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MINNESOTA JOURNAL OF LAW, SCIENCE & TECHNOLOGY VOLUME 14 WINTER 2013 ISSUE 1 Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle by Adam Thierer This article originally appeared in Issue 14.1 of the Minnesota Journal of Law, Science & Technology (Winter 2013) and should be cited as: 14 Minn. J. L. Sci. & Tech. 309 (2013) It can be found online at: http://purl.umn.edu/144225 Visit http://mjlst.umn.edu to view the issue in which this article appears or for more information about the Minnesota Journal of Law, Science and Technology THIERER_PROOF (DO NOT DELETE) 2/11/2013 10:53 AM Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle Adam Thierer* I. INTRODUCTION .................................................................. 311 II. ARGUMENTUM IN CYBER-TERROREM: A FRAMEWORK FOR EVALUATING FEAR APPEALS ........................................................................ 312 A. Appeals to Fear as an Argumentation Device .......... 312 B. Deconstructing Fear Appeal Arguments: The Violent Media Case Study ....................................... 313 C. Technopanics .............................................................. 315 D. Threat Inflation ......................................................... 317 1. Cybersecurity Threat Inflation ........................... 318 2. Online Safety Threat Inflation ............................ 320 3. Online Privacy Threat Inflation .......................... 325 4. EconoMic- and Business-Related Threat Inflation .............................................................. 329 III. REASONS PESSIMISM DOMINATES DISCUSSIONS ABOUT THE INTERNET AND INFORMATION TECHNOLOGY .............................................................. 332 A. Generational Differences ........................................... 333 B. Hyper-Nostalgia, Pessimistic Bias, and Soft Ludditism ................................................................. 335 C. Bad News Sells: The Role of the Media, Advocates, and the Listener .................................... 337 D. The Role of Special Interests and Industry Infighting ................................................................. 338 E. Elitist Attitudes Among AcadeMics and Intellectuals ............................................................. 344 F. The Role of “Third-Person-Effect Hypothesis” .......... 345 © 2013 Adam Thierer * Senior Research Fellow, Mercatus Center at George Mason Universi- ty. The author wishes to thank the following individuals for helpful thoughts on various drafts of this article: Paul Dragos Aligica, Jerry Brito, Will Rine- hart, Adam Marcus, Gregory Conko, and two anonyMous reviewers. 309 THIERER_PROOF (DO NOT DELETE) 2/11/2013 10:53 AM 310 MINN. J. L. SCI. & TECH. [Vol. 14:1 IV. TYING IT ALL TOGETHER: FEAR CYCLES .................. 347 V. WHY TECHNOPANICS AND THREAT INFLATION ARE DANGEROUS ........................................................ 350 A. Foster Animosities and Suspicions Among the Citizenry ................................................................... 351 B. Create Distrust of Many Institutions, Especially the Press ................................................................... 351 C. Often Divert Attention from Actual, Far More Serious Risks ............................................................ 351 D. Lead to Calls for Information Control....................... 352 VI. WHEN PANIC BECOMES POLICY: THE RISE OF AN INFO-TECH “PRECAUTIONARY PRINCIPLE” ... 352 A. A Range of Responses to Theoretical Risk ................ 356 B. The Perils of “Playing it Safe” ................................... 361 C. Anticipation vs. Resiliency ........................................ 364 D. Case Studies: Applying the Resiliency Model to Information Technology Issues ............................... 368 1. Online Child Safety, Privacy, and Reputation Management ....................................................... 368 2. Cybersecurity ....................................................... 373 3. Market Power and EconoMic Issues ................... 374 E. Resiliency Makes Even More Sense When Practicality of Control is Considered ...................... 376 VII. A FRAMEWORK FOR EVALUATING AND ADDRESSING TECHNOLOGY RISK .......................... 379 A. Defining the Problem ................................................. 380 B. Consider Legal and EconoMic Constraints ............... 381 C. Consider Alternative, Less Restrictive Approaches ............................................................... 383 D. Evaluate Actual Outcomes ........................................ 384 VIII. CONCLUSION ................................................................. 