Electronic Freedom Foundation

Facial recognition is a threat to privacy, racial justice, free expression, and information security. EFF supports strict restrictions on face recognition use by private companies, and total bans on government use of the technology. Face recognition in all of its forms, including face scanning and real-time tracking, pose threats to civil liberties and individual privacy. “False positive” error rates are significantly higher for women, children, and people of color, meaning face recognition has an unfair discriminatory impact. Coupled with the fact that cameras are over-deployed in neighborhoods with immigrants and people of color, spying technologies like face surveillance serve to amplify existing disparities in the criminal justice system.

Across the nation local communities from San Francisco to Boston have moved to ban government use of facial recognition. In New York, Electronic Frontier Alliance member Surveillance Technology Oversight Project (S.T.O.P.) is at the forefront of this movement. Recently we got the chance to speak with them about their efforts and what people can do to help advance the cause. S.T.O.P. is a New York-based civil rights and privacy organization that does research, advocacy, and litigation around issues of surveillance technology abuse.

What does “Ban The Scan” mean? 

When we say scan, we are referring to the “face scan” component of facial recognition technology. Surveillance, and more specifically facial recognition, disproportionately targets Black, Brown, Indigenous, and immigrant communities, amplifying the discrimination that has defined New York’s policing for as long as our state has had police. Facial recognition is notoriously biased and often abused by law enforcement. It is a threat to free speech, freedom of association, and other civil liberties. Ban the Scan is a campaign and coalition built around passing two packages of bills that would ban facial recognition in a variety of contexts in New York City and New York State. 

Are there any differences with the State vs City version?

The City and State packages are largely similar. The main differences are that the State package contains a bill banning law enforcement use of facial recognition, whereas the City package has a bill that bans all government use of the technology (although this bill has yet to be introduced). The State package also contains an additional bill banning facial recognition use in schools, which would codify an existing regulatory ban that currently applies to schools.

What hurdles exist to its passage? 

 For the New York State package, the coalition is newly coming together, so we are still gathering support from legislators and the public. For the City package, we are lucky to have a lot of support already, and we are waiting to have a hearing conducted on the residential ban bills and move them into the next phase of legislation. We are also working to get the bill banning government use introduced at the City level.

What can people do to help this good legislation? How to get involved? 

We recently launched a campaign website for both City and State packages (banthescan.org). If you’re a New York City or State resident, you can look up your legislators (links below!) and contact them to ask them to support these bills or thank them for their support if they are already signed on. We also have social media toolkits with graphics and guidance on how to help spread the word!  

Find your NYS Assemblymember: https://nyassembly.gov/mem/search/ 

Find your NYS Senator: https://www.nysenate.gov/find-my-senator 

Find your NYC Councilmember: https://council.nyc.gov/map-widget/  

Our faces are often exposed and, unlike passwords or pin numbers, cannot be remade. Governments and businesses, often working in partnership, are increasingly using our faces to track our whereabouts, activities, and associations. This is why EFF recently submitted comments to the U.S. Commission on Civil Rights, which is preparing a report on face recognition technology (FRT).   

In our submission, we reiterated our stance that there should be a ban on governmental use of FRT and strict regulations on private use because it: (1) is not reliable enough to be used in determinations affecting constitutional and statutory rights or social benefits; (2) is a menace to social justice as its errors are far more pronounced when applied to people of color, members of the LGBTQ+ community, and other marginalized groups; (3) threatens privacy rights; (4) chills and deters expression; and (5) creates information security risks.

Despite these grave concerns, FRT is being used by the government and law enforcement agencies with increasing frequency, and sometimes with devastating effects. At least one Black woman and five Black men have been wrongfully arrested due to misidentification by FRT: Porcha Woodruff, Michael Oliver, Nijeer Parks, Randal Reid, Alonzo Sawyer, and Robert Williams. And Harvey Murphy Jr., a white man, was wrongfully arrested due to FRT misidentification, and then sexually assaulted while in jail.

Even if FRT was accurate, or at least equally inaccurate across demographics, it would still severely impact our privacy and security. We cannot change our face, and we expose it to the mass surveillance networks already in place every day we go out in public. But doing that should not be license for the government or private entities to make imprints of our face and retain that data, especially when that data may be breached by hostile actors.

The government should ban its own use of FRT, and strictly limit private use, to protect us from the threats posed by FRT. 

We could go on for days talking about all the work EFF does to ensure that technology supports freedom, justice, and innovation for all people of the world. In fact, we DO go on for days talking about it — but we’d rather hear from you. 

What does EFF mean to you? We’d love to know why you support us, how you see our mission, or what issue or area we address that affects your life the most. It’ll help us make sure we keep on being the EFF you want us to be.

So if you’re willing to go on the record, please send us a few sentences, along with your first name and current city of residence, to testimonials@eff.org; we’ll pick some every now and then to share with the world here on our blog, in our emails, and on our social media.

Yesterday, the House of Representatives voted against considering a largely bad bill that would have unacceptably expanded the tentacles of Section 702 of the Foreign Intelligence Surveillance Act, along with reauthorizing it and introducing some minor fixes. Section 702 is Big Brother’s favorite mass surveillance law that EFF has been fighting since it was first passed in 2008. The law is currently set to expire on April 19. 

Yesterday’s decision not to decide is good news, at least temporarily. Once again, a bipartisan coalition of law makers—led by Rep. Jim Jordan and Rep. Jerrold Nadler—has staved off the worst outcome of expanding 702 mass surveillance in the guise of “reforming” it. But the fight continues and we need all Americans to make their voices heard. 

Use this handy tool to tell your elected officials: No reauthorization of 702 without drastic reform:

Take action

TELL congress: 702 Needs serious reforms

Yesterday’s vote means the House also will not consider amendments to Section 702 surveillance introduced by members of the House Judiciary Committee (HJC) and House Permanent Select Committee on Intelligence (HPSCI). As we discuss below, while the HJC amendments would contain necessary, minimum protections against Section 702’s warrantless surveillance, the HPSCI amendments would impose no meaningful safeguards upon Section 702 and would instead increase the threats Section 702 poses to Americans’ civil liberties.

Section 702 expressly authorizes the government to collect foreign communications inside the U.S. for a wide range of purposes, under the umbrellas of national security and intelligence gathering. While that may sound benign for Americans, foreign communications include a massive amount of Americans’ communications with people (or services) outside the United States. Under the government’s view, intelligence agencies and even domestic law enforcement should have backdoor, warrantless access to these “incidentally collected” communications, instead of having to show a judge there is a reason to query Section 702 databases for a specific American's communications.

Many amendments to Section 702 have recently been introduced. In general, amendments from members of the HJC aim at actual reform (although we would go further in many instances). In contrast, members of HPSCI have proposed bad amendments that would expand Section 702 and undermine necessary oversight. Here is our analysis of both HJC’s decent reform amendments and HPSCI’s bad amendments, as well as the problems the latter might create if they return.

House Judiciary Committee’s Amendments Would Impose Needed Reforms

The most important amendment HJC members have introduced would require the government to obtain court approval before querying Section 702 databases for Americans’ communications, with exceptions for exigency, consent, and certain queries involving malware. As we recently wrote regarding a different Section 702 bill, because Section 702’s warrantless surveillance lacks the safeguards of probable cause and particularity, it is essential to require the government to convince a judge that there is a justification before the “separate Fourth Amendment event” of querying for Americans’ communications. This is a necessary, minimum protection and any attempts to renew Section 702 going forward should contain this provision.

