Replies to both Milton and Carlos here.


Milton, you make a good point about competing rights: they do often
conflict and then we need to figure out how to balance them.  Not all
"innovation" is *per se* a good thing.  There is criminal innovation and
careless innovation with "market external" harms.  So I would not hold up
"innovation" as an absolute good, any more than any other abstract concept.
The devil is always in the details.

So, I have mixed feelings about Uber, to bring up that one specific case.
We do have a tradition of consumer protection regulation in our society,
and as a result consumers have a certain baseline expectation of safety
such that they expect the goods they purchase will not harm them (and if
they do, they can effectively bring suit and get compensated for loss, etc.
-- i.e., there is effective enforcement against breaches of safety).

Uber is in an early stage right now, and I haven't done due diligence to
understand their liabilities.  Uber supporters say they are well-insured,
opponents claim they are not -- and I'm not expert enough to know, myself.
So far there haven't been any Uber catastrophes, but I wonder if that's
just a Sword of Damocles hanging over the head of an under-insured system.
If Uber "safe" to use (i.e., compared to taxis)?  (And what about Uber
drivers, are they ultimately being abused by Uber's new market power by
being a gatekeeper in a two-sided market?  I won't elaborate on this point,
but it's another regulatory concern.)

I honestly don't know (about safety and liability), but that's the point.
I think Uber rides should be as safe to use as taxis, because we are
comparing them against each other.  I mean, what's the difference between
Uber and hitchhiking, except for a matching app?

So, I like the idea of the matching app, but I also want safety to be
regulated, because frankly I don't have time to do due diligence on every
such service I encounter in the marketplace.  If we didn't have things like
liabilities and warranties etc. generally taken care of, the market would
be a lot more dangerous place.  I mean, I'm *not* a "rational actor"
because I don't want to take the time to do full due diligence on
everything.  I'm Homo Sapiens, not Homo Economicus (i.e., the conceptual
lab rat of economics).

Now, of course this can be taken to extremes -- dictatorships are known for
making the trains run on time (until corruption overtakes things, and the
whole edifice collapses) -- but what I'm always looking for is balance.  I
don't believe any extreme is in balance, either direction.

(PS: Your point to Bill about FCC defining the public interest mandate as
"competitive markets" is entertaining, but I -- progressive -- agree with
it fully!  The reality is that markets in the real world will generally
*fail* to be competitive without regulatory oversight to ensure that we get
as close to that competitive structure as possible.  We've never had a
truly competitive market in the real world, and probably never will, but
not because of government regulation.  They just don't exist in the wild,
only in theoretical laboratories in economists' conceptual utopias.  The
closest we get to it is what we call "commodity markets" where profits are
only barely large enough to support labor and capital on a sustainable
basis -- i.e, the classic example is paper clips.  Short of that, we get
"monopolistic competition" with highly substitutable goods like Coke/Pepsi.
But the very idea of "equilibrium" -- the bedrock of economic mathematics
-- is itself a chimera, in a world powered by the non-linear dynamics of
energy inputs.  It's quicksand, the minute you might reach "equilibrium"
it's already gone somewhere else.  Because of this, market competition is
inherently fragile and unstable, and needs to be constantly shepherded into
place in the real world.  So, regarding regulation, take the basic example:
corporations with limited liability for shareholders would simply not exist
without the regulatory grant of a government to enforce those limitations
on liabilities.  They are intrinsically creatures of regulation at their
very origin, and do not -- cannot -- emerge "in the wild" without such
regulation to give birth to them.  At the end of the day, "competitive
markets" do not exist and to the extent that we get close to them it is
largely because of government regulation to keep them as competitive as
possible.  Then, the issue becomes making sure government is accountable to
keep regulating for competition and not for elite privilege.)


Carlos, I'm a big fan of common carriage, and Internet folks generally
ought to be too.  The bedrock principle of "open-end-to-end" is basically
common-carriage designed into the network architecture.  "Network
neutrality" is Tim Wu's terms for the same thing, in this context.  Back in
2007 when I was working with Milton and Robin on the "Keep The Core
Neutral" campaign (which, if memory serves, was a phrasing that Avri came
up with?), this was the fundamental principle for keeping censorship out of
the DNS.

There may be lots of reasons why government regulation of "technical
monopolies" (as Milton Friedman termed them) can fall prey to imperfection,
but I think the basic principle of common carriage is sound and eternal.
If there was any problem with, say, the US government creation of the AT&T
("Ma Bell") monopoly, it was *not* the imposition of common carriage as an
operating principle, IMHO.

Dan


--
Any opinions expressed in this message are those of the author alone and do
not necessarily reflect any position of the author's employer.



