum argumentation scheme as follows:

Conditional Premise: If you do not bring about A, then consequence B will occur.

Commitment Premise: I commit myself to seeing to it that B comes about.

Conclusion: You should bring about A.

As will be shown, these argumentation devices are at work in many information technology policy debates today even though they are logical fallacies or based on outright myths. They tend to lead to unnecessary calls for anticipatory regulation of information or information technology.

I continue on in that article to provide several examples of how ” argumentum in cyber-terrorem ” logic is at work in several digital policy arenas today, especially as it pertains to cybersecurity and cyberwar fears. My Mercatus Center colleagues Jerry Brito and Tate Watkins have warned of the dangers of “threat inflation” in cybersecurity policy in their important paper, “Loving the Cyber Bomb? The Dangers of Threat Inflation in Cybersecurity Policy.” The rhetoric of cybersecurity debates illustrates how threat inflation is a crucial part of “argumentum in cyber-terrorem ” logic. Frequent allusions are made in cybersecurity debates to the potential for a “Digital Pearl Harbor,” a “cyber cold war,” a “cyber Katrina,” or even a “cyber 9/11.” These analogies are made even though these historical incidents resulted in death and destruction of a sort not comparable to attacks on digital networks. Others refer to “cyber bombs” even though no one can be “bombed” with binary code. A rush to judgment often follows inflated threats.

And that’s exactly what Samuelson has done in his essay. He’s rushed to an illogical, sweeping conclusion — namely, that we would be better off just bottling up the Net, or “repealing” it (whatever that means) — and he hasn’t even bothered considering the costs of such action. Worse yet, even though he admits that, “I don’t know the odds of this technological Armageddon. I doubt anyone does. The fears may be wildly exaggerated,” that doesn’t stop him from suggesting that we should live in fear of worst case hypothetical scenarios and take radical steps based upon them.

Again, it is certainly true that the Internet creates new vulnerabilities, including national security vulnerabilities, but that simply cannot be the end of the story. Those vulnerabilities need to be carefully evaluated and measured and, before we rush to panicked conclusions and advocate sweeping policy solutions, the corresponding benefits of the Internet must be taken into consideration.

Instead, Samuelson has engaged in the worst sort of fear-based, factually-challenged reasoning in his essay. It’s a model for how not to think or write about Internet policy. A more thoughtful analysis would acknowledge that the Internet is more than just “a symbol of progress;” it constitutes real progress and an improvement of the human condition. And while it’s all too easy for newspaper columnists to suggest “we would be better off without it” and that it should be “repealed,” there are all too many government goons out there who would like to do just that since the Net has empowered the masses and given them a voice like no other technology in history.

Shame on Robert Samuelson for dismissing these realities — and the Internet’s many benefits — so lightly.

[ Note: See all my essays on “technopanics” here.]

Free Speech Has Consequences & Counter-Speech Is a Vital Part of Deliberative Democracy

Adam Thierer — Sun, 02 Jun 2013 18:24:23 +0000

Alexander Howard has put together this excellent compendium of comments on Mike Rosenwald’s new Washington Post editorial, “Will the Twitter Police make Twitter boring?” I was pleased to see that so many others had the same reaction to Rosenwald’s piece that I did.

For the life of me, I cannot understand how anyone can equate counter-speech with “Twitter Police,” but that’s essentially what Rosenwald does in his essay. The examples he uses in his essay are exactly the sort of bone-headed and generally offensive comments that I would hope we would call out and challenge robustly in a deliberative democracy. But when average folks did exactly that, Rosenwald jumps to the preposterous conclusion that it somehow chilled speech. Stranger yet is his claim that “the Twitter Police are enforcing laws of their own making, with procedures they have authorized for themselves.” Say what? What laws are you talking about, Mike? This is just silly. These people are SPEAKING not enforcing any “laws.” They are expressing opinions about someone else’s (pretty crazy) opinions. This is what a healthy deliberative democracy is all about, bud!

Moreover, Rosenwald doesn’t really explain what a better world looks like. Is it one in which we all just turn a blind eye to what many regard as offensive or hair-brained commentary? I sure hope not!

I’m all for people vigorously expressing their opinions but I am just as strongly in favor of people pushing back with opinions of their own. You have no right to be free of social sanction if your speech offends large swaths of society. Speech has consequences and the more speech it prompts, the better.

The Precautionary Principle Meets Driverless Cars in DC

Adam Thierer — Sun, 04 Nov 2012 19:04:02 +0000

The precautionary principle generally states that new technologies should be restricted or heavily regulated until they are proven absolutely safe. In other words, out of an abundance of caution, the precautionary principle holds that it is “better to be safe than sorry,” regardless of the costs or consequences. The problem with that, as Kevin Kelly reminded us in his 2010 book, What Technology Wants, is that because “every good produces harm somewhere… by the strict logic of an absolute Precautionary Principle no technologies would be permitted.” The precautionary principle is, in essence, the arch-enemy of progress and innovation. Progress becomes impossible when experimentation and trade-offs are considered unacceptable.

I was reminded of that fact while reading this recent piece by Marc Scribner in the Washington Post, “Driverless Cars Are on the Way. Here’s How Not to Regulate Them.” Scribner highlights the efforts of the D.C. Council to regulate autonomous vehicles. A new bill introduced by Council member Mary Cheh (D-Ward 3) proposes several preemptive regulations before driverless autos would be allowed on the streets of Washington. Scribner summarizes the provisions of the bill and their impact:

“requires that a licensed driver be present in the driver’s seat of these vehicles. While seemingly inconsequential, this effectively outlaws one of the more promising functions of autonomous vehicle technology: allowing disabled people to enjoy the personal mobility that most people take for granted.”
“requires that autonomous vehicles operate only on alternative fuels…. [which] could delay the technology’s widespread adoption for no good reason.”
“would impose a special tax on drivers of autonomous vehicles” which would “greatly restrict[] the use of a potentially revolutionary new technology by singling it out for a new tax system.”

The first of these provisions is the one the one that most closely resembles the traditional Precautionary Principle, but the other provisions are based on a similar instinct that progress can be preemptively planned. Yet, as Scribner correctly notes,

no one knows precisely how autonomous vehicle technology will develop or be adopted by consumers. Cheh’s bill presumes to predict and understand these future complexities and then imposes a regulatory straitjacket based on those assumptions. . . . Cheh’s bill will unduly restrict many promising vehicle features, prevent the wider voluntary adoption of this promising technology through foolish green-government paternalism and create a new tax system without proper consideration.

That’s exactly right and it’s the perfect answer to those who advocate the precautionary principle mindset. Trying to dictate progress and safety from above sometimes means you’ll get less of both.

On Fast Firms, Slow Regulators, Antitrust & the Digital Economy

Adam Thierer — Fri, 06 Jul 2012 19:15:30 +0000

I liked the title of this new Cecilia Kang article in the Washington Post: “In Silicon Valley, Fast Firms and Slow Regulators.” Kang notes:

As federal regulators launch fresh investigations into Silicon Valley, their history of drawn-out cases has companies on edge. In taking on an industry that moves at lightening speed, federal officials risk actions that could appear to be too heavy-handed or embarrassingly outdated, some analysts and antitrust experts say.

For example, she cites ongoing regulatory oversight of Microsoft and MySpace, even though both companies have fallen from the earlier King of the Hill status in their respective fields. Kang notes that some “want the government to aggressively pursue abusive practices but question whether antitrust laws are too dated to rein in firms that are continually redefining themselves and using their dominance in one arena to press into others.”