Another important amendment would prohibit the NSA from resuming “abouts” collection. Through abouts collection, the NSA collected communications that were neither to nor from a specific surveillance target but merely mentioned the target. While the NSA voluntarily ceased abouts collection following Foreign Intelligence Surveillance Court (FISC) rulings that called into question the surveillance’s lawfulness, the NSA left the door open to resume abouts collection if it felt it could “work that technical solution in a way that generates greater reliability.” Under current law, the NSA need only notify Congress when it resumes collection. This amendment would instead require the NSA to obtain Congress’s express approval before it can resume abouts collection, which―given this surveillance's past abuses—would be notable.

The other HJC amendment Congress should accept would require the FBI to give a quarterly report to Congress of the number of queries it has conducted of Americans’ communications in its Section 702 databases and would also allow high-ranking members of Congress to attend proceedings of the notoriously secretive FISC. More congressional oversight of FBI queries of Americans’ communications and FISC proceedings would be good. That said, even if Congress passes this amendment (which it should), both Congress and the American public deserve much greater transparency about Section 702 surveillance.  

House Permanent Select Committee on Intelligence’s Amendments Would Expand Section 702

Instead of much-needed reforms, the HPSCI amendments expand Section 702 surveillance.

One HPSCI amendment would add “counternarcotics” to FISA’s definition of “foreign intelligence information,” expanding the scope of mass surveillance even further from the antiterrorism goals that most Americans associate with FISA. In truth, FISA’s definition of “foreign intelligence information” already goes beyond terrorism. But this counternarcotics amendment would further expand “foreign intelligence information” to allow FISA to be used to collect information relating to not only the “international production, distribution, or financing of illicit synthetic drugs, opioids, cocaine, or other drugs driving overdose deaths” but also to any of their precursors. Given the massive amount of Americans’ communications the government already collects under Section 702 and the government’s history of abusing Americans’ civil liberties through searching these communications, the expanded collection this amendment would permit is unacceptable.

Another amendment would authorize using Section 702 to vet immigrants and those seeking asylum. According to a FISC opinion released last year, the government has sought some version of this authority for years, and the FISC repeatedly denied it—finally approving it for the first time in 2023. The FISC opinion is very redacted, which makes it impossible to know either the current scope of immigration and visa-related surveillance under Section 702 or what the intelligence agencies have sought in the past. But regardless, it’s deeply concerning that HPSCI is trying to formally lower Section 702 protections for immigrants and asylum seekers. We’ve already seen the government revoke people’s visas based upon their political opinions—this amendment would put this kind of thing on steroids.

The last HPSCI amendment tries to make more companies subject to Section 702’s required turnover of customer information in more instances. In 2023, the FISC Court of Review rejected the government’s argument that an unknown company was subject to Section 702 for some circumstances. While we don’t know the details of the secret proceedings because the FISC Court of Review opinion is heavily redacted, this is an ominous attempt to increase the scope of providers subject to 702. With this amendment, HPSCI is attempting to legislatively overrule a court already famously friendly to the government. HPSCI Chair Mike Turner acknowledged as much in a House Rules Committee hearing earlier this week, stating that this amendment “responds” to the FISC Court of Review’s decision.

What’s Next 

This hearing was unlikely to be the last time Congress considers Section 702 before April 19—we expect another attempt to renew this surveillance authority in the coming days. We’ve been very clear: Section 702 must not be renewed without essential reforms that protect privacy, improve transparency, and keep the program within the confines of the law. 

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TELL congress: 702 Needs serious reforms

When EFF set out to map surveillance technology along the U.S.-Mexico border, we weren't exactly sure how to do it. We started with public records—procurement documents, environmental assessments, and the like—which allowed us to find the GPS coordinates of scores of towers. During a series of in-person trips, we were able to find even more. Yet virtual reality ended up being one of the key tools in not only discovering surveillance at the border, but also in educating people about Customs & Border Protection's so-called "virtual wall" through VR tours.

EFF Director of Investigations Dave Maass recently gave a lightning talk at University of Nevada, Reno's annual XR Meetup explaining how virtual reality, perhaps ironically, has allowed us to better understand the reality of border surveillance.

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Twelve years ago, internet users spoke up with one voice to reject a law that would build censorship into the internet at a fundamental level. This week, the Motion Picture Association (MPA), a group that represents six giant movie and TV studios, announced that it hoped we’d all forgotten how dangerous this idea was. The MPA is wrong. We remember, and the internet remembers.

What the MPA wants is the power to block entire websites, everywhere in the U.S., using the same tools as repressive regimes like China and Russia. To it, instances of possible copyright infringement should be played like a trump card to shut off our access to entire websites, regardless of the other legal speech hosted there. It is not simply calling for the ability to take down instances of infringement—a power they already have, without even having to ask a judge—but for the keys to the internet. Building new architectures of censorship would hurt everyone, and doesn’t help artists.

The bills known as SOPA/PIPA would have created a new, rapid path for copyright holders like the major studios to use court orders against sites they accuse of infringing copyright. Internet service providers (ISPs) receiving one of those orders would have to block all of their customers from accessing the identified websites. The orders would also apply to domain name registries and registrars, and potentially other companies and organizations that make up the internet’s basic infrastructure. To comply, all of those would have to build new infrastructure dedicated to site-blocking, inviting over-blocking and all kinds of abuse that would censor lawful and important speech.

In other words, the right to choose what websites you visit would be taken away from you and given to giant media companies and ISPs. And the very shape of the internet would have to be changed to allow it.

In 2012, it seemed like SOPA/PIPA, backed by major corporations used to getting what they want from Congress, was on the fast track to becoming law. But a grassroots movement of diverse Internet communities came together to fight it. Digital rights groups like EFF, Public Knowledge, and many more joined with editor communities from sites like Reddit and Wikipedia to speak up. Newly formed grassroots groups like Demand Progress and Fight for the Future added their voices to those calling out the dangers of this new form of censorship. In the final days of the campaign, giant tech companies like Google and Facebook (now Meta) joined in opposition as well.

What resulted was one of the biggest protests ever seen against a piece of legislation. Congress was flooded with calls and emails from ordinary people concerned about this steamroller of censorship. Members of Congress raced one another to withdraw their support for the bills. The bills died, and so did site blocking legislation in the US. It was, all told, a success story for the public interest.

Even the MPA, one of the biggest forces behind SOPA/PIPA, claimed to have moved on. But we never believed it, and they proved us right time and time again. The MPA backed site-blocking laws in other countries. Rightsholders continued to ask US courts for site-blocking orders, often winning them without a new law. Even the lobbying of Congress for a new law never really went away. It’s just that today, with MPA president Charles Rivkin openly calling on Congress “to enact judicial site-blocking legislation here in the United States,” the MPA is taking its mask off.

Things have changed since 2012. Tech platforms that were once seen as innovators have become behemoths, part of the establishment rather than underdogs. The Silicon Valley-based video streamer Netflix illustrated this when it joined MPA in 2019. And the entertainment companies have also tried to pivot into being tech companies. Somehow, they are adopting each other’s worst aspects.

But it’s important not to let those changes hide the fact that those hurt by this proposal are not Big Tech but regular internet users. Internet platforms big and small are still where ordinary users and creators find their voice, connect with audiences, and participate in politics and culture, mostly in legal—and legally protected—ways. Filmmakers who can’t get a distribution deal from a giant movie house still reach audiences on YouTube. Culture critics still reach audiences through zines and newsletters. The typical users of these platforms don’t have the giant megaphones of major studios, record labels, or publishers. Site-blocking legislation, whether called SOPA/PIPA, “no fault injunctions,” or by any other name, still threatens the free expression of all of these citizens and creators.

