Adam Thierer's Blog, page 146

Cracked.com Down on Techno-Panics

Via TechDirt, "The news media always need a bogeyman," says Cracked.com in their well-placed attack on techno-panics, "5 Terrifying Online Trends (Invented By the News Media)." It's a popular topic here, too.

"Non-Commercial Media" = Fine; "Public Media" = Not So Much

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 (WMAU) 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 it's 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.

Jenkins on Regulatory Capture & Its Impact on Progress

I absolutely loved this quote about the dangers of regulatory capture from Holman Jenkins in today's Wall Street Journal in a story ("Let's Restart the Green Revolution") about how misguided agricultural / environmental policies are hurting consumers:

When some hear the word "regulation," they imagine government rushing to the defense of consumers. In the real world, government serves up regulation to those who ask for it, which usually means organized interests seeking to block a competitive threat. This insight, by the way, originated with the left, with historians who went back and reconstructed how railroads in the U.S. concocted federal regulation to protect themselves from price competition. We should also notice that an astonishingly large part of the world has experienced an astonishing degree of stagnation for an astonishingly long time for exactly such reasons.

I've just added it to my growing compendium of notable quotations about regulatory capture.  It's essential that we not ignore how — despite the very best of intentions –  regulation often has unintended and profoundly anti-consumer / anti-innovation consequences.

The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters

This is the second of two essays making "The Case for Internet Optimism." This essay was included in the book, The Next Digital Decade: Essays on the Future of the Internet (2011), which was edited by Berin Szoka and Adam Marcus of TechFreedom. In my previous essay, which I discussed here yesterday, I examined the first variant of Internet pessimism: "Net Skeptics," who are pessimistic about the Internet improving the lot of mankind. In this second essay, I take on a very different breed of Net pessimists:  "Net Lovers" who, though they embrace the Net and digital technologies, argue that they are "dying" due to a lack of sufficient care or collective oversight.  In particular, they fear that the "open" Internet and "generative" digital systems are giving way to closed, proprietary systems, typically run by villainous corporations out to erect walled gardens and quash our digital liberties.  Thus, they are pessimistic about the long-term survival of the Internet that we currently know and love.

Leading exponents of this theory include noted cyberlaw scholars Lawrence Lessig, Jonathan Zittrain, and Tim Wu.  I argue that these scholars tend to significantly overstate the severity of this problem (the supposed decline of openness or generativity, that is) and seem to have very little faith in the ability of such systems to win out in a free market. Moreover, there's nothing wrong with a hybrid world in which some "closed" devices and platforms remain (or even thrive) alongside "open" ones. Importantly, "openness" is a highly subjective term, and a constantly evolving one.  And many "open" systems or devices are as perfectly open as these advocates suggest.

Finally, I argue that it's likely that the "openness" advocated by these advocates will devolve into expanded government control of cyberspace and digital systems than that unregulated systems will become subject to "perfect control" by the private sector, as they fear.  Indeed, the implicit message in the work of all these hyper-pessimistic critics is that markets must be steered in a more sensible direction by those technocratic philosopher kings (although the details of their blueprint for digital salvation are often scarce).   Thus, I conclude that the dour, depressing "the-Net-is-about-to-die" fear that seems to fuel this worldview is almost completely unfounded and should be rejected before serious damage is done to the evolutionary Internet through misguided government action.

I've embedded the entire essay down below in Scribd reader, but it can also be found on TechFreedom's Next Digital Decade book website and SSRN.

The Case for Internet Optimism Part 2 – Saving the Net From Its Supporters (Adam Thierer)

Joseph Reagle on the culture of Wikipedia

On this week's podcast, Joseph Reagle, a fellow at Harvard's Berkman Center for Internet and Society, discusses his recent book, Good Faith Collaboration: The Culture of Wikipedia. Reagle talks about early attempts to create online encyclopedias, the happy accident that preceded Wikipedia, and challenges that the venture has overcome. He also discusses the average Wikipedian, minority and gender gaps in contributors, Wikipedia's three norms that allow for its success, and co-founder Jimmy Wales' role with the organization.

Related Links


"Good Faith Collaboration: How Wikipedia works", Boing Boing
"Define Gender Gap? Look Up Wikipedia's Contributor List", The New York Times
"In Rancorous Times, Can Wikipedia Show Us How to All Get Along?", The Atlantic
Wikipedia article on Good Faith Collaboration

To keep the conversation around this episode in one place, we'd like to ask you to comment at the web page for this episode on Surprisingly Free. Also, why not subscribe to the podcast on iTunes?

