Adam Thierer's Blog, page 160

Should Legislatures, Commissions, and Such Figure Out Privacy Problems?

The recent European Commission proposal to create a radical and likely near impossible-to-implement "right to be forgotten" provides an opportunity to do some thinking about how privacy norms should be established.

In 1961, Italian liberal philosopher and lawyer Bruno Leoni published Freedom and the Law, an excellent, if dense, rumination on law and legislation, which, as he emphasized, are quite different things.

Legislation appears today to be a quick, rational, and far-reaching remedy against every kind of evil or inconvenience, as compared with, say, judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be efficacious, too unpredictably far-reaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in "better" statutes instead of in something altogether different from legislation. (page 7, 1991 Liberty Fund edition)

The new Commission proposal is an example. Apparently the EU's 1995 Data Protection Directive didn't do it.

Rather than some central authority, it is in vernacular practice that we should discover the appropriate "common" law, emphasizes Leoni.

"[A] legal system centered on legislation resembles . . . a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people's wishes is subject to that limitation. No solemn titles, no pompous ceremonies, no enthusiasm on the part of the applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned. (page 22-23, emphasis removed)

The proposed "right to be forgotten" is a soaring flight of fancy, produced by detached intellects who lack the knowledge to devise appropriate privacy norms. If it were to move forward as is, it would cripple Europe's information economy while hamstringing international data flows. More importantly, it would deny European consumers the benefits of a modernizing economy by giving them more privacy than they probably want.

I say "probably" because I don't know what European consumers want. I only know how to learn what they want—and that is not by observing the dictates of the people who occupy Europe's many government bureaucracies.

Book Review: Kevin Kelly's What Technology Wants

It's appropriate that Kevin Kelly's new book, What Technology Wants, was published in the same year as Jaron Lanier's You Are Not a Gadget.  Although Kelly and Lanier are on opposite sides of the Internet optimist vs. pessimist divide, they come at the issue of technology's impact on society in thoughtful, but at times quite controversial, ways.   I found both books to be remarkably interesting, but also, at times, deeply troubling.

For example, Lanier's book, which I reviewed here in January, contained an excellent critique of the extreme varieties of quixotic techno-utopianism, which he labels "cybernetic totalism." Lanier was taking on the belief by some extreme digital age optimists that a "hive mind" or "Noosphere" is coming about. He made a strong case for appreciating individuality and stressed caution when it comes to embracing technology in an over-zealous or quasi-religious fashion.  But Lanier's critique was too sweeping and his worldview too morose.  He unfairly indicts the entire digital generation and wrongly claims most modern culture is moribund and little more than "a petty mashup of preweb culture."

Kelly's What Technology Wants is basically You Are Not a Gadget in reverse.  Kelly does a nice job placing modern technological advances in a more reasonable context, but he is also guilty of some of that kooky "noosphere" thinking Lanier nicely critiqued in his book.

Pining for Life in The Matrix?

My reservations with What Technology Wants lie mostly in its bookends, which strive to prove that "the technium" – "the greater, global, massively interconnected system of technology vibrating around us" (p. 11) — is a "force" or even a living "organism" (p. 198) that has a "vital spirit" (p. 41) and which "has its own wants" (p. 15) and "a noticeable measure of autonomy." (p. 13) "The technium is whispering to itself," he says. (p. 14)  At times, Kelly even seems to be longing for humanity's assimilation into the machine or The Matrix. "We can think of technology as our extended body," he says. (p. 44)  He speaks repeatedly of human-machine "symbiosis." "We are now symbiotic with technology" (p. 37)  and, apparently, that symbiotic bonding can get pretty intense as "humans are the reproductive organs of technology." (p. 296)  Sounds a little kinky, but what the hell does that even mean?

I'm not going to sugarcoat what I think of these theories.  Balderdash is one word that comes to mind.  Much of what Kelly sputters in the opening and closing sections of the book sounds like quasi-religious kookiness by a High Lord of the Noosphere.  It's a bit like the enviro-extremists who proselytize about Gaia theories.  Nutty stuff.

Occasionally Kelly steps back and asks: "Aren't I assigning way too much consciousness to inanimate objects, and by doing so giving them more power over us than they have, or should have"? (p. 15)  Uh, yes, Kevin!  And when he makes comments about machines like, "standing between it and its power outlets, you can clearly feel its want," (p. 17) it makes me want to go re-read Daniel H. Wilson's entertaining little book, How to Survive a Robot Uprising!  In Kelly's view, Skynet is self-aware, or at least gradually on its way to sentience, and that's not necessarily such a bad thing. Resistance is futile.

Beautiful Redemption: Kelly's Well-Reasoned Case for Technological Experimentation & Change

But what's so peculiar about Kelly's book is how the meat of it – Parts 2 and 3 – largely ignore the theories advanced in the bookends of Parts 1 and 4.  Instead, in the middle, Kelly pens a magisterial treatment of the practical – and inevitable – advance of technology.  Had Kelly published the eight chapters in those two sections as a stand-alone volume, I would be prepared to say it was my favorite book about technology since Gilder's Microcosm or Pool's Technologies of Freedom.

What Kelly presents there is an extraordinarily balanced, and decidedly non-kooky view of technology and technological change.  I simply cannot recommend those chapters (especially chapters 10 & 12) is strong enough terms.  Gone is most of the Gaia-like talk of the technium as a living organism.  Kelly instead focuses on explaining to us in plain terms the progression of technology in our lives and how we've come to cope with it.  He notes, for example, that:

Over the centuries, societies have declared many technologies to be dangerous, economically upsetting, immoral, unwise, or simply too unknown for our good. The remedy to this perceived evil is usually a form of prohibition.  The offending innovation may be taxed severely or legislated to narrow purposes or restricted to the outskirts or banned altogether. (p. 240)

But banning technology never works, Kelly argues, largely because humans adapt and embrace new tools and developments. "[H]istory shows that it is very hard for a society as a whole to say no to technology for very long." (p. 241) "Prohibitions are in effect postponements" and  "wholesale prohibitions simply do not work to eliminate a technology that is considered subversive or morally wrong.  Technologies can be postponed but not stopped." (p. 243)