No matter what the MPA wants to claim, this does not help artists. Artists want their work seen, not locked away for a tax write-off. They wanted a fair deal, not nearly five months of strikes. They want studios to make more small and midsize films and to take a chance on new voices. They have been incredibly clear about what they want, and this is not it.

Even if Rivkin’s claim of an “unflinching commitment to the First Amendment” was credible from a group that seems to think it has a monopoly on free expression—and which just tried to consign the future of its own artists to the gig economy—a site-blocking law would not be used only by Hollywood studios. Anyone with a copyright and the means to hire a lawyer could wield the hammer of site-blocking. And here’s the thing: we already know that copyright claims are used as tools of censorship.

The notice-and-takedown system created by the Digital Millennium Copyright Act, for example, is abused time and again by people who claim to be enforcing their copyrights, and also by folks who simply want to make speech they don’t like disappear from the Internet. Even without a site-blocking law, major record labels and US Immigration and Customs Enforcement shut down a popular hip hop music blog and kept it off the internet for over a year without ever showing that it infringed copyright. And unscrupulous characters use accusations of infringement to extort money from website owners, or even force them into carrying spam links.

This censorious abuse, whether intentional or accidental, is far more damaging when it targets the internet’s infrastructure. Blocking entire websites or groups of websites is imprecise, inevitably bringing down lawful speech along with whatever was targeted. For example, suits by Microsoft intended to shut down malicious botnets caused thousands of legitimate users to lose access to the domain names they depended on. There is, in short, no effective safeguard on a new censorship power that would be the internet’s version of police seizing printing presses.

Even if this didn’t endanger free expression on its own, once new tools exist, they can be used for more than copyright. Just as malfunctioning copyright filters were adapted into the malfunctioning filters used for “adult content” on tumblr, so can means of site blocking. The major companies of a single industry should not get to dictate the future of free speech online.

Why the MPA is announcing this now is anyone’s guess. They might think no one cares anymore. They’re wrong. Internet users rejected site blocking in 2012 and they reject it today.

This interview has been edited for length and clarity.*

Mary Aileen Diez-Bacalso is the executive director of FORUM-Asia. She has worked for many years in human rights organizations in the Philippines and internationally, and is best known for her work on enforced disappearances. She has received several human rights awards at home and abroad, including the Emilio F. Mignone International Human Rights Prize conferred by the Government of Argentina and the Franco-German Ministerial Prize for Human Rights and Rule of Law. In addition to her work at FORUM-Asia, she currently serves as the president of the International Coalition Against Enforced Disappearances (ICAED) and is a senior lecturer at the Asian Center of the University of the Philippines.

York: What does free expression mean to you? And can you tell me about an experience, or experiences, that shaped your views on free expression?

To me, free speech or free expression means the exercise of the right to express oneself and to seek and receive information as an individual or an organization. I’m an individual, but I’m also representing an organization, so it means the ability to express thoughts, ideas, or opinions without threats or intimidation or fear of reprisals. 

Free speech is expressed in various avenues, such as in a community where one lives or in an organization where one belongs at the national, regional, or international levels. It is the right to express these ideas, opinions, and thoughts for different purposes, for instance; influencing behaviors, opinions, and policy decisions; giving education; addressing, for example, historical revisionism—which is historically common in my country, the Philippines. Without freedom of speech people will be kept in the dark in terms of access to information, in understanding and analyzing information, and deciding which information to believe and which information is incorrect or inaccurate or is meant to misinform people. So without freedom of speech people cannot exercise their other basic human rights, like the right of suffrage and, for example, religious organizations who are preaching will not be able to fulfill their mission of preaching if freedom of speech is curtailed. 

I have worked for years with families of the disappeared—victims of enforced disappearance—in many countries. And this forced disappearance is a consequence of the absence of free speech. These disappeared people are forcibly disappeared because of their political beliefs, because of their political affiliations, and because of their human rights work, among other things. And they were deprived of the right to speech. Additionally, in the Philippines and many other Asian countries, rallies, for example, and demonstrations on various legitimate issues of the people are being dispersed by security forces in the name of peace. That’s depriving legitimate protesters from the rights to speech and to peaceful assembly. So these people are named as enemies of the state, as subversives, as troublemakers, and in the process they’re tear-gassed, arrested, detained, etcetera. So allowing these people to exercise their constitutional rights is a manifestation of free speech. But in many Asian countries—and many other countries in other regions also—such rights, although provided for by the Constitution, are not respected. Free speech in whatever country you are in, wherever you go, is freedom to study the situation of that country to give your opinion of that situation and share your ideas with others. 

York: Can you share some experiences that helped shape your views on freedom of expression? 

During my childhood years, when martial law was imposed, I’d heard a lot of news about detention, arrest and detention of journalists because of their protest against martial law that was imposed by the dictator Ferdinand Marcos, Sr, who was the father of the present President of the Philippines. So I read a lot about violations of human rights of activists from different sectors of society. I read about farmers, workers, students, church people, who were arrested, detained, tortured, disappeared, and killed because of martial law. Because they spoke against the Marcos administration. So during those years when I was so young, this actually formed my mind and also my commitment to freedom of expression, freedom of assembly, freedom of association. 

Once, I was arrested during the first Marcos administration, and that was a very long time ago. That is a manifestation of the curtailment of the right of free speech. I was together with other human rights defenders—I was very young at the time. We were rallying because there was a priest who was made to disappear forcibly. So we were arrested and detained. Also, I was deported by the government of India on my way to Kashmir. I was there three times, but on my third time I was not allowed to go to Kashmir because of our human rights work there. So even now, I am banned in India and I can not go back there. It was because of those reports we made on enforced disappearances and mass graves in Kashmir. So free speech means freedom without thread, intimidation, or retaliation. And it means being able to use all avenues in various contexts to speak in whatever forms—verbal speeches, written speeches, videos, and all forms of communication.

Also, the enforced disappearance of my husband informed my views on free expression. Two weeks after we got married he was briefly forcibly disappeared. He was tortured, he was not fed, and he was forced to confess that he was a member of the Communist Party of the Philippines. He was together with one other person he did not know and did not see, and they were forced to dig a grave for themselves to be buried alive inside. Another person who was disappeared then escaped and informed us of where my husband was. So we told the military that we knew where my husband was. They were afraid that the other person might testify so they released my husband in a cemetery near his parent’s house.

And that made an impact on me, that’s why I work a lot with families of enforced disappearances both in the Philippines and in many other countries. I believe that the experience of enforced disappearance of my husband, and other family members of the disappeared and their experience of having family members disappeared until now, is a consequence of the violation of freedom of expression, freedom of assembly, freedom of speech. And also my integration or immersion with families of the disappeared has contributed a lot to my commitment to human rights and free speech. I’m just lucky to have my husband back. And he’s lucky. But the way of giving back, of being grateful for the experience we had—because they are very rare cases where victims of enforced disappearances surfaced alive—so I dedicate my whole life to the cause of human rights. 

York: What do you feel are some of the qualities that make you passionate about protecting free expression for others?

Being brought up by my family, my parents, we were taught about the importance of speaking for the truth, and the importance of uprightness. It was also because of our religious background. We were taught it is very important to tell the truth. So this passion for truth and uprightness is one of the qualities that make me passionate about free expression. And the sense of moral responsibility to rectify wrongs that are being committed. My love of writing, also. I love writing whenever I have the opportunity to do it, the time to do it. And the sense of duty to make human rights a lifetime commitment. 

York: What should we know about the role of social media in modern Philippine society? 