Simply put, antitrust can’t keep up with an economy built on Moore’s Law, which refers to the rule of thumb that the processing power of computers doubles roughly every 18 months while prices remain fairly constant. This issue has been the topic of several of my Forbes columns over the past year, as well as several other essays I’ve written here and elsewhere. [See the list at bottom of this essay.] Moore’s Law has been a relentless regulator of markets and has helped keep the power of “tech titans” in check better than any Beltway regulator ever could. As I noted here before in my essay, “Antitrust & Innovation in the New Economy: The Problem with the Static Equilibrium Mindset“:

modern tech markets are highly dynamic. There is no static end-state, “perfect competition,” or “market equilibrium” in today’s information technology marketplace. Change and innovation are chaotic, non-linear, and paradigm-shattering. Schumpeter said it best long ago when he noted how, “in capitalist reality as distinguished from its textbook picture, it is not [perfect] competition which counts but the competition from the new commodity, the new technology, the new source of supply, the new type of organization… competition which commands a decisive cost or quality advantage and which strikes not at the margins of the profits and the outputs of the existing firms but at their foundations and their very lives. This kind of competition is as much more effective than the other,” he argued, because the “ever-present threat” of dynamic, disruptive change “disciplines before it attacks.”

Once we recognize the power of Moore’s Law to naturally regulate markets—and the corresponding danger of leaving Washington’s laws on the books too long—it should be clear why it is essential to align America’s legal and regulatory policies with the realities of modern tech markets. One way policymakers could do so, I argued in this old Forbes essay, is by literally applying the logic of Moore’s Law to all current and future laws and regulations through two simple principles:

Principle #1 – Every new technology proposal should include a provision sunsetting the law or regulation 18 months after enactment. Policymakers can always reenact the rule if they believe it is still sensible.
Principle #2 – Reopen all existing technology laws and regulations and reassess their worth. If no compelling reason for their continued existence can be identified and substantiated, those laws or rules should be repealed within 18 months. If a rationale for continuing existing laws and regs can be identified, the rule can be re-implemented and Principle #1 applied to it.

What should be the test for determining when technology laws and regulations are retained? That bar should be fairly high. Conjectural harms and boogeyman scenarios can’t be used in defense of new rules or the reenactment of old ones. Policymakers must conduct a robust cost-benefit analysis of all tech rules and then offer a clear showing of tangible harm or actual market failure before enactment or reenactment of any policy.

Of course, this doesn’t leave much room for antitrust law since it almost never moves that fast. But if you think that there is truth in Kang’s “Fast Firms, Slow Regulators” headline, what option do we have but to largely abandon the effort– especially when Moore’s Law and Schumpeterian “creative destruction” do such a better job of keep markets competitive and innovative?

Of course, some academic and regulatory activists like Columbia’s Tim Wu favor a very different sort of regime based on “agency threats” and a preemptive dismantling of the digital economy through the imposition of a “Separations Principle.” The Separations Principle would divide and strictly quarantine the various elements of the tech world — networks, devices, and content — such that vertical integration would become per se illegal. That’s certainly one way of dealing with the “Fast Firms, Slow Regulators” problem! Of course, it would handle that problem by essential decimating much of what makes the digital economy so dynamic and innovative. (I have a new paper coming out shortly that will documented why Wu’s remedy would be such a disaster in practice.)

In any event, it’s good that people are acknowledging that there is a problem here–that antitrust cannot keep pace with the pace of innovation we see in the tech economy–but we must be cautious that this insight does not lead to new or more destructive forms of regulatory adventurism. As I noted in last week’s Forbes column, “The Rule Of Three: The Nature of Competition In The Digital Economy,” there exists a tendency among many to take static snapshots of a sector at any given time and then leap to conclusions about “market power” or “oligopoly.” But competition is a process, not an end-point, and a more sophisticated understanding of the digital economy recognizes how often the borders between sectors are blurred or obliterated by dynamic, disruptive change. Churn is rampant and relentless. Thus, short-term measures of market power are often meaningless since firms can get very big very fast, but they can stumble and fall just as rapidly.

Anyway, if you care to read the very best papers written recently on this topic, you’ll want to check out:

Geoffrey A. Manne & Joshua D. Wright, “Innovation and the Limits of Antitrust,” George Mason Law & Economics Research Paper No. 09-54, February 16, 2010.
J. Gregory Sidak & David J. Teece, “Dynamic Competition in Antitrust Law,” 5 Journal of Competition Law & Economics (2009).
Thomas Hazlett, David Teece, Leonard Waverman, “Walled Garden Rivalry: The Creation of Mobile Network Ecosystems,” George Mason University Law and Economics Research Paper Series, (November 21, 2011), No. 11-50.
Bruce Owen, “Antitrust and Vertical Integration in ‘New Economy’ Industries,” Technology Policy Institute (November 2010).
Daniel F. Spulber, “Unlocking Technology: Antitrust and Innovation,” Journal of Competition Law & Economics, 4(4), 915 (2008).
Richard Posner, “Antitrust in the New Economy,” 68 ANTITRUST L.J. 925, 927 (2001).
Jerry Ellig and Daniel Lin, “A Taxonomy of Dynamic Competition Theories,” in Jerry Ellig (ed.), Dynamic Competition and Public Policy: Technology, Innovation, and Antitrust Issues (Cambridge, Cambridge University Press, 2001), 16-44.

Als0 make sure to check out these classic works from ‘Austrian School’ economists:

Israel Kirzner, Discovery and the Capitalist Process (University of Chicago Press, 1985).
F.A. Hayek, “Competition as a Discovery Procedure,” in New Studies in Philosophy, Politics, Economics and the History of Ideas (Chicago, IL: University of Chicago Press, 1978).
Gerald P. O’Driscoll, Jr. & Mario J. Rizzo, “Competition and Discovery,” in The Economics of Time and Ignorance (London: Routledge, 1985, 1996).

Finally, here are a few other essays I have penned on this issue:

“The Rule Of Three: The Nature of Competition In The Digital Economy,” Forbes, June 29, 2012.
“Sunsetting Technology Regulation: Applying Moore’s Law to Washington,” Forbes, May 25, 2012.
“Of “Tech Titans” and Schumpeter’s Vision,” Forbes, August 22, 2011.
“Bye Bye BlackBerry. How Long Will Apple Last?” Forbes, April 1, 2012.
“Gary Reback’s Antitrust Love Letter,” Technology Liberation Front, September 20, 2009.
“What is “Optimal Interoperability”? A Review of Palfrey & Gasser’s’“Interop,’” Technology Liberation Front, June 11, 2012.

Smartphones & Usage-Based Pricing: Are Price Controls Coming?

Adam Thierer — Tue, 12 Jul 2011 15:10:31 +0000

Two data points in the news over the past 24 hours to consider:

A new report on “Smartphone Adoption & Usage” by the Pew Internet Project finds that “one third of American adults – 35% – own smartphones” and that of that group “some 87% of smartphone owners access the Internet or email on their handheld” and “25% of smartphone owners say that they mostly go online using their phone, rather than with a computer.”
According to the Wall Street Journal, the “Average iPhone Owner Will Download 83 Apps This Year.” That’s up from an average of 51 apps downloaded in 2010. (At first I was astonished when I read that, but then realized that I’ve probably downloaded an equal number of apps myself, albeit on an Android-based device.)

As I explain in my latest Forbes column, facts like these help us understand “How iPhones And Androids Ushered In A Smartphone Pricing Revolution.” That is, major wireless carriers are in the process of migrating from flat-rate, “all-you-can-eat” wireless data plans to usage-based plans. The reason is simple economics: data demand is exploding faster than data supply can keep up.

“It’s been four years since the introduction of the iPhone and rival devices that run Google’s Android software,” notes Cecilia Kang of The Washington Post. “In that time, the devices have turned much of America into an always-on, Internet-on-the-go society.” Indeed, but it’s not just the iPhone and Android smartphones. It’s all those tablets that have just come online over the past year, too. We are witnessing a tectonic shift in how humans consume media and information, and we are witnessing this revolution unfold over a very short time frame.

Unsurprisingly, therefore, “unlimited” wireless data plans are probably on the way out since, as I observe in my Forbes piece:

That model created unsustainable network traffic burdens and it’s surprising unlimited plans have lasted this long. With smartphone users increasingly using their mobile devices to access the Internet and consume more cloud-based services and mobile video than ever, the “all you can eat” data buffet eventually had to end.