The Case for Internet Optimism, Part 1: Saving the Net From Its Detractors

Here's the first of two essays I've recently penned making "The Case for Internet Optimism." This essay was included in the book, The Next Digital Decade: Essays on the Future of the Internet (2011), which was edited by Berin Szoka and Adam Marcus of TechFreedom.  In these essays, I identify two schools of Internet pessimism: (1) "Net Skeptics," who are pessimistic about the Internet improving the lot of mankind; and (2) "Net Lovers," who appreciate the benefits the Net brings society but who fear those benefits are disappearing, or that the Net or openness are dying.  (Regular readers of this blog will be familiar with these themes since I sketched them out in previous essays here such as, "Are You an Internet Optimist or Pessimist?" and "Two Schools of Internet Pessimism.")

This essay focuses on the first variant of Internet pessimism, which is rooted in general skepticism about the supposed benefits of cyberspace, digital technologies, and information abundance. The proponents of this pessimistic view often wax nostalgic about some supposed "good 'ol days" when life was much better (although they can't seem to agree when those were). At a minimum, they want us to slow down and think twice about life in the Information Age and how it's personally affecting each of us.  Occasionally, however, this pessimism borders on neo-Ludditism, with some proponents recommending steps to curtail what they feel is the destructive impact of the Net or digital technologies on culture or the economy.  I identify the leading exponents of this view of Internet pessimism and their major works. I trace their technological pessimism back to Plato but argue that their pessimism is largely unwarranted. Humans are more resilient than pessimists care to admit and we learn how to adapt to technological change and assimilate new tools into our lives over time. Moreover, were we really better off in the scarcity era when we were collectively suffering from information poverty?  Generally speaking, despite the challenges it presents society, information abundance is a better dilemma to be facing than information poverty.  Nonetheless, I argue, we should not underestimate or belittle the disruptive impacts associated with the Information Revolution.  But we need to find ways to better cope with turbulent change in a dynamist fashion instead of attempting to roll back the clock on progress or recapture "the good 'ol days," which actually weren't all that good.

Down below, I have embedded the entire chapter in a Scribd reader, but the essay can also be found on the TechFreedom website for the book as well as on SSRN.  I have also includes two updated tables that appeared in my old "optimists vs. pessimists" essay.  The first lists some of the leading Internet optimists and pessimists and their books. The second table outlines some of the major lines of disagreement between these two camps and I divided those disagreements into (1) Cultural / Social beliefs vs. (2) Economic / Business beliefs.

The Case for Internet Optimism Part 1 – Saving the Net From Its Detractors (Adam Thierer)

______

Theuthian Technophiles
( "The Internet Optimists")

Thamusian Technophobes
( "The Internet Pessimists")

Nicholas Negroponte, Being Digital (1995)
Kevin Kelly, Out of Control: The New Biology of Machines, Social Systems, and the Economic World (1995)
Virginia Postrel, The Future and Its Enemies (1998)
James Surowiecki, The Wisdom of Crowds (2004)
Chris Anderson, The Long Tail: Why the Future of Business is Selling Less of More (2006)
Steven Johnson, Everything Bad is Good For You (2006)
Glenn Reynolds, An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths (2006)
Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006)
Clay Shirky, Here Comes Everybody: The Power of Organizing without Organizations (2008)
Don Tapscott & Anthony D. Williams, Wikinomics:
How Mass Collaboration Changes Everything (2008)
Jeff Howe, Crowdsourcing: Why the Power of the Crowd Is Driving the Future of Business (2008)
Tyler Cowen, Create Your Own Economy: The Path to Prosperity in a Disordered World (2009)
Dennis Baron, A Better Pencil: Readers, Writers, and the Digital Revolution (2009)
Jeff Jarvis, What Would Google Do ? (2009)
Clay Shirky, Cognitive Surplus: Creativity and Generosity in a Connected Age (2010)
Nick Bilton, I Live in the Future & Here's How It Works (2010)
Kevin Kelly, What Technology Wants (2010)