I believe social media contributed a lot to what we are now. The current oppressive administration invested a lot in misinformation, in revising history, and that’s why a lot of young people think of martial law as the years of glory and prosperity. I believe one of the biggest factors of the administration getting the votes was their investment in social media for at least a decade. 

York: What are your feelings on how online speech should be regulated? 

I’m not very sure it should be regulated. For me, as long as the individuals or the organizations have a sense of responsibility for what they say online, there should be no regulation. But when we look at free speech on online platforms these online platforms have the responsibility to ensure that there are clear guidelines for content moderation and must be held accountable for content posted on their platforms. So fact-checking—which is so important in this world of misinformation and “fake news”—and complaints mechanisms have to be in place to ensure that harmful online speech is identified and addressed. So while freedom of expression is a fundamental right, it is important to recognize that this can be exploited to spread hate speech and harmful content all in the guise of online freedom of speech—so this could be abused. This is being abused. Those responsible for online platforms must be accountable for their content. For example, from March 2020 to July 2020 our organization, FORUM-Asia and its partners, including freedom of expression group AFAD, documented around 40 cases of hate speech and dangerous speech on Facebook. And the study scope is limited as it only covered posts and comments in Burmese. The researchers involved also reported that many other posts were reported and subsequently removed prior to being documented. So the actual amount of hate speech is likely to be significantly higher. I recommend taking a look at the report. So while FORUM-Asia acknowledges the efforts of Facebook to promote policies to curb hate speech on the platform, it still needs to update and constantly review all these things, like the community guidelines, including those on political advertisements and paid or sponsored content, with the participation of the Facebook Oversight Board. 

York: Can you tell me about a personal experience you’ve had with censorship, or perhaps the opposite, an experience you have of using freedom of expression for the greater good?

In terms of censorship, I don’t have personal experience with censorship. I wrote some opinion pieces in the Union of Catholic Asian News and other online platforms, but I haven’t had any experience of censorship. Although I did experience negative comments because of the content of what I wrote. There are a lot of trolls in the Philippines and they were and are very supportive of the previous administration of Duterte, so there was negative feedback when I wrote a lot on the war on drugs and the killings and impunity. But that’s also part of freedom of speech! I just had to ignore it, but, to be honest, I felt bad. 

York: Thank you for sharing that. Do you have a free expression hero? 

I believe we have so many unsung heroes in terms of free speech and these are the unknown persecuted human rights defenders. But I also answer that during this week we are commemorating the Holy Week [editor’s note: this interview took place on March 28, 2024] so I would like to say that I would like to remember Jesus Christ. Whose passion, death, and resurrection Christians are commemorating this week. So, during his time, Jesus spoke about the ills of society, he was enraged when he witnessed how defenseless poor were violated of their rights and he was angry when authority took advantage of them. And he spoke very openly about his anger, about his defense for the poor. So I believe that he is my hero.

Also, in contemporary times, Óscar Arnulfo Romero y Galdámez, who was canonized as a Saint in 2018, I consider him as my free speech hero also. I visited the chapel where he was assassinated, the Cathedral of San Salvador, where his mortal remains were buried. And the international community, especially the Salvadoran people, celebrated the 44th anniversary of his assassination last Sunday the 24th of March, 2024. Seeing the ills of society, the consequent persecution of the progressive segment of the Catholic church and the churches in El Salvador, and the indiscriminate killings of the Salvadoran people in his communities San Romero courageously spoke on the eve of his assassination. I’d like to quote what he said. He said:

“I would like to make a special appeal to the men of the army, and specifically to the ranks of the National Guard, the police and the military. Brothers, you come from our own people. You are killing your own brother peasants when any human order to kill must be subordinate to the law of God which says, ‘Thou shalt not kill.’ No soldier is obliged to obey an order contrary to the law of God. No one has to obey an immoral law. It is high time you recovered your consciences and obeyed your consciences rather than a sinful order. The church, the defender of the rights of God, of the law of God, of human dignity, of the person, cannot remain silent before such an abomination. We want the government to face the fact that reforms are valueless if they are to be carried out at the cost of so much blood. In the name of God, in the name of this suffering people whose cries rise to heaven more loudly each day, I implore you, I beg you, I order you in the name of God: stop the repression.”

So as a fitting tribute to Saint Romero of the Americas the United Nations has dedicated the 24th of March as the International Day for Truth, Justice, Reparation, and Guarantees of Non-repetition. So he is my hero. Of course, Jesus Christ being the most courageous human rights defender during these times, continues to be my hero. Which I’m sure was the model of Monsignor Romero. 

Imagine an internet in which economic power is more broadly distributed, so that more people can build and maintain small businesses online to make good livings. In this world, the behavioral advertising that has made the internet into a giant surveillance tool would be banned, so people could share more equally in the riches without surrendering their privacy.

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(You can also find this episode on the Internet Archive and on YouTube.)

That’s the world Tim Wu envisions as he teaches and shapes policy on the revitalization of American antitrust law and the growing power of big tech platforms. He joins EFF’s Cindy Cohn and Jason Kelley to discuss using the law to counterbalance the market’s worst instincts, in order to create an internet focused more on improving people’s lives than on meaningless revenue generation. 

In this episode you’ll learn about: 

• Getting a better “deal” in trading some of your data for connectedness. 
• Building corporate structures that do a better job of balancing the public good with private profits. 
• Creating a healthier online ecosystem with corporate “quarantines” to prevent a handful of gigantic companies from dominating the entire internet. 
• Nurturing actual innovation of products and services online, not just newer price models. 

Timothy Wu is the Julius Silver Professor of Law, Science and Technology at Columbia Law School, where he has served on the faculty since 2006. First known for coining the term “net neutrality” in 2002, he served in President Joe Biden’s White House as special assistant to the President for technology and competition policy from 2021 to 2023; he also had worked on competition policy for the National Economic Council during the last year of President Barack Obama’s administration. Earlier, he worked in antitrust enforcement at the Federal Trade Commission and served as enforcement counsel in the New York Attorney General’s Office. His books include “The Curse of Bigness: Antitrust in the New Gilded Age” (2018), "The Attention Merchants: The Epic Scramble to Get Inside Our Heads” (2016), “The Master Switch: The Rise and Fall of Information Empires” (2010), and “Who Controls the Internet? Illusions of a Borderless World” (2006).

Resources: 

• Columbia Law School: “How to Change 40 Years of Policy in 22 Months: Professor Wu in Washington" (Feb. 8. 2023) 
• New York Times: “In Regulating A.I., We May Be Doing Too Much. And Too Little.” (Nov. 7, 2023) 
• New York Times: “The Google Trial Is Going to Rewrite Our Future” (Sept. 18, 2023)
• CNBC: “Tech companies have exploited human tendencies to maintain their monopolies, says Columbia's Tim Wu” (Oct. 3, 2023)

What do you think of “How to Fix the Internet?” Share your feedback here. 

Transcript

TIM WU
I think with advertising we need a better deal. So advertising is always a deal. You trade your attention and you trade probably some data, in exchange you get exposed to advertising and in exchange you get some kind of free product.

You know, that's the deal with television, that's been the deal for a long time with radio. But because it's sort of an invisible bargain, it's hard to make the bargain, and the price can be increased in ways that you don't necessarily notice. For example, we had one deal with Google in, let's say, around the year 2010 - if you go on Google now, it's an entirely different bargain.

It's as if there's been a massive inflation in these so-called free products. In terms of how much data has been taken, in terms of how much you're exposed to, how much ad load you get. It's as if sneakers went from 30 dollars to 1,000 dollars!

