Berin Szoka

This book is both a beginning and an end. Its publication marks the beginning of TechFreedom, a new non-profit think tank that will launch alongside this book in January 2011. Our mission is simple: to unleash the progress of technology that improves the human condition and expands individual capacity to choose. This book also marks an end, having been conceived while I was Director of the Center for Internet Freedom at The Progress & Freedom Foundation—before PFF ceased operations in October 2010, after seventeen years.

Yet this book is just as much a continuation of the theme behind both PFF and TechFreedom: "progress as freedom." As the historian Robert Nisbet so elegantly put it: "the condition as well as the ultimate purpose of progress is the greatest possible degree of freedom of the individual." This book's twenty-six contributors explore this theme and its interaction with relentless technological change from a wide variety of perspectives.

Personally, this book is the perfect synthesis of the themes and topics that set me down the path of studying Internet policy in the late 1990s, and weaves together most of the major books and authors that have influenced the evolution of my own thinking on cyberlaw and policy. I hope this collection of essays will offer students of the field the kind of authoritative survey that would have greatly accelerated my own studies. Even more, I hope this volume excites and inspires those who may someday produce similar scholarship of their own—perhaps to be collected in a similar volume celebrating another major Internet milestone.

I am deeply grateful to Shane Tews, Vice President for Global Public Policy and Government Relations at VeriSign, who first suggested publishing this sort of a collection to commemorate the 25th anniversary of the first .COM domain name (registered in 1985) by asking what the future might bring for the Internet. Just as I hope readers of this book will be, she had been inspired by reading Who Rules the Net? Internet Governance & Jurisdiction, a collection of cyberlaw essays edited by Adam Thierer and Clyde Wayne Crews, and published by the Cato Institute in 2003. This book would not exist without the unconditional and generous support of VeriSign, the company that currently operates the .COM registry.

Nor would the book exist without the superb intellectual contributions and patience of our twenty-six authors, and all those who assisted them. I must also thank PFF Summer Fellows Alexis Zayas, Jeff Levy and Zach Brieg for their invaluable assistance with editing and organization, and Jeff Fielding for the book's stunning cover artwork and design.

Most of all, I must thank Adam Thierer and co-editor Adam Marcus. The two and a half years I spent working closely with them on a wide range of technology policy topics at PFF were the highlight of my career thus far.

I look forward to helping, in some small way, to discover the uncertain future of progress, freedom, and technology in the next digital decade—and beyond.

Introduction: 25 Years After .COM:
Ten Questions

Berin Szoka

While historians quibble over the Internet's birth date, one date stands out as the day the Internet ceased being a niche for a limited number of universities, governments and military organizations, and began its transformation into a medium that would connect billions: On March 15, 1985, Symbolics, a Massachusetts computer company, registered, the Internet's first commercial domain name.[1] This book celebrates that highly "symbolic" anniversary by looking not to the Internet's past, but to its future. We have asked twenty-six thought leaders on Internet law, philosophy, policy and economics to consider what the next digital decade might bring for the Internet and digital policy.

Our ten questions are all essentially variations on the theme at the heart of TechFreedom's mission: Will the Internet, on its own, "improve the human condition and expand individual capacity to choose?" If not, what is required to assure that technological change does serve mankind? Do the benefits of government intervention outweigh the risks? Or will digital technology itself make digital markets work better? Indeed, what would "better" mean? Can "We the Netizens," acting through the digital equivalent of what Alexis de Tocqueville called the "intermediate institutions" of "civic society," discipline both the Internet's corporate intermediaries (access providers, hosting providers, payment systems, social networking sites, search engines, and even the Domain Name System operators) and our governments?

Part I focuses on five "Big Picture & New Frameworks" questions:

1. Has the Internet been good for our culture and society?

2. Is the open Internet at risk from the drive to build more secure, but less "generative" systems and devices? Will the Internet ultimately hinder innovation absent government intervention?

3. Is the Internet really so exceptional after all, or will—and should—the Internet be regulated more like traditional communications media?

4. To focus on one aspect of the Internet exceptionalism, has the Internet fundamentally changed economics? What benefits and risks does this change create?

5. Who—and what ideas—will govern the Net in 2020—at the end of the next digital decade?

Part II tackles five "Issues & Applications" questions:

6. Should intermediaries be required to police more—or be disciplined in how they police their networks, systems and services? Whether one thinks the Internet is truly exceptional, and whether it has changed economics largely determines one's answer to these questions.

7. While debates about the role of online intermediaries and the adequacy of their self-regulation focused on net neutrality in the last digital decade, the battle over "search neutrality" may be just as heated in the next digital decade. Are search engines now the "essential facilities" of the speech industry that can be tamed only by regulation? Or are they engines of empowerment that will address the very concerns they raise by ongoing innovation?

8. As the Internet accelerates the flow of information, what future is there for privacy, both from governments and private companies? Is privacy a right? How should it be protected—from both government and private companies?

9. The book concludes with two Chapters regarding the Internet in a borderless world. The first focuses on governments' regulation of speech.

10. The second focuses on the potential for governments' "disruption" by speech—by unfettered communication and collaboration among the citizenry. In both cases, our authors explore the consequences—and limits—of the Internet's empowerment of users for democracy, dissent and pluralism.

Part I: Big Picture & New Frameworks

The Internet's Impact on Culture & Society: Good or Bad?

Andrew Keen, the self-declared "Anti-Christ of Silicon Valley"[2] is scathing in his criticism of the Internet, especially "Web 2.0." Keen declares we must avoid the siren song of "democratized media," citizen journalism, and, as the title of his first book puts it, the Cult of the Amateur. He laments the "technology that arms every citizen with the means to be an opinionated artist or writer" as producing a techno-utopian delusion little different from Karl Marx's fantasies of a communist society—"where nobody has one exclusive sphere of activity but each can become accomplished in any branch he wishes."