At 1:05 PM -0600 12/25/14, Carlos Raul Gutierrez wrote:
>See my coo nets on uber below
>
>Enviado desde mi iPad
>
>_________________________
>email [log in to unmask]
>skype carlos.raulg
>cel   +506 8837 7176 (New Number)
>home  +506 4000 2000
>
>Apartado 1571-1000
>San jose COSTA RICA
>
>
>El 25/12/2014, a las 12:01, Milton L Mueller <[log in to unmask]> escribió:
>
>> Dan,
>> Your approach to the problem implies that there are no conflicts of
>>interest.
>> So what happens when my individual right to freedom of expression
>>conflicts with some very powerful interest groups who DON'T agree that
>>our world is better when I am able to innovate. In those cases I would
>>say, rights are more important, there is no public interest calculus.
>>
>> There are, e.g., taxi drivers who find Uber's right to innovate and
>>their customers' right to choose something that should be suppressed in
>>the name of the public interest. What do you say?
>
>The case of uber goes at the hearth of the common carriage doctrine,
>literally, which Governments have tried to regulate over centuries now,
>with a more or less lousy public transportation system for the poor on the
>one hand and a slightly better, privatized taxi service one for the better
>off, heavily regulated in an effort of justifying some level of universal
>access (does this story ring a familiar bell in terms of Internet access?)
>
>Nobody, but really nobody expected competition by private car owners to
>heavily regulated taxi services would arise through the smartphone
>services provided by heavily regulated telecom networks.......such is the
>power of the free markets, that some people try to regulate "in the public
>interest"
>
>>
>>> -----Original Message-----
>>> From: NCSG-Discuss [mailto:[log in to unmask]] On Behalf
>>> Of Dan Krimm
>>> Sent: Tuesday, December 23, 2014 11:44 PM
>>> To: [log in to unmask]
>>> Subject: Re: [NCSG-Discuss] Important blog post about the ICANN
>>> Accountability CCWG
>>>
>>> Okay, I guess I still want to emphasize the aspect of individual rights
>>>as a
>>> collective interest.
>>>
>>> *My/our* world is made better when *your* kids are better educated.
>>>
>>> *I/we* benefit when *you* are able to innovate more effectively.
>>>
>>> *My/our* ability to understand my/our world is enhanced by *your*
>>> freedom to speak.
>>>
>>> The (non-linear, exponential, multiplier) network effects of individual
>>> freedoms are what constitute the most important (IMHO) collective benefit
>>> of individual rights.
>>>
>>> And, our individual lives are improved when there is a rising tide that
>>>lifts all
>>> ships.  Regardless of the context where term may have originated, this
>>>is true
>>> and important.
>>>
>>> So, when we encounter appropriation of the P.I. term by narrow interests, I
>>> think we should be prepared to respond to re-cast it systematically,
>>>and not
>>> only "de-appropriate" the term or respond to it ad hoc.  I think it's worth
>>> thinking about this systematically, so that when we encounter the need
>>>there
>>> is a consistent frame to use that ties all the individual instances
>>>together in a
>>> consistent manner.
>>>
>>> We should always be thinking about how individual rights raise the tide
>>> overall and multiply exponentially to benefit society collectively.
>>> Especially if the term is being used to argue for narrow benefits in some
>>> specific case.
>>>
>>> Dan
>>>
>>>
>>> --
>>> Any opinions expressed in this message are those of the author alone and do
>>> not necessarily reflect any position of the author's employer.
>>>
>>>
>>>
>>> At 4:00 AM +0000 12/24/14, Milton L Mueller wrote:
>>>> Dan:
>>>> Of course there are collective goods, and a need to organize
>>>> politically to achieve them.
>>>> And I agree that freedoms themselves have many positive externalities;
>>>> and that a legal system that protects rights could itself be considered
>>>> a collective good; and that protecting rights (as I said in my last
>>>> message) is in the interest of the general public.
>>>>
>>>> I think the only significant disagreement is here:
>>>>
>>>>> So it seems there may be two broad strategies to choose from here:
>>>>> (1) re- appropriating the term P.I., or (2) attempting to remove the term
>>> P.I.
>>>>> outright from systematic discourse among policy makers at ICANN.  And
>>>>> it seems you are arguing for the latter.
>>>>
>>>> Neither. I don't think the term P.I. can be "appropriated." That's what
>>>> I have been trying to say. I guess the opposing vision here is that
>>>> through persistent organizing and agitating we can condition (in the
>>>> Pavlovian
>>>> sense) the ICANN polity to think of _our_ specific values and policy
>>>> agenda every time they hear the term P.I. But it's hard to see how or
>>>> why that would ever work. Dozens of other political actors are busy
>>>> appropriating the term, including GACers (who think they represent the
>>>> public interest simply by virtue of the fact that they are
>>>> governments), intellectual property interests and business interests.
>>>> And I am enough of a rational actor theorist to think that when GAC or
>>>> the government of China or Steve DelBianco and other business interests
>>>> actively push the term they know what they are doing, that kind of
>>>> framing must contribute to their own policy agenda in an important way.
>>>> So in the end, you just end up having an argument about what the public
>>>> interest really is and whose conception is right.
>>>>
>>>> Or at worst, you create a bias in the discourse against individual
>>>> freedom and principled recognition of rights, because in a mature
>>>> institutionalized system most committed and well-resourced actors are
>>>> trying to control things collectively rather than un-control things or
>>>> free them up.
>>>>
>>>> More below...
>>>>
>>>>> I'm not sure if these need to be perfectly mutually exclusive, and I
>>>>> can see there may be certain situations where the latter strategy
>>>>> might be the most effective one for our immediate (collective NCSG)
>>>>> purposes.  But I expect there will probably be other specific
>>>>> circumstances where the former strategy might hold the most promise.
>>>>>
>>>>> Maybe we can agree to try to be aware of the two options, try to
>>>>> determine which option is the best for a specific circumstance, and
>>>>> then use that strategy where it seems to be the best choice to accomplish
>>> our goals.
>>>>>
>>>>> Does that make sense to you?
>>>>
>>>> Yes, it does. I am not trying to banish the term PI from the lexicon
>>>> entirely. It can be useful when narrowly focused economic (or
>>>> political) interest groups grab control of a policy process and milk it
>>>> for private gain. The obvious line of attack in those situations is to
>>>> say, yes, we see how this benefits X interest group (French vintners,
>>>> or registrars, or incumbent registries or something) but doesn't it do
>>>> so at the expense of the public? But I just don't think the overarching
>>>> principle of our policy agenda is the public interest per se, a term
>>>> taken from late 19th century utility regulation. I would rather think
>>>> of it as advancing and protecting individual rights, especially rights
>>>> to free expression and to an open and innovative internet.
>>>>
>>>> --MM