Importantly, Kelly doesn't turn a blind eye to the downsides of technology.  In fact, he is refreshingly candid about the trade-offs we face:

If we examine technologies honestly, each one as its faults as well as its virtues. There are no technologies without vices and none that are neutral.  The consequences of a technology expand with its disruptive nature.  Powerful technologies will be powerful in both directions – for good and bad.  There is no powerfully constructive technology that is not also powerfully destructive in another direction, just as there is no great idea that cannot be greatly perverted for great harm. …  This should be the first law of technological expectation: The greater the promise of a new technology, the greater its potential for harm as well. (p. 246)

Quite right.  But then Kelly then goes on to masterfully discuss the dangers of applying the "precautionary principle" to technological advancement.  The "precautionary principle," you will recall, basically states that since every technological advance poses a danger/risk, we should demand that proponents of that change prove no harm will come from it before allowing it to go forward.  The problem with that logic, Kelly correctly argues, is that because "every good produces harm somewhere… by the strict logic of an absolute Precautionary Principle no technologies would be permitted." (p. 247-8)   Under such a regime, progress becomes impossible because trade-offs are considered unacceptable.  Of course, it doesn't help that "when it comes to risk aversion, we are not rational," Kelly notes. (p. 248).

In its effort to be "safe rather than sorry," precaution becomes myopic. It tends of maximize only value: safety.  Safety trumps innovation.  The safest thing to so is to perfect what works and never try anything that could fail, because failure is inherently unsafe. … In general the Precautionary Principle is biased against anything new. (p. 249-50)

"This is exactly the wrong thing to do," Kelly goes on to argue. "These technologies are inevitable. And they will cause some degree of harm. …  Yet their most important consequences — both positive and negative — won't be visible for generations." (p. 261)

Thus, we must learn to "count on uncertainty" and appreciate the benefits of ongoing experimentation and evolutionary dynamism.  "Even though we've learned to expect unintended consequences from every innovation, the particular unintended consequences are rarely foreseen," he notes.  "Because of the inherent uncertainties in any model, laboratory, simulation, or test, the only reliable way to access a new technology is to let it run in place." (p. 251)

This doesn't mean humans shouldn't try to foresee problems associated with new technologies or address them preemptively. But that can be done without resisting new technologies or technological change altogether. "The proper response to a lousy technology is not to stop technology or to produce no technology," Kelly argues. "It is to develop a better, more convivial technology." (p. 263)

Kelly's formulation is remarkable similar to the "bad speech/more speech principle" from the field of First Amendment policy / jurisprudence.  That principle states that the best solution to the problem of bad speech (such as hate speech or seditious talk) is more speech to counter it instead of censorship.  That's the same principle that Kelly wants us to embrace when it comes to technology: Don't seek to ban or restrict it; find ways to embrace it, soften its blow, or counter it with new and better technology.

I think that's a beautiful principle and I applaud Kevin Kelly's formulation and defense of it.

Conclusion: Tear Out the Middle & You'll Have a Great Book!

What, then, are we to make of the two books Kelly has penned here?   I remain extremely torn.  I feel that the opening and closing portions of What Technology Wants are almost too silly to be taken seriously.  Yet, the meat in the middle is absolutely beautiful, inspiring, and enlightening stuff.

So, here's what you do:  Wait for the paperback version of What Technology Wants to be released (since it'll be far easier for you to rip apart), and then tear off pages 1-70 and 270-360. What you'll be left with is a terrific 200-page book that I can wholeheartedly recommend!

Despite its flaws, however, Kevin Kelly's What Technology Wants is easily one of the most important information technology policy books of 2010 and will likely be in my top 3 when I compile my next "best info-tech books" list.  We'll be talking about What Technology Wants for many years to come.

[Note: In a forthcoming post, I'll have a bit more to say about Kelly's book and views as I contrast his thinking with Ted Kaczynski (aka, "the Unibomber") and show how Kelly and Kaczynski help us define the extremes of the Internet optimist vs. pessimist spectrum. In the meantime, I encourage you to buy Kelly's remarkably interesting book, visit his excellent website for more views and discussion about the book, and then listen to this podcast that Kelly did with our own Jerry Brito.  It's a terrifically interesting conversation about a remarkably interesting book.]

The Conflict Between a "Right to Be Forgotten" & Speech / Press Freedoms

A report in the U.K. Telegraph notes that the European Union is seeking to create a so-called "right to be forgotten" online, and has "drafted potential legislation that would include new, unprecedented privacy rights for citizens sharing personal data." Details are sparse at this point, but according to this new 20-page European Commission document, "A Comprehensive Approach on Personal Data Protection in the European Union," the EU will be:

clarifying the so-called 'right to be forgotten', i.e. the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes. This is the case, for example, when processing is based on the person's consent and when he or she withdraws consent or when the storage period has expired. (p.8)

Two brief comments on this.  First, it should be apparent that any "right to be forgotten" conflicts mightily with free speech rights and press freedom. As I discussed at greater length in this review of Solove's Understanding Privacy as well as my essay on "Two Paradoxes of Privacy Regulation," the problem with enshrining expansive privacy "rights" into law is that it means there will need to be stricter limits placed on speech and press freedoms.  As Eugene Volokh noted in his 2000 law review article entitled, "Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You":

The difficulty is that the right to information privacy — the right to control other people's communication of personally identifiable information about you — is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of "fair information practices") generally bars the government from "control[ling the communication] of information," either by direct regulation or through the authorization of private lawsuits.

Of course, there's no First Amendment in the E.U.  But while there's not as strong of a tradition of freedom of speech / press in Europe as in the U.S., it would still be shocking to see the E.U. go down this path.  Consider what it means for the press, in particular.  When I was in journalism school back in the late 1980s, one of my favorite professors once told my class that a good journalist was really nothing more than a nosy person who knew how to write.  But being "nosy" — digging for stories, gathering facts, reporting on the world around us — is fundamentally at odds with "privacy," strictly defined.  For example, could someone claim "a right to be forgotten" when a journalist pens an article about them beating their wife or committing corporate fraud?  Believe it or not, Germany already has a law like this for convicted criminals who have served their time.  They can have old facts about their crimes repressed after they've served their sentences.  [Note: If someone could forward me additional details about that German law, I would appreciate it. Specifically, I would like a better understanding of how enforcement works.]