385 THIERER_PROOF (DO NOT DELETE) 2/11/2013 10:53 AM 2013] TECHNOPANICS 311 I. INTRODUCTION “In time we hate that which we often fear.”1 William Shakespeare Fear is an extreMely powerful Motivational force. In public policy debates, appeals to fear are often used in an attempt to sway opinion or bolster the case for action. Such appeals are used to convince citizens that threats to individual or social well-being may be avoided only if specific steps are taken. Of- ten these steps take the form of anticipatory regulation based on the precautionary principle. Such “fear appeal arguments” are frequently on display in the Internet policy arena and often take the form of a full- blown “moral panic” or “technopanic.”2 These panics are intense public, political, and acadeMic responses to the eMergence or use of media or technologies, especially by the young.3 In the extreMe, they result in regulation or censorship. While cyberspace has its fair share of troubles and trou- blemakers, there is no evidence that the Internet is leading to greater problems for society than previous technologies did.4 That has not stopped some from suggesting there are reasons to be particularly fearful of the Internet and new digital tech- nologies.5 There are various individual and institutional factors 1. WILLIAM SHAKESPEARE, Antony and Cleopatra act 1, sc. 3, line 12, in THE COMPLETE WORKS OF WILLIAM SHAKESPEARE 1127, 1132 (Stanley Wells & Gary Taylor eds., Clarendon Press 1986). 2. AdaM Thierer, Parents, Kids, & Policymakers in the Digital Age: Safe- guarding Against “Techno-Panics,” INSIDE ALEC (Am. Legislative Exch. Council, D.C.), July 2009, at 16, 16–17 [hereinafter Safeguarding Against Technopanics], available at http://www.pff.org/issues-pubs/articles/090715- against-technopanics-adam-thierer-Inside-ALEC.pdf. See also Josh Constine, Selling Digital Fear, TECHCRUNCH (Apr. 7, 2012), http://techcrunch.coM/ 2012/04/07/selling-digital-fear (discussing public panic about availability of private information online). 3. See Safeguarding Against Technopanics, supra note 2, at 16 (“[S]ocial and cultural debates quickly becoMe political debates.”). 4. See Adam Thierer, Fact and Fiction in the Debate over Video Game Regulation, PROGRESS ON POINT (Progress & Freedom Found., D.C.), Mar. 2006, at 20–21 [hereinafter Fact and Fiction], available at http://www.pff.org/issues-pubs/pops/pop13.7videogaMes.pdf (identifying a de- crease in youth murder, rape, robbery, assault, alcohol and drug abuse, teen birth rates, high school dropout rates, and suicide rates). 5. Cf. Alice E. Marwick, To Catch a Predator? The MySpace Moral Panic, FIRST MONDAY (June 2, 2008), http://firstMonday.org/htbin/cgiwrap/bin/ojs/ index.php/fm/article/view/2152/1966 (giving examples of reasons some are fearful of the Internet, but arguing that these reasons are not based on eMpir- ical evidence). THIERER_PROOF (DO NOT DELETE) 2/11/2013 10:53 AM 312 MINN. J. L. SCI. & TECH. [Vol. 14:1 at work that perpetuate fear-based reasoning and tactics. This paper will consider the structure of fear appeal argu- ments in technology policy debates, and then outline how those arguments can be deconstructed and refuted in both cultural and econoMic contexts. Several exaMples of fear appeal argu- ments will be offered with a particular focus on online child safety, digital privacy, and cybersecurity. The various factors contributing to “fear cycles” in these policy areas will be docu- mented. To the extent that these concerns are valid, they are best addressed by ongoing societal learning, experimentation, resili- ency, and coping strategies rather than by regulation. If steps must be taken to address these concerns, education- and em- powerMent-based solutions represent superior approaches to dealing with theM compared to a precautionary principle ap- proach, which would limit beneficial learning opportunities and retard technological progress. II. ARGUMENTUM IN CYBER-TERROREM: A FRAMEWORK FOR EVALUATING FEAR APPEALS This section outlines the rhetorical framework at work in many information technology policy debates today, and ex- plains why logical fallacies underlie many calls for regulation. Subsequent sections will show how these logical fallacies give rise to “technopanics” and “fear cycles.” A. APPEALS TO FEAR AS AN ARGUMENTATION DEVICE Rhetoricians eMploy several closely related types of “ap- peals to fear.” Douglas Walton, author of Fundamentals of Crit- ical Argumentation, outlines the argumentation scheme for “fear appeal arguments” as follows: “Fearful Situation Premise: Here is a situation that is fearful to you.”6 “Conditional Premise: If you carry out A, then the negative consequences portrayed in this fearful sit- uation will happen to you.”7 “Conclusion: You should not carry out A.”8 6. DOUGLAS WALTON, FUNDAMENTALS
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