But critics are far too quick to suggest this is some of nefarious, anti-consumer conspiracy. In reality, I argue:

Tiered and metered pricing schemes are a sensible way to price demand for bandwidth-intensive users and applications and, in the process, alleviate network congestion, encourage new investment, and ensure that average costs for consumers are more reasonable over time.

Using usage data provided by Nielsen, I document the dramatic traffic growth that carriers are struggling to deal with but also show how most average consumers will do better under the new tiered plans. That’s because, even with a significant uptick in wireless data demand, the vast majority of users will not exceed the lowest tier of service (2 GB) that carriers are pricing at $20-$30. That’s less than most of them pay today. Thus:

It’s only the most rapacious mobile data consumers who’ll pay the higher tier prices. Doesn’t it make more sense that the most intensive network users pay more instead of raising average costs for all consumers? Why should minimal data users subsidize the big eaters?

Instead of repeating it all here, I’d just encourage you to bounce over to Forbes to read my entire essay.

The interesting policy question raised by all this is whether critics and policymakers will give network operators the freedom to innovate and employ creative business models so market experimentation can determine which pricing schemes will best calibrate supply and demand while also ensuring optimal network investment. You may recall that usage-based pricing has already become a flashpoint in the Net neutrality wars, and just last Friday I wrote about Netflix’s shameless attempt to get the feds to regulate usage-based pricing on the wireline front.

So, stay tuned. This fight could really heat up. Perhaps it’s time to dust off the old books and papers about how to fight off government price controls!

Related Reading:

Netflix Falls Prey to Marginal Cost Fallacy & Pleads for a Broadband Free Ride (July 8, 2011)
Why Congestion Pricing for the iPhone & Broadband Makes Sense (October 7, 2009)
The (Un)Free Press Calls for Internet Price Controls: “The Broadband Internet Fairness Act” (June 17, 2009)
Free Press Hypocrisy over Metering & Internet Price Controls (June 18, 2009)
Once Again, Why Not Meter Broadband Pipes? (September 7, 2007)
Why Not Meter? (March 12, 2007)
The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation (October 27, 2005)

Vivek Wadhwa on High-Tech’s “Best Regulator”

Adam Thierer — Fri, 08 Jul 2011 14:16:29 +0000

Vivek Wadhwa, who is affiliated with Harvard Law School and is director of research at Duke University’s Center for Entrepreneurship, has a terrific column in today’s Washington Post warning of the dangers of government trying to micromanage high-tech innovation and the Digital Economy from above.

For reasons I have never been able to understand, the Washington Post uses different headlines for its online opeds versus its print edition. That’s a shame, because while I like the online title of Wadhwa’s essay, “Uncle Sam’s Choke-Hold on Innovation,” the title in the print edition is better: “Google, Twitter and the Best Regulator.” By “best regulator” Wadhwa means the marketplace, and this is a point we have hammered on here at the TLF relentlessly: Contrary to what some critics suggest, the best regulator of “market power” is the market itself because of the way it punishes firms that get lethargic, anti-innovative, or just plain cocky. Wadhwa notes:

The technology sector moves so quickly that when a company becomes obsessed with defending and abusing its dominant market position, countervailing forces cause it to get left behind. Consider: The FTC spent years investigating IBM and Microsoft’s anti-competitive practices, yet it wasn’t government that saved the day; their monopolies became irrelevant because both companies could not keep pace with rapid changes in technology — changes the rest of the industry embraced. The personal-computer revolution did IBM in; Microsoft’s Waterloo was the Internet. This — not punishment from Uncle Sam — is the real threat to Google and Twitter if they behave as IBM and Microsoft did in their heydays.

Quite right. I’ve discussed the Microsoft and IBM antitrust sagas many times here before. In particular, see my 2009 review of Gary Reback’s book on antitrust and high-tech and my recent essay on “Libertarianism & Antitrust: A Brief Comment.” I’ve also commented on the FTC’s look at Twitter and Google in my recent essays, “Twitter, the Monopolist? Is this Tim Wu’s “Threat Regime” In Action?” and “The Question of Remedies in a Google Antitrust Case.”

The crucial points I have tried to get across in these essays, as well as all my essays countering the modern cyber-progressives,” is that high-tech market power concerns are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting market or “code failure” comes down to the rapidity and nimbleness of those responses, especially in markets built upon bits instead of atoms.

That’s why Wadhwa’s insight — that “the technology sector moves so quickly that when a company becomes obsessed with defending and abusing its dominant market position, countervailing forces cause it to get left behind” — is so cogent. We’re not talking about markets like steel and corn here. Things move much, much more quickly when bits and code and are the foundations of what Tim Wu calls “information empires.” There’s no doubt that some companies will gain scale and even “power” quickly in our new Digital Economy, but they can also lose it in the blink of an eye.

The best modern example that I’ve documented here before is AOL. It’s easy to forget now, but just a short decade ago, academics and regulators were in a tizzy over Big Bad AOL. And why not? After all, 25 million subscribers were willing to pay $20 per month to get a guided tour of AOL’s walled garden version of the Internet. And then AOL and Time Warner announced a historic mega-merger that had some predicting the rise of “new totalitarianisms” and corporate “Big Brother.”

But the deal quickly went off the rails. By April 2002, just two years after the deal was struck, AOL-Time Warner had already reported a staggering $54 billion loss. By January 2003, losses had grown to $99 billion. By September 2003, Time Warner decided to drop AOL from its name altogether and the deal continued to slowly unravel from there. In a 2006 interview with the Wall Street Journal, Time Warner President Jeffrey Bewkes famously declared the death of “synergy” and went so far as to call synergy “bullsh*t”! In early 2008, Time Warner decided to shed AOL’s dial-up service and then to spin off AOL entirely. Looking back at the deal, Fortune magazine senior editor at large Allan Sloan called it the “turkey of the decade.” The formal divorce between the two firms took place in 2008. Further deconsolidation followed for Time Warner, which spun off its cable TV unit and various other properties.

Meanwhile, AOL has lost its old dial-up business and walled garden empire and is still struggling to reinvent itself as an advertising company. It’s about the last company on anybody’s lips when we talk about tech titans today. What an epic tale of creative destruction! That all happened is less than 10 years! And yet, again, a decade ago, tech pundits and cyberlaw intellectuals like Larry Lessig were penning entire books about the ominous threat posed by the AOL walled garden model of Internet governance.

Lessig’s myopia was based on an inherent techno-pessimism I have discussed and critiqued in my Next Digital Decade book chapter, “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters.” Countless Ivory Tower cyber-academics today adopt a static view of markets and market problems. This “static snapshot” crowd gets so worked up about short term spells of “market power” – which usually don’t represent serious market power at all – that they call for the reordering of markets to suit their tastes. Sadly, they sometimes do this under the banner of “Internet freedom,” claiming that techno-cratic elites can “free” consumers from the supposed tyranny of the marketplace.

In reality, that vision wraps markets in chains and ultimately leaves consumers worse off by stifling innovation and inviting in ham-handed regulatory edicts and bureaucracies to plan this fast-paced sector of our economy. Importantly, that vision ignores the deadweight losses associated with expanding government red tape and bureaucracy as well as the very real danger of “regulatory capture” that exists anytime Washington decides to get cozy with a major sector of the economy.

As Wadhwa correctly concludes, “Government has no place in this technology jungle.” I wish other academics and tech pundits would heed that warning.

George Will & Jeff Jacoby on Internet Sales Taxes & “Tax Fairness”

Adam Thierer — Mon, 02 May 2011 15:03:38 +0000

I was pleased to see columnists George Will of The Washington Post and Jeff Jacoby of The Boston Globe take on the Internet sales tax issue in two smart recent essays. Will’s Post column (“Working Up a Tax Storm in Illinois“) and Jacoby’s piece,”There’s No Fairness in Taxing E-Sales,” are both worth a read. They are very much in line with my recent Forbes column on the issue (“The Internet Tax Man Cometh,”) as well as this recent oped by CEI’s Jessica Melugin, which Ryan Radia discussed here in his recent essay “A Smarter Way to Tax Internet Sales.”

