Category Archives: Globalization

TechFreedom Launches to "Promote the Progress of Technology"

I’m pleased to join in announcing the launch of TechFreedom, a non-profit, non-partisan technology policy think tank.  TechFreedom’s mission is “to promote the progress of technology that improves the human condition and expands individual capacity to choose.”

I have agreed to participate in TechFreedom’s activities as a Senior Adjunct Fellow.  As my first contribution, we will be republishing my multi-part blog on the FCC’s Open Internet Report and Order as a white paper, and hope to host a conference on the topic in late February.

TechFreedom officially launched last week, just after the State of the Net 2011 Conference.  Video of the opening conference, which featured FCC Commissioner Robert McDowell, is available by following the link.

The launch of TechFreedom also coincides with the publication of “The Next Digital Decade:  Essays on the Future of the Internet“, edited by Berin Szoka and Adam Marcus.  The book includes essays from a wide range of authors, including David Johnson, Hal Varian, Tim Wu, Jonathan Zittrain and the Hon. Alex Kozinski.

I have two essays in the book, one on information economics and the other on the so-called privacy “debate.”

The book is available as a free PDF download, or for purchase in hardcover.

http://techfreedom.org/

The Future: It's Not What it Used to Be

Adam Thierer pointed me to a posting by Maria Popova at Brain Pickings, in which Popova has pieced together a somewhat cheesy 1972 documentary based on Alvin Toffler’s classic “Future Shock.”  The over-the-top narration by Orson Welles is well worth the price of your time.  I read Future Shock as a kid (I was 11 when it was published) and didn’t really understand it, but I loved its urgent tone and its sense of revealing a secret the “establishment” couldn’t handle.

Toffler was really the second person to point out the gap between the capacity of technology to change our lives and the ability of human beings to absorb that change.  The first (or at least an earlier version) comes from Henry Adams in his autobiographical “Education.”

Adams called the phenomenon, which he claimed had shipwrecked his life “The Law of Acceleration,” a revelation that struck him in the Hall of Dynamos at the 1893 World’s Columbian Exposition in Chicago, where he seems to have suffered a serious mental breakdown.  Working with pseudo-math and pseudo-physics, Adams calculated that the accelerating pace of change would end civilization by around 1920.

The world didn’t end in 1920, nor did it end in 1970.  Although perhaps from the standpoint of a Henry Adams (who died in 1917), the world of today might represent something so different and unpleasant that it might be described as post-apocalyptic.

Taking a more economic view of the process, I referred to is as The Law of Disruption.  Some technological breakthroughs cause considerable chaos and revolutionary change in business and society, it’s true, but what results on the other side, for those who survive the change, is always something better, or at least more efficient.

The period of adjustment is, to me, the most interesting.  Lucky for me then, that we seem to move from one period of adjustment to the next, or even to overlapping periods coming faster and closer together as “The Law of Acceleration” proceeds.

As excited as we get by the latest innovations in information, medical, materials, and transportation science, we can never exploit those changes as fast as the technology itself would make possible.  We need time to adjust, and to replace our inadequate metaphors (horseless carriage, radio with pictures, iron rope, etc.) for a new reality in which disruptive technologies are recognized as something new and not simply an incremental improvement.

From a business standpoint, the gap is an opportunity—companies can focus on helping customers and other business partners move up the curve just a little faster than they might on their own.  In some ways it’s like the old joke about the two campers who hear a bear outside their tent.  One of them starts to put on his shoes and the other says, “What are you doing?  You can’t outrun a bear.”  “I don’t have to outrun a bear,” the first one says.  “I just have to outrun you.”

But outside the business context, anxiety about the future—future shock—can look like a threat rather than an opportunity.  In my experience, in fact, you can divide the world into two kinds of people:  those who look forward to the sometimes uneven and messy process of adaptation and those who fear it.  Will the future be utopian (the United Federation of Planets) or dystopian (The Borg)?  The answer is of course neither—some things change for the better, some don’t, but mostly the course is unpredictable.  How someone views the future says much more about who they are now than anything else.

