A 10-Point Agenda for Comprehensive Telecom Reform

Changing committee chairmanships in Congress and a leadership shakeup at the Federal Communications Commission have once again opened a window of opportunity for comprehensive telecommunications policy reform. While new faces are taking over within Congress and at the FCC, however, old issues continue to dominate the telecom policy landscape. This is largely due to the fact that, when Congress last attempted to address these matters five years ago by passing the historic Telecommunications Act of 1996, legislators intentionally avoided providing clear deregulatory objectives for the FCC and instead delegated broad and remarkably ambiguous authority to the agency. That left the most important deregulatory decisions to the FCC, and, not surprisingly, the agency did a very poor job of following through with a serious liberalization agenda. The Telecom Act, with its backward-looking focus on correcting the market problems of a bygone era, has been a failure. Instead of thoroughly clearing out the regulatory deadwood of the past, legislators and regulators have engaged in an effort to rework regulatory paradigms that where outmoded decades ago. In short, it was an analog act for an increasingly digital world. The new leadership in Congress and the FCC should adopt a fresh approach based on deregulation and free markets

Is America Exporting Misguided Telecommunications Policy? The U.S.-Japan Telecom Trade Negotiations and Beyond

Global telecommunications markets have traditionally been closed to foreign trade and investment. Recent World Trade Organization negotiations resulted in a Basic Telecommunications agreement that sought to construct a multilateral framework to reverse that trend and begin opening telecom markets worldwide. Regrettably, this new WTO framework is quite ambiguous and open to pro-regulatory interpretations by member states. In fact, during recent bilateral trade negotiations with Japan, U.S. government officials adopted the position that the new framework allowed them to demand that the Japanese government adopt very specific regulatory provisions regarding telecom network interconnection and pricing policies. The Office of the U.S. Trade Representative argued that Japanese officials should require their domestic telecom providers to share their networks with rivals at a generously discounted price to encourage greater resale competition. Those interconnection and line-sharing rules were borrowed directly from the U.S. Telecommunications Act of 1996, a piece of legislation that remains the subject of intense debate within the United States. Good evidence now exists that those rules generally retard net-work investment and innovation by encouraging infrastructure sharing over facilities-based investment. Consequently, the USTR has generated resentment on the part of Japan and other trading partners as it has attempted to force them to adopt heavy-handed telecommunications mandates that have very little to do with legitimate free-trade policy. The USTR must discontinue efforts to impose American telecommunications regulations on other countries as part of free-trade negotiations and should instead focus on reforming or eliminating the most serious barriers to foreign direct investment both here and abroad

Privacy Law\u27s Precautionary Principle Problem

Privacy law today faces two interrelated problems. The first is an information control problem. Like so many other fields of modern cyberlaw—intellectual property, online safety, cybersecurity, etc.—privacy law is being challenged by intractable Information Age realties. Specifically, it is easier than ever before for information to circulate freely and harder than ever to bottle it up once it is released. This has not slowed efforts to fashion new rules aimed at bottling up those information flows. If anything, the pace of privacy-related regulatory proposals has been steadily increasing in recent years even as these information control challenges multiply. This has led to privacy law’s second major problem: the precautionary principle problem. The precautionary principle generally holds that new innovations should be curbed or even forbidden until they are proven safe. Fashioning privacy rules based on precautionary principle reasoning necessitates prophylactic regulation that makes new forms of digital innovations guilty until proven innocent. This puts privacy law on a collision course with the general freedom to innovate that has thus far powered the Internet revolution, and privacy law threatens to limit innovations consumers have come to expect or even raise prices for services consumers currently receive free of charge. As a result, even if new regulations are pursued or imposed, there will likely be formidable push-up not just from affected industries but also from their consumers. In light of both of these information control and precautionary principle problems, new approaches to privacy protection are necessary. We need to invert the process of how we go about protecting privacy by focusing more on practical “bottom-up” solution—education, empowerment, public and media pressure, social norms and etiquette, industry self-regulation and best practices, and an enhanced role for privacy professionals within organizations—instead of “top-down” legalistic solutions and regulatory techo-fixes. Resources expended on top-down regulatory pursuits should instead be put into bottom-up efforts to help citizens better prepare for an uncertain future. In this regard, policymakers can draw important lessons form the debate over how best to protect children from objectionable online content. In a sense, there is nothing new under the sun; the current debate over privacy protection has many parallels with earlier debates about how best to protect online child safety. Most notably, just as top-down regulatory constraints came to be viewed as even be workable in the long-run for protecting online child safety, the same will likely be true for most privacy related regulatory enactments. This article sketches out some general lessons from those online safety debates and discusses their implications for privacy policy going forward

Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle

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. Often 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.” These panics are intense public, political, and academic responses to the emergence or use of media or technologies, especially by the young. In the extreme, they result in regulation or censorship. This paper considers the structure of fear appeal arguments in technology policy debates, and then outlines how those arguments can be deconstructed and refuted in both cultural and economic contexts. Several examples of fear appeal arguments are offered with a particular focus on online child safety, digital privacy, and cybersecurity. To the extent that these concerns are valid, they are best addressed by ongoing societal learning, experimentation, resiliency, and coping strategies rather than by regulation. If steps must be taken to address these concerns, education and empowerment-based solutions represent superior approaches to dealing with them compared to a precautionary principle approach, which would limit beneficial learning opportunities and retard technological progress

The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation

The next great wave of Internet-enabled innovation has arrived, and it is poised to revolutionize the way humans interact with the world around them. This paper highlights some of the opportunities presented by the rise of the so-called Internet of Things (IoT) in general and wearable technology in particular and encourages policymakers to allow these technologies to develop in a relatively unabated fashion

The Sharing Economy and Consumer Protection Regulation: The Case for Policy Change

In this Paper, we discuss the central benefit of the sharing economy thus far: it has overcome market imperfections without recourse to regulatory bodies prone to capture by entrenched firms. As an introduction to the various issues surrounding this ongoing debate, we begin with an explanation of the sharing economy. Then we review the traditional “consumer protection” rationales for economic regulation and explain why many regulations persist even though their initial justifications are no longer valid. We argue continued application of these outmoded regulatory regimes is likely to harm consumers. In the last section, we explain how the Internet and information technology alleviate the need for much of this top-down regulation and are likely to do a better job of serving consumers. We conclude with some proposals for further research in this area and call for a more informed regulatory approach that accounts for the innovations of the sharing economy. When market circumstances change dramatically--or when new technology or competition alleviate the need for regulation--then public policy should evolve and adapt to accommodate these new realities