Second, there are economic trade-offs that must always be considered here.  Enshrining "a right to be forgotten" into law would necessitate a fairly significant expansion in the rules and regulations governing information sectors and actors.  Enforcement would certainly be challenging. As always, there is no free lunch; something has to give.  If online sites and service providers are faced with onerous new regs that limit their ability to collect data or serve up online advertising, those sites and services will need to find new methods of financing ongoing operations.  The impact on innovation could be substantial.  Indeed, one could argue that one of the reasons America's high-tech sector and digital companies are the global leaders in so many of their fields is precisely because they have not been strapped with top-down privacy regimes and data directives that would have constrained their ability to innovate using information collection.

Information — yes, including personal information — is the fuel of the Digital Economy.  Restricting the flow of that information, or its use for advertising and marketing purposes, will have an undeniably negative impact on online content and culture.  Ask yourself this: Would you be willing to pay $19.95/month to use a social networking site, or to be charged a fee for each query you enter into a search engine?  Those subscription-based or pay-per-use business models certainly shouldn't be prohibited, but it would seem most Netizens are comfortable with the current arrangement: Free access/use in exchange for information collection and ads.

Of course, this "right to be forgotten" regulatory regime is currently only being considered in Europe.  Some here in the U.S., therefore, might be tempted to cheer on their expansive reading of privacy "rights" in light of the hobbling effect it has on their information and high-tech sectors!   But those rules will hurt U.S. players, too, since many of them offer services across Europe.  Moreover, this regulatory paradigm could become a model for privacy advocates in the U.S. and set the stage for a major push for new legislation / regulation here.  Let's hope that's not the case.

Thoughts on Oral Arguments in Schwarzenegger v. EMA Video Game Case

I'm still digesting the transcript from Tuesday's Supreme Court oral arguments in the important First Amendment video game case, Schwarzenegger v. EMA. [Full transcript is here.]  I thought I would post just a couple of quick thoughts here. [Reminder: here is the amicus brief that Berin Szoka and I filed in the case, and here is some analysis of the case by Larry Downes.]

On Defining "Deviant Violence"

Much of the discussion during oral arguments was preoccupied with defining the contours of the term "deviant violence."  I was pleased to see the Justices asking some sharp questions about the interpretation of that term for regulatory purposes. In particular, I enjoyed Justice Scalia's remarks and questions to California Deputy Attorney General Zackery Morazzini, who argued the case on behalf of the state. Scalia said:

I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create…  a whole new prohibition which the American people never — never ratified when they ratified the First Amendment.  They knew they were — you know, obscenity was — was bad, but — what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does — will that affect them? Of course, I suppose it will.  But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay? (p. 15-16)

Indeed, that's what is at stake in this case: The beginning of a new class of exceptions to the First Amendment based upon concerns about children's exposure to depictions of "excessive" or "deviant" violence."  Once you open up this can of worms, the sky is likely the limit in terms of how far governments might go to regulate speech in the name of "protecting children."

If a majority of the Justices choose to side with the State of California and open the floodgates to a new era of speech regulation, I very much looking forward to seeing how they reconcile that with their decision last term in the controversial case of United States v. Stevens. In Stevens, the Court struck down a federal law that criminalized the creation or sale of videos showing animal cruelty. The law that the Court overturned was particularly concerned with "crush videos," which, according to the Court, "feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish." As I pointed out in this earlier essay, it would seem rather peculiar that the Court would allow the dissemination of videos of real kittens having their heads crushed by naked women in high heels, which kids might be able to see on the Internet, but then hold here in the Schwarzenegger case that allowing a minor to buy an M-rated video game with depictions of violence is verboten.  Hard to find the logic in that!

But the Court is going to have an even harder time reconciling regulation of depictions of violence with obscenity law and then delineating the boundaries of what governments can and cannot censor or control the sale of.  At least with obscenity, we have one bright-line test: Is sexual penetration shown?  Of course, things get pretty pretty murky after that.  Regardless, what is the equivalent test for violence in video games, movies, or television? Is it decapitation or exploding heads?  What if it's a zombie head?  What if it's just a ear that gets blown off a zombie's head? What if you beat the zombie over the head with a baseball bat to kill him but his head never comes off? Or, as Justice Sotomayor asked, "what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily." (p. 58)

You get the point: A lot of line-drawing is going to need to be done if the Court goes down this path.

On Juries & "Community Standards"

So, let's drill a little deeper into the line-drawing issue and the enforcement of such regulatory ordinances. During oral arguments, there was an interesting exchange regarding how the State of California, or any other local government, might go about enforcing more speech-limiting ordinances on this front. Justice Ginsburg asked Assistant AG  Morazzini: "does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there — is there any kind of opinion that the — that the seller can get to know which games can be sold to minors and which ones can't?"  A terrific question and one followed up by Justice Scalia, who joked (I think): "You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one."

In response, Mr. Morazzini defaulted to the old obscenity playbook and argued that:

California's not doing that here. The standard is quite similar to that in the sexual material realm. California is not acting as a censor. It is telling manufacturers and distributors to look at your material and to judge for yourselves whether or not the level of violent content meets the prongs of this definition. (p. 24)

Thus, Mr. Morazzini wants to dismiss the entire inquiry with the retort: "we ask juries to judge sexual material and its appropriateness for minors as well."  But that doesn't necessarily make such regulation any less offensive in the eyes of the First Amendment.  If the state empowers juries to censor, well, it's still censorship. It's just censorship with a slightly more democratic face!

