an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is the Innovation Game Worth the Candle? Thoughts on Zittrain's Future of the Internet
Jonathan Zittrain is a leading theorist of internet governance. This field has primarily been concerned with promoting innovation. In my view, Zittrain's greatest contribution to the field has been his willingness to take seriously the types of privacy, security, and fairness concerns raised by new networks and data analysis.
For example, other internet theorists have been quick to draw a bright line between Silicon Valley "good guys" and the dark forces of telecom, cable, Hollywood, and RIAA lobbyists who'd shut them down. Zittrain has never gone in for such naive dichotomies. It's no surprise that he's offered thoughtful commentary on the recent Google-Verizon proposal on net neutrality. I'm sure he'll continue to a be an excellent guide to future developments as social networks, search engines, carriers, and content owners engage in "co-opetition" to extract maximum revenues from customers.
But at some point, even technology enthusiasts must reconsider whether the current innovation game is worth the candle of ongoing privacy violations, industrial concentration, black box technology, and cozy relationships between Silicon Valley and DC elites. If the next "garage innovators" dream of building a new web utility so they can grab a billion dollars and destroy user privacy---who really cares? Ivan Seidenberg may well be as good a CEO for the "next Facebook" as a would-be Mark Zuckerberg. Zittrain frequently worries about the balkanization of the net. But if aggregators are putting journalists out of business, perhaps society is best served by the paywalls of behemoths like Verizon or Comcast boosting entities that can force users to pay (or favor those who do). If Verizon speeds the "New York Times (NYT) article from NYT website for paid NYT subscriber" past the "clipping on HuffPo of same article for nonsubscriber," and gives the NYT a cut, maybe that's needed to keep the paper of record going. I'm not saying this is a necessary, or even a likely, outcome of non-neutrality. I'm just saying that the judgments required here seem irreducibly contextual and situational---a point Ann Bartow eloquently pursues in her characterization of "generativity versus tetheredness" as a false binary.
Jaron Lanier's cri de coeur has a kernel of truth re Web 2.0: "the aggregator (like Google, for instance) gets rich, while the actual producers of content get poor." I have yet to see a study comprehensively validating that point, but the economic travails of many journalists suggest that platforms like Google, YouTube, Facebook, etc. are as much digital WalMarts as they are Poolian "technologies of freedom." They guarantee "everyday low prices" for a surfeit of content, which users are quite happy to consume without paying much mind to the power relations that can make a Denver newspaper journalist as obsolete as a South Carolina mill worker.
Zittrain's recent attention to the problem of "Minds for Sale" has highlighted these problems, exploring platforms ranging from Amazon's "Mechanical Turk" to Crowdflower, Solvate, and Innocentive. As Trebor Scholz notes,
One of the most egregious businesses of this sort . . . is Txteagle. Th[is] mobile outsourcing business . . . is built on the fact that cell phones are increasingly pervasive in the economically developing world. The idea is to find simple tasks that people in those desperately poor geographic regions can execute on their phones in return for micro-payments.
Score another point for the mobility of capital, ever-better equipped to escape pesky environmental or labor standards. It makes sense for a company to try as hard as it can to "innovate" and generate more goods or services at a higher profit margin whenever it can. A society full of such companies may well suffer serious setbacks, if the dominant result of the innovation is the type of economic and cultural disruption that's become so common in recent years. To his great credit, JZ avoids the usual techno-utopian narrative of cyber-efficiency here and recognizes the positive role of a "range of labor laws and practices, found in most developed countries, that govern worker protections, minimum wage, health and retirement benefits, child labor, and so forth."
But the privacy problems of internet behemoths may well prove to be even more intractable than their economic fallout. Zittrain may be too far ahead of the pack in grappling with privacy problems in Future of the Internet, where he observes that "government or corporations, or other intermediaries, need not be the source of the surveillance" in Privacy 2.0, since "peer-to-peer technologies can eliminate points of control and gatekeeping from the transfer of personal data and information just as they can for movies and music." Perhaps we have become "our own worst enemy" in a pervasively surveilled society, but it's government and key private decisionmakers (such as educators, employers, landlords, and bankers) who have real power. New laws and technologies of accountability are needed to record the snooping done by the powerful and subject their surveillance itself to scrutiny. I look forward to seeing Zittrain's ongoing efforts to promote privacy via design principles and interdisciplinary engagement.
(This post is cross-posted from Concurring Opinions, which is currently holding a symposium on Zittrain's book The Future of the Internet (and How to Stop It).) Posted
by Frank Pasquale [link]