CINDY COHN
That's Tim Wu – author, law professor, White House advisor. He’s something of a swiss army knife for technology law and policy. He spent two years on the National Economic Council, working with the Biden administration as an advisor on competition and tech policy. He worked on antitrust legislation to try and check some of the country’s biggest corporations, especially, of course, the tech giants.

I’m Cindy Cohn - executive director of the Electronic Frontier Foundation.

JASON KELLEY
And I’m Jason Kelley - EFF’s Activism Director. This is our podcast, How to Fix the Internet. Our guest today is Tim Wu. His stint with the Biden administration was the second White House administration he advised. And in between, he ran for statewide office in New York. And that whole thing is just a sideline from his day job as a law professor at Columbia University. Plus, he coined the term net neutrality!

CINDY COHN
On top of that, Tim basically writes a book every few years that I read in order to tell me what's going to happen next in technology. And before that he's been a programmer and a more traditional lab based scientist. So he's kind of got it all.

TIM WU
Sounds like I'm a dilettante.

CINDY COHN
Well, I think you've got a lot of skills in a lot of different departments, and I think that in some ways, I've heard you call yourself a translator, and I think that that's really what all of that experience gives you as a superpower is the ability to kind of talk between these kinds of spaces in the rest of the world.

TIM WU
Well, I guess you could say that. I've always been inspired by Wilhelm Humboldt, who had this theory that in order to have a full life, you had to try to do a lot of different stuff. So somehow that factors into it somewhere.

CINDY COHN
That's wonderful. We want to talk about a lot of things in this conversation, but I kind of wanted to start off with the central story of the podcast, which is, what does the world look like if we get this right? You know, you and I have spent a lot of years talking about all the problems, trying to lift up obstacles and get rid of obstacles.

But if we reach this end state where we get a lot of these problems right, in Tim Wu's world, what, what does it look like? Like, what does your day look like? What do people's experience of technology look like?

TIM WU
I think it looks like a world in which economic power surrounding the internet and surrounding the platforms is very much more distributed. And, you know, what that means practically is it means a lot of people are able to make a good living, I guess, based on being a small producer or having a service based skill in a way that feels sustainable and where the sort of riches of the Internet are more broadly shared.

So that's less about what kind of things you click on or, you know, what kind of apps you use and more about, I guess, the economic structure surrounding the Internet, which I think, you know, um, I don't think I'm the only person who thinks this, you know, the structure could be fairer and could work for more people.

It does feel like the potential and, you know, we've all lived through that potential starting in the 90s of this kind of economically liberating force that would be the basis for a lot of people to make a decent living has seemed to turn into something more where a lot of money aggregates in a few places.

CINDY COHN
Yeah, I remember, people still talk about the long tail, right, as a way in which the digitization of materials created a revenue stream that's more than just, you know, the flavor of the week that a movie studio or a book publisher might want us to pay attention to on kind of the cultural side, right?

That there was space for this. And that also makes me think of a conversation we just had with the folks in the right to repair movement talking about like their world includes a place where there's mom and pop shops that will help you fix your devices all over the place. Like this is another way in which we have centralized economic power.

We've centralized power and if we decentralize this or, or, or spread it more broadly, uh, we're going to create a lot of jobs and opportunities for people, not just as users of technology, but as the people who help build and offer it to us.

TIM WU
I'm writing a new book, um, working title, Platform Capitalism, that has caused me to go back and look at the, you know, the early promise of the internet. And I went back and I was struck by a book, some of you may remember, called "An Army of Davids," by Glenn Reynolds the Instapundit.
Yeah, and he wrote a book and he said, you know, the future of the American economy is going to be all these kind of mom and pop sellers who, who take over everything – he wrote this about 2006 – and he says, you know, bloggers are already competing with news operations, small sellers on eBay are already competing with retail stores, and so on, journalists, so on down the line that, uh, you know, the age of the big, centralized Goliath is over and the little guys are going to rule the future.

Kind of dovetailed, I went back and read Yochai Benkler's early work about a production commons model and how, you know, there'll be a new node of production. Those books have not aged all that well. In fact, I think the book that wins is Blitzscaling. That somewhere along the line, instead of the internet favoring small business, small production, things went in the exact opposite direction.

And when I think about Yochai Benkler's idea of sort of production-based commons, you know, Waze was like that, the mapping program, until one day Waze was just bought by Google. So, I was just thinking about those as I was writing that chapter of the book.

CINDY COHN
Yeah, I think that's right. I think that identifying and, and you've done a lot of work on this, identify the way in which we started with this promise and we ended up in this other place can help us figure out, and Cory Doctorow, our colleague and friend has been doing a lot of work on this with choke point capitalism and other work that he's done for EFF and elsewhere.

And I also agree with him that, like, we don't really want to create the good old days. We want to create the good new days, right? Like, we want to experience the benefits of an Internet post-1990s, but also have those, those riches decentralized or shared a little more broadly, or a lot more broadly, honestly.

TIM WU
Yeah, I think that's right, and so I think part of what I'm saying, you know, what would fix the internet, or what would make it something that people feel excited about. You know, I think people are always excited about apps and videos, but also people are excited about their livelihood and making money.

And if we can figure out the kind of structure that makes capitalism more distributed surrounding platforms, you know, it's not abandoning the idea of you have to have a good site or a product or something to, to gain customers. It's not a total surrender of that idea, but a return to that idea working for more people.

CINDY COHN
I mean, one of the things that you taught me in the early days is how kind of ‘twas ever so, right? If you think about radio or broadcast medium or other previous mediums, they kind of started out with this promise of a broader impact and broader empowerment and, and didn't end up that way as much as well.

And I know that's something you've thought about a lot.

TIM WU
Yeah, the first book I wrote by myself, The Master Switch, had that theme and at the time when I wrote it, um, I wrote a lot of it in the, ‘09, ‘08, ‘07 kind of period, and I think at that point I had more optimism that the internet could hold out, that it wouldn't be subject to the sort of monopolizing tendencies that had taken over the radio, which originally was thousands of radio stations, or the telephone system – which started as this ‘go west young man and start your own telephone company’ kind of technology – film industry and and many others. I was firmly of the view that things would be different. Um, I think I thought that, uh, because of the CCP IP protocol, because of the platforms like HTML that were, you know, the center of the web, because of net neutrality, lasting influence. But frankly, I was wrong. I was wrong, at least when I was writing the book.

JASON KELLEY
As you've been talking about the sort of almost inevitable funneling of the power that these technologies have into a single or, or a few small platforms or companies, I wonder what you think about newer ideas around decentralization that have sort of started over the last few years, in particular with platforms like Mastodon or something like that, these kinds of APIs or protocols, not platforms, that idea. Do you see any promise in that sort of thing? Because we see some, but I'm wondering what you think.

TIM WU
I do see some promise. I think that In some ways, it's a long overdue effort. I mean, it's not the first. I can't say it's the first. Um, and part of me wishes that we had been, you know, the idealistic people. Even the idealistic people at some of these companies, such as they were, had been a bit more careful about their design in the first place.

You know, I guess what I would hope … the problem with Mastodon on some of these is they're trying to compete with entities that already are operating with all the full benefits of scale and which are already tied to sort of a Delaware private corporate model. Uh, now this is a little bit, I'm not saying that hindsight is 20/20, but when I think about the major platforms and entities the early 21st century, it's really only Wikipedia that got it right in my view by structurally insulating themselves from certain forces and temptations.

So I guess what I'm trying to say is that, uh, part of me wishes we'd done more of this earlier. I do think there's hope in them. I think it's very challenging in current economics to succeed. And sometimes you'd have to wonder if you go in a different, you know, that it might be, I don't want to say impossible, very challenging when you're competing with existing structures. And if you're starting something new, you should start it right.
That said, AI started in a way structurally different and we've seen how that's gone recently.