Of course, in the field of First Amendment jurisprudence, this is all filed under the banner of "community standards" regulation. As Mr. Morazzini suggests, these is, indeed, a history of it in this country when it comes to obscenity law, although its increasingly rare.  Regardless, I have argued that the time has come to think differently about the appropriateness of "community standards" regulation.  Here's how I put it in some remarks I made at the Oxford University Internet Institute last year:

It is my hope and belief that we are now in a position to more fully empower parents such that government regulation of content and communications will be increasingly unnecessary. In the past, it was thought to be too difficult for families to enforce their own "household standard" for acceptable content. Thus, many believed government needed to step in and create a baseline "community standard" for the entire citizenry.  Unfortunately, those "community standards" were quite amorphous and sometimes completely arbitrary when enforced through regulatory edicts.  Worse yet, those regulatory standards treated all households as if they had the same tastes or values—which is clearly not the case in most pluralistic societies.

If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own "household standard"—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families. In my work, I refer to this as the "household empowerment vision."

What we have with the Schwarzenegger case is the perfect test case for which direction the Court wants to take us.  Will the Court hold on to the past and the old vision of "community standards" regulation that the State of California wants to extend?  Or will the Court recognize that that standard was really a second-best surrogate for more direct parental and household-based standards of control?  The latter position is the one more consistent with a free, diverse society.  As I argued in my old book on Parental Controls & Online Child Protection:

Decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours. Consequently, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen and household tastes and left the ultimate decision about acceptable content to them. That's especially the case in light of the fact that most U.S. households are made up entirely of adults.
The ideal state of affairs, therefore, would be a nation of fully empowered parents who have the ability to perfectly tailor their family's media consumption habits to their specific values and preferences. Specifically, parents or guardians would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block  objectionable materials, but also to more easily find content they feel is appropriate for their families.

On The Role of Parental Controls in First Amendment Jurisprudence

Finally, let's talk about those parental controls for a moment and the role they play in debates over First Amendment jurisprudence.  At one point during the oral arguments on Tuesday, Chief Justice Roberts interrupted video game industry lawyer Paul M. Smith of Jenner & Block to say that, "any 13-year-old can bypass parental controls in about 5 minutes."  In response, Mr. Smith correctly noted that "That is one element of about five different elements" and cited a couple of other things such as the information conveyed by the video game's excellent ratings system, as well as household-level controls / restrictions and the "power of the purse" that parents can exercise when junior asks for $50-$60 bucks to buy one of these games.

What Mr. Smith was getting at here is that today we have access to what I have called "a mosaic of parental control tools and methods" and what is really essential for First Amendment jurisprudence is that the Court not pin everything on just one of those tool or method.  Yes, some kids can evade parental controls, ignore household rules, steal money from Mom or Dad's wallet to buy a game, etc.  But the combination of these many layers of control constitute what the court has repeatedly called "the less restrictive means" of dealing with these concerns compared to the sweeping nature of government content controls.

Importantly, we should recall what the Supreme Court said about the less restrictive means test in its 2000 decision in U.S. v. Playboy Entertainment Group (2000), which echoed its earlier holding in Reno v. ACLU.  Specifically, in the Playboy case, the Court held that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners — listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.

Moreover, the Court held that:

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

This is an extraordinarily high bar the Supreme Court has set for policymakers wishing to regulate modern media content.  As constitutional law scholar Geoffrey R. Stone of the University of Chicago School of Law has noted:

The bottom line, then, is that even in dealing with material that is "obscene for minors," the government cannot directly regulate such material… Rather, it must focus on empowering parents and other adults to block out such material at their own discretion, by ensuring that content-neutral means exist that enable individuals to exclude constitutionally protected material they themselves want to exclude. Any more direct regulation of such material would unnecessarily impair the First Amendment rights of adults.

This is why parental control tools and methods are more important than ever before. The courts have largely foreclosed government censorship and placed responsibility over what enters the home squarely in the hands of parents.  But will the Supreme Court reverse this jurisprudential trend with its decision in the Schwarzenegger v. EMA decision?  I hope not.  If they do, it will undo about 15 years of really excellent case law on this front.

How closed is Apple anyway?

Anyone who knows me will attest to my status as an Apple fanboy. (I type this on my new 11″ MacBook Air, which I managed to resist purchasing for a full week after it was announced.) Hopefully they'll also attest to my ability to put consumer preference aside when considering logical arguments because today I want to suggest to you that Apple's business strategy is good for the open internet.

Apple has come under fire by some supporters of an open internet and open software platforms such as Jonathan Zittrain and Tim Wu, who argue that Apple's walled garden approach to devices and software will lead us to a more controlled and less innovative world. In particular, they point to the app store and Apple's zealous control over what apps consumers are allowed to purchase and run on their devices. Here's the thing, though: Every Apple device comes with a web browser. A web browser is an escape hatch from Apple's walled garden. And Apple has taken a backseat to no one in nurturing an open web. Consider this:

Apple created and open-sourced Webkit, arguably the most modern and standards-compliant web rendering engine now available. It serves as the basis for the Safari and Google Chrome browsers on desktops and the iPhone, Android, WebOS, and Blackberry browsers on mobile devices. Why is that important? Because its strict adherence to HTML5 and related standards has allowed developers to make cross-platform applications (Like Google Docs and GMail) without worrying about proprietary extensions like those of Microsoft and Adobe. In fact, Webkit's success is in large part responsible for Explorer's decline and pressure on Microsoft to become more standards compliant.

Apple's war on Flash has often been portrayed as evidence of Apple's domineering attitude, but in fact it can be seen as a victory for the open web. Flash, after all, is a closed proprietary technology. Apple's refusal to include Flash in its mobile devices (and now Macs) not only makes for better devices since Flash is crashy, a CPU and battery hog, and a perennial security risk, but has also incentivized developers to move to HTML5, CSS, and JavaScript for their web applications. In fact, Adobe has been promoting tools that help convert their Flash applications to HTML5. Microsoft has similarly been backing away from its Flash competitor Silverlight in favor of open standards.

Will Apple ever see the open web as a threat to its walled garden? I'm not sure why they would. You're still going to need a device to take advantage of web apps, and Apple is in the business of selling devices. What Apple does care about is making sure the web runs on open standards, so that they can't be locked out and so that the web experience is no better on any other platform. If they can make sure that's the case, then they can compete on another margin, namely what they're good at: excellent devices and their vertical, integrated, curated software and media ecosystem.