Neil Postman, Technopoly: The Surrender of Culture to Technology (1993)
Sven Birkerts, The Gutenberg Elegies: The Fate of Reading in an Electronic Age (1994)
Clifford Stoll, High-Tech Heretic: Reflections of a Computer Contrarian (1999)
Cass Sunstein, Republic.com (2001)
Todd Gitlin, Media Unlimited: How the Torment of Images and Sounds Overwhelms Our Lives (2002)
Todd Oppenheimer, The Flickering Mind: Saving Education from the False Promise of Technology (2003)
Andrew Keen, The Cult of the Amateur: How Today's Internet is Killing our Culture (2007)
Steve Talbott, Devices of the Soul:
Battling for Our Selves in an Age of Machines‎ (2007)
Nick Carr, The Big Switch: Rewiring the World, from Edison to Google (2008)
Lee Siegel, Against the Machine: Being Human in the Age of the Electronic Mob (2008)
Mark Bauerlein, The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (2008)
Mark Helprin, Digital Barbarism: A Writer's Manifesto (2009)
Maggie Jackson, Distracted: The Erosion of Attention and the Coming Dark Age (2009)
John Freeman, The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox (2009)
Jaron Lanier, You Are Not a Gadget (2010)
Nick Carr, The Shallows: What the Internet Is Doing to Our Brains (2010)
William Powers, Hamlet's BlackBerry: A Practical Philosophy for Building a Good Life in the Digital Age (2010)

Optimists

Pessimists

Cultural / Social beliefs

Net is participatory
Net is polarizing


Net facilitates personalization (welcome of "Daily Me" that digital tech allows)
Net facilitates fragmentation (fear of the "Daily Me")


"a global village"
balkanization and fears of "mob rule"


heterogeneity / encourages diversity of thought and expression
homogeneity / Net leads to close-mindedness


allows self-actualization
diminishes personhood


Net a tool of liberation & empowerment
Net a tool of frequent misuse & abuse


Net can help educate the masses
dumbs down the masses


anonymous communication encourages vibrant debate + whistleblowing (a net good)
anonymity debases culture & leads to lack of accountability


welcome information abundance; believe it will create new opportunities for learning
concern about information overload; esp. impact on learning & reading






Economic / Business beliefs


benefits of "Free" (increasing importance of "gift economy")
costs of "Free" ("free" = threat to quality & business models)


mass collaboration is generally more important
individual effort is generally more important


embrace of "amateur" creativity
superiority of "professionalism"


stress importance of "open systems" of production
stress importance of "proprietary" models of production


"wiki" model = wisdom of crowds; benefits of crowdsourcing
"wiki" model = stupidity of crowds; collective intelligence is oxymoron; + "sharecropper" concern about exploitation of free labor

Theuthian Technophiles
( "The Internet Optimists")

Thamusian Technophobes
( "The Internet Pessimists")

· Nicholas Negroponte, Being Digital (1995)

· Kevin Kelly, Out of Control: The New Biology of Machines, Social Systems, and the Economic World (1995)

· Virginia Postrel, The Future and Its Enemies (1998)

· James Surowiecki, The Wisdom of Crowds (2004)

· Chris Anderson, The Long Tail: Why the Future of Business is Selling Less of More (2006)

· Steven Johnson, Everything Bad is Good For You (2006)

· Glenn Reynolds, An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths (2006)

· Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006)

· Clay Shirky, Here Comes Everybody: The Power of Organizing without Organizations (2008)

· Don Tapscott & Anthony D. Williams, Wikinomics:
How Mass Collaboration Changes Everything (2008)

· Jeff Howe, Crowdsourcing: Why the Power of the Crowd Is Driving the Future of Business (2008)

· Tyler Cowen, Create Your Own Economy: The Path to Prosperity in a Disordered World (2009)

· Dennis Baron, A Better Pencil: Readers, Writers, and the Digital Revolution (2009)

· Jeff Jarvis, What Would Google Do? (2009)

· Clay Shirky, Cognitive Surplus: Creativity and Generosity in a Connected Age (2010)

· Nick Bilton, I Live in the Future & Here's How It Works (2010)

· Kevin Kelly, What Technology Wants (2010)

· Neil Postman, Technopoly: The Surrender of Culture to Technology (1993)

· Sven Birkerts, The Gutenberg Elegies: The Fate of Reading in an Electronic Age (1994)

· Clifford Stoll, High-Tech Heretic: Reflections of a Computer Contrarian (1999)

· Cass Sunstein, Republic.com (2001)

· Todd Gitlin, Media Unlimited: How the Torment of Images and Sounds Overwhelms Our Lives (2002)