I was particularly pleased to see both Will and Jacoby take on bogus federalism arguments in favor of allowing States to form a multistate tax cartel to collect out-of-state sales taxes. Senators Dick Durbin (D-IL) and Mike Enzi (R-WY) will soon introduce the “Main Street Fairness Act,” which would force all retailers to collect sales tax for states who join a formal compact. It’s a novel—and regrettable—ploy to get around constitutional hurdles to taxing out-of-state vendors. Sadly, it is gaining support in some circles based on twisted theories of what federalism is all about. Real federalism is about a tension between various levels of government and competition among the States, not a cozy tax cartel.

Will rightly notes that “Federalism — which serves the ability of businesses to move to greener pastures — puts state and local politicians under pressure, but that is where they should be, lest they treat businesses as hostages that can be abused.” And Jacoby argues that an “origin-based” sales tax sourcing rule is the more sensible solution to leveling the tax playing field:

The current system is far fairer than the one [Senator] Durbin wants. Bricks-and-mortar merchants charge sales taxes based on their physical location. The same rule applies to online merchants. A Pennsylvania tobacco shop doesn’t collect Ohio sales taxes whenever it sells a humidor to a visitor from Ohio. Amazon shouldn’t have to, either.

Jacoby also addresses the “tax fairness” argument as follows:

All other things being equal, consumers no doubt prefer a tax-free shopping experience. But all other things are rarely equal. E-retailers (or mail-order catalogs) may have a price advantage, but well-run “Main Street’’ businesses have competitive advantages of their own. They attract customers with eye-catching window displays. They play up local ties and neighborhood loyalty. They give shoppers the chance to see, feel, or try on items before buying them. They enable the serendipitous joys of browsing. They don’t charge for shipping. And they offer potential customers a degree of personal service and warmth that no website can match.

And Will says:

[bricks and mortar] stores have the competitive advantage of local loyalties and customers being able to handle merchandise.Besides, Main Street stores pay sales taxes to support local police, fire and rescue, sewage, schools and other services. If Amazon’s Seattle headquarters catches fire, will Champaign, Ill., firefighters extinguish it?

Anyway, read both columns and stay tuned: this fight is about to get hot once again.

Terrific Visualization of Digital Information Explosion

Adam Thierer — Fri, 11 Feb 2011 15:26:42 +0000

Here’s an amazing graphic that appeared in today’s Washington Post depicting how digital information has grown exploded over the past two decades. It’s better viewed on a large monitor from this link on the Post website. And here’s the accompanying Post article. The underlying data come from a new study by Martin Hilbert and Priscila Lopez of the University of Southern California, which is entitled, “The World’s Technological Capacity to Store, Communicate, and Compute Information.” It appears in the latest issue of Science but is not available without a subscription.

Goldsmith on Assange, WikiLeaks, the First Amendment & Press Freedoms

Adam Thierer — Fri, 11 Feb 2011 14:28:28 +0000

There’s a sharp piece in today’s Washington Post from Jack Goldsmith, currently with Harvard Law but formerly an assistant attorney general in the Bush administration, about “Why the U.S. Shouldn’t Try Julian Assange.” Goldsmith points to the sticky First Amendment / press freedom issues at stake should the U.S. try to go after Assange and WikiLeaks:

A conviction would also cause collateral damage to American media freedoms. It is difficult to distinguish Assange or WikiLeaks from The Washington Post. National security reporters for The Post solicit and receive classified information regularly. And The Post regularly publishes it. The Obama administration has suggested it can prosecute Assange without impinging on press freedoms by charging him not with publishing classified information but with conspiring with Bradley Manning, the alleged government leaker, to steal and share the information. News reports suggest that this theory is falling apart because the government cannot find evidence that Assange induced Bradley to leak. Even if it could, such evidence would not distinguish the many American journalists who actively aid leakers of classified information. One reason journalists have never been prosecuted for soliciting and publishing classified information is that the First Amendment, to an uncertain degree never settled by courts, protects these activities. Convicting Assange would require courts to resolve this uncertainty in a way that narrows First Amendment protections. It would imply that the First Amendment does not prevent prosecution of American journalists who seek and publish classified information. At the very least it would render the First Amendment a less certain shield. This would – in contrast to WikiLeaks copycats outside our borders – chill the American press in its national security reporting.

Quite right, and it’s a point bolstered by another editorial that also appeared in the Post a few weeks ago by Adam Penenberg of New York University, in which he made the case for treating Assange as a journalist. Penenberg asks: “What constitutes “legitimate newsgathering activities”? How do you differentiate between what WikiLeaks does and what the New York Times does?”

Importantly, Goldsmith correctly notes that, practically speaking, a prosecution of Assange probably wouldn’t do much to put the genie back in the bottle. “A successful prosecution, on the other hand, would not achieve the desired deterrent effect,” Goldsmith says. “WikiLeaks copycats are quickly proliferating around the globe, beyond the U.S. government’s effective reach. A conviction would make a martyr of Assange, embolden copycat efforts and illustrate the limits of American law to stop them.” Again, quite right. It’s a point I’ve stressed in my recent essays about the challenges faced by information control regimes.

Anyway, Goldsmith’s entire piece here.

“Non-Commercial Media” = Fine; “Public Media” = Not So Much

Adam Thierer — Fri, 04 Feb 2011 15:46:36 +0000

I’m not one of those libertarians who incessantly rants about the supposed evils of National Public Radio (NPR) and the Public Broadcast Service (PBS). In fact, I find quite a bit to like in the programming I consume on both services, NPR in particular. A few years back I realized that I was listening to about 45 minutes to an hour of programming on my local NPR affiliate (WAMU) each morning and afternoon, and so I decided to donate $10 per month. Doesn’t sound like much, but at $120 bucks per year, that’s more than I spend on any other single news media product with the exception of The Wall Street Journal. So, when there’s value in a media product, I’ll pay for it, and I find great value in NPR’s “long-form” broadcast journalism, despite its occasional political slant on some issues.

In many ways, the Corporation for Public Broadcasting, which supports NPR and PBS, has the perfect business model for the age of information abundance. Philanthropic models — which rely on support for foundational benefactors, corporate underwriters, individual donors, and even government subsidy — can help diversify the funding base at a time when traditional media business models — advertising support, subscriptions, and direct sales — are being strained. This is why many private media operations are struggling today; they’re experiencing the ravages of gut-wrenching marketplace / technological changes and searching for new business models to sustain their operations. By contrast, CPB, NPR, and PBS are better positioned to weather this storm since they do not rely on those same commercial models.

Nonetheless, NPR and PBS and the supporters of increased “pubic media” continue to claim that they are in peril and that increased support — especially public subsidy — is essential to their survival. For example, consider an editorial in today’s Washington Post making “The Argument for Funding Public Media,” which was penned by Laura R. Walker, the president and chief executive of New York Public Radio, and Jaclyn Sallee, the president and chief executive of Officer Kohanic Broadcast Corp. in Anchorage. They argue:

The CPB’s federal appropriation this fiscal year is $430 million – about $1.39 per American. More than 70 percent of that funding goes to local stations around the country, accounting for, on average, nearly 16 percent of their annual budgets. For some, such as New York Public Radio, CPB funding is a smaller – although important – part of the operating budget because their audience size and urban location enable them to rely on a mix of membership, foundation and underwriting support. For stations in rural or economically hard-hit areas that aren’t able to attract as much other support, CPB funding is their lifeblood.

But regardless of whether the federal subsidy to local stations is trivial or substantial, like most other supporters of “public media,” Walker and Sallee jump right past the moral discussion of whether it is right to force citizens to subsidize media they may not find to their liking. Again, as it pertains to NPR at least, I am not one of these people, but I am entirely sympathetic with those — mostly of a conservative persuasion — who find it offensive to be forced to use their tax dollars to support programs they find objectionable for whatever reason. And while I do not believe that NPR and PBS are as hopelessly biased as some conservatives suggest, I think it’s fair to say that there’s more than a hint of liberal bias in many of their programs and reporters. (Personally, I do not mind some of that bias, but I do find it silly that some of these reporters, editors, and their defenders continue to pretend no such bias exists. Even with a liberal slant to some of their reports, they are still great reports.)