Now, that strategy didn't work for AOL. If you could get the web anywhere, why would you pay extra for curated Time-Warner content? I think there are differences. The web was an afterthought for AOL and it showed, and what AOL was offering for a premium was not very different from what was available for free on the web. But whether it works out for Apple or not, it's closed business model is not only perfectly compatible with an open and "generative" web, but it's in Apple's interest to foster it and we've seen them do just that.

Boycotting Apple is not irrational

Last week's episode of Econtalk featured Russ Roberts talking to Tom Hazlett about Apple vs. Google and open vs. closed business models. Tim Lee has already addressed some concerns about Russ and Tom's treatment of the topic, which I won't rehash here. But I did want to comment on this statement by Russ (at minute 33):

The idea that you shouldn't buy Apple stuff, which I've actually seen people say, because it's somehow immoral because [Steve Jobs] is so controlling, is a bizarre idea. I'm not quite sure where it comes from. It comes from some of the freedom of the internet and the stuff we've become accustomed to.

Russ then likens a personal conviction to avoid closed products to some of his readers' feelings of entitlement that they have a right to post a comment on his blog, and to a stranger thinking he has the right to take hot dogs from Russ's backyard grill. I don't think I have to explain why these analogies don't hold up. What I would like to point out is that abstaining from certain products on moral grounds (and even hectoring friends to do the same) is not at all bizarre behavior. We see it all the time by animal lovers who won't buy leather or products tested on animals, or people who avoid buying diamonds from conflict areas. I'm sure there are products Russ wouldn't buy on moral grounds.

So if you honestly believe (and I don't) that patronizing Apple will help contribute to the closing of the Internet, and you value that openness, especially for political reasons, you would be acting perfectly rationally by boycotting Apple. And such an act would have nothing to do with anti-capitalism because, as Tom Hazlett points out, open business models are perfectly compatible with capitalism.

Now stay tuned. In another post later today I'll suggest why in fact Apple may be good for the open internet.

Thoughts on the Election

Tech issues don't move the needle in national elections like yesterday's, but below I'll make some general observations, followed by a few on winners and losers in issue areas I cover.

All in all, I think it's a good election result.

We're back to divided government. The acute tension between the Republican House and Democratic Senate and president is likely to produce fiscal rectitude, and only legislation on which there is something close to true national consensus will pass.

Neither the Republicans nor the Tea Party movement were awarded any kind of sweeping victory, so they are unlikely to overplay their hands or take public support for granted. They must work to advance their aims by persuading more Americans that their philosophies and leadership are meritorious.

Democrats should, of course, be chastened. They're rightly paying the price for the careless, go-for-broke strategy they used in the 111th Congress, to pass their sprawling, intrusive health care regulation, for example.

Here's to at least two years of welcome gridlock.

Now, there were some notable losses among tech-focused representatives. The most worrisome loss is Senator Russ Feingold (D-WI), who has been a consistent and persistent overseer and skeptic of the growing surveillance state. I don't see anyone to step up and take his place. Privacy lost big in the Wisconsin election.

I'm bucking consensus on the loss of Rick Boucher (D-VA) in the House, at least as far as privacy goes. (On copyright and some telecom issues, I'll take Mike Masnick's word.) Boucher is a nice guy and a careful legislator, but his popularity among the Washington, D.C. tech lobby, I think, was a product of lobby-legislator symbiosis, not his actual backing for the interests of tech innovators.

For at least a decade, Boucher has been an advocate of "baseline privacy legislation" that never actually had a serious chance of passing. The result was that tech lobbyists could always report to the home office that they had something to do, and tech trade associations could garner corporate support for all those noon-time strategy meetings over sandwiches—without generating a true threat to the business models of the companies they (purport to) represent.

My point is not that Boucher should have advanced his privacy legislation—it's not going to be federal law that delivers privacy. I'm just not unhappy that he's gone. (Not that far gone. Watch for him to take a job somewhere in the D.C. tech lobby. Knowing nothing about his plans, I'd give it a greater than 50% chance.)

The tech lobby will actually have some work to do under Boucher's likely successor in the role of Democratic tech/consumer protection leader. Ed Markey (D-MA) is a partisan and an ideologue who will actually require the tech lobby to defend itself. He's canny enough to have decent influence even from his perch in the minority.

But—really—the fate of our privacy, the fate of our tech sector, and the fate of our country and society shouldn't turn on elections. We are not defined by these people, who go to Washington, D.C. to sit atop the coercive authority machine for a while. Elections come and go. I'll continue to work on returning power to civil society where it belongs.

An Invitation to Tim Wu to Respond

OK, so I've spent a week harassing Tim Wu and hammering away at the thesis, conclusions, and recommendations found in his new book, The Master Switch: The Rise and Fall of Information Empires. After pouring out about 17,000 words across six essays [1, 2, 3, 4, 5, 6] over the past week, I want to thank Tim for not seeking a restraining order against me for being his cyber-stalker during this period!  Moreover, he has responded to several of my rants here with stoic dignity.  I appreciate that, too.  I would have been screaming mad if someone attacked one of my books this relentlessly!

Anyway, in the spirit of fair play, I want to offer Professor Wu the opportunity to respond more formally here on the Tech Liberation Front.  We need to do more of that here, and I feel bad that I didn't make available to Jonathan Zittrain a similar opportunity when I was stalking him after the release of The Future of the Internet and How to Stop It. (see 1, 2, 3, 4, 5, 6, 7, 8 + video!)  I am happy, however, that Jerry Brito posted here today this podcast he did with Prof. Wu so that we could hear him in his own words.

Anyway, I've just sent a note to Tim extending an invitation to formally respond even if he chooses to just compile some of the other comments he's already made here, or to post something more substantive (even excerpts from the book).  If he decides to take us up on the offer, I'll post it his comments here.   In the meantime, I want to encourage people to buy Tim's book and judge it for themselves.   Despite my deep disagreements with The Master Switch, it's absolutely one of the most important information technology policy books of the past decade and it belongs on your bookshelf if you care about these issues.   And I look forward to many more friendly fights with Tim in the future!