Toffler, as best I remember the book, didn’t really take a position, but his talent and the phenomenal success of the book rested on his ability to make the anxiety seem as unbearable as possible.   The transformation of society was inevitable, Toffler agreed, but the process was creating social chaos and leaving people to suffer from “shattering stress and disorientation.”

The changes Toffler wrote about (as a journalist, he largely collected example after example and lined them up as overwhelming evidence) seem modest and even quaint by comparison to those we are now experiencing forty years later.  Clearly, humanity survived, more-or-less intact.

Which suggests that we’ll survive the next wave, and the one after that, as well.  (Further still, well, who knows?)  Transformation is an inevitable feature of modern life, and isn’t likely to go away.  When change is constant, the only thing you can predict is unpredictability.  But at least you can predict that!

Watching the documentary, you get a sense of perspective from the inability of a previous generation to imagine its survival.  The process is there, but the result wasn’t nearly as disastrous as imagined.  So maybe we’ll cope just fine, too, with our dangerous inventions.

It’s not as if we have any choice.  As the Firesign Theater famously albeit cryptically said, “Live in the future.  It’s happening now.”  (To which a character in the background retorts: “The future?  The future’s not here yet, man.”)

I met Alvin Toffler in 1999.  We were teamed together for a one-day program, incongruously, in Buenos Aires.  Toffler spoke in the morning, and I spoke in the afternoon.  We weren’t asked to coordinate our messages, but it more-or-less worked out that he was giving the pessimist view of the future and I was giving the optimist view.  Most of all, I was interested in what new examples Toffler had found in his research on future shock—examples I hoped to use in my own speeches.

He spoke eloquently and powerfully, but all the examples he gave were the same old ones he had been using all along.  His research—at least—was stuck in 1970, and he seemed largely unaware of the digital revolution already well in progress by 1999.   (I have not read his most recent book, published in 2006.)

But perhaps in some sense, Toffler found—perhaps unintentionally—a cure for future shock.  Just keep living in the past, even a past in which you are fearing a future that has already arrived and kept going.

He is of course not alone.  The hell we’re familiar with is always easier to manage than the heaven that might be achieved.

Radio commentary on rescuing the National Broadband Plan

I recorded a commentary today  for KQED–NPR in the Bay Area–on the importance of the National Broadband Plan.  In the wake of tumult over net neutrality, Title II, and other regulatory gibberish, the important goals of the NBP, published in March of 2010, have been lost.  That’s unfortunate, because the authors did a great job of setting out ambitious goals essential to maintain U.S. competitiveness.  The plan also relies for funding on private investment and incentives, giving it a realistic chance of success.

While recent polls indicate that few Americans want the government involved in encouraging adoption of broadband, I believe this is one example where intervention–if only of the cheerleading and goal-setting variety–is appropriate.  As I’ve written extensively elsewhere, the Internet’s success is a function of network effects, as succinctly described by Metcalfe’s Law.  The more people who have broadband access, the more valuable the network is for everyone.  And the better the chances for serendipitous new uses and applications to flourish.

Those of us who already have broadband access, in other words, would benefit just as much from getting non-users online as those users themselves.

Perhaps even more.

Updates to the media page

The fall has been filled with important developments in the technology world, and I continue to be a regular source for journalists as well as publishing frequent editorials and analyses of my own.  I’ve just posted another ten items to the Media Page of my website, including several articles I’ve written for CNET News.com, an election-day op-ed in Roll Call, legal analysis for The Wall Street Journal and a long review of “The Laws of Disruption” in the International Journal of Communications.  The accidents continue to pile up at the dangerous intersection of innovation and the law, the main theme of The Laws of Disruption.

Some highlights:

The U.S. Supreme Court heard arguments in EMA v. Schwarzenegger, which challenges California’s ban on violent video games on First Amendment ground.  My article for CNET explained why the timing of the case is significant, with implications for all new media enterprises.