The reason this is important is because forcing citizens to fund even more media content they might find objectionable will lead to endless political controversy and increased public tensions. My former PFF colleague Randy May, now president of the Free State Foundation, correctly argues that:

when government-supported media—that is, media supported with our tax dollars—decide what content should be filtered or amplified regarding issues of public importance… government’s involvement tends to exacerbate public tensions in a way that makes civil discourse more difficult. This is because government content decisions are seen by many as tilting the public policy playing field in a way inconsistent with their beliefs.

Sure, I understand that we taxpayers are forced to subsidize many things we don’t like or even find offensive. But that’s hardly a good argument for forcing to subsidize even more, especially when it comes to speech and media. Should liberals be forced to help fund the next Fox News or Rush Limbaugh? Should conservatives have to support the next Keith Olbermann or Bill Moyers? Should independents or libertarians have to subsidize any of this? As Thomas Jefferson famously put it in the 1786 Virginia Act for Establishing Religious Freedom, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” That is, we naturally — and rightly — resent subsidizing speech that is antithetical to our own values.

But won’t public media wither and die without taxpayer subsidy, as Walker and Sallee suggest? I don’t think so. First, to reiterate, public media is already well-diversified and has multiple funding streams to fall back on such that the 16% that comes from taxpayers could be replaced by other sources as it is phased out. Moreover, as the defunding process unfolds, it presents public media with the perfect opportunity to lock in long-term funding from those other sources. Public media supporters like to claim that $430 million (or $1.39 per taxpayer) per year isn’t that big of a burden. OK, sure, but that argument cuts both ways. If they really feel it isn’t such a huge expense, then certainly we can find other sources to cover that $1.39 per year! In fact, I can imagine a massive CPB/PBS/NPR fundraising campaign based entirely on “Doing Your Part to Cover the Gap” or other such gimmicks.

What I am getting at here is that the time has come to make a firm break with “public media” notions but to simultaneously embrace “non-commercial media” as a viable and important part of our modern media marketplace. “Public media” will always be a contentious term and be subjected to endless politicization. “Non-commercial media,” by contrast is more value-neutral and should be easier for citizens of all ideological stripes to accept since it implies media that is not supported by advertising or subscriptions but which is also free of forcible taxpayer subsidy.

Again, CPB is already 84% of the way there! We can find creative ways to bridge the gap and cover that remaining 16%. I’d happily double my annual contribution to my local NPR affiliate today if they agreed to drop federal subsidies. And I bet plenty of other people and organizations would step up to the plate and meet this challenge, too.

Toles Cartoon on Regulatory Capture

Adam Thierer — Thu, 20 Jan 2011 14:51:46 +0000

Washington Post cartoonist Tom Toles is certainly no fan of free markets, but his contribution to today’s paper offers us this humorous take on the dangers of regulatory capture, a subject we’ve spent much time documenting here on the TLF.

Dynamic Pricing: The Unconcerning Scourge

Jim Harper — Mon, 13 Dec 2010 02:35:25 +0000

Deep in this Washington Post story on dynamic pricing—prices that change based on what online retailers know or guess about individual customers—come these lines:

[A]s much as retailers try to foil bargain shoppers, consumers do hold the upper hand online. Dynamic pricing is easy to counteract. Search multiple sites – including ones that collect prices from across the Internet as well as the sites themselves. Run searches on more than one browser, including one which you have erased cookies. Leave items in a shopping cart for a few days to gin up discount offers.

That makes the rest of the story, and wafting consumer protection concerns with dynamic pricing, a little humdrum. Indeed, it belies the headline: “How Online Retailers Stay a Step Ahead of Comparison Shoppers.”

Even better advice—certainly the simplest—is: Don’t buy what you can’t afford. That is serious consumer protection.

The Geocentric Theory of Political Media

Jim Harper — Mon, 11 Oct 2010 11:34:25 +0000

“There’s no question [cable news is] contributing to the splintering of the political system and the means by which people get information about that system,” said Robert Thompson, who runs the Bleier Center for Television and Popular Culture at Syracuse University. “If there’s no standard base line of fact and reporting, where can the conversation go?”

This, from “Cable News Chatter is Changing the Electoral Landscape,” by Howard Kurtz and Karen Tumulty in today’s Washington Post.

Cable news and, of course, the Internet are definitely splintering the media environment. But there’s a big difference between the political system and the means by which people get information about it. Why on earth should there be a standard base line on which all political conversation must rest?

Speaking of earth, people used to think that the earth was at the center of the universe. Other planets moved erratically with relation to ours, and that was difficult to explain. Now we know that it is the sun at the center of our solar system, and the movements of planets, stars, and galaxies have been rationalized.

Many of us occupy different political and ideological planets, some of which have similar orbits, some very different. Slowly, sometimes, we can align our orbits by inquiring and debating about the nature of humankind, what is good, and the social systems that produce the greatest good for the greatest number.

Finding out that we should have these debates is not a threat to the political system. It’s a threat to the geocentric model of the political system, in which the three major networks provided the “standard base line of fact and reporting.”

The media universe is still not splintered enough, in my opinion. But, increasingly, the conversation will more easily go wherever it is supposed to go, unhindered by the false authority of a small number of news executives.

What Was That Ronald Reagan Line Again?

Jim Harper — Thu, 26 Aug 2010 12:48:02 +0000

The Washington Post editorializes this morning on the “Google-Verizon” proposal for government regulation of the Internet:

For more than a decade, “net neutrality” — a commitment not to discriminate in the transmission of Internet content — has been a rule tacitly understood by Internet users and providers alike. But in April, a court ruled that the Federal Communications Commission has no regulatory authority over Internet service providers. For many, this put the status quo in jeopardy. Without the threat of enforcement, might service providers start shaping the flow of traffic in ways that threaten the online meritocracy, in which new and established Web sites are equally accessible and sites rise or fall on the basis of their ability to attract viewers?

What a Washington-centric view of the world, to think that net neutrality has been maintained all this time by the fear of an FCC clubbing. Deviations from net neutrality haven’t happened because neutrality is the best, most durable engineering principle for the Internet, and because neutral is the way consumers want their Internet service.

Should it be cast in stone by regulation, locking in the pro-Google-and-Verizon status quo? No. The way the Internet works should continue to evolve, experiments with non-neutrality failing one after another . . . until perhaps one comes along that serves consumers better! The FCC would be nothing but a drag on innovation and a bulwark protecting Google and Verizon’s currently happy competitive circumstances.

I’ll give the Post one thing: It represents Washington, D.C. eminently well. The Internet should be regulated because it’s not regulated.

“If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.”

The Dangers of Government-Subsidized News

Adam Thierer — Fri, 23 Oct 2009 00:24:30 +0000

We’ve talked here before about the dangers of a government-subsidized press as a way of “saving journalism.” But I don’t think I’ve ever read anything quite as eloquent on the issue as Seth Lipsky’s editorial in today’s Wall Street Journal entitled “All the News That’s Fit to Subsidize.” Mr. Lipsky is a member of the adjunct faculty at the Columbia Journalism School. In his essay today, he warns of the very real slippery slope associated with proposal to have government step in and somehow bailout newspapers as they find themselves in a time of crisis.Specifically, Mr. Lipsky addressees a new report (“The Reconstruction of American Journalism“) by Leonard Downie (former executive editor of the Washington Post) and co-author Michael Schudson (also of Columbia Journalism School), in which the authors call for a mixture of legal and regulatory changes as well as government subsidies to help prop up failing news operations.