Thoughts on Wu's Master Switch, Part 6 (His Audacious Information Industrial Policy)

I'm going to close out my series of essays about Tim Wu's new book, The Master Switch: The Rise and Fall of Information Empires, by discussing his proposal solutions.  In the first five essays in the series, [1, 2, 3, 4, 5] I've critiqued Wu's look at information history as well as his use of terms like "market failure," "laissez-faire" and "open" vs. "closed."  I argued there's a great deal of over-simplification, even outright distortion, in his use of those terms throughout the book.

Anyway, let's run through the basics of the book once more before getting to Wu's proposed solutions.  By my reading of The Master Switch, Wu's argument essentially goes something like this:

Information industries go through cycles. After a period of "openness" and competition, they tend to drift toward "closed," corporate-controlled, anti-consumer models and outcomes.
The resulting "monopolists" then block much innovation, competition, and free speech.
Consequently, "the purely economic laissez-faire approach… is no longer feasible."
Moreover, information industries are more important than all others ("information industries… can never be properly understood as 'normal' industries") and even traditional forms of regulation, including antitrust, "are clearly inadequate for the regulation of information industries." (p. 303).
Thus, special rules should apply to information-related sectors of our economy.

Again, I've challenged some of these assertions in my previous essays, specifically, Wu's incomplete history of cycles and the fact that he greatly underplays the role of governments in "locking-in" sub-optimal market structures or, worse yet, creating those structures through misguided public policies or regulatory capture.  Wu discusses some of those factors in his book, but he tends to regard them as secondary to the inquiry, whereas I believe they are crucial to understanding how most "closed" or anti-competitive scenarios develop or endure. Instead, Wu simplistically suggests that "the purely economic laissez-faire approach… is no longer feasible," even though no such state of affairs has ever existed within communications or media industries. They have been subjected to varying levels of indirect influence or direct control almost since their inception.

Regardless, what does Tim Wu want done about the problems he has (mis-)diagnosed?

What Wu Wants: A "Constitutional" Approach to Private Regulation

Broadly speaking, Wu wants to counter what he regards as "the danger of private power," "the Lockean sanctification of private property," and the fact that "American economic life [has] been built mostly on freewheeling capitalism." (p. 300)  More specifically, he wants to end the "cycle" he describes of markets moving from supposedly open to closed.

To do so, he proposes what he calls a "constitutional" approach to private marketplace regulation.  In reality, it would be a massive, unprecedented, and highly destructive information sector industrial policy that would substitute the Rule of Man for the Rule of Law.  But let's hear how Wu describes it:

What I propose is not a regulatory approach but rather a constitutional approach to the information economy. By that I mean a regime whose goal is to constrain and divide all power that derives from the control of information. Specifically, what we need is something I would call a Separations Principle for the information economy. A Separations Principle would mean the creation of a salutary distance between each of the major functions or layers in the information economy. It would mean that those who develop information, those who control the network infrastructure on which it travels, and those who control the tools or venues of access must be kept apart from one another. At the same time, Separations Principle stipulates one other necessity: that the government also keep its distance and not intervene in the market to favor any technology, network monopoly, or integration of the major functions of an information industry."  (p. 302, emphasis in original)

Wu calls this a "constitutional approach" because he models it on the separations of power found in the U.S. Constitution, such as the separation of church and State, as well as the separation of powers between branches of government.  Wu makes a few additional assertions:

"[T]he Separations Principle accepts in advance that some of the benefits of concentration and unified action will be sacrificed, even in ways that may seem painful or costly." (p. 305)
But Wu believes that pain or cost is worth it because of the "corrupting effect of vertically integrated power." (p. 305)
"You cannot serve two masters, and the objectives of creating information are often at odds with those of disseminating it," he says. (p. 305)
Specifically, he claims the Separations Principle would better protect free speech and entrepreneurial freedom. On the former: "It is a recognition that the disposition of firms and industries is, if anything, more critical than the actions of the state in controlling who gets heard." On the latter: "The Separations Principle protects entrepreneurial freedom by preventing stagnation and repression of business innovation, especially with the help of the state." (p. 306)

There's a lot to unpack here including Wu's stunning claim that his Separations Principle doesn't represent a regulatory regime, as well as his rather incredible belief that government meddling and machinations could be kept in check under this regime.

First, however, Wu deserves credit for coming clean about just how radical his proposal is.

Constitutional Limits on Governments vs. Private Actors

Wu admits that "It would be quite radical today even to contemplate imposing on the economy the kind of safeguards that the Constitution places on the political system." (p. 301)  A few pages later he notes that "The Separations Principle… requires a certain breadth and ambition in its application." (p. 308)

I'm glad Wu was willing to at least acknowledge the radicalness of his proposal.  But, as he is prone to do throughout the book, he raises an important potential objection only to quickly walk away from it.  In this case, however, it's completely understandable why Wu wouldn't want to continue this inquiry: His proposal really is "quite radical" since it is completely at odds with America's constitutional heritage of individual liberty and limited government.

Let's go back to Civics 101.  We require that governments live under certain constraints and the Rule of Law because we recognize that governments possess the unique ability to fine, punish, and imprison citizens.  Moreover, escape from government's tentacles is difficult, if not impossible. A constitutional system is required, therefore, to limit government's role over our lives and the economy.

By contrast, we do not impose similar constraints on individuals — or on individuals when they work collaboratively in organizations or corporations — primarily because we believe there should be a presumption of liberty in most human affairs.  Freedom is the default position.  We value freedom because it allows humans to exercise their free will and live a life of their own choosing — and that includes the freedom to pursue happiness by making money in a business venture.  Our nation's founders saw the wisdom in this even before we had a grand historical clash between communism and capitalist systems.  From that experience, however, we now have undisputed proof that social and economic freedoms are closely linked, and that when humans are free, they prosper.  The other reason we default to freedom for private individuals and organizations is because the possibility of "escape" exists from undesirable social or economic situations.