The European Commission is preparing new legislation to guarantee its citizens a “right to be forgotten.  On CNET, I explain why that well-intentioned initiative could have disastrous consequences for the digital economy.

My election-day op-ed for Roll Call, the leading newspaper of Capitol Hill, urged Congress to stop the FCC’s dangerous plans to “reclassify” broadband Internet access and treat it like 1930’s-style telephone business.

My detailed analysis of Rep. Henry Waxman’s proposed net neutrality bill, a last-minute effort to resolve the long-running conflict before the election, was featured on The Wall Street Journal’s “All Things Digital.”

In the important Vernor decision, the Court of Appeals in California ruled that licensing agreements that deny users a right to resell copies of software are enforceable.  Though many viewed this decision as harmful to consumers, I explain why developments in the software industry have already relegated license agreements to the margins, in a controversial article for CNET News.com.

NextGenWeb, sponsored by the U.S. Telecom Association, interviewed me one of many recent visits to Washington.

As the new Congress prepares to convene in January, watch for more important developments.

Resurrecting the National Broadband Plan: Why is Washington Fighting a Winning Strategy?

I published an opinion piece today at CNET, calling on all tech stakeholders in Washington to stop the pointless quibbling and sniping about net neutrality, reclassification, and other side-show issues.  (I’m too depressed to list them here—but see “Fox-Cablevision and the Net Neutrality Hammer” for an example of just how degraded the conversation has become.)

Instead, why not focus on a positive message, one that has the potential for win-win-win-win?  For example, the National Broadband Plan, issued in March, eloquently made the case for a U.S. commitment to universal broadband adoption.  Not as a matter of gee-whiz futurism but in the interest of giving Americans “a better way of life.”

As a technology optimist, I happen to agree.  Broadband Internet provides users with much more than cute kitten videos and finding old friends on social networking sites (not that there’s anything wrong with these).  As the plan makes clear, it also gives them access to education and employment opportunities otherwise hard to find (and certainly at a much higher price), access to government services, public safety and better health care options. The Internet will play a key role in the development of a “smart” energy grid.

And as more urban countries with higher penetration rates and faster speeds have learned to their delight, the network effects of having everyone online generate all kinds of serendipitous positive returns.

Even better, achieving the goals of the NBP won’t require massive taxpayer spending, making it palatable to both Democrats and Republicans.  Most of the $350 billion it will cost to get 100 mbps speeds to 100 million Americans—a key benchmark of the plan—will come from private investment, much of it already planned for.

So moving forward with the Plan will improve the lives of ordinary citizens, make government more responsive and responsible, stimulate the economy, and help keep the U.S. competitive in a global information economy.  And it can be done without significant taxpayer expense or new regulatory overhead.

This is the feel-good story of the decade.  Come on, everybody!  We can use my barn.

It’s all in the plan. But given the strum and drang exerted over largely inside-the-beltway minutia, the NBP’s positive messages has been drowned out.

Case in point:  a recent report from the NTIA reveals that among the 25% of American homes that don’t have a single Internet user, the most frequently cited reason not to sign up for a broadband service is that they just don’t want it.  A full two thirds of the non-users, according to the report, “reported a lack of need or interest as their primary reason for not having broadband at home.”  Cost was a much lower factor.  Only four percent cited lack of availability.

It’s depressing and disappointing that so many of my fellow citizens haven’t gotten the message:  the Internet is cool, and broadband access will pay for itself many times over.

It’s also frustrating to the authors of the NBP, whose herculean efforts were unfairly and unduly overshadowed by the universal hand-wringing that followed the D.C. Circuit’s decision in the Comcast case, which came out just a few weeks later.  (For the record, NBP executive director Blair Levin agrees with legal scholars who don’t believe Comcast undermined the FCC’s ability to move forward with the plan itself:  “I think there is a lot of good stuff that can be done to advance the National Broadband Plan,” he recently told CNET’s Marguerite Reardon, “that doesn’t require any action from Congress.”)

