Author: Adam Thierer


Chander’s Balanced Examination of Free Trade, State Sovereignty, and the Internet

I very much enjoyed Anupam Chander’s excellent new book, The Electronic Silk Road: How the Web Binds the World Together in Commerce, and can highly recommend it, especially to anyone who is interested in the intersection of cyberlaw and global free trade issues. What follows are some thoughts on the book that I have condensed from a slightly longer review of the book that originally appeared on The Technology Liberation Front blog in late August.

At the heart of Chander’s book lies an old tension that has long haunted trade policy: How do you achieve the benefits of free trade through greater liberalization without completely undermining the sovereign authority of nation-states to continue enforcing their preferred socio-political legal and cultural norms? Chander correctly notes, “States will be loathe to abandon their law in the face of the offerings mediated by the Internet.” “If crossborder flows of information grossly undermine our privacy, security, or the standards of locally delivered services, they will not long be tolerated,” he notes. These are just a few of the reasons that barriers to trade remain and why, as Chander explains, “the flat world of global business and the self-regulating world of cyberspace remain distant ideals.”

Nonetheless, he hopes that we can find a way to achieve a sensible balance between the greater liberalization of markets as well as the preservation of a residual role for states in shaping online commerce and activities. And he hopes to do so through the application of three key principles. Read More


Public Choice: More than a Mere Footnote in Infrastructure Policy Discussions

[My thanks to Deven Desai, Frank Pasquale, and all the folks here at Concurring Opinions for inviting me to contribute to this symposium on infrastructure policy and Brett’s important new book on the topic. — AT]

As a textbook, there’s a lot to like about Brett Frischmann’s new book, Infrastructure: The Social Value of Shared Resources. He offers a comprehensive and highly accessible survey of the key issues and concepts, and outlines much of the relevant literature in the field. The student of infrastructure policy will benefit from Frischmann’s excellent treatment of public goods and social goods; spillovers and externalities; proprietary versus commons systems management; common carriage policies and open access regulation; congestion pricing strategies; and the debate over price discrimination for infrastructural resources. Frischmann’s book deserves a spot on your shelf whether you are just beginning your investigation of these issues or if you have covered them your entire life.

As a polemic that hopes to persuade the reader that “society is better off sharing infrastructure openly,” however, Frischmann’s book is less convincing. It certainly isn’t because I can’t find examples of some resources that might need to be managed as a commons or a collective resource. But there’s a question of balance and I believe Frischmann too often strikes it in favor of commons-based management based on the rationale that “citizens must learn to appreciate the social value of shared infrastructure” (p. xi), without fully appreciating the costs and complexities of making that the paramount value in this debate. Read More


On Defining Generativity, Openness, and Code Failure

I’ve really enjoyed the back-and-forth in this symposium about the many issues raised in Jonathan Zittrain’s Future of the Net, and I appreciate that several of the contributors have been willing to address some of my concerns and criticisms in a serious way. I recognize I’m a bit of a skunk at the garden party here, so I really do appreciate being invited by the folks at Concurring Opinions to play a part in this. I don’t have much more to add beyond my previous essay, but I wanted to stress a few points and offer a challenge to those scholars and students who are currently researching these interesting issues.

As I noted in my earlier contribution, I’m very much hung up on this whole “open vs. closed” and “generative vs. sterile/tethered” definitional question. Much of the discussion about these concepts takes place at such a high level of abstraction that I get very frustrated and want to instead shift the discussion to real-world applications of these concepts.  Because when we do, I believe we find that things are not so clear-cut.  Again, “open” devices and platforms rarely are perfectly so; and “closed” systems aren’t usually completely clamped down.  Same goes for the “generative vs. sterile/tethered” dichotomy.

That’s one reason I’ve given Jonathan such grief for making Steve Jobs and his iPhone the villain of his book, which is highlighted in the very first and last line of Future of the Net as the model of what we should hope to avoid. But is it really?  Ignore the fact that there are plenty of more “open” or “generative” phones / OSs on the market.  The more interesting question here is how “closed” is the iPhone really?  And how does it stack up next to, say, Android, Windows Mobile, Blackberry, Palm, etc.?  More importantly, how and when do we take the snapshot and measure such things?

I’ve argued that Zittrain’s major failing in FoTN—and Lessig’s in Code—comes down to a lack of appreciation for just how rapid and unpredictable the pace of change in this arena has been and will continue to be. The relentlessness and intensity of technological disruption in the digital economy is truly unprecedented.  We’ve had multiple mini-industrial revolutions within the digital ecosystem over the past 15 years. I’ve referred to this optimistic counter-perspective in terms of “evolutionary dynamism” but it’s really more like revolutionary dynamism.  Nothing—absolutely nothing—that was sitting on our desks in 1995 is still there today (in terms of digital hardware / software, I mean).  Heck, I doubt that much of what was on our desk in 2005 is still there either—with the possible exception of some crusty desktop computers running Windows XP. Read More


Why Zittrainian Techno-Pessimism is Unwarranted

In his opening essay in this symposium, Jonathan Zittrain ensures us that he is “not exactly a pessimist.” “I recognize, and celebrate,” he says, “the fact that the digital environment of 2010 is the coolest, most interesting, most option-filled it’s ever been.”  Terrific!  I am glad to hear that because the crux of my repeated critiques of his book, The Future of the Internet, over the past two years has been focused on its unrelenting – and largely unwarranted – pessimism about our possible cyber-futures. Alas, his essay on these pages still displays much of that underlying techno-pessimism and begs me to ask: Will the real Jonathan Zittrain please stand up?

Regardless of whether Zittrain is more optimistic now than when he penned his book two years ago, others are seemingly taking its pessimist message to heart.  Indeed, “the Death of the Internet” is a hot meme in the Internet policy world these days.  Much as a famous 1966 cover of Time magazine asked “Is God Dead?” Wired magazine, the magazine for the modern digerati, proclaimed in a recent cover story that “The Web is Dead.” And just this past week, The Economist magazine ran a cover story fretting about “The Web’s New Walls,” wondering “how the threats to the Internet’s openness can be averted.” Like Zittrain’s book, the primary fear expressed in both essays was that the wide-open Internet experience of the past decade is giving way to a new regime of corporate control and walled gardens.

Before addressing this concern in more detail, let’s consider the origins of Zittrain’s pessimism. Zittrain’s Future of the Internet, as well as Tim Wu’s soon-to-be-released The Master Switch: The Rise and Fall of Information Empires, might best be understood as the second and third installments in a trilogy that began with the publication of Lawrence Lessig’s seminal 1999 book, Code and Other Laws of Cyberspace.  Read More