Keen recognizes the reality of Moore's Law—the doubling of computing capability every two years—but refuses to accept the idea that "each advance in technology is accompanied by an equivalent improvement in the condition of man." Information technology is leading us into an oblivion of cultural amnesia, narcissism, and a childish rejection of the expertise, wisdom and quality of creative elites. For Keen, a "flatter" world is one in which genius can no longer rise above a sea of mediocrity, noise and triviality. His message on the verge of the next digital decade might as well be: "Abandon all hope, ye who enter here!" Keen's pessimism is as strident as a certain Pollyannaish utopianism on the other side.

Is there a middle ground? Adam Thierer, Senior Research Fellow at George Mason University's Mercatus Center, insists there must be. In two related essays, Thierer describes two schools of Internet pessimism: net skeptics generally pessimistic about technology and "net lovers" who think the "good ol' days" of the Internet were truly great but are nonetheless pessimistic about the future. This first essay responds to Net skeptics like Keen—putting him in the context of centuries of techno-pessimism, beginning with the tale from Plato's Phaedrus of Theuth and Thamus. Thierer's response is Pragmatic Optimism: "We should embrace the amazing technological changes at work in today's Information Age but with a healthy dose of humility and appreciation for the disruptive impact and pace of that change. We need to think about how to mitigate the negative impacts associated with technological change without adopting the paranoid tone or Luddite-ish recommendations of the pessimists."

Is the Generative Internet at Risk?

Harvard Law Professor Jonathan Zittrain summarizes the themes from his influential 2008 book, The Future of the Internet—And How to Stop It. Zittrain is Thierer's prototypical Net-loving pessimist who worries how technology will evolve absent intervention by those capable of steering technology in better directions. Zittrain worries that consumer demand for security will drive the developers and operators of computer networks, services and devices to reduce what he calls the "generativity" of their offerings. Thus, unregulated markets will tend to produce closed systems that limit experimentation, creativity and innovation. In particular, Zittrain decries the trend towards "appliancized" devices and services—which, unlike the traditional personal computer, can load only those applications or media authorized by the developer. Not only does this diminish user control in the immediate sense, greater "regulability" also creates the potential for the Internet's "gatekeepers" to abuse their power. Thus, Zittrain echoes the prediction made by Larry Lessig in Code—without a doubt the most influential Internet policy book ever—that "Left to itself, cyberspace will become a perfect tool of control."[3]

In the end, he proposes essentially two kinds of solutions for "Protecting the Internet without Wrecking It." The first is essentially an appeal to the civic virtues of "netizenship." Second, regulation may be required to force companies to "provide basic tools of transparency that empower users to understand exactly what their machines are doing," as well as "data portability policies." More radically, he proposes to impose liability on device manufacturers who do not respond to takedown requests regarding vulnerabilities in their code that could harm users. And, returning to his core fear of appliancized devices, he proposes that "network neutrality-style mandates" be imposed on "that subset of appliancized systems that seeks to gain the generative benefits of third-party contribution at one point in time while reserving the right to exclude it later."

Ann Bartow, Professor at the University of South Carolina School of Law, offers a stinging rebuke of Zittrain's The Future of the Internet. She summarizes the book as follows: "We have to regulate the Internet to preserve its open, unregulated nature." Her essay draws an analogy to James Joyce's 1916 novel, A Portrait of the Artist as a Young Man—emphasizing Zittrain's desire for the independence of his digital homeland, much as Joyce wrote about Ireland. But as a leading cyber-feminist, she is especially critical of what she characterizes as Zittrain's call for "an elite circle of people with computer skills and free time who share his policy perspective" to rule his preferred future (which she calls the "Zittrainet") as "Overlords of Good Faith."

As Bartow characterizes Zittrain's philosophy, "The technologies should be generative, but also monitored to ensure that generativity is not abused by either the government or by scoundrels; elite Internet users with, as one might say today, 'mad programming skilz' should be the supervisors of the Internet, scrutinizing new technological developments and establishing and modeling productive social norms online; and average, non—technically proficient Internet users should follow these norms, and should not demand security measures that unduly burden generativity." In the end, she finds Zittrain's book lacking in clear definitions of "generativity" and in specific proposals for "how to avoid a bad future for people whose interests may not be recognized or addressed by what is likely to be a very homogeneous group of elites" composed primary by male elites like Zittrain.

Like Bartow, Adam Thierer rejects Zittrain's call for rule by a Platonic elite of philosopher/programmer kings in the "Case for Internet Optimism, Part 2: Saving the Net from Its Supporters." Thierer connects the work of Larry Lessig, Jonathan Zittrain and Tim Wu as the dominant forces in cyberlaw, all united by an over-riding fear: "The wide-open Internet experience of the past decade is giving way to a new regime of corporate control, closed platforms, and walled gardens." Thierer argues that they overstate the threats to openness and generativity. Because "companies have strong incentives to strike the right openness/closedness balance…. things are getting more open all the time anyway, even though the Internet was never quite so open or generative as the "Openness Evangelicals" imagine. In the end, he concludes it is "significantly more likely that the [regulated] 'openness' they advocate will devolve into expanded government control of cyberspace and digital systems than that unregulated systems will, as the Openness Evangelicals fear, become subject to 'perfect control' by the private sector." Thus, Thierer rejects what Virginia Postrel called, in her 1998 book The Future and its Enemies, the "stasis mentality."[4] Instead, he embraces Postrel's evolutionary dynamism: "the continuum [between openness and closedness] is constantly evolving and … this evolution is taking place at a much faster clip in this arena than it does in other markets." In the end, he argues for the freedom to experiment—a recurring theme of this collection.

