This Week in Law 287 (Transcript)

Denise Howell: Hi, folks. I'm Denise Howell, and welcome to 2015 and our episode of This Week in Law. We've got an awesome show this week for you with Representative Daniel Zolnikov from Montana and author Andrew Keen. We're going to talk about the privacy ramifications of all of our technologies and how on earth to best regulate them; we'll talk about what the next Google might be; and a whole set of new clues, all next on This Week in Law. 

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Denise: This is TWIL, This Week in Law with Denise Howell, episode 287, recorded January 9, 2015:

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Hello, and Happy New Year! I'm Denise Howell, and you're joining us once again for This Week in Law. I know we've been on a break for a couple of weeks, but never fear; we are starting the new year off with a bang. We have some excellent, excellent guests for you this week and very important topics to discuss about the Internet and its role in our lives and the role of government and regulation in controlling and/or charting the course of this juggernaut. Joining us for the second time on the TWIT network this week is Andrew Keen, author of his latest book