In some sense the mid-term elections have provided the opportunity for all stakeholders—Congress, the FCC, lobbyists and advocacy groups—to resurrect the NBP and feature it as the central document in a national dialogue on technology policy.  It’s the right thing to do for the economy, and for individuals.  And in one of those rare harmonic convergences, it’s also politically expedient.  It’s positive!  It’s bi-partisan!  It’s high-tech!

So why isn’t anyone doing it?

After the deluge, more deluge

If I ever had any hope of “keeping up” with developments in the regulation of information technology—or even the nine specific areas I explored in The Laws of Disruption—that hope was lost long ago.  The last few months I haven’t even been able to keep up just sorting the piles of printouts of stories I’ve “clipped” from just a few key sources, including The New York Times, The Wall Street Journal, CNET News.com and The Washington Post.

I’ve just gone through a big pile of clippings that cover April-July.  A few highlights:  In May, YouTube surpassed 2 billion daily hits.  Today, Facebook announced it has more than 500,000,000 members.   Researchers last week demonstrated technology that draws device power from radio waves.

If the size of my stacks are any indication of activity level, the most contentious areas of legal debate are, not surprisingly, privacy (Facebook, Google, Twitter et. al.), infrastructure (Net neutrality, Title II and the wireless spectrum crisis), copyright (the secret ACTA treaty, Limewire, Google v. Viacom), free speech (China, Facebook “hate speech”), and cyberterrorism (Sen. Lieberman’s proposed legislation expanding executive powers).

There was relatively little development in other key topics, notably antitrust (Intel and the Federal Trade Commission appear close to resolution of the pending investigation; Comcast/NBC merger plodding along).  Cyberbullying, identity theft, spam, e-personation and other Internet crimes have also gone eerily, or at least relatively, quiet.

Where are We?

There’s one thing that all of the high-volume topics have in common—they are all moving increasingly toward a single topic, and that is the appropriate balance between private and public control over the Internet ecosystem.  When I first started researching cyberlaw in the mid-1990’s, that was truly an academic question, one discussed by very few academics.

But in the interim, TCP/IP, with no central authority or corporate owner, has pursued a remarkable and relentless takeover of every other networking standard.  The Internet’s packet-switched architecture has grown from simple data file exchanges to email, the Web, voice, video, social network and the increasingly hybrid forms of information exchanges performed by consumers and businesses.

As its importance to both economic and personal growth has expanded, anxiety over how and by whom that architecture is managed has understandably developed in parallel.

(By the way, as Morgan Stanley analyst Mark Meeker pointed out this spring, consumer computing has overtaken business computing as the dominant use of information technology, with a trajectory certain to open a wider gap in the future.)

The locus of the infrastructure battle today, of course, is in the fundamental questions being asked about the very nature of digital life.  Is the network a piece of private property operated subject to the rules of the free market, the invisible hand, and a wondrous absence of transaction costs?  Or is it a fundamental element of modern citizenship, overseen by national governments following their most basic principles of governance and control?

At one level, that fight is visible in the machinations between governments (U.S. vs. E.U. vs. China, e.g.) over what rules apply to the digital lives of their citizens.  Is the First Amendment, as John Perry Barlow famously said, only a local ordinance in Cyberspace?  Do E.U. privacy rules, being the most expansive, become the default for global corporations?

At another level, the lines have been drawn even sharper between public and private parties, and in side-battles within those camps.  Who gets to set U.S. telecom policy—the FCC or Congress, federal or state governments, public sector or private sector, access providers or content providers?  What does it really mean to say the network should be “nondiscriminatory,” or to treat all packets anonymously and equally, following a “neutrality” principle?

As individuals, are we consumers or citizens, and in either case how do we voice our view of how these problems should be resolved?  Through our elected representatives?  Voting with our wallets?  Through the media and consumer advocates?