Is Internet Exceptionalism Dead?

Eric Goldman, professor at Santa Clara University School of Law, provides a three-part historical framework for understanding the Internet Exceptionalism debate. In the mid-1990s, Internet Utopianism reigned triumphant, exemplified in the 1996 "Declaration of the Independence of Cyberspace" by John Perry Barlow, lyricist for the Grateful Dead.[5] Despite its radicalism, this First Wave of Internet Exceptionalism succeeded in getting Congress to add the only section of the Communications Decency Act that would survive when the Supreme Court struck down the rest of the Act on First Amendment grounds: Section 230, which "categorically immunizes online providers from liability for publishing most types of third party content" and thus "is clearly exceptionalist because it treats online providers more favorably than offline publishers—even when they publish identical content." That law lies at the heart of the philosophical debate in this Chapter and Chapter 6: "Should Online Intermediaries Be Required to Police More?" The Second Wave ("Internet Paranoia") led regulators to treat the Internet more harshly than analogous offline activity. The Third Wave ("Exceptionalism Proliferation") proposed laws treating specific sites and services differently, especially social networks.

The Deadhead Barlow was dead wrong, declare—essentially—the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals, and Josh Goldfoot, Department of Justice litigator—each writing only in their private capacity—in "A Declaration of the Dependence of Cyberspace." While they agree that online anonymity and long-distance communications indeed make it harder for governments to punish law-breakers, governments are not helpless: "By placing pressure on [intermediaries like hosting companies, banks and credit card companies] to cut off service to customers who break the law, we can indirectly place pressure on Internet wrong-doers." They illustrate their point with the examples of secondary liability for copyright infringement and Judge Kozinski's decision. Indeed. they reject "the conceit that [cyberspace] exists at all" as a distinct, let alone exceptional place, as well as arguments that the costs to Internet companies of handling traditional regulations are too high.

Columbia Law Professor Tim Wu concurs that governments can, and do, regulate the Internet because of what he and Jack Goldsmith called, in their 2006 book Who Controls the Internet?, the "persistence of physicality." This is not necessarily something to be celebrated, as he notes, pointing to China's very innovativeness in finding ways to repress its citizens online—a subject addressed in this collection's final Chapter. Another of Thierer's "Net-Loving Pessimists," Wu professes Internet optimism but insists we must be "realistic about the role of government."

Wu summarizes the lengthy account in his 2010 book The Master Switch of how government is both responsible for creating information monopolists and yet also the only force ultimately capable of dethroning them. For Wu, the Internet is not exceptional—from "The Cycle" of alternation between centralization/closedness and decentralization/openness. Yet Wu agrees the Internet is indeed an exception to the general trend of traditional media: "[t]echnologically, and in its effects on business, culture and politics." Thus, he compares the "ideology as expressed in its technology" and the American exceptionalism of Alexis de Tocqueville. Yet such exceptionalism, Wu warns, "cannot be assumed, but must be defended." Wu closes with a very useful bibliography of leading works in this ongoing debate.

H. Brian Holland, Professor at Texas Wesleyan School of Law, responds with a full-bore defense of what he calls the "modified Internet Exceptionalism" encapsulated in Section 230—"modified" to be less audacious than Goldman's First Wave ("the Internet is inherently unregulable"), but still bold in its insistence that granting broad immunity to online intermediaries for the conduct of their users is vital to the flourishing of "cyber-libertarian" Web 2.0 communities—such as wikis and social networks, capable of evolving their own norms and enforcement mechanisms for policing behavior. Holland provides a history of Section 230 and the debate over Internet exceptionalism that frames the discussion of intermediary deputization in Chapter 6. He explains how Larry Lessig's conviction that private power leads to perfect control, as mentioned above, ultimately split the Internet Exceptionalist consensus against regulation of the 1990s into two camps. Both camps carried the banner of Internet freedom but reached opposite conclusions about whether the real threat comes from government or the private sector—most notably, regarding Net Neutrality. Despite this fracturing, Holland notes that the exceptional deregulation made possible by Section 230 has grown, not contracted, in its interpretation by the courts since 1996.

Similarly, Mark MacCarthy, Adjunct Professor in the Communications Culture and Technology Program at Georgetown University, explains how "[t]he initial demand from Internet exceptionalists that the online world be left alone by governments has morphed into the idea that governments should create a global framework to protect and spur the growth of the Internet." Once the exaggerated claims about the impossibility of regulating the Net made by First Wave Internet Exceptionalists proved false, the question became not whether "[i]ntermediaries can control illegal behavior on the Internet and governments can control intermediaries, but should they?"

Based on his first-hand experience at Visa (described in Chapter 6), MacCarthy seems willing to accept more intermediary deputization than Holland but insists that "[t]he establishment of these laws needs to follow all the rules of good policymaking, including imposing an obligation only when the social benefits exceed the social costs." Furthermore, he warns that "a bordered Internet in which each country attempts to use global intermediaries to enforce its local laws will not scale. This is the fundamentally correct insight of the Internet exceptionalists." Thus, MacCarthy concludes, "If governments are going to use intermediaries to enforce local laws, they are going to have to harmonize the local laws they want intermediaries to enforce."

Has the Internet Fundamentally Changed Economics?

