It’s hard to believe TechFreedom launched just last January. As we begin 2012, let me share with you the mantra that continues to guide our work: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.”
That’s how Justice Kennedy explained the Supreme Court’s 2000 decision to strike down cable television censorship: better that parents choose for themselves what media are appropriate for their children. In short, as technology empowers, regulation should recede.
But except where courts impose this standard, the presumption in most tech policy debates is just the opposite: only government can protect us. In 1999, Larry Lessig predicted that “Cyberspace, left to itself, will not fulfill the promise of freedom. It will become a perfect tool of control.” That pessimism shapes how most advocates, commentators, regulators, lawmakers, and even judges think about tech policy.
It’s a seductive idea: If only the right policy “ levers ” can be pulled, in the right way, at the right time, perhaps cyberspace can come closer to fulfilling that “promise of freedom.” Give me a lever large enough , some regulators seem to think, and I’ll free the world!
We’re skeptical—not of their motives, but of their ability to plan a free and thriving Internet. Just as Hayek said about the “curious task” of economics, we aim “to demonstrate to men how little they really know about what they imagine they can design.” Will those policy levers really do what those pulling them think? What else will they do? Will cyberspace really turn out better than if it had been left to itself?
This isn’t an merely an argument for self-regulation, but for the broader, more complex process by which market forces check corporate power. For instance, when a reporter exposes a privacy violation at an Internet company, she may rightly declare that self-regulation has failed consumers. But she, too, is part of the “invisible hand” at work: She is a vital actor in the reputation “market,” driving up or down the value of any Internet company’s most prized asset, its reputation.
In the digital world, even the mightiest fortress of market power is built on the quicksand of a constantly changing technological landscape. Staying on top requires maintaining one’s good name—and the courage to be daring. Innovation has disrupted the dominance of countless bogeymen—from Prodigy to AOL/Time Warner to Microsoft to MySpace. Each company thrived by mastering a particular paradigm—but was dethroned when that paradigm gave way to another.
If technological change would just slow down long enough, perhaps one of these companies could finally achieve “perfect control.” But change won’t stop—and as long as it goes on, the scramble to keep up creates a bounty of new products and services for consumers. The last thing Washington should try to do is slow things down. The very messiness and chaos of the Digital Revolution is ultimately the best guarantee that technology will indeed expand our capacity to choose for ourselves.
Government’s primary role should be to ensure our choices are respected by punishing fraud and deception. Further interventions should be narrowly targeted to remedy clear harms to consumers. Education, empowerment and the enforcement of existing laws will always be the best place to start. Antitrust is generally superior to other economic regulations, but only if it serves consumers better than would the ongoing technological churn of digital paradigms . In everything it does, government must respect constitutional limits on its power to invade our privacy, censor our speech, and coerce our behavior.
This has been our message since we launched TechFreedom last January—starting with our book, The Next Digital Decade: Essays on the Future of the Internet , a unique collection of diverse scholarship available as a free download and for purchase in hardcover . Our team has since grown to include eight leading experts in Internet, communications, media and competition law and policy.
We’re proud of the impact we’ve had. Our amicus briefs in defense of free speech over paternalistic regulations put us on the winning side of two key Supreme Court decisions: Entertainment Merchants Association v. Brown (striking down videogame censorship) and U.S. v. Sorrell (striking down censorship about health information). We’ve played a leading role in a number of coalition letters to Congress on policy debates ranging from copyright enforcement to protecting Americans’ privacy from government snooping. These letters, and our other work, have been cited in Congressional markups by Congressmen from across the political spectrum, from Marsha Blackburn (R-TN) to Jared Polis (D-CO) and John Conyers (D-MI).
You’ll see more of this kind of leadership from us in 2012 and the years beyond. Stay tuned, in particular, for a series of “Top Ten” lists looking back at 2011 and thinking forward to 2012.