· Todd Oppenheimer, The Flickering Mind: Saving Education from the False Promise of Technology (2003)

· Andrew Keen, The Cult of the Amateur: How Today's Internet is Killing our Culture (2007)

· Steve Talbott, Devices of the Soul:
Battling for Our Selves in an Age of Machines‎ (2007)

· Nick Carr, The Big Switch: Rewiring the World, from Edison to Google (2008)

· Lee Siegel, Against the Machine: Being Human in the Age of the Electronic Mob (2008)

· Mark Bauerlein, The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (2008)

· Mark Helprin, Digital Barbarism: A Writer's Manifesto (2009)

· Maggie Jackson, Distracted: The Erosion of Attention and the Coming Dark Age (2009)

· John Freeman, The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox (2009)

· Jaron Lanier, You Are Not a Gadget (2010)

· Nick Carr, The Shallows: What the Internet Is Doing to Our Brains (2010)

· William Powers, Hamlet's BlackBerry: A Practical Philosophy for Building a Good Life in the Digital Age (2010)

Doing Nothing to Save the Internet

My essay last week for Slate.com (the title I proposed is above, but it must have been too "punny" for the editors) generated a lot of feedback, for which I'm always grateful, even when it's hostile and ad hominem.  Which much of it was.

The piece argues generally that when it comes to the Internet, a disruptive technology if ever there was one, the best course of action for traditional, terrestrial governments intent on "saving" or otherwise regulating digital life is to try as much as possible to restrain themselves.  Or as they say to new interns in the operating room, "Don't just do something.  Stand there."

This is not an argument in favor of anarchy, or even more generally for social Darwinism.  I have something much more practical in mind.  Disruptive technologies, by definition, do not operate within the "normal science" of those areas of life they impact. Its problems can't be solved by reference to existing systems and institutions. In the case of the Internet, that's pretty much all aspects of life, including regulation.

By design, modern democratic government is deliberative, incremental, and slow to change.  That is an appropriate model for regulating traditional areas including property, torts, criminal procedure, civil rights and business law.    But when applied to a new ecosystem—to a new frontier, as I suggest in the piece—that model doesn't work.

Digital life is changing much faster than traditional regulators can hope to keep up with.  It isn't just an interesting business use of information anymore, it's a social phenomenon, one that has gone far beyond companies finding more effective ways to share data.  It's also, increasingly, a global phenomenon, a poor match for local and even national lawmaking.

Digital life moves at the speed of Moore's Law, and that is the source of its true regulation.  The Internet—acting through its engineers, its users, and its enterprises–governs itself and, while far from perfect, certainly seems to be doing a better job than traditional governments in their traditional venues, let alone online.

The piece gives a short quote from Frederick Jackson Turner, the groundbreaking historian of the American West.  The full quote gives additional context to my frontier analogy:

The policy of the United States in dealing with its land is in sharp contrast with the European system of scientific administration.  Efforts to make this domain a source of revenue, and to withhold it from emigrants in order that settlement might be compact, were in vain.  The jealousy and fears of the East were powerless in the face of the demands of the frontiersman.  John Quincy Adams was obliged to confess:  "My own system of administration, which was to make the national domain the inexhaustible fund for progressive and unceasing internal improvement, has failed."  The reason is obvious:  a system of administration was not what the West demanded:  it wanted land.

A few key points from this passage are worth highlighting:

1.      Parochialism – Traditional governments attempting to regulate new and disruptive technologies rarely have the best interests of the users in mind.  Instead, they try to exploit the new ecosystem, at best, as a stalking horse for regulation they could get away with in traditional contexts but hope to foist off on the more poorly-organized inhabitants of the frontier.  At worst, governments captured by the vested interests most threatened by the disruption of the new technology attempt to slow down the pace of change, to preserve the interests of those in the process of being upended.

That's in part why, despite increasingly desperate efforts by the East to impose its regulatory will on the West, those efforts failed.  The East was interested in exploiting western lands for their own benefit, not optimizing the West's potential to create a new kind of society and economic system.  The East was working against the momentum of transformation.  It understood little of how frontier life was evolving, and its laws couldn't keep up with the pace of change even if they were enforceable, which they weren't.  Nor should they have been.