Mr. Lipsky argues that they have “stepped onto an exceptionally slippery slope”:

I take no comfort from the analogy the authors of this report draw with government funding for the arts. In New York City, there came a time when the leaders the voters entrusted with their tax money concluded that what was being done with it in the arts was so abhorrent they tried to stop it. This happened in 1999, when Mayor Rudy Giuliani confronted the Brooklyn Museum over its display of a depiction of the Madonna that had been splattered with elephant dung. A federal court wouldn’t let the city stop funding the museum. […] Even if one could get around this sort of thing, I’ve come to the view that the real protection of press freedom is in the idea of private property. Press freedom in Soviet Russia was lost precisely on this issue when, as American journalist John Reed told the story in his famous book, “Ten Days that Shook the World,” a proposal was put on the table to restore the press freedom that had been suspended on the first day of the Bolshevik revolution. Lenin shouted it down with a diatribe about how that would mean restoring to capitalists privately owned printing equipment, paper supplies and ink. I don’t mean to suggest, in any way, that Mr. Downie is a Bolshevik. I do mean to suggest that the best strategy to strengthen the press would be to maximize protection of the right to private property—and the right to competition. Subsidies are the enemy of competition…

Amen brother. Read the whole thing.

The Washington Post Slams Net Neutrality Regulation

Berin Szoka — Mon, 28 Sep 2009 13:30:05 +0000

The Post, hardly a bastion of radical cyber-libertarianism, has come out strongly against FCC Chairman Julius Genachowski’s plans to have the FCC issue “Net Neutrality” regulations. The editorial asks the critical threshold question we crazy cyber-libertarians always insist on:

Is this intervention necessary? Mr. Genachowski claims to have seen “breaks and cracks” in the Internet that threaten to change the “fundamental architecture of openness.” He and other proponents of federal involvement cite a handful of cases they say prove that, left to their own devices, ISPs… will choke the free flow of information and technology. One example alluded to by the chairman: Comcast’s blocking an application by BitTorrent that would allow peer-to-peer video sharing. Yet that conflict was ultimately resolved by the two companies — without FCC intervention — after Comcast’s alleged bad behavior was exposed by a blogger.

Thus, the FCC oppposes pre-emptive regulation that would “prohibit ISPs from ‘discriminating against’ different applications,” noting that this would mean that “ISPs, which have poured billions of dollars into building infrastructure, would have little control — if any — over the kinds of information and technology flowing through their pipes.”

Three cheers for the Post for recognizing both the property rights of ISPs in their networks and the fact that, even with Genachowski’s “slight concession” to allow “managed services in limited circumstances… unneeded regulation could still interfere with [ISPs] ability to manage bandwidth-hogging applications that can hamper service, especially during peak times.” Instead, the Post called for simple transparency, supporting a requirement that “ISPs be candid with the agency and the public about network management practices. The last paragraph hits the ball out of the park:

Mr. Genachowski claims that the FCC “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.” He will advance this goal by insisting on transparency; he will jeopardize it — and stifle further investments by ISPs — with attempts to micromanage what has been a vibrant and well-functioning marketplace.

Amen! The Post is about as “mainstream” as it gets in American journalism, so their strong opposition really underscores that preemptive “net neutrality” regulation isn’t the popular cause some in Washington think it is. It is simply infrastructure socialism.

The Changing Face of News Media: HuffPo v. WSJ v. WashPo v. NYTimes

Berin Szoka — Tue, 22 Sep 2009 15:27:16 +0000

Google Trends for websites reveals all kinds of fascinating insights into the way technology is reshaping the world. Among them is the fact that the HuffingtonPost.com has matured from a scruffy group blog into a new media powerhouse to rival the Wall Street Journal and Washington Post:

Note that the convergence of these three sites has happened both because HuffPo has doubled its audience and because the audience for the WashingtonPost.com has shrunk by half. While WSJ.com’s audience has returned to roughly its pre-election level, the decline of NYTimes.com suggests that the Internet really is splintering audiences and bringing the giants of news media like the “Gray Lady” down from their once unassailable heights:

Cutting the (Video) Cord: Two Excellent Washington Post Articles

Adam Thierer — Sun, 17 May 2009 15:13:05 +0000

As part of our ongoing series that tracks the gradual transition of video content to the boob tube to online outlets, I want to draw everyone’s attention to two excellent articles in today’s Washington Post about this trend. One is by Paul Fahri (“Click, Change: The Traditional Tube Is Getting Squeezed Out of the Picture“) and the other by Monica Hesse (“Web Series Are Coming Into A Prime Time of Their Own“). I love the way Paul opens his piece with a look forward at how many of us will be explaining the “old days” of TV viewing to our grand kids:

S it down, kids, and let Grandpa tell you about something we used to call “watching television.” Why, back when, we had to tune to something called a “channel” to see our favorite programs. And we couldn’t take the television set with us ; we had to go see it! Ah, those were simpler times. Oh, sure, we had some technology we thought was pretty fancy then, too, like your TiVo and your cable and your satellite, which gave us a few hundred “channels” of TV at a time. Imagine that — just a few hundred! And we had to pay for it every month! Isn’t the past quaint, children? Well, it all started to change around aught-eight, or maybe ’09, for sure. That’s when you no longer needed a television to watch all the television you could ever want. Yes, I still remember it like it was yesterday . . .

Too true. Anyway, Paul goes on to document how some folks have already completely made the jump to an online-online TV existence and are doing just fine, although the idea of us all gathering around the tube to share common experiences may be a causality of the migration to smaller screens, he notes.

Monica’s piece documents the rise of independent online television shows and notes:

The shows don’t look exactly like the traditional television series we’re used to, but if you’re willing to adapt to the medium you might discover something surprising: You can become a very satisfied television addict without ever straying from your laptop. When done right, the experience can be more intimate, more creative and more personal than you ever expected.

She then discusses the growth of online series such as “The Guild,” “Gemini Division,” and “Sorority Forever,” which features the Jessica Rose (aka “Lonely Girl15“), who was instrumental in getting the online video TV series trend off the ground. Of course, the viewing numbers for online shows still pale in comparison to major network or cable shows, but that could change in the future.

Again, to reiterate a point we have made here many times before, what makes all this so interesting from a policy perspective is the way media law remain stuck in a time warp, or what I have referred to as a jurisprudential Twilight Zone: Identical words and images are being regulated in completely different ways depending on the medium of transmission. As I noted in an earlier essay in this series:

The video marketplace is changing rapidly. Meanwhile, however, back in the surreal regulatory la-la land of Washington, DC, it remains business as usual. As Brian Anderson and I point out in our new book, A Manifesto for Media Freedom, policymakers are still trying applying a host of unique regulations to “old media” providers, including: various censorship rules, educational programming mandates, special campaign finance advertising laws, must carry regs, media ownership caps, broadcast “localism” requirements and various other “public interest” obligations, and much more.

And yet, online video remains (thankfully) completely unregulated. Will that last? Or will the worst regulation of old television era gradually creep over into new video realms? That’s something I am increasingly concerned about; the dawn of what I call “convergence-era content regulation.”

Get ready. A regulatory war awaits.

Anonymity, Reader Comments & Section 230

Adam Thierer — Thu, 09 Apr 2009 12:41:12 +0000

Doug Feaver, a former Washington Post reporter and editor, has published a very interesting editorial today entitled “Listening to the Dot-Commenters.” In the piece, Feaver discusses his personal change of heart about “the anonymous, unmoderated, often appallingly inaccurate, sometimes profane, frequently off point and occasionally racist reader comments that washingtonpost.com allows to be published at the end of articles and blogs.” When he worked at the Post, he fought to keep anonymous and unmoderated comments off the WP.com site entirely because it was too difficult to pre-screen them all and “the bigger problem with The Post’s comment policy, many in the newsroom have told me, is that the comments are anonymous. Anonymity is what gives cover to racists, sexists and others to say inappropriate things without having to say who they are.”

But Feaver now believes those anonymous, unmoderated comment have value because:

I believe that it is useful to be reminded bluntly that the dark forces are out there and that it is too easy to forget that truth by imposing rules that obscure it. As Oscar Wilde wrote in a different context, “Man is least in himself when he talks in his own person. Give him a mask, and he will tell you the truth.” Too many of us like to think that we have made great progress in human relations and that little remains to be done. Unmoderated comments provide an antidote to such ridiculous conclusions. It’s not like the rest of us don’t know those words and hear them occasionally, depending on where we choose to tread, but most of us don’t want to have to confront them.