Wu doesn't bother slowing down to appreciate these distinctions. He gives occasional lip service to the dangers of excessive government power:

Again and again in the histories I have recounted, the state has shown itself an inferior arbiter of what is good for the information industries. The federal government's role in radio and television from the 1920s through the 1960s, for instance, was nothing short of a disgrace…. Government's tendency to protect large market players amounts to an illegitimate complicity … [particularly its] sense of obligation to protect big industries irrespective of their having become uncompetitive. (p. 308)

Quite right. Yet, as I pointed out in this earlier essay, there's seemingly never any serious lesson to be drawn from that conclusion.  Wu just marches right along in his narrative and ignores that "disgrace" and its relationship to "the cycle."

The crucial point here is that Wu doesn't fully appreciate the qualitative difference between State power and corporate power.  Instead — consistent with many "media access" theorists who came before him — he largely equates those forms of power or even makes private power out to be the more significant threat to personal liberties and freedom of speech.  Again, we hear statements like "the disposition of firms and industries is, if anything, more critical than the actions of the state in controlling who gets heard."

The problem with this is that (a) history shows it's simply not true and (b) the corrective remedies such a theory counsels would require a massive enhancement of State power to counter the supposed threats of private power, which (c) would create an even bigger threat to human liberty since only the State can fine, imprison, and truly foreclose speech.

So, I'll stick with traditional "constitutionalism," thank you very much!  Tim Wu's "constitutionalism," by contrast, is the Rule of Man, not the Rule of Law.  Specifically, it would be the rule of a handful of unelected men (and women) down at the Federal Communications Commission, the Federal Trade Commission, or whatever other regulatory bureaucracies Wu would empower under this approach.   And, as we'll see next, that approach is truly audacious in its scope.

Practically Consideration: An Unprecedented Information Control Regime

OK, let's forget about all that philosophical and legalistic mumbo-jumbo.  After all, most people these days don't really give a hoot about constitutional limitations or the first principles associated with our nation's founding. Let us instead explore the Bold New World of information regulation that Wu wants imposed on the high-tech economy and consider its complexity and costs.  Wu is a bit short on details about how policymakers should go about constructing a "Separations" regime, or how it will work in practice, but he does suggest that Net neutrality regulation and expanded antitrust oversight are at least two of the core elements. But he says that will not be enough.

Despite the fact that Wu admits the FCC "has on occasion let itself become the enemy of the good, effectively a tool of repression," Wu seems to suggest the agency will continue to have "day-to-day authority over the information industries." (p. 309) Of course, the FCC's role is currently limited mostly to older sectors of the information economy, but Wu seems to suggest that role should be expanded considerably.  Yet, FCC oversight isn't enough either, Wu says.  He argues that "what is needed is not only an FCC institutionally committed to a Separations Principle but also a structural arrangement to guard against such deviations, including congressional oversight as well as attention and corrections from other branches of government."

Here the "breadth and ambition in its application" associated with Wu's Separations Principal becomes more apparent. We are talking about layers upon layers of regulation. More importantly, the key attribute of Wu's Separations Principle is that it is preemptive and prophylactic in character.  He explicitly rejects the idea that marketplace experimentation should be allowed and that ex post administrative proceedings or antitrust enforcement will be good enough. "[T]here is the problem of taking an after-the-fact approach to a commodity so vital to our basic liberties," he argues. (p. 204) Thus, Wu's approach represent a return to the sort of anticipatory, "Mother, May I" regulatory regime America was supposed to be turning away from following the passage of the Telecommunications Act of 1996.

What's most bizarre about Wu's call for such a preemptive "Separations" approach is his insistence that it is not a regulatory approach.  It's hard to know whether this is an astonishing bit of hubris or just plain naiveté.  I hate to suggest it, but I think Wu is perfectly aware of just how regulatory his system would be in practice; he just doesn't want to admit it.  After all, for there to be "separations" of various segments of the information sector, someone would need to determine who and what belongs in which bucket.  Wu suggests we'll need at least three buckets. To repeat, he says his Separations Principle "would mean that those who develop information, those who control the network infrastructure on which it travels, and those who control the tools or venues of access must be kept apart from one another."  Let's put some labels on these buckets:

Bucket #1: Information Creators
Bucket #2: Information Distributors
Bucket #3: Information Hardware Makers

These would essentially become three of the new "titles" (or regulatory sections) of a forthcoming "Information Economy Separations Act." (I'm assuming Wu understands it would take an act of Congress to implement this sweeping regime, although he never makes that clear.  Or perhaps he would just prefer the FCC "reclassify" the entire information economy by regulatory fiat? Who knows.  Again, he never really sweats the details on this important point.)

Regardless, the problem with these conceptually neat classifications is that don't conform to our fast-paced, highly dynamic Information Age economy.  There is a fluidity of innovation and market activity that Wu utterly fails to appreciate.  I suppose it'd be easy to throw a couple of players into these buckets and tell them to stay put.  We could tell T-Mobile, for example, that they could be a wireless information distributor and absolutely nothing else; we could tell Discovery Networks, they could be a content creator and absolutely nothing else; and we could tell Intel, you can be a chip maker and absolutely nothing else.

But not every existing information sector actor or technology is so neatly compartmentalized. Moreover, Wu's framework also begs the question: Would firms that currently have integrated operations and investments in multiple fields be forced to divest control of various operations to come in line with Wu's Separations Principle?   Here are a few scenarios to consider (and with each example, ask yourself the question: What's the harm here to would justify the sort of "separations" regime Wu proposes?):