One need only look to one of the first U.S. efforts to regulate the Internet for an example of the first kind of lawmaking.  The Communications Decency Act, passed in 1996 and signed by President Clinton, banned classes of content on the Internet that were perfectly legal in the U.S. in any other media.  (Similar bans have been enacted, often with more bite or more focused morality, in other counties, including Thailand, Pakistan, China, the E.U., and others.)

That law, and subsequent efforts to impose an antediluvian morality on U.S. Internet users, was summarily tossed out by the U.S. Supreme Court as a facial violation of the First Amendment.  Its passage inspired John Perry Barlow to issue his famous "Declaration of the Independence of Cyberspace," which pointed out correctly that traditional governments have anything but the best interests of this new environment in mind when they put pen to paper.

As an example of regulation to protect vested (and obsoleting) interests, consider the 1998 Digital Millennium Copyright Act, in which content owners unwilling or unable to adapt to the new physics of digital distribution, convinced their lawmakers to impose brutally restrictive new limits on digital technologies.  They bought themselves far greater protection from reverse engineering, fair use, and the First Sale doctrine than they had achieved in the real world.

Whether those protections are enforceable, or whether they used the time it bought them to get ready for a more orderly transition to digital life, remain to be seen.  But the prospects are predictably poor.  Just ask Pope Urban VIII, who banned Galileo's insistence that the Earth revolved around the Sun.  No matter how long Galileo stayed in prison, the orbits didn't change.

Indeed, it's hard without doing an exhaustive survey to think of a single piece of traditional law aimed at helping or saving the Internet that wasn't at best naïve and at worse intentionally harmful–including laws that grant law enforcement more powers online than they have in their native territory.  That's why I'm surprised when some of my fellow frontiersman short-sightedly rush back to Washington at the first sign of trouble with Native populations, or with saloon-keepers, or with the railroads, or with any other participant in the ecosystem who isn't living up to their standards.  They should know that it's both dangerous, and pointless, to do so.

2.      Impotence – In some sense, in other words, it doesn't matter whether terrestrial governments regulate or not.  We have ample evidence – file-sharing, spam, political dissent, porn, gambling–that even those activities that have been banned go on without much regard for the legal consequences.  The government of Egypt (and Burma, and Pakistan, and China) can shut down Internet access for a short or for a long period of time.  But the disruption in service is a mere blink in the eye in Internet time.  Let's see who wins the stand-off that ensues, and how quickly the Law of Disruption takes hold.  Bets gladly accepted here.

As Barlow wrote in his Declaration, "You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear."  Put another way, in nearly every conflict between Moore's Law and traditional law, Moore's Law wins.  Digital life will make its own "social contract" whether traditional governments give it permission to or not.

3.      Reverse engineering government – To repeat, the absence or ineffectiveness of traditional regulators in digital life does not translate to anarchy and chaos.  There is a social contract to online life, and it will be followed by more organized and organic forms of governance.  As I wrote in the piece, "the posse and the hanging tree gave way to local sheriffs and circuit-riding judges."

That does not mean, however, that over time the old forms of government and regulation will finally win the battle and establish their norms on digital life.  Quite the opposite.  What has been and will continue to develop are forms of online governance that are suited to the unique environmental properties of digital life.

For now, we can already see that the new institutions will be more democratic–more directly democratic—for better and for worse.  (As Madison said, "If every Athenian had been a Solon, every Greek Assembly would still have been a mob.")  Watch how the users of Facebook, Twitter, YouTube, World of Warcraft, iTunes, and Android respond to efforts by the sovereigns of these domains to dictate the terms of the social contract, and you'll see how the new social contract is being worked out.

There's more.  Turner points out that the organic forms of governance that emerged from the American West didn't simply create a new form of frontier law.  It created American law.  Once the global inhabitants of digital life work out their rules and enforcement mechanisms, in other words, they are unlikely to settle for a system any less efficient back on terra firma.  Turner writes, "Steadily, the frontier of settlement advanced and carried with it individualism, democracy, and nationalism, and powerfully affected the East and the Old World."

Who will impose their collective will on whom, and which form of government will become obsolete?  Again, anyone care to place a wager?

This is starting to sound like the outline of something much longer.  So I'll stop there.

The New York Times' Glib Call for Internet and Software Regulation

You have to read all the way to the end to get exactly what the New York Times is getting at in its Sunday editorial, "Netizens Gain Some Privacy."

Congress should require all advertising and tracking companies to offer consumers the choice of whether they want to be followed online to receive tailored ads, and make that option easily chosen on every browser.