Google's chief economist Hal Varian provides a coda to the 1998 book Information Rules: A Strategic Guide to the Network Economy (with Carl Shapiro of the University of California at Berkeley). That book pioneered the exploration of the unique aspects of information economics, and their implications for both business and policy. Here, Varian argues that the Internet's most underappreciated impact on our economy lies in the obvious yet under-appreciated ubiquity of computers in our economic transactions, facilitating four broad categories of "combinatorial innovation": new forms of contract; data extraction and analysis; controlled experimentation; and personalization and customization. Varian celebrates the transformative potential of cloud computing technology to allow even tiny companies working internationally to launch innovative new applications and services that, in turn, "can serve as building blocks for new sorts of combinatorial innovation in business processes that will offer a huge boost to knowledge worker productivity in the future."

Harvard Law Professor Yochai Benkler is best known for his book The Wealth of Networks—a clear allusion to Adam Smith's 1776 classic The Wealth of Nations.[6] Those familiar with this part of Smith's work view him narrowly as an economist focused solely on what has traditionally been characterized as economic exchange. But Smith in fact was equal parts economist, moral philosopher, and jurisprudentialist—and so is Benkler. Benkler's essay, "Decentralization, Freedom to Operate, and Human Sociality," harkens back to Smith's other key work, The Theory of Moral Sentiments (1759). For both Smith and Benkler, man's natural sociability means that our distributed interactions tend to benefit society from the bottom-up—as if by Smith's "invisible hand." For Benkler, the Internet is "a global network of communications and exchange that allows much greater flow and conversation, so that many new connections are possible on scales never before seen." Like Varian, Benkler celebrates the potential for cloud computing to facilitate accelerating and unprecedented collaboration.

But the keys to Benkler's future are sociality, voluntarism, widespread experimentation, and the freedom to experiment. The latter insistence makes him highly critical of is intellectual property—copyright, patent, etc. Yet he does not address the dangers of propertizing personal data as another form of intellectual property. What does privacy-property mean for data-driven experimentation and the freedom to experiment? This question, unanswered here, offers perhaps the most tantalizing organizing theme for a future successor to this collection of essays.

Larry Downes closes this Chapter with an expanded version of the discussion of digital economics from his 2009 book The Laws of Disruption—a book in the same tradition as Varian and Shapiro's Information Rules (1998), Postrel's The Future and its Enemies (1998), and Clayton Christensen's The Innovator's Dilemma (1997). Here, Downes proposes five principles of information economics that make the digital economy different: (1) Renewability: "information cannot be used up"; (2) Universality: "everyone has the ability to use the same information simultaneously;" (3) Magnetism: "Information value grows exponentially as new users absorb it;" (4) Friction-free: "the more easily information flows, the more quickly its value increases;" and (5) Vulnerability: The value of information can be destroyed through misuse or even its own success—information overload.

For Downes, the Internet has changed economics in a second sense: by relentlessly and ruthlessly cutting transaction costs—e.g., the costs of search, information, bargaining, decision, policing and enforcement. Thus, Varian's computer-mediation promises to dramatically flatten our economy: "As transaction costs in the open market approach zero, so does the size of the firm—if transaction costs are nonexistent, then there is no reason to have large companies"—what Downes calls "The Law of Diminishing Firms."

Downes echoes Postrel's critique of the stasis mentality: "the old rules do little more than hold back innovation for the benefit of those who cannot or do not know how to adapt to the economics of digital life." Like Benkler, Downes particularly worries about copyright law's ability to keep pace, but also explores the implications of lower transactions costs for privacy, asking: "What happens when the cost of deleting information is higher than the cost of retaining it? The answer is that nothing gets deleted." In Chapter 7, both Downes and Stewart Baker explore the costs and benefits of privacy regulation.

Finally, Eric Goldman offers another three-part conceptual framework—this time, for understanding how the Internet has revolutionized markets for reputational information. Goldman argues that "well-functioning marketplaces depend on the vibrant flow of accurate reputational information." The Internet may allow markets to regulate themselves better: If reputational information that was previously "locked in consumers' heads" can flow freely, it can "play an essential role in rewarding good producers and punishing poor ones." Smith's invisible hand alone is not enough, but "reputational information acts like an invisible hand guiding the invisible hand"—the "secondary invisible hand." A "tertiary invisible hand" allows "the reputation system to earn consumer trust as a credible source… or to be drummed out of the market for lack of credibility…."

Goldman cautions against interventions that suppress reputational information, but also highlights the potential unintended consequences of interventions intended to make reputation markets work better—like anti-gaming rules and a right-of-reply. Like Holland, Goldman emphasizes the central importance of Section 230's immunity in allowing reputation systems to flourish without being crushed by intermediary liability or policing obligations.

Who Will Govern the Net in 2020?

Each of the three authors in this Chapter wisely resists the temptation to make overly specific prophesies and instead considers the broad themes likely to shape the policy debate over the Internet's future. New York School of Law Professor David Johnson and Syracuse Information Studies Professor Milton Mueller focus on who should govern the Net in 2020—and could just as easily have responded to our question about Internet Exceptionalism—while Rob Atkinson, President of the Information Technology and Innovation Foundation, provides a "field guide" to the eight major camps in Internet policy.

Echoing Postrel's dynamist/stasist theme, like Thierer, Mueller predicts "The future of Internet governance will be driven by the clash between its raw technical potential and the desire of various incumbent interests—most notably nation-states—to assert control over that potential]." He hopes the Internet will be governed by a "denationalized liberalism" based on "a universal right to receive and impart information regardless of frontiers, and sees freedom to communicate and exchange information as fundamental, primary elements of human choice and political and social activity." This will require the authority of national and subnational governments must be contained to "domains of law and policy suited to localized or territorialized authority," while Internet governance institutions must be completely detached from nation-state institutions. Defenders of free speech will ultimately have to use global free trade institutions to strike down censorship.

