THE NEXT DIGITAL DECADE ESSAYS ON THE FUTURE OF THE INTERNET Edited by Berin Szoka & Adam Marcus THE NEXT DIGITAL DECADE ESSAYS ON THE FUTURE OF THE INTERNET Edited by Berin Szoka & Adam Marcus NextDigitalDecade.com TechFreedom techfreedom.org Washington, D.C. This work was published by TechFreedom (TechFreedom.org), a non-profit public policy think tank based in Washington, D.C. TechFreedom’s mission is to unleash the progress of technology that improves the human condition and expands individual capacity to choose. We gratefully acknowledge the generous and unconditional support for this project provided by VeriSign, Inc. More information about this book is available at NextDigitalDecade.com ISBN 978-1-4357-6786-7 © 2010 by TechFreedom, Washington, D.C. This work is licensed under the Creative Commons Attribution- NonCommercial-ShareAlike 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA. Cover Designed by Jeff Fielding. THE NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET 3 TABLE OF CONTENTS Foreword 7 Berin Szoka 25 Years After .COM: Ten Questions 9 Berin Szoka Contributors 29 Part I: The Big Picture & New Frameworks CHAPTER 1: The Internet’s Impact on Culture & Society: Good or Bad? 49 Why We Must Resist the Temptation of Web 2.0 51 Andrew Keen The Case for Internet Optimism, Part 1: Saving the Net from Its Detractors 57 Adam Thierer CHAPTER 2: Is the Generative Internet at Risk? 89 Protecting the Internet Without Wrecking It: How to Meet the Security Threat 91 Jonathan Zittrain A Portrait of the Internet as a Young Man 113 Ann Bartow The Case for Internet Optimism, Part 2: Saving the Net from Its Supporters 139 Adam Thierer CHAPTER 3: Is Internet Exceptionalism Dead? 163 The Third Wave of Internet Exceptionalism 165 Eric Goldman A Declaration of the Dependence of Cyberspace 169 Alex Kozinski and Josh Goldfoot Is Internet Exceptionalism Dead? 179 Tim Wu 4 TABLE OF CONTENTS Section 230 of the CDA: Internet Exceptionalism as a Statutory Construct 189 H. Brian Holland Internet Exceptionalism Revisited 209 Mark MacCarthy CHAPTER 4: Has the Internet Fundamentally Changed Economics? 237 Computer-Mediated Transactions 239 Hal R. Varian Decentralization, Freedom to Operate & Human Sociality 257 Yochai Benkler The Economics of Information: From Dismal Science to Strange Tales 273 Larry Downes The Regulation of Reputational Information 293 Eric Goldman CHAPTER 5: Who Will Govern the Net in 2020? 305 Imagining the Future of Global Internet Governance 307 Milton Mueller Democracy in Cyberspace: Self-Governing Netizens & a New, Global Form of Civic Virtue, Online 315 David R. Johnson Who’s Who in Internet Politics: A Taxonomy of Information Technology Policy & Politics 327 Robert D. Atkinson Part II: Issues & Applications CHAPTER 6: Should Online Intermediaries Be Required to Police More? 345 Trusting (and Verifying) Online Intermediaries’ Policing 347 Frank Pasquale Online Liability for Payment Systems 365 Mark MacCarthy THE NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET 5 Fuzzy Boundaries: The Potential Impact of Vague Secondary Liability Doctrines on Technology Innovation 393 Paul Szynol CHAPTER 7: Is Search Now an “Essential Facility?” 399 Dominant Search Engines: An Essential Cultural & Political Facility 401 Frank Pasquale The Problem of Search Engines as Essential Facilities: An Economic & Legal Assessment 419 Geoffrey A. Manne Some Skepticism About Search Neutrality 435 James Grimmelmann Search Engine Bias & the Demise of Search Engine Utopianism 461 Eric Goldman CHAPTER 8: What Future for Privacy? 475 Privacy Protection in the Next Digital Decade: “Trading Up” or a “Race to the Bottom”? 477 Michael Zimmer The Privacy Problem: What’s Wrong with Privacy? 483 Stewart Baker A Market Approach to Privacy Policy 509 Larry Downes CHAPTER 9: Can Speech Be Policed in a Borderless World? 529 The Global Problem of State Censorship & the Need to Confront It 531 John G. Palfrey, Jr. The Role of the Internet Community in Combating Hate Speech 547 Christopher Wolf 6 TABLE OF CONTENTS CHAPTER 10: Will the Net Liberate the World? 555 Can the Internet Liberate the World? 557 Evgeny Morozov Internet Freedom: Beyond Circumvention 565 Ethan Zuckerman THE NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET 7 Foreword 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.”1 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. 1 ROBERT NISBET, HISTORY OF THE IDEA OF PROGRESS 215 (1980). 8 FOREWORD 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. Berin Szoka December 16, 2010 THE NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET 9 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 symbolics.com, the Internet’s first commercial domain name.2 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? 2 John C Abell, Dot-Com Revolution Starts With a Whimper, WIRED MAGAZINE, March 15, 2010, http://www.wired.com/thisdayintech/2010/03/0315-symbolics-first-dotcom/ 10 25 YEARS AFTER .COM: TEN QUESTIONS Part II tackles five “Issues & Applications” questions: 6.