CINDY COHN
Oh, say more, say more!

JASON KELLEY
Yeah. Yeah. Keep, keep talking about AI.

CINDY COHN
I'm very curious about your thinking about that.

TIM WU
Well, you know, I said that, The Holy Roman Empire was neither holy, nor Roman, nor an empire. And OpenAI is now no longer open, nor non-profit, nor anything else. You know, it's kind of, uh, been extraordinary that the circuit breakers they tried to install have just been blown straight through. Um, and I think there's been a lot of negative coverage of the board. Um, because, you know, the business press is kind of narrow on these topics. But, um, you know, OpenAI, I guess, at some point, tried to structure itself more carefully and, um, and, uh, you know, now the board is run by people whose main experience has been, um, uh, taking good organizations and making them worse, like Quora, so, yeah, I, I, that is not exactly an inspiring story, uh, I guess of OpenAI in the sense of it's trying to structure itself a little differently and, and it, uh, failing to hold.

CINDY COHN
I mean, I think Mozilla has managed to have a structure that has a, you know, kind of complicated for profit/not-for-profit strategy that has worked a little better, but II hear you. I think that if you do a power analysis, right, you know, a nonprofit is going to have a very hard time up against all the money in the world.

And I think that that seems to be what happened for OpenAI. Uh, once all the money in the world showed up, it was pretty hard to, uh, actually impossible for the public interest nonprofit side to hold sway.

TIM WU
When I think about it over and over, I think engineers and the people who set up these, uh, structures have been repeatedly very naive about, um, the power of their own good intentions. And I agree. Mozilla is a good example. Wikipedia is a good example. Google, I remember when they IPO'd, they had some set up, and they said, ‘We're not going to be an ordinary company,’ or something like that. And they sort of had preferred stock for some of the owners. You know, Google is still in some ways an impressive company, but it's hard to differentiate them from any other slightly money grubbing, non-innovative colossus, um, of the kind they were determined not to become.

And, you know, there was this like, well, it's not going to be us, because we're different. You know, we're young and idealistic, and why would we want to become, I don't know, like Xerox or IBM, but like all of us, you begin by saying, I'm never going to become like my parents, and then next thing you know, you're yelling at your kids or whatever.

CINDY COHN
Yeah, it's, it's the, you know, meet the new boss the same as the old boss, right? When we, what we were hoping was that we would be free of some of the old bosses and have a different way to approach, but, but the forces are pretty powerful that stick people back in line, I think.

TIM WU
And some of the old structures, you know, look a little better. Like, I'm not going to say newspapers are perfect, but a structure like the New York Times structure, for example, basically is better than Google's. And I just think there was this sense that, Well, we can solve that problem with code and good vibes. And that turned out to be the great mistake.

CINDY COHN
One of the conversations that you and I have had over the years is kind of the role of regulation on, on the internet. I think the fight about whether to regulate or not to regulate the Internet was always a little beside the point. The question is how. And I'm wondering what you're thinking now. You've been in the government a couple times. You've tried to push some things that were pretty regulatory. How are you thinking now about something like a centralized regulatory agency or another approach to, you know, regulating the Internet?

TIM WU
Yeah, I, you know, I continue to have mixed feelings about something like the central internet commission, mostly for some of the reasons you said, but on the other hand, sometimes, if I want to achieve what I mentioned, which is the idea of platforms that are an input into a lot of people being able to operate on top of them and run businesses-like, you know, at times, the roads have been, or the electric system, or the phone network, um, it's hard to get away from the idea of having some hard rules, sometimes I think my sort of platonic form of, of government regulation or rules was the 1956 AT&T consent decree, which, for those who are not as deep in those weeds as I am, told AT&T that it could do nothing but telecom, and therefore not do computing and also force them to license every single one of their patents for free. And the impact of that was more than one -  one is because they were out of computing. They were not able to dominate it and you had companies then new to computing like IBM and others that got into that space and developed the American computing industry completely separate from AT&T.

And you also ended up, semiconductor companies start that time with the transistor patent and other patents they used for free. So you know, I don't know exactly how you achieve that, but I'm drawn to basically keeping the main platforms in their lane. I would like there to be more competition.
The antitrust side of me would love it. And I think that in some areas we are starting to have it, like in social media, for better or for worse. But maybe for some of the more basic fundamentals, online markets and, you know, as much competition as we can get – but some rule to stay out of other businesses, some rule to stop eating the ecosystem. I do think we need some kind of structural separation rules. Who runs those is a little bit of a harder question.

CINDY COHN
Yeah, we're not opposed to structural separation at EFF. I think we, we think a lot more about interoperability to start with as a way to, you know, help people have other choices, but we haven't been opposed to structural separation, and I think there are situations in which it might make a lot of good sense, especially, you know, in the context of mergers, right?

Where the company has actually swallowed another company that did another thing. That's, kind of the low hanging fruit, and EFF has participated a lot in commenting on potential mergers.

TIM WU
I'm not opposed the idea of pushing interoperability. I think that it's based on the experience of the last 100 years. It is a tricky thing to get right. I'm not saying it's impossible. We do have examples: Phone network, in the early 20th century, and interconnection was relatively successful. And right now, you know, when you change between, let's say, T-Mobile and Verizon, there's only three left, but you get to take your phone number with you, which is a form of interoperability.

But it has the risk of being something you put a lot of effort into and it not necessarily working that well in terms of actually stimulating competition, particularly because of the problem of sabotage, as we saw in the ‘96 Act. So it's actually not about the theory, it's about the practice, the legal engineering of it. Can you find the right thing where you've got kind of a cut point where you could have a good interoperability scheme?

JASON KELLEY
Let’s take a quick moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.

And now back to our conversation with Tim Wu. I was intrigued by what he said about keeping platforms in their lane. I wanted to hear him speak more about how that relates to antitrust – is that spreading into other ecosystems what sets his antitrust alarm bells off? How does he think about that?

TIM WU
I guess the phrase I might use is quarantine, is you want to quarantine businesses, I guess, from others. And it's less of a traditional antitrust kind of remedy, although it, obviously, in the ‘56 consent decree, which was out of an antitrust suit against AT&T, it can be a remedy.

And the basic idea of it is, it's explicitly distributional in its ideas. It wants more players in the ecosystem, in the economy. It's almost like an ecosystem promoting a device, which is you say, okay, you know, you are the unquestioned master of this particular area of commerce. Maybe we're talking about Amazon and it's online shopping and other forms of e-commerce, or Google and search.

We're not going to give up on the hope of competition, but we think that in terms of having a more distributed economy where more people have their say, um, almost in the way that you might insulate the college students from the elementary school students or something. We're going to give other, you know, room for other people to develop their own industries in these side markets. Now, you know, there's resistance say, well, okay, but Google is going to do a better job in, uh, I don't know, shopping or something, you know, they might do a good job. They might not, but you know, they've got their returns and they're always going to be an advantage as a platform owner and also as a monopoly owner of having the ability to cross-subsidize and the ability to help themselves.

So I think you get healthier ecosystems with quarantines. That's basically my instinct. And, you know, we do quarantines either legally or de facto all the time. As I said, the phone network has long been barred from being involved in a lot of businesses. Banking is kept out of a lot of businesses because of obvious problems of corruption. The electric network, I guess they could make toasters if they want, but it was never set up to allow them to dominate the appliance markets.