That means Congress—or the federal agency it punts to—would tell authors of Internet browsing software how they are allowed to do their jobs. Companies producing browser software that didn't conform to federal standards would be violating the law.

In addition, any Web site that tailored ads to their users' interests, or the networks that now generally provide that service, would be subject to federal regulation and enforcement that would of necessity involve investigation of the data they collect and what they do with it.

Along with existing browser capabilities (Tools > Options > Privacy tab > cookie settings), forthcoming amendments to browsers will give users more control over the information they share with the sites they visit. That exercise of control is the ultimate do-not-track. It's far preferable to the New York Times' idea, which has the Web user issuing a request not to be tracked and wondering whether government regulators can produce obedience.

[I got enough push-back to a recent post arguing the existence of market nimbleness in the browser area that I'm unsure of the thesis I expressed there. The better explanation of what's going on may be that regulatory pressure is moving browser authors and others to meet the peculiar demands of the pro-regulatory community. The reason they have waited to act until now is because they do not perceive consumers' interests to be met by protections against tailored advertising. The question of what meets consumers' interests won't be answered if regulation supplants markets, of course.]

Digital Sensors, Darknets, Hyper-Transparency & the Future of Privacy

A headline in the USA Today earlier this week screamed, "Hello, Big Brother: Digital Sensors Are Watching Us."  It opens with an all too typical techno-panic tone, replete with tales of impending doom:

Odds are you will be monitored today — many times over. Surveillance cameras at airports, subways, banks and other public venues are not the only devices tracking you. Inexpensive, ever-watchful digital sensors are now ubiquitous.
They are in laptop webcams, video-game motion sensors, smartphone cameras, utility meters, passports and employee ID cards. Step out your front door and you could be captured in a high-resolution photograph taken from the air or street by Google or Microsoft, as they update their respective mapping services. Drive down a city thoroughfare, cross a toll bridge, or park at certain shopping malls and your license plate will be recorded and time-stamped.

Several developments have converged to push the monitoring of human activity far beyond what George Orwell imagined. Low-cost digital cameras, motion sensors and biometric readers are proliferating just as the cost of storing digital data is decreasing. The result: the explosion of sensor data collection and storage.

Oh my God! Dust off you copies of the Unabomber Manifesto and run for your shack in the hills!

No, wait, don't. Let's instead step back, take a deep breath and think about this. As the article goes on to note, there will certainly be many benefits to our increasing "sensor society."  Advertising and retail activity will become more personalized and offer consumers more customized good and services.  I wrote about that here at greater length in my essay on "Smart-Sign Technology: Retail Marketing Gets Sophisticated, But Will Regulation Kill It First?"  More importantly, ubiquitous digital sensors and data collection/storage will also increase our knowledge of the world around us exponentially and do wonders for scientific, environmental, and medical research.

But that won't soothe the fears of those who fear the loss of their privacy and the rise of a surveillance society in which our every move is watched or tracked. So, let's talk about what those of you who feel that way want to do about it.

The Challenge of Information Control

The USA Today quotes some people I know fairly well and have great respect for (Lee Tien, Chris Wolf, & Ryan Calo) raising various concerns but not really offering any specific recommendations. I suspect that it's only a matter of time before we hear calls for regulation — even bans — of digital sensor / surveillance technologies.  On the other hand, things might unfold the way they did when RFID chips/tags came on the scene.  There was a lot of hysteria then, but things died down and — unless I missed something — no major restrictions on their use were instituted and RFID is in widespread use today.

But the "creepiness" or intrusiveness factor gets ratcheted up a bit with next-gen digital sensor technology, especially because they have become highly decentralized and dirt cheap. Practically every teenager is walking around with a powerful digital "sensor" or surveillance technology in the pocket today.  It's called their phone.  Except they rarely use it to make calls.  They do, however, use it to record audio and video of themselves and the world around them and instantaneously share it will the planet. They also use geolocation technologies to pinpoint the movement of themselves and others in real time.

Meanwhile, new translation tools and biometric technologies are becoming widely available to average folk. Those of you who have played with Google Goggles on your smartphone know what I am talking about. Incredibly cool stuff, but you can see where it is heading. In a couple of years, we'll have biometric buttons on our shirts feeding live streams of our daily movements and interactions into social networking sites and databases. We'll use them to record our days and play them back later, or perhaps to just instantly scan and recognize faces and places in case we can't remember them using our noggins. As a result, mountains of intimate data we be created, collected, collated, and cataloged on a daily basis. 