It seems a bit depressing that the best argument in favor of allowing unmoderated, anonymous comments is that it allows us to see the dark underbelly of mankind, but the good news, Feaver points out, is that:

But I am heartened by the fact that such comments do not go unchallenged by readers. In fact, comment strings are often self-correcting and provide informative exchanges. If somebody says something ridiculous, somebody else will challenge it. And there is wit.

He goes on to provide some good examples. And he also notes how unmoderated comments let readers provide their heartfelt views on the substance of sensitive issues and let journalists and editorialists know how they feel about what is being reported or how it is being reported. “We journalists need to pay attention to what our readers say, even if we don’t like it,” he argues. “There are things to learn.”

I applaud Mr. Feaver for this. This is a struggle not just for journalists at major media outlets but also for bloggers like us here at the TLF. There are times when very annoying, even hurtful things are said by anonymous commenters here at the TLF. Our policy, however, has generally been to allow a vibrant exchange of views, except in the rare circumstances where the commenter utters racial epithets or starts issuing death threats. Or, if a specific commenter goes into “stalker mode” and does nothing but post harassing, irrelevant comments all day, then those will occasionally be discarded. But, generally speaking, it’s “anything goes” here. (We even allow spam!) Each author, however, is free to decide for themselves where to draw the line, but we all generally err on the side of completely unmoderated exchange for the reasons Feaver lists. We know it is far more likely that we’ll get hostile anonymous comments rather than nice ones, but it’s good to get feedback of all varieties, even when it’s nasty.

From a policy perspective, however, this issue is taking on greater weight because some folks believe that unmoderated, anonymous user comments result in harassment, hate speech, defamation, or privacy violations. As a result, there has been a growing chorus of critics who claim something must be done to remedy this problem. Cass Sunstein and Richard Thaler, for example, have advocated a Civility Check that “can accurately tell whether the email you’re about to send is angry and caution you, “warning: this appears to be an uncivil email. do you really and truly want to send it?”” The state of Kentucky has considered legislation that would ban online anonymity, even though that would be clearly unconstitutional. Respected law school professors such as Mark Lemley and Daniel Solove have toyed with the idea of DMCA-like “notice-and-takedown” regime for potentially defamatory comments online. I once even heard Cal-Western law school professor Nancy S. Kim suggest that blogs, social networking sites, and other interactive sites should institute a “cooling off period” to address cyber-harassment. By requiring all those seeking to comment to wait a certain length of time before a message or image is posted to a website, she hoped that some commenters might choose to tone down or even remove the potentially offending messages or images.

Of course, it is more likely that readers would just choose not to comment at all if any of these proposals where enshrined into law. And that gets to the heart of what’s wrong with any potential legal response to this “problem” of online anonymous, unmoderated speech and user comments: It will massively chill free speech and expression. Sure, that would get rid of the hecklers and the jackasses who cause grief for some, but it would also deprive us of the many constructive user comments and criticisms that make the online experience — for better or worse — the most open, vibrant exchange of views ever known to man.

Finally, it goes without saying that this debate is fundamentally tied up with the future of Section 230 and the question of intermediary liability. Currently, online service providers of all flavors are generally not required to police or screen user comments or force users to be authenticated and reveal their identities before posting comments. Section. 230 has been the key to protecting intermediaries from punishing liability that would otherwise force them to severely curtail online expression, or run the risk of being driven under by the weight of endless lawsuits. This is why I have argued that Sec. 230 is “the cornerstone of ‘Internet freedom’ in its truest and best sense of the term.” But, again, all this could change if we are not vigilant in defending Sec. 230.

OK, now that I’ve made this impassioned defense of unmoderated and completly anonymous online exchange, let the hateful comments fly!

A Newspaper Columnist Who Gets It

Jim Harper — Mon, 06 Apr 2009 15:46:04 +0000

On the problems with the newspaper industry, Michael Kinsley writes in the Washington Post:

You may love the morning ritual of the paper and coffee, as I do, but do you seriously think that this deserves a subsidy? Sorry, but people who have grown up around computers find reading the news on paper just as annoying as you find reading it on a screen. (All that ink on your hands and clothes.) If your concern is grander – that if we don’t save traditional newspapers we will lose information vital to democracy – you are saying that people should get this information whether or not they want it. That’s an unattractive argument: shoving information down people’s throats in the name of democracy.

I rarely say it, but the whole thing is worth reading.

Stimulus Stupidity

Adam Thierer — Tue, 10 Feb 2009 15:15:43 +0000

Sorry, this has nothing to do with tech policy, but I just had to comment on Eugene Robinson’s latest column in the Washington Post singing the praises of an unbounded stimulus plan. For those of you not familiar with Robinson’s work, you’re really missing a treat. Eugene Robinson and his colleague Harold Meyerson compete on a weekly basis in the Post for the title of “World’s Most Rhetorically Outrageous (and Economically Illiterate) Newspaper Columnist.” It’s a heated race. These guys really know no shame. [Note my earlier essay about Meyerson’s effort to equate media reinvention efforts with terrorism!]

Anyway, in his latest column, Robinson firmly establishes himself as the new leader in this ongoing race with the following gem:

The House of Representatives loaded up the bill like a Christmas tree as powerful Democrats found room for their pet projects. This was a good thing, not an outrage. Hundreds of millions of dollars for contraceptives? To the extent that those condoms or birth-control pills are made in the United States and sold in U.S. drugstores, that spending would be stimulative in more ways than one.

Oh, wow. Just wow. Taxpayer funding for birth control as a stimulus to drugstores and domestic pill makers. By that same reasoning, “stimulating” the sale of sex toys would benefit adult bookstores and the domestic dildo industry.

Hey, why not. The more spending the better, right? Who cares if we’re bankrupting our children.

Administration Delays E-Verify for Federal Contractors

Jim Harper — Fri, 30 Jan 2009 15:23:38 +0000

The Washington Post reports that the Obama administration is delaying the Bush Administration plan to require federal contractors to use the E-Verify worker background check system.

Criticizing the move, Lamar Smith (R-TX), ranking minority member on the House Judiciary Committee says, “It is ironic that at the same time President Obama was pushing for passage of the stimulus package to help the unemployed, his Administration delayed implementation of a rule designed to protect jobs for U.S. citizens and legal workers.”

E-Verify may well have been designed or intended to protect jobs for citizens and legal workers, but that’s not at all what it would do. I wrote about it in a Cato Policy Analysis titled “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration” (a ten-year follow-on to Stephen Moore’s “A National Id System: Big Brother’s Solution to Illegal Immigration“):

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally. Deemed ineligible by a database, millions each year would go pleading to the Department of Homeland Security and the Social Security Administration for the right to work.

Even if E-Verify were workable, mission creep would lead to its use for direct federal control of many aspects of American citizens’ lives. Though it should be scrapped, the longer E-Verify is delayed the better.

Kids, Video Games, Fantasy, & Imagination

Adam Thierer — Mon, 22 Dec 2008 18:12:12 +0000

My Kid is the Man of Steel! ... in his mind.

Regular readers will recall my great interest in video games and the public policy debates surrounding efforts to regulate “violent” games in particular. One thing I bring up in almost every essay I write on this subject is how fears about kids and video games are almost always overblown and that kids can typically separate fantasy from reality. Nonetheless, kids have active imaginations and adults sometimes fear that which they cannot understand or appreciate. Friendly mentoring and open-minding parenting can go a long way to encouraging kids to make smart choices and understand where to draw lines, whereas efforts to demonize video games and youth culture almost always backfire.