And, you know, if they did dominate the appliance markets, I think it would be a much poorer world, a lot less interesting innovation, and frankly, a lot less wealth for everyone. So, yeah, I have strong feelings. It's more of my net neutrality side that drives this thinking than my antitrust side, I’ll put it that way.

JASON KELLEY
You specifically worked in both the Obama and Biden administration sort of on these issues. I'm wondering if your thinking on this has changed. In experiencing those things from from the sort of White House perspective and also just how different those two, sort of, experiences were, obviously the moments are different in time and and and everything like that, but they're not so far apart – maybe light years in terms of technology, but what was your sort of experience between those two, and how do you think we're doing now on this issue?

TIM WU
I want to go back to a slightly earlier time in government, not the Obama, actually it was the Obama administration, but my first job in the, okay, sorry, my third job in the federal government, uh, I guess I'm a, one of these recidivists or something, was at the Federal Trade Commission.

CINDY COHN
Oh yeah, I remember.

TIM WU
Taking the first hard look at big tech and, in fact, we're investigating Google for the first time for antitrust possible offenses, and we also did the first privacy remedy on Facebook, which I will concede was a complete and absolute failure of government, one of the weakest remedies, I think. We did that right before Cambridge Analytica. And obviously had no effect on Facebook's conduct at all. So, one of the failed remedies. I think that when I think back about that period, the main difference was that the tech platforms were different in a lot of ways.

I believe that, uh, monopolies and big companies have, have a life cycle. And they were relatively early in that life cycle, maybe even in a golden age. A company like Amazon seemed to be making life possible for a lot of sellers. Google was still in its early phase and didn't have a huge number of verticals. Still had limited advertising. Most searches still didn't turn up that many ads.

You know, they were in a different stage of their life. And they also still felt somewhat, they were still already big companies. They still felt relatively in some sense, vulnerable to even more powerful economic forces. So they hadn't sort of reached that maturity. You know, 10 years later, I think the life cycle has turned. I think companies have largely abandoned innovation in their core products and turned to defense and trying to improve – most of their innovations are attempting to raise more revenue and supposed to make the product better. Uh, kind of reminds me of the airline industry, which stopped innovating somewhere in the seventies and started making, trying to innovate in, um, terms of price structures and seats being smaller, that kind of thing.

You know, there's, you reach this end point, I think the airlines are the end point where you take a high tech industry at one point and just completely give up on anything other than trying to innovate in terms of your pricing models.

CINDY COHN
Yeah, I mean, I, you know, our, our, we, Cory keeps coming up, but of course Cory calls it the “enshittification” of, uh, of services, and I think that is, uh, in typical Corrie way captures, this stage of the process.

TIM WU
Yeah, I just to speak more broadly. I you know, I think there's a lot of faith and belief that the, uh, company like Google, you know, in its heart meant well, and I do still think the people working there mean well, but I feel that, you know, the structure they set up, which requires showing increasing revenue and profit every quarter began to catch up with it much more and we’re at a much later stage of the process.

CINDY COHN
Yep.

TIM WU
Or the life cycle. I guess I'd put it.

CINDY COHN
And then for you, kind of coming in as a government actor on this, like, what did that mean in terms of, like, was it, I'm assuming, I kind of want to finish the sentence for you. And that, you know, that meant it was harder to get them to do the right thing. It meant that their defenses were better against trying to do the right thing.

Like how did that impact the governmental interventions that you were trying to help make happen?

TIM WU
I think it was both. I think there was both, in terms of government action, a sense that the record was very different. The Google story in 2012 is very different than 2023. And the main difference is in 2023 Google is paying out 26.3 billion a year to other companies to keep its search engine where it is, and arguably to split the market with Apple.

You know, there wasn't that kind of record back in 2012. Maybe we still should have acted, but there wasn't that much money being so obviously spent on pure defensive monopoly. But also people were less willing. They thought the companies were great. They overall, I mean, there's a broader ideological change that people still felt, many people from the Clinton administration felt the government was the problem. Private industry was the solution. Had kind of a sort of magical thinking about the ability of this industry to be different in some fundamental way.

So the chair of the FCC wasn't willing to pull the trigger. The economists all said it was a terrible idea. You know, they failed to block over a thousand mergers that big tech did during that period, which it's, I think, very low odds that none of those thousands were anti-competitive or in the aggregate that maybe, you know, that was a way of building up market power.

Um, it did enrich a lot of small company people, but I, I think people at companies like Waze really regret selling out and, you know, end up not really building anything of their own but becoming a tiny sub-post of the Google empire.

CINDY COHN
Yeah, the “acquihire” thing is very central now and what I hear from people in the industry is that like, if that's not your strategy to get acquired by one of the ones, it's very hard to get funded, right? It feeds back into the VC and how you get funded to get something built.

If it's not something that one of the big guys is going to buy, you're going to have a hard time building it and you're going to have a hard time getting the support to get to the place where you might actually even be able to compete with them.

TIM WU
And I think sometimes people forget we had different models. You know, some of your listeners might forget that, you know, in the ‘70s, ‘80s, and ‘90s, and early 2000s, people did build companies not just to be bought...

CINDY COHN
Right.

TIM WU
...but to build fortunes, or because they thought it was a good company. I mean, the people who built Sun, or Apple, or, you know, Microsoft, they weren't saying, well, I hope I'm gonna be bought by IBM one day. And they made real fortunes. I mean, look, being acquired, you can obviously become a very wealthy person, but you don't become a person of significance. You can go fund a charity or something, but you haven't really done something with your life.

CINDY COHN
I'm going to flip it around again. And so we get to the place where the Tim Wu vision that the power is spread more broadly. We've got lots of little businesses all around. We've got many choices for consumers. What else, what else do you see in this world? Like what role does the advertising business model play in this kind of a better future. That's just one example there of many, that we could give.

TIM WU
Yeah, no, I like your vision of a different future. I think, uh, just like focus on it goes back to the sense of opportunity and, you know, you could have a life where you run a small business that's on the internet that is a respectable business and you're neither a billionaire nor you're impoverished, but you know, you just had to have your own business the way people have, like, in New York or used to run like stores and in other parts of the country, and in that world, I mean, in my ideal world, there is advertising, but advertising is primarily informational, if that makes sense.

It provides useful information. And it's a long way to go between here and there, but where, um, you know, it's not the default business model for informational sources such that it, it has much less corrupting effects. Um, you know, I think that advertising obviously everyone's business model is going to affect them, but advertising has some of the more, corrupting business models around.

So, in my ideal world, we would not, it's not that advertising will go away, people want information, but we'd strike a better bargain. Exactly how you do that. I guess more competition helps, you know, lower advertising, um, sites you might frequent, better privacy protecting sites, but, you know, also passing privacy legislation might help too.

CINDY COHN
I think that’s right, I think EFF has taken a position that we think we should ban behavioral ads. That's a pretty strong position for us and not what we normally do, um, to, to say, well, we need to ban something. But also that we need, of course, comprehensive privacy law, which is, you know, kind of underlines so many of the harms that we're seeing online right now is this, this lack of a baseline privacy protection.

I don't know if you see it the same way, but it's certainly it seems to be the through line for a lot of harms that are coming up as things people are concerned about. Yeah.

TIM WU
I mean, absolutely, and I, you know, don't want to give EFF advice on their views, but I would say that I think it's wise to see the totally unregulated collection of data from, you know, millions, if not billions of people as a source of so many of the problems that we have.

It drives unhealthy business models, it leads to real-world consequences, in terms of identity theft and, and so many others, but I think I, I'd focus first on what, yeah, the kind of behavior that encourages the kind of business model is encourages, which are ones that just don't in the aggregate, feel very good for the businesses or for, for us in particular.

