Despite my frequent disagreements with his policy conclusions, Farhad Manjooo of Slate is one of the most gifted tech policy pundits around today and everything he writes is worth reading (and I whole-heartedly agreed with his recent article on the high-tech and antitrust). Alas, I find myself again disagreeing with him again today.
In his latest column, "The Great iPhone Lockdown: Should the FCC force Apple to sell Google's apps?" Manjoo responds to a recent essay by TLF contributor Ryan Radia ("Newsflash to FCC: The iPhone is a Closed Platform, and Consumers Love It"). In that essay, Ryan generally argued that: (a) a lot of people own and love the iPhone despite some silly restrictions on certain apps; and (b) if they don't like that, there are plenty of other options from which they can choose. Consequently, regulation seems unwarranted and likely highly misguided in light of the potential unitended consequences in might yield. It's an argument I very much agree with, of course. Anyway, Manjoo responds:
Radia's argument isn't crazy. Just the other day, I argued that the government shouldn't go after Google for antitrust violations because the tech industry is fluid; companies that are on top today can fall tomorrow. So what if Apple rejects apps capriciously? If its actions are so terrible, consumers will eventually abandon it.
Yet [Radia's] analysis misses a key point: The iPhone runs on public networks and therefore falls under government jurisdiction. At the very least, the regulators have a duty to ensure fair competition on wireless networks--and by arbitrarily blocking rivals from its device, the iPhone's software platform simply isn't fair. We would never accept its rules in other contexts: Imagine if Apple were building cars instead of phones and one day decided that everyone who'd bought an iCar would be banned from listening to any music not purchased from iTunes. Or say that Apple banned all Mac users from downloading Firefox because the browser duplicated the functionality of Safari. Such restrictions sound ridiculous; they wouldn't pass the barest scrutiny of regulators or consumers. So why should we allow Apple to do the same thing with the iPhone?Well, let's begin with a few things he gets wrong here. First, "The iPhone runs on public networks and therefore falls under government jurisdiction." Uh, no. Last time I checked, AT&T was not running a "public network" owned by the government. It's true that AT&T is subjected to some FCC and state rules governing the provision of service, but it isn't a "public network" like our highway system or inter-coastal waterways. Thus, AT&T has the right to set terms of service (along with partners like Apple) to achieve both profitability and continue to invest in innovative new networks and services.
Manjoo then asserts that: "At the very least, the regulators have a duty to ensure fair competition on wireless networks--and by arbitrarily blocking rivals from its device, the iPhone's software platform simply isn't fair." It's true that there are consumer protection laws on the books, but it's unclear to me how the FCC has any jurisdictional authority to be regulating Apple or the iPhone. There simply is none as I noted here in my essay, "Where is FCC Authority to Regulate in Apple-Google Spat?"
Manjoo's next argument that "We would never accept its rules in other contexts," uses some very rather strange examples. He asks us to consider what we (or the government, I suppose) might do "if Apple were building cars instead of phones and one day decided that everyone who'd bought an iCar would be banned from listening to any music not purchased from iTunes. Or say that Apple banned all Mac users from downloading Firefox because the browser duplicated the functionality of Safari."
Well, I think it's quite clear what we would do: WE WOULD STOP USING APPLE PRODUCTS! Or at least we could if we didn't like the terms of the deals they offered. So, even if it is true that many of us would find such restrictions "ridiculous," as Manjoo suggests, it certainly does not follow that "they wouldn't pass the barest scrutiny of regulators..." Rubbish. I'm not even sure which agency it is that Manjoo think would be in the business of regulating "iCars" or, for that matter, Firefox and Safari web browsers. (A "Federal Computer Commission?")
Regardless, it's a bad idea. These are activities that are better settled by consumer responses and market backlashes. If you want more innovation and competition in response to bone-headed moves by Apple (or anyone else for that matter), the solution is most definitely NOT the sort of common carriage regulatory regime that Manjoo seems to be suggesting. That will just lock us into plain vanilla technologies, networks, and services. Real tech innovation happens when people and competitors get pissed and get off their duffs to do something about it, not when government attempts to micro-manage results by tinkering with yesterday's platforms.
Again, I want to make it very clear that I am not saying there is no such thing as "market failure" or "code failure." To the contrary, as I argued in my recent exchange with Lawrence Lessig, I see mini-market failures happening all the time in the technology world. But:
here's the amazing thing: I usually wake up the next day, fire up my RSS reader again, and find a world almost literally transformed overnight. I see the power of public pressure, press scrutiny, social norms, and innovation by competitors combining to correct the "bad code" or "code failures" of the previous day. OK, so sometimes it takes longer that a day, a week, or a month. And occasionally legal sanctions must enter the picture if the companies or coders did something particularly egregious. But, more often than not, markets evolve and bad code eventually gives way to better code; short-term "market failures" give rise to a world of innovative alternatives.
"code failures" are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).
Of course, this assumes we can agree on a definition of "bad code" and "code failures." What concerns me about the way Prof. Lessig approaches these issues in Code and in his subsequent work is that he is far too quick to declare the debate over by labeling short-term code hiccups as sky-is-falling market failures. The end result of such myopic techno-pessimism is the inevitable call for governments to intervene and "do something" to correct supposed code failures. The cyber-libertarian instead counsels patience. Let's give those other forces -- alternative platforms, new innovators, social norms, public pressure, etc. -- a chance to work some magic. Evolution happens, if you let it.
creates perverse marketplace incentives by discouraging efforts to innovate or "route around" bad code or code failure. We don't want the whole world sitting around waiting for government to regulate the mousetrap to improve it or even give everyone better access to it; we should want the world to be innovating to create better mousetraps!
How is it that smart people like Manjoo fail to grasp this crucial point?