And there isn't much we can do to stop this. As I noted in my essays on "Privacy as an Information Control Regime: The Challenges Ahead, and "The IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars," today's information control efforts are greatly complicated by problems associated with (1) convergence, (2) scale, (3) volume, and (4) unprecedented individual empowerment / user-generation of content.  Thus, for better or worse, the information genies — porn, hate speech, spam, state secrets, pirated content, personal information, etc. – are out of their bottles and getting them back in will be an enormous challenge.

Darknet & the Decline of Practical Obscurity

In the context of personal privacy, the net result of all of this — to quote Jim Harper's excellent 2006 book Identity Crisis — is the "decline of practical obscurity."  "As practical obscurity declines," Harper notes, "it becomes more likely that large quantities of data center on identified individuals  will be collected and more likely that it will be shared and used. With large collections if data highly correlated to precise identities, he consequences of being identified are changing." (p. 163)  Harper rightly notes that may not be all bad. Again, there will be many benefits associated with this. But many others — especially those who are privacy fundamentalists and would have privacy trump most other values — won't want to hear about possible benefits or trade-offs. It's pretty much all bad from their perspective.

So, let's get back to what we want to do about all this. Is "creepiness" enough of a harm to call in the code cops to undo progress?  If so, can we roll back the clock or put this particular technology back in the bottle?  I suppose that, with enough effort, we could.  But I can't help but think about all the "darknet"-related critiques I've heard over the past decade about the futility of efforts to protect intellectual property or use DRM to secure IP against widespread dissemination. As I noted in my essay on "Two Paradoxes of Privacy Regulation," many of these arguments have been set forth by the same people who now tell us they want to try to bottle up information in this context by "property-tizing" personal information.

But if the darknet critique holds for flows of copyrighted information, why would it not also hold for personal information?  Perhaps there is less incentive to push out personal information across the planet as aggressively as intellectual property, but that doesn't mean there is no incentive to do so.  Many people will do it voluntarily each and every day when they put the most intimate details (and pictures / videos) of their lives online.  And, as they darknet critique informs us, once the information is out, it's pretty much game over.

This is one reason why I've been mildly entertained by what some privacy regulatory advocates have said recently about "Do Not Track" regulation being able to stop or slow the technological arms race in the privacy arena.  "The header-based Do Not Track system appeals because it calls for an armistice in the arms race of online tracking," says Rainey Reitman of EFF.  And the always provocative regulatory agitator Chris Soghoian argues that "opt out mechanisms… [could] finally free us from this cycle of arms races, in which advertising networks innovate around the latest browser privacy control."  These guys should know better. There is no way in hell that Do Not Track would slow the technological "arms race" in this arena. If anything, a Do Not Track mandate will speed up that arms race and potentially just shift attention toward the development of Deep Packet Inspection (DPI) technologies or other, more invasive, forms of tracking.

I suppose they would argue that we'll turn our attention to those technological developments as they happen, but that would make my point. There will be technological and marketplace responses to efforts to freeze current market structures, norms, and technologies in place. Again, for better or worse, progress happens.  It's just that privacy advocates aren't particularly fond of the consequences of technological progress in this regard and want to put a stop to it.  But they will fail.

Hyper-Transparency

At this point, some savvy readers might suspect I have fallen under the spell of David Brin and the vision he set forth in his 1997 book, The Transparent Society. There's some truth to that, at least as it pertains to the empirical side of his argument. For those who forget his provocative thesis, Brin argued that:

While new surveillance and data technologies pose vexing challenges, we may be wise to pause and recall what worked for us so far. Reciprocal accountability — a widely shared power to shine light, even on the mighty — is the unsung marvel of our age, empowering even eccentrics and minorities to enforce their own freedom. Shall we scrap civilization's best tool – light — in favor of a fad of secrecy?
Across the political spectrum, a "Strong Privacy" movement claims that liberty and personal privacy are best defended by anonymity and encryption, or else by ornate laws restricting what groups or individuals may be allowed to know. This approach may seem appealing, but there are no historical examples of it ever having worked.  Strong Privacy bears a severe burden of proof when they claim that a world of secrets will protect freedom… even privacy… better than what has worked for us so far — general openness.
Indeed, it's a burden of proof that can sometimes be met! Certainly there are circumstances when/where secrecy is the only recourse… in concealing the location of shelters for battered wives, for instance, or in fiercely defending psychiatric records. These examples stand at one end of a sliding scale whose principal measure is the amount of harm that a piece of information might plausibly do, if released in an unfair manner. At the other end of the scale, new technologies seem to require changes in our definition of privacy. What salad dressing you use may be as widely known as what color sweater you wear on the street… and just as harmlessly boring.
The important thing to remember is that anyone who claims a right to keep something secret is also claiming a right to deny knowledge to others. There is an inherent conflict! Some kind of criterion must be used to adjudicate this tradeoff and most sensible people seem to agree that this criterion should be real or plausible harm… not simply whether or not somebody likes to keep personal data secret.