Mueller finds strong grounds for optimism in the Internet's empowering and democratizing nature, and in the rise of new access technologies like unlicensed wireless broadband capable of disrupting existing Internet access bottlenecks. But he worries about the growing technological capabilities of broadband providers to manage and potentially censor traffic on their networks, and admits a darker future of strife, industrial consolidation, censorship and cyber-warfare is possible. Like Zittrain, Mueller fears a splintering of the Internet driven by conflicts over the Internet's "Root Server," and that such conflicts are bound to intensify as the drive to secure the Internet against cyber-threats and cyber-warfare intensifies.

Like Wu, David Johnson, reaches back to Tocqueville's Democracy in America (1835). While Mueller proposes a new liberalism, Johnson proposes "Democracy in Cyberspace: Self-Governing Netizens and a New, Global Form of Civic Virtue, Online." Paraphrasing Tocqueville, Johnson argues: "The Internet establishes a new equality of condition and enables us to exercise liberty to form associations to pursue new civic, social, and cultural goals." Thus, the Internet is "inherently democratic"—in ways well beyond politics. But the Internet's nature as an "engine of democratic civic virtue" must be defended daily by "netizens—the global polity of those who collaborate online, seek to use the new affordances of the Internet to improve the world, and care about protecting an Internet architecture that facilitates new forms of civic virtue." Johnson argues against Wu's apparent resignation to some degree of government meddling online: "A world in which every local sovereign seeks to control the activities of netizens beyond its borders violates the true meaning of self-governance and democratic sovereignty." Johnson predicts that technology will empower users to sidestep the traditional controls imposed by governments—not perfectly, but well enough. Thus, the Internet can fulfill the more modest ambitions of First Wave Internet exceptionalists: by making the Internet exceptionally democratic and pluralistic.

Johnson's approach resembles Thierer's Pragmatic Optimism staked out by Adam Thierer: "the trajectory of freedom and even civic virtue has been, in broad terms, over time, constantly upward—because everyone who gets a chance to experience an increased level of democratic self-government—a new 'equality of condition.'" Like Varian, Benkler and Downes, Johnson sees the Internet's facilitation of collaboration and communication as the keys to democratic empowerment.

As a think tank veteran, Rob Atkinson offers a "Taxonomy of Information Technology Policy and Politics," describing eight camps and their positions along four key issues. First is perhaps the strongest, yet also the hardest to define: the Internet Exceptionalists, the "Netizens" who "believe that they launched the Internet revolution," prefer informal Internet governance, and generally oppose government intervention online—especially copyright. By contrast, Social Engineers distrust large corporations even more than government, thus leading them to advocate regulatory solutions. Though Atkinson doesn't draw the connection, this camp might well be unified by Lessig's concept of "code as law"—updated as "choice architecture," in the highly influential 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness by Cass Sunstein and Richard Thaler. Free Marketers are those who believe the "Internet empowers people, liberates entrepreneurs, and enables markets"—especially by reducing transactions costs. Atkinson's proposed tent may be rather too large, potentially encompassing some who advocate regulations like net neutrality or antitrust intervention they believe are the key to freeing markets. The term cyber-libertarian, seems both narrower and broader than Atkinson's conception of "free-marketeers."[7] Indeed, it was originally the term Atkinson used for the "Internet Exceptionalist" camp, focused primarily on cyber-libertinism and a fanatic rejection of copyright.

Moral Conservatives, on the other hand, "have no qualms about enlisting governments to regulate the Internet" to stamp out sin and sedition. Old Economy Regulators reject Internet exceptionalism absolutely and insist on continuing to regulate the Internet like all media in the "public interest." Tech Companies & Trade Associations are united not by philosophical approach but by their ultimate duty to shareholders, while Bricks-and-Mortars companies, professional groups, and unions generally work to thwart the Internet's disruption of their business models—exemplifying Virginia Postrel's "stasis mindset." Atkinson's own camp is that of the Moderates, who want government to "do no harm" to information technology innovations, but also to "actively do good' by adopting policies to promote digital transformation" of the economy.

Part II: Issues & Applications

Should Online Intermediaries Be Required to Police More?

Seton Hall Law Professor Frank Pasquale argues that the Internet allows intermediaries to shroud their operations in what might be called "perfect opaqueness"—to extend Larry Lessig's feared model of "perfect control." Pasquale uses the example of Google to illustrate the many ways in which online intermediaries choose to police the Internet, even when not required to do by governments. Given the critical policing role played by intermediaries, Pasquale proposes an "Internet Intermediary Regulatory Council" to "help courts and agencies adjudicate controversies concerning intermediary practice" and assure adequate monitoring—a "prerequisite for assuring a level playing field online." The IIRC "could include a search engine division, an ISP division focusing on carriers, and eventually divisions related to social networks or auction sites if their practices begin to raise commensurate concerns."

While leaving open the possibility that the IIRC could be a private entity, Pasquale is unabashed in citing Robert Hale, theoretician of the New Deal's regulatory frenzy: "Hale's crucial insight was that many of the leading businesses of his day were not extraordinary innovators that 'deserved' all the profits they made; rather, their success was dependent on a network of laws and regulation that could easily shift favor from one corporate player to another." But rather than repealing these laws and regulation to allow the "evolutionary dynamism" of competition to play out, as Adam Thierer proposes, Pasquale is willing to "rely on competition-promotion via markets and antitrust only to the extent that (a) the intermediary in question is an economic (as opposed to cultural or political) force; (b) the 'voice' of the intermediary's user community is strong; and (c) competition is likely to be genuine and not contrived." Otherwise, competition is inadequate. "The bottom line," Pasquale concludes, "is that someone needs to be able to look under the hood" of culturally significant automated ranking systems." Thus, the Internet is not exceptional: Pasquale believes only careful regulatory oversight can protect us from shadowy corporations, just as in Franklin Delano Roosevelt's telephone-and-radio era.