Not to sound too dramatic, but there’s really no other way to see these fights as anything less than a struggle for the soul of the Internet.  As its importance has grown, so have the stakes—and the immediacy—in establishing the first principles, the Constitution, and the scriptures that will define its governance structure, even as it continues its rapid evolution.

The Next Wave

Network architecture and regulation aside, the other big problems of the day are not as different as they seem.  Privacy, cybersecurity and copyright are all proxies in that larger struggle, and in some sense they are all looking at the same problem through a slightly different (but equally mis-focused) lens.  There’s a common thread and a common problem:  each of them represents a fight over information usage, access, storage, modification and removal.  And each of them is saddled with terminology and a legal framework developed during the Industrial Revolution.

As more activities of all possible varieties migrate online, for example, very different problems of information economics have converged under the unfortunate heading of “privacy,” a term loaded with 19th and 20th century baggage.

Security is just another view of the same problems.  And here too the debates (or worse) are rendered unintelligible by the application of frameworks developed for a physical world.  Cyberterror, digital warfare, online Pearl Harbor, viruses, Trojan Horses, attacks—the terminology of both sides assumes that information is a tangible asset, to be secured, protected, attacked, destroyed by adverse and identifiable combatants.

In some sense, those same problems are at the heart of struggles to apply or not the architecture of copyright created during the 17th Century Enlightenment, when information of necessity had to take physical form to be used widely.  Increasingly, governments and private parties with vested interests are looking to the ISPs and content hosts to act as the police force for so-called “intellectual property” such as copyrights, patents, and trademarks.  (Perhaps because it’s increasingly clear that national governments and their physical police forces are ineffectual or worse.)

Again, the issues are of information usage, access, storage, modification and removal, though the rhetoric adopts the unhelpful language of pirates and property.

So, in some weird and at the same time obvious way, net neutrality = privacy = security = copyright.  They’re all different and equally unhelpful names for the same (growing) set of governance issues.

At the heart of these problems—both of form and substance—is the inescapable fact that information is profoundly different than traditional property.  It is not like a bush or corn or a barrel of oil.  For one thing, it never has been tangible, though when it needed to be copied into media to be distributed it was easy enough to conflate the media for the message.

The information revolution’s revolutionary principle is that information in digital form is at last what it was always meant to be—an intangible good, which follows a very different (for starters, a non-linear) life-cycle.  The ways in which it is created, distributed, experienced, modified and valued don’t follow the same rules that apply to tangible goods, try as we do to force-fit those rules.

Which is not to say there are no rules, or that there can be no governance of information behavior.  And certainly not to say information, because it is intangible, has no value.  Only that for the most part, we have no real understanding of what its unique physics are.  We barely have vocabulary to begin the analysis.

Now What?

Terminology aside, I predict with the confidence of Moore’s Law that business and consumers alike will increasingly find themselves more involved than anyone wants to be in the creation of a new body of law better-suited to the realities of digital life.  That law may take the traditional forms of statutes, regulations, and treaties, or follow even older models of standards, creeds, ethics and morals.  Much of it will continue to be engineered, coded directly into the architecture.

Private enterprises in particular can expect to be drawn deeper (kicking and screaming perhaps) into fundamental questions of Internet governance and information rights.

Infrastructure and application providers, as they take on more of the duties historically thought to be the domain of sovereigns, are already being pressured to maintain the environmental conditions for a healthy Internet.  Increasingly, they will be called upon to define and enforce principles of privacy and human rights, to secure the information environment from threats both internal (crime) and external (war), and to protect “property” rights in information on behalf of “owners.”

These problems will continue to be different and the same, and will be joined by new problems as new frontiers of digital life are opened and settled.  Ultimately, we’ll grope our way toward the real question:  what is the true nature of information and how can we best harness its power?

Cynically, it’s lifetime employment for lawyers.  Optimistically, it’s a chance to be a virtual founding father.  Which way you look at it will largely determine the quality of the work you do in the next decade or so.