Cox Enterprises has a wide variety of content and distribution properties including: broadband services, cable TV channels and distribution systems, newspapers, radio stations, advertising and direct mail divisions, and AutoTrader.com.  How many pieces does the firm need to be split into to comply with Wu's new "Separations" regime?
Should an ISP be allowed to develop or offer (or directly integrate into their service) free anti-virus software and parental control technologies since that's not part of the underlying distribution service? Nearly every major ISP does so already today.
Even though the experiment was ultimately a failure, should Google have been allowed to break out of the search market and give the handheld device business a shot with the Nexus One?  Likewise, should Google be allowed to continue its experiment with local fiber or wi-fi networks even though it is so clearly outside their traditional line of business?  Finally, should the FCC have disallowed Google's bid in the 700 MHz spectrum auction back in 2008 since it would have meant the firm was formally entering the information distribution business?
Which bucket is Microsoft in as a traditional OS and software provider?  Regardless, was it a mistake to allow them to jump into the video game console marketplace with the Xbox many years ago?   Should MS have been forbidden from creating the Zune since it too was a digital device outside of Microsoft's core field?  Should MS be allowed to have a content division that develops games or other content for its operating systems even though they might be considered two separate information markets?
Sony produces movie and video game content but also develops hardware (video game consoles, televisions, music players, phones, etc.) on which that content can be played. Should that be illegal? Would they have to divest some of these divisions once Wu's system went into effect?
Apple is the ultimate example of an information hardware manufacturer that has not only diversified its hardware offerings from PCs to iPods, iPhones and iPads, but also become a (if not the) leading information distributor for digital music, movies, television shows, podcasts, books and audiobooks through iTunes.  The company's Apps store also makes it a key distributor of software.  What bucket is it in?
Should Amazon be allowed to be both the biggest online marketplace as well as the manufacturer of a device (the Kindle) that offers access to that store?

I could go on and on, but here's the crucial point: Creating firewalls between the buckets Wu proposes would be a nightmare and would entail incessant regulatory interventions to make sure the walls weren't breached.  As suggested above, the very act of regulatory line-drawing would be mind-bogglingly complex.  More importantly, each new information sector innovation would suddenly be subjected to a regulatory classification proceeding.

Wu is essentially saying there are few integrative efficiencies or other economic benefits associated with cross-sector deals or cross-platform technological developments.  Again, he dismisses the notion with one line: "[T]he Separations Principle accepts in advance that some of the benefits of concentration and unified action will be sacrificed, even in ways that may seem painful or costly." (p. 305)  Well, that's nice… except that this regulatory system would upend the U.S. information economy as we know it!  His Separations Principle is an unprecedented regulatory wrecking ball that would do untold destruction to the American economy in the name of creating a system of information apartheid. Wu also completely ignores the litigation nightmare that would ensue once the government started forcing the divestiture of various lines of business.  After all, many companies would likely have valid "takings" claims here under the Fifth Amendment.

But even if we could get beyond all that, we'd have to consider how this regime would work going forward.  Let's consider a hypothetical example.  Virtual reality is an emerging field of our information economy that promises to experience rapid growth in coming years.  A number of companies are currently developing content and devices that will help bring a veritable Star Trek holodeck experience to our living rooms sometime very soon.  The market is still in a great deal of flux and it remains unclear which technologies will prevail or which developers and device makers will prosper.  One thing we know for certain, however: it's a hugely complex and expensive undertaking.  VR technologies aren't like creating a YouTube video of your cat playing a piano. There are significant costs associated with developing VR content and devices. Distributing VR bits over networks will, no doubt, be quite complicated as well.  Now, imagine two scenarios (which, for all I know, may already be playing out in the marketplace today):

Scenario 1: A partnership is announced between some cutting-edge VR companies that have different core competencies in this field.  One of the companies is developing holographic imaging devices to project immersive environments directly into your living room or workspace.  Another of the partners is developing games that would take advantage of those new holographic imaging innovations.  And a third partner in the deal is developing software that will help manage the real-time, high-bandwidth flow of VR bits across broadband lines.  Under Wu's Separations Principle, would this deal be illegal?
Scenario 2: All of the activities discussed above are being handled by a single, integrated firm.  Is that illegal under Wu's Separations Principle?

Now, it would be easy to dismiss this scenario with a casual wave of the hand and a 'we'll-figure-it-out-later' attitude.  But consider the fact that deals and developments like this are happening every single minute of the day our modern information economy.  One wonders how regulators would even be expected to keep track of it all.  And they would have to keep track of it all because, again, Wu's Separations Principle is preemptive and prophylactic in character.  His regulatory regime is going to have to come to grips with that fact that innovation happens. Markets evolve. People want to experiment and do bold new things. They tinker. They develop. They pitch. They deal. And so on.  As that dynamic process unfolds every day across the high-tech economy, Wu's Separations Principle will be put to the test and necessitate a regulatory proceeding of some sort to determine what is permitted and what is verboten.  Meanwhile, the very uncertainty associated with Wu's regime would delay and discourage investment in the field and formation of the partnership/venture necessary to successfully bring VR to market

Astonishingly, however, Wu argues that "a Separations regime would take much of the guesswork and impressionism, and indeed the influence tracking, out of the oversight of information industries." (p. 307) That's a doozy of a claim.  To the extent his Separations Principle eliminates "guesswork" and creates more regulatory certainty, it would only do so by creating rigid artificial barriers to market entry and innovation across the information economy.  That's "certainty" that we can live without.

Conclusion

Over on Amazon.com, I was interested to see Tim Wu post a glowing review of Kevin Kelly's important new book, What Technology Wants (which I will be reviewing here next).  Kelly's book argues that we should think of technology, or what he calls "the Technium," as a "force" or even a living "organism" that has a "vital spirit" and which "has its own wants" and "a noticeable measure of autonomy."  I think Kelly goes a bit far, but to the extent one buys into the notion that technology is like an organism, Tim Wu's Information Industrial Policy would kill that organism.  Or, it would at least severely stunt its continued growth and evolution.

Because his information industry policy is every bit as "radical" as he suggests and would require, as he also admits, "a certain breadth and ambition in its application," it is essential we reject this innovation-killing regulatory regime.  The health of the high-tech economy, the global competitiveness of the U.S. technology sector, and the long-term welfare of consumers depends upon it.

Tim Wu on innovation, creative destruction, and government interference

Tim Wu, a professor at Columbia Law School, the chair of media reform group Free Press, and a writer for Slate, discusses his new book, The Master Switch: The Rise and Fall of Information Empires. Wu's book documents the history of media industries in the United States and speculates on what that history teaches us about the future. On the podcast, he discusses Austrian economist Joseph Schumpeter's theory of innovation, cycles of open and closed competition within industries, the history of government-backed monopolies in telephone and radio, and his thoughts on the future of information empires, the internet, and regulation.

Related Links


The Internet's Mid-Life Crisis, Wu speaking about the state of the internet
Tim Wu on communication, chaos, and control, The New Yorker

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