While Pasquale seems not to object to intermediaries acting as arms of the police state so long as they are properly transparent and regulated, Mark MacCarthy cautions against the practical problems raised by intermediary policing and offers an analytical model for deciding when intermediary deputization is appropriate. Based on his experience as Senior Vice President for Public Policy at Visa Inc., MacCarthy explores how payment systems have handled Internet gambling and copyright infringement as exemplary case studies in intermediary deputization because, unlike most online intermediaries, payment systems are subject neither to Section 230's absolute immunity for third-party content or activities nor to the notice-and-take-down conditional immunity of the Digital Millennium Copyright Act.

MacCarthy finds cause for optimism about self-regulation: "regardless of the precise legal liabilities, intermediaries have a general responsibility to keep their systems free of illegal transactions and they are taking steps to satisfy that obligation." But he insists intermediary liability should be imposed only where real market failures exists, where supported by "an analysis of costs, benefits and equities," where spelled out clearly, and to the extent local laws are harmonized internationally.

The most troubling form of intermediary deputization comes from uncertain secondary copyright liability, writes independent writer, lawyer and programmer Paul Szynol in an expanded version of an essay originally written for the Electronic Frontier Foundation. He challenges the anti-exceptionalist arguments made by Judge Kozinski and Josh Goldfoot. Szynol argues that the failure to clearly define such liability chills innovation and investment in innovative start-ups—and that that this problem is unique to the Internet, given the vastly larger scale of competition facilitated by digital markets.

Most intriguingly, Szynol argues that Kozinski and Goldfoot contradict their argument against Internet Exceptionalism by insisting on a standard for secondary liability online that is not actually applied offline. Szynol asks, "should a car company be held liable for drivers who speed? After all, it would be easy enough to add a 'speed limit compliance chip.' Yet auto manufacturers are not forced to pay any portion of a speeding driver's ticket. Offline, in other words, bad actors—the users of technology—are punished for their own transgressions. Online, however, the law chases the manufacturers—and applies ad-hoc, ambiguous standards [of secondary liability] to their products." Thus, for all their denunciation of First Wave Exceptionalists like John Perry Barlow, Szynol essentially insists Kozinski and Goldfoot are actually Goldman's "Second Wave" Internet Exceptionalists who want to impose more punitive regulations online than offline.

Is Search Now an "Essential Facility?"

Frank Pasquale brings his theory of intermediary regulation to full fruition with his sweeping call for "search neutrality." Like Tim Wu in The Master Switch, Pasquale worries that antitrust law is incapable of protecting innovation and adequately addressing the "the cultural and political concerns that dominant search engines raise." Thus, he aims to "point the way toward a new concept of 'essential cultural and political facility,' which can help policymakers realize the situations where a bottleneck has become important enough that special scrutiny is warranted." In particular, Pasquale sees taming search as inextricably intertwined with protecting privacy—"Engaging in a cost-benefit analysis [as in antitrust law] diminishes privacy's status as a right"—and Google's potential chokehold on information through the Google Books Settlement.

The existence of competition in search, especially from Microsoft's Bing, and the potential for competition from Facebook and other services yet to be invented, are essentially irrelevant to Pasquale, while the First Amendment's protection of search engine operators are a complication to be addressed down the road. He concludes by insisting that regulation should be supplemented by a publicly funded alternative to the dominant private sector search engine—something the French government has heavily subsidized a European "Quaero" search engine. Similarly, in Chapter 6, Pasquale proposed to model his Internet Intermediary Regulatory Council on the French Data Protection Authority. Thus, Pasquale's over-arching vision seems to be that of a Digital New Deal—a la française.

Geoffrey Manne, Professor at Lewis & Clark Law and Executive Director of the International Center for Law & Economics, explains that search engines are not the bottlenecks Pasquale suggests—and thus why even the traditional essential facilities doctrine, which he says "has been relegated by most antitrust experts to the dustbin of history," should not apply to them. In essence, he argues that "search neutrality" would protect only competitors, not consumers, because even a popular search engine like Google cannot foreclose advertisers' access to consumers' attention. Google, like any company, has no legal duty to help its rivals. More to the point, even if Google entirely dominated search, it could not block consumers' access to its competitors. This, argues Manne, is the relevant market to analyze—quoting Supreme Court Justice Abe Fortas's famous admonition about excessively narrow market definitions: "This Court now approves this strange red-haired, bearded, one-eyed man-with-a-limp classification."

Like Manne, New York Law School Professor James Grimmelmann expresses "Skepticism about Search Neutrality," and the significant practical problems it would create. As the author of the definitive law review article, The Structure of Search Engine Law,[8] Grimmelmann is keenly aware of the concerns raised by search, yet he concludes that "the case for search neutrality is a muddle" because its "ends and means don't match." Echoing Johnson, Mueller, Holland, and Thierer's view of the Internet as a liberating, democratizing force, Grimmelmann is clear that the lodestar of search is user autonomy: "If search did not exist, then for the sake of human freedom it would be necessary to invent it." He deconstructs eight search neutrality principles—equality, object ­ivity, bias, traffic, relevance, self-interest, transparency and manipulation—and finds each lacking, but cautions that "it doesn't follow that search engines deserve a free pass under antitrust, intellectual property, privacy, or other well-established bodies of law," and that some other "form of search-specific legal oversight" might be appropriate.

Eric Goldman once again puts the debate in the context of its intellectual history. Always focused on questions of exceptionalism, Goldman concludes search engines are neutral only in theory ("Search Engine Utopianism") but must "make editorial judgments just like any other media company." He explains that, while "search engine bias sounds scary, … such bias is both necessary and desirable"—and the remedy of "search neutrality" is probably worse than whatever adverse consequences come with search engine bias. Ultimately, he predicts that "emerging personalization technology will soon ameliorate many concerns about search engine bias."