As a normative matter, I'm not entirely in league with Brin, but I do think he makes a very powerful case for transparency and openness trumping privacy and secrecy. (And isn't it a delicious irony of information policy debates that the same crowd that is typically hammering on policymakers about the need for greater "openness" and transparency in all other matters suddenly wants to the opposite when our personal information is brought into the discussion?!)

But where I am entirely in agreement with Brin is with his empirical or practical case for understanding and, to some extent, accepting the world around us.  I wouldn't necessarily label it the snarky "privacy is dead, just get over it," but I would think it fair to call this philosophy "privacy is changing, and we need to learn how to live with it."

Thinking about Concrete Harms & Targeted Solutions to Them

To be clear, I'm not against all forms of "privacy" law or regulation.  When it comes to government surveillance, I think we need more limitations on the State and the ability of public officials to access certain types of information, or act upon it. The key point here is that the solution to State surveillance concerns should not be bans on the technology. We instead need to shackle State actors and tightly delimit their power over our lives—such as by tightening up the Electronic Communications Privacy Act, as the Digital Due Process Coalition proposes, and by creating new protections for locational data, as Sen. Wyden has recently proposed.  And we should do so because the State possesses uniquely coercive powers over our lives and our property.

For privately aggregated data, it's more complicated. I continue to think we can live with most forms of private data collection and aggregation since there are great benefits for society.  Most of the time, companies are just trying to sell us a more relevant product.  It's hard for me to see the harm in that.  But there will be certain categories of personal information that will eventually need to be carved out of the mix.  I think health and financial information are the two primary categories in this case. It doesn't mean we should take extreme steps to limit all data flows associated with them, but we will likely need to take some steps.  And most countries, including the U.S., already have targeted laws dealing with those two categories of personal information.  In this sense, I look at privacy regulation in much the same way I look at censorship.  The general default should be that openness and information sharing are permissible. But in some extreme cases — think child pornography — most of us can agree that the harm is quite tangible and significant enough to warrant repression of that information / content.

These are challenging issues and this is fertile ground for further academic investigation.  I think that we are only beginning to explore and understand the mechanics of information control regimes. As we continue that exploration, especially as we look to significantly broaden regulation of personal information flows, here are some questions for scholars to consider and debate:

In the context of privacy and personal information, how far should law go to roll back digital progress or try to put the genie back in the bottle?
Does the "darknet" theory have ramifications for the privacy debate?
Can or should we have similar information control regimes for privacy, content control, defamation, intellectual property, cybersecurity, etc, or should each problem be treated/regulated differently?
If, however, we adopt differing regulatory regimes for different classes of information, won't the most restrictive regime become a model for the others?
Finally, instead of attempting to stifle all information flows or block new technologies that facilitate information sharing, are we better off — as Brin suggests — channeling our energy in to increasing transparency across the board so that those who hold information about us are forced to reveal what they have or know?  Of course, that will lead some to suggest — as many privacy advocates do today — that we should be given more control over the uses of that information once it is in the wild.  Again, what I am assuming here is that that is increasingly an exercise in futility.

Are we doomed by The Great Stagnation?

Have we technophiles utterly deluded ourselves? Worse, instead of enjoying an Age of Innovation, are we actually stuck in a technological Dark Age? One that explains our stagnating living standards and general economic "disarray"? This is the possibility economist Tyler Cowen (George Mason, Marginal Rev, Mercatus) raises in The Great Stagnation, a pithy and provocative  new e-book essay. Here is my Forbes column on the topic: "Tyler Cowen's Techno Slump." I don't know how much I agree with Cowen, but I think he's given a big boost to an important conversation.