So yeah, my first priority legislatively, I think if I were acting at this moment would be starting right there with, um, a privacy law that is not just something that gives supposed user rights to take a look at the data that's collected, but that meaningfully stops the collection of data. And I think we'll all just shrug our shoulders and say, oh, we're better off without that. Yes, it supported some, but we will still have some of the things – it's not as if we didn't have friends before Facebook.

It's not as if we didn't have video content before YouTube, you know, these things will survive with less without behavioral advertising. I think your stance on this is entirely, uh, correct.

CINDY COHN
Great. Thank you, I always love it when Tim agrees with me and you know, it pains me when we disagree, but one of the things I know is that you are one of the people who was inspired by Larry Lessig and we cite Larry a lot on the show because we like to think about things or organize them in terms of the four levels of, um, You know, digital regulation, you know, laws, norms, markets, and code as four ways that we could control things online. And I know you've been focusing a lot on laws lately and markets as well.

How do you think about, you know, these four levers and where we are and, and how we should be deploying them?

TIM WU
Good question. I regard Larry as a prophet. He was my mentor in law school, and in fact, he is responsible for most of my life direction. Larry saw that there was a force arising through code that already was somewhat, in that time, 90s, early 2000s, not particularly subject to any kind of accountability, and he saw that it could take forms that might not be consistent with the kind of liberties you would like to have or expect and he was right about that.

You know, you can say whatever you want about law or government and there are many examples of terrible government, but at least the United States Constitution we think well, there is this problem called tyranny and we need to do something about it.

There's no real equivalent for the development of abusive technologies unless you get government to do something about it and government hasn't done much about it. You know, I think the interactions are what interests me about the four forces. So if we agree that code has a certain kind of sovereignty over our lives in many ways and most of us on a day-to-day basis are probably more affected by the code of the devices we use than by the laws we operate under.

And the question is, what controls code? And the two main contenders are the market and law. And right now the winner by far is just the market, which has led codemakers in directions that even they find kind of unfortunate and disgraceful.

I don't remember who had that quote, but it was some Facebook engineer that said the greatest minds of our generation are writing code to try to have people click on random ads, and we have sort of wasted a generation of talent on meaningless revenue generation when they could be building things that make people's lives better.

So, you know, the answer is not easy is to use law to counter the market. And that's where I think we are with Larry's four factors.

CINDY COHN
Yeah, I think that that's right, and I agree that it's a little ro-sham-bo, right, that you can control code with laws and, and markets and you can control markets with code, which is kind of where interoperability comes in sometimes and laws and you know, norms play a role in kind of a slightly different whammy role in all of these things, but I do think that those interactions are really important and we've, again, I've always thought it was a somewhat phony conversation about, you know, "to regulate or not to regulate, that is the question" because that's not actually particularly useful in terms of thinking about things because we were embedded in a set of laws. It's just the ones we pay attention to and the ones that we might not notice, but I do think we're in a time when we have to think a lot harder about how to make laws that will be flexible enough to empower people and empower competition and not lock in the winners of today's markets. And we spend a lot of time thinking about that issue.

TIM WU
Well, let me say this much. This might sound a little contradictory in my life story, but I'm not actually a fan of big government, certainly not overly prescriptive government. Having been in government, I see government's limits, and they are real. But I do think the people together are powerful.

I think laws can be powerful, but what they most usefully do is balance out the market. You know what I'm saying? And create different incentives or different forces against it. I think trying to have government decide exactly how tech should run is usually a terrible idea. But to cut off incentives – you talked about behavioral advertising. So let's say you ban behavioral advertising just the way we ban child labor or something. You know, you can live without it. And, yeah, maybe we're less productive because we don't let 12 year olds work in factories. There's a marginal loss of revenue, but I frankly think it's worth it.

And, you know, and some of the other practices that have shown up are in some ways the equivalent. And we can live without them. And that's the, you know, it's sort of easy to say. we should ban child labor. But when you look for those kind of practices, that's where we need law to be active.

JASON KELLEY
Well, Cindy, I came away from that with a reading list. I'm sure a lot of people are familiar with those authors and those books, but I am going to have to catch up. I think we'll put some of them, maybe all the books, in the, in the show notes so that people who are wondering can, can catch up on their end.

You, as someone who's already read all those books, probably have different takeaways from this conversation than me.

CINDY COHN
You know what I really, I really like how Tim thinks he's, you know, he comes out of this, especially most recently from an economics perspective. So his future is really an economics one.

It's about an internet that has lots of spaces for people to make a reasonable living as opposed to the few people make a killing, or sell their companies to the big tech giants. And I think that that vision dovetails a lot with a lot of the people that we've talked. to on this show that, you know, in some ways we've got to think about how do we redistribute the internet and that includes redistributing the economic benefits.

JASON KELLEY
Yeah. And thinking about, you know, something you've said many times, which is this idea of rather than going backwards to the internet we used to have, or the world we used to have, we're really trying to build a better world with the one we do have.

So another thing he did mention that I really pulled away from this conversation was when antitrust makes sense. And that sort of idea of, well, what do you do when companies start spreading into other ecosystems? That's when you really have to start thinking about the problems that they're creating for competition.

And I think the word he used was quarantine. Is that right?

CINDY COHN
Yeah I love that image.

JASON KELLEY
Yeah, that was just a helpful, I think, way for people to think about how antitrust can work. And that was something that I'll take away from this probably forever.

CINDY COHN
Yeah, I also liked his vision of what kind of deal we have with a lot of these free tools or AKA free tools, which is, you know, at one time when we signed up for, you know, a Gmail account, it's, you know, the, the deal was that it was going to look at what you searched on and what you wrote and then place you ads based on the context and what you did.

And now that deal is much, much worse. And I think he, he's right to likening that to something that, you know, has secretly gotten much more expensive for us, that the deal for us as consumers has gotten worse and worse. And I really like that framing because again, it kind of translates out from the issues that where we live, which is, you know, privacy and free speech and fairness and turns it into something that is actually kind of an economic framing of some of the same points.

I think that the kind of upshot of Tim and, and honestly, some of the other people we've talked to is this idea of ‘blitzscaling’, um, and growing gigantic platforms is really at the heart of a lot of the problems that we're seeing in free speech and in privacy and also in economic fairness. And I think that's a point that Tim makes very well.

I think that from, you know, The Attention Merchants, The Curse of Bigness, Tim has been writing in this space for a while, and he, what I appreciate is Tim is really a person, um, who came up in the Internet, he understands the Internet, he understands a lot of the values, and so he's, he's not writing as an outsider throwing rocks as much as an insider who is kind of dismayed at how things have gone and looking to try to unpack all of the problems. And I think his observation, which is shared by a lot of people, is that a lot of the problems that we're seeing inside tech are also problems we're seeing outside tech. It's just that tech is new enough that they really took over pretty fast.

But I think that it's important for us to both recognize the problems inside tech and it doesn't let tech off the hook. To note that these are broader societal problems, but it may help us in thinking about how we get out of them.

JASON KELLEY
Thanks for joining us for this episode of How to Fix the Internet. If you have feedback or suggestions, we'd love to hear from you. Visit EFF. org slash podcast and click on listener feedback. While you're there, you can become a member, donate, maybe pick up some merch and just see what's happening in digital rights this week and every week.

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This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators.

In this episode you heard Perspectives *** by J.Lang featuring Sackjo22 and Admiral Bob, and Warm Vacuum Tube by Admiral Bob featuring starfrosch.

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We’ll talk to you again soon.

I’m Jason Kelley

CINDY COHN
And I’m Cindy Cohn.