What Future for Privacy Online?

Michael Zimmer, Professor of Information Studies at School of the University of Wisconsin-Milwaukee, concedes that "the Internet has become a platform for the open flow of personal information—flows that are largely voluntarily provided by users." Yet Zimmer discusses lingering reasons for concern about the Internet as a "potent infrastructure for the flow and capture of personal information."

Zimmer explores the conflicts among privacy laws in the U.S., Europe, Canada and elsewhere, but concludes that "Companies are, on the whole, not moving around in order to avoid strict privacy regulations… instead, there has been a gradual increase in awareness and action on the issue of privacy." Still, Zimmer worries that the "'trading up' to an increased level of protection of personal information flows on our transnational digital networks has not materialized as quickly or clearly as one might expect." Zimmer's answer is to demand a "renewed commitment to the rights of data subjects embodied in the Canadian and European Union approach to data protection."

Zimmer writes from the perspective that views privacy as a "right." This is, to put it mildly, not a perspective shared by the other two authors in this Chapter: Stewart Baker, a Partner at Steptoe & Johnson LLP and former Assistant Secretary for Policy at the Department of Homeland Security (DHS), and Larry Downes, who has expanded his essay from his 2009 book The Laws of Disruption.

Baker spent his time at DHS battling privacy advocates over programs he felt justified to protect Americans against terrorism—leading him to ask, "What's Wrong with Privacy?" He traces the answer back to the 1890 law review article, "The Right to Privacy" by Supreme Court Justice Louis Brandeis and Samuel Warren that gave birth to modern privacy law. Baker rejects their "reactionary defense of the status quo" as Boston elites who didn't much like the news media reporting on the details of their private parties. In essence, Baker finds in the privacy "movement" the same "stasis mentality" defined by Virginia Postrel. Like Postrel, Baker argues for dynamism: "Each new privacy kerfuffle inspires strong feelings precisely because we are reacting against the effects of a new technology. Yet as time goes on, the new technology becomes commonplace. Our reaction dwindles away. The raw spot grows a callous. And once the initial reaction has passed, so does the sense that our privacy has been invaded. In short, we get used to it."

Baker rejects the concept of "predicates" for government access to data (e.g., requiring "probable cause" for a warrant), the "Brandeisian notion that we should all 'own' our personal data," and attempting to limit uses of information. Baker has little to say about the private sector's use of data but proposes a system of auditing government employees to rigorously monitor their use of private information.

Larry Downes, too, rejects the concept of intellectual property in personal information—but is willing to concede that Warren and Brandeis "weren't entirely wrong" in that "'private' information can also be used destructively." He thus leaves open the possibility of narrow laws tailored to limiting specific, destructive uses of information—such as anti-discrimination laws. But Downes is highly skeptical about governmental enforcement of "privacy rights," and ultimately echoes John Perry Barlow's optimism about the potential for Netizens to solve their own problems: "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means."[9] Specifically, Downes argues that "the same technologies that create the privacy problem are also proving to be the source of its solution. Even without government intervention, consumers increasingly have the ability to organize, identify their common demands, and enforce their will on enterprises"—detailing examples of how reputational pressure can discipline corporate privacy practices. Three cheers for the sound of Eric Goldman's three invisible hand clapping, perhaps? Ultimately, Downes vests his greatest hope in the Internet's potential to create new markets by lowering transactions costs—this time, a market for private data in which an explicit quid pro quo rewards consumers for sharing their personal data for beneficial, rather than destructive uses.

Can Speech Be Policed in a Borderless World?

John Palfrey, Harvard Law Professor and co-director of Harvard's influential Berkman Center for Internet & Society, speaks with unique authority on censorship as one of the co-authors of exhaustive surveys of global censorship conducted by himself, Jonathan Zittrain and others at Berkman. These studies confirm Tim Wu's conclusion that governments can and do censor speech effectively, contrary to the hopes of First Wave Internet Exceptionalists. Palfrey provides a beginner's guide to the techniques used in, goals of, and practical problems created by content filtering. Most disturbingly, he notes the growing use of "soft controls" through governmental pressure and government-fostered social norms intended to squelch dissent.

Like Zittrain, Mueller and Johnson, Palfrey fears "we may be headed toward a localized version of the Internet, governed in each instance by local laws." He thus demands a greater international debate about speech controls that forces states to discuss whether they "actually want their citizens to have full access to the Internet or not." In particular, he echoes Mueller's call for international free trade institutions to strike down censorship barriers to free speech.

Christopher Wolf, Partner at Hogan Hartson LLP, focuses not on speech that governments hate, but on "hate speech" we all—or nearly all—would find objectionable. Yet he notes how difficult it can be to distinguish these two categories of censorship. Furthermore, he concludes, after much crusading against hate speech, that "laws against hate speech have not demonstrably reduced hate speech or deterred haters." Thus, he concludes that "Hate speech can be 'policed' in a borderless world, but not principally by the traditional police of law enforcement. The Internet community must continue to serve as a 'neighborhood watch' against hate speech online, 'saying something when it sees something,' and working with online providers to enforce community standards." Thus, like Johnson, Mueller and Barlow, Wolf looks to Netizens to combat hate speech.

Can the Net Liberate the World?

The book closes by discussing the most tragic disappointment of the First Wave Internet Exceptionalists' vision. Where John Perry Barlow insisted, defiantly, that governments those "weary giants of flesh and steel… [did not] possess any methods of enforcement we have true reason to fear," the reality is that oppressive governments continue to reign, sometimes even using the Internet to serve their agenda. Can the Net liberate the world—or will it, too, become another tool of "perfect control," as Larry Lessig feared? Or will imperfect controls work well enough to allow tyrants to hang on to power?