Anyway, what got me thinking about all this again was an entertaining column in today’s Washington Post by Ron Stanley (“Who Needs a TV to Play Video Games“), which describes the author’s experiences with his nephew when they played out video game-like scenarios using traditional toys and household items. It’s a wonderful piece worth reading in its entirety, but here’s the key takeaway that I’d like to discuss:

There was no evidence that television and video games had stifled the kids’ creativity. Nor was there any evidence that technology had made them smarter than earlier generations. They simply had a different frame of reference, one that included video games and computers as well as ponies, pet stores and sword fights. Children play with the tools at hand, and they’re great at thinking metaphorically — at imagining that a landspeeder is a sentient robot or that a stick is a gun or that salt-and-pepper shakers are a bride and groom or that a card table is a horse’s stable. They’re also geniuses at figuring out simple mechanics. My 6-year-old nephew had to explain to me that miniature low-rider cars don’t roll very well on carpet and will flip over more than if racing on hardwood floors. Novice that I was, I was choosing cars that looked the coolest. And they are geniuses at intuiting rules and systems, and at re-creating these rules and systems in their own play. Children who play lots of card games will invent their own card games. Children who play lots of board games will invent their own board games. And children who play lots of video games will invent their own video-game-like games when they don’t have access to the game controllers.

What Stanley was discovering with his nephew is that (1) kids have rich imaginations and love play-acting and just being creative, and (2) video games have become part of the new narrative of adolescent play-acting and creativity. Kids adapt and learn to cope with new cultural and technological realities; often much quicker than their parents. More importantly, much of their play-acting, including that in which they play out “violent” scenarios, is an entirely natural part of childhood.

Henry Jenkins has done some brilliant work on this front, and the new book Grand Theft Childhood by Kutner and Olson is also essential reading in this regard [my lengthy review is here]. But the best thing every written on this subject is Killing Monsters: Why Children Need Fantasy, Super-Heroes, and Make-Believe Violence, by Gerald Jones. It is a masterpiece, and I wish every parent and policymaker in America could read it before they propose the regulation of video games. As Jones correctly notes, “Video games are most threatening to adults who have seen images of them but never tried to play them.” He continues:

One of the functions of stories and games is to help children rehearse for what they’ll be in later life. Anthropologists and psychologists who study play, however, have shown that there are many other functions as well–one of which is to enable children to pretend to be just what they know they’ll never be. Exploring, in a safe and controlled context, what is impossible or too dangerous or forbidden to them is a crucial tool in accepting the limits of reality. Playing with rage is a valuable way to reduce its power. Being evil and destructive in imagination is a vital compensation for the wildness we all have to surrender on our way to being good people.

And “playing with rage” is exactly what we old farts were doing as kids too when we played (politically incorrect) games like “Cowboys and Indians” or countless other games that involved toy guns, cap guns, slingshots, bows-and-arrows, and the like. Of course, my generation gradually traded in our BB guns and slingshots for digital equivalents as video games came on the scene. And that was probably a good thing since, as Ralphie’s mom always warned us, “You’ll shoot your eye out” with those things!)

http://www.youtube.com/v/ppOXpyhM2wA&hl=en&fs=1

Bottom line: Cultures and the nature of childhood play-acting fantasies may change, but what will never change is the fact that kids need their fantasies. This is why I get down on my knees every night with my two kids and “play monster” with them. I stuff pillows in my shirt and let them bop me good as my dog and I chase them around and try to put them in “the dungeon” (which is usually a laundry basket or cardboard box). The X-Mas season is always great because we have a ton of those left-over cardboard tubes from wrapping paper, which still make the best toy swords. The game typically ends after Dad gets tired of getting bopped and plays “dead” so that the kids can declare victory and return to their castle and go to bed. But lately we’ve been playing video games together that play out in similar ways. (Lego Star Wars and Little Big Planet are big hits in our house currently.)

In the end, it’s just a different sort of fantasy. And they need all of them to become well-functioning adults. As Judge Richard Posner argued in his tour-de-force opinion in the 2000 case of American Amusement Machine Association v. Kendrick:

“Self-defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.” … “To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.” … “People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.”

Exactly. Why can’t others see this?

Incidentally, I should mention that I just bought my son his first set of boxing gloves and a punching bag for a Christmas present. I’m going to let him beat up the bag a little to give my belly and head a rest!

George Will on Fairness Doctrine

Adam Thierer — Sun, 07 Dec 2008 18:56:56 +0000

George Will’s weekly Washington Post column focuses on the Fairness Doctrine and calls out those on the Left who would support its reinstatement:

Because liberals have been even less successful in competing with conservatives on talk radio than Detroit has been in competing with its rivals, liberals are seeking intellectual protectionism in the form of regulations that suppress ideological rivals. If liberals advertise their illiberalism by reimposing the fairness doctrine, the Supreme Court might revisit its 1969 ruling that the fairness doctrine is constitutional. The court probably would dismay reactionary liberals by reversing that decision on the ground that the world has changed vastly, pertinently and for the better.

Mr. Will was kind enough to cite my new book with Brian Anderson, A Manifesto for Media Freedom [more info here] on the explosion of media outlets and options since the Supreme Court’s disastrous 1969 Red Lion decision, which blessed the Fairness Doctrine. Some of those stats: today there are about 14,000 radio stations, twice as many as in 1969; 18.9 million subscribers to satellite radio, up 17 percent in 12 months; and that 86 percent of households with either cable or satellite television receive an average of 102 of the 500 available channels.

No need to be putting the “Unfairness Doctrine” back on the books with unprecedented abundance like that.

My debate with USA Today about new study on media & kids

Adam Thierer — Thu, 04 Dec 2008 15:59:26 +0000

Today’s USA Today features a debate between the editors and me on the question of the impact media has on children and what should be done about it. Their editorial argues that “Today’s mass media penetrate deeply and quietly, inflicting real damage on young children, an increasing body of research shows.” Specifically, they are referring to a new study commissioned by Common Sense Media (CSM), which claims that a review of 173 studies shows “that a strong correlation exists between greater exposure and adverse health outcomes.”

In my response entitled “Don’t Scapegoat Media,” which appears in its entirety down below the fold, I argue that “Media have long been a convenient scapegoat for the woes of the world,” and that we must be careful not to assume correlation equals causation when surveying the impact of media on kids. After all, I argue, “how do [those studies] account for the other variables that influence youth development, including broken homes, bad parents, socioeconomic status, troubled peer relations, poor schools and so on? And how is media exposure weighted relative to these other influences? Is a beer ad really as much of a negative influence as an alcoholic parent?” Again, read my entire response below. [Of course, even if one assumes some media has an impact on some kids, there are plenty of ways for parents and guardians to take control over the media in their lives, as I have shown in my big book on the subject.]

I was also quoted in this Washington Post article about the new CSM study on Tuesday.

Don’t Scapegoat Media by Adam Thierer 12/4/08

USA Today

Media have long been a convenient scapegoat for the woes of the world. In particular, fears about the influence media might have on our children have often prompted calls for “crackdowns” on speech and expression.

Typically, these fears fade as one generation’s media boogeyman becomes another’s treasured art form. That’s not to say media don’t have an impact on some children. Clearly, media are among many factors that influence culture and behavior.

But what about those other influences? Some studies summarized in the new Common Sense Media (CSM) report suggest a potential link between media exposure and certain social pathologies. But how do they account for the other variables that influence youth development, including broken homes, bad parents, socioeconomic status, troubled peer relations, poor schools and so on? And how is media exposure weighted relative to these other influences? Is a beer ad really as much of a negative influence as an alcoholic parent?

That’s why it’s important to recall a fundamental tenet of all social sciences: Correlation does not necessarily equal causation. Human behavior is complicated and quite difficult to measure “scientifically.” Just defining “media exposure” and “negative health outcomes” is tricky enough; identifying root causes is even more challenging.

The sky hasn’t fallen the way some media critics feared. While childhood obesity is a growing problem, it’s important not to lose sight of the impressive gains we’ve made in other areas, such as falling juvenile violence, teen pregnancy, and youth drug and alcohol abuse. Moreover, even if some media negatively influence some children, that must be balanced against the many ways media inspire and empower.

The authors of the CSM survey are to be commended, however, for avoiding regulatory recommendations and instead focusing on the sensible steps parents, schools, industry and government can take to educate kids and empower families to take control over the media in their lives. More information, increased media options and better mentoring of our children are the prudent approaches.