Evgeny Morozov is a leading commentator on foreign affairs, a visiting scholar at Stanford University and a Schwartz fellow at the New America Foundation. He praises the Internet's ability to quickly disseminate information and allow dissidents to organize. Yet, having grown up in the Soviet Union, he is deeply skeptical about the much-hyped potential for Web media to live up to the hype about democratization. He rejects two critical assumptions underlying this hype. First, he concludes that the legitimacy of undemocratic regimes is derived less from "brainwashing" that can be cured by exposure to the alternative views online and more from popular support for authoritarian regimes that promise to deliver economic growth or play effectively on other concerns, such as nationalism or religion. Second, he suggests the Internet can actually facilitate surveillance, fuel genuine support for existing regimes, allow government to subtly manipulate public opinion, or simply make authoritarianism more efficient.

John Palfrey's acid observation in the previous Chapter bolsters Morozov's suggestion that much of the world may not actually want to be liberated: "In China and in parts of the former Soviet Union, very often the most fearsome enforcer of the state's will is the old woman on one's block, who may or may not be on the state's payroll."

Optimists like Johnson, Mueller, Thierer and Holland would likely differ from Morozov—and the U.S. State Department has tended in this direction, too. In January 2010, Secretary of State Hillary Clinton gave a bold speech embracing this optimism about the liberating potential of the Internet, and announcing a commitment to "supporting the development of new tools that enable citizens to exercise their rights of free expression by circumventing politically motivated censorship."[10]

Internet entrepreneur Ethan Zuckerman is a senior researcher at the Berkman Center and founder of Geekcorps, a non-profit dedicated to building computer infrastructure in developing countries. He joined John Palfrey in the study of censorship circumvention tools mentioned above.[11] Despite his passionate commitment to promoting such tools, as Secretary Clinton proposed, he concludes that "We can't circumvent our way around Internet censorship" because of the costs and practical challenges of attempting to circumvent censorship on a scale sufficient to make a real difference. Thus, he views circumvention as just one of many tools required to thwart "soft censorship, website blocking, and attacks on dissident sites. But ultimately, what is most required is building the right "theory of change" to inform the multi-pronged strategy necessary for the Internet to achieve its democratizing potential.

Conclusion: Discovering the Future
of the Internet & Digital Policy

In these thirty-one essays, our authors paint a complex picture of the future of the Internet and digital policy: Technological change inevitably creates new problems, even as it solves old ones. In the end, one's perspective ultimately depends on whether one thinks the "net" effect of that change is positive or negative—depending on how much, and in what ways, government intervenes online.

Personally, this collection brings me back to where I started my study of Internet policy—reading John Perry Barlow's "Declaration of the Independence of Cyberspace" in 1996, and Virginia Postrel's The Future and Its Enemies in 1998. Despite its now-obviously excessive utopian naïveté about the Internet's crippling of the State, Barlow's poetry still resonates deeply with many, including myself, as a powerful synthesis of Internet exceptionalism and cyber-libertarianism, a vision of progress as empowerment and uplifting of the user.

Yet like my former colleague Adam Thierer, it is Postrel's evolutionary dynamism that most guides me, with its emphasis not on a "carefully outlined future" or "build[ing] a single bridge from here to there, for neither here nor there is a single point," but on the process of discovery by which the future evolves.[12] Like Postrel, I do not imagine that the disruption and transformation wrought by the Digital Revolution will always be rosy or easy. But we cannot—as the legendary King Canute once tried with the English Channel—command the tides of technological change to halt.

Thierer's "Pragmatic Optimism" demands much more than a resignation to the inevitability of change. At its heart, it is requires a cheery confidence in what David Johnson dubs the "Trajectory of Freedom"—"in broad terms, over time, constantly upward"—but also a commitment to the process by which that trajectory is discovered. This is progress—progress as freedom.[13] But progress also requires freedom, the freedom to discover, innovate and experiment, if technology is to achieve its full potential to improve the human condition and expand individual capacity to choose.

I leave it to you, the reader, to choose—to discover—your own answers to the many questions of law, economics, philosophy and policy explored in this unique book.

[1] John C Abell, Dot-Com Revolution Starts With a Whimper, Wired Magazine, March 15, 2010,

[2] Tim Dowling, I don't think bloggers read, The Guardian, July 20, 2007,

[3] Lawrence Lessig, Code and Other Laws of Cyberspace 5-6 (1999).

[4] Virginia Postrel, The Future and Its Enemies (1998).

[5] Declaration of John P. Barlow, Cognitive Dissident, Co-Founder, Elec. Frontier Found., A Declaration of the Independence of Cyberspace (Feb. 8, 1996), available at

[6] Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 18-21 (Edwin Cannan, ed., Methuen & Co., Ltd. 1904) (1776),

[7] See Adam Thierer & Berin Szoka, Cyber-Libertarianism: The Case for Real Internet Freedom, The Technology Liberation Front, Aug. 12, 2009,

[8] James Grimmelmann, The Structure of Search Engine Law, 93 Iowa L. Rev. 1 (2007).

[9] Barlow, supra note 5.

[10] Hillary Rodham Clinton, Remarks on Internet Freedom, Jan. 21, 2010,

[11] Hal Roberts, Ethan Zuckerman & John Palfrey, 2007 Circumvention Landscape Report: Methods, Uses, and Tools (March 2009),

[12] Postrel, supra note 4 at 218.

[13] Robert Nisbet, History of the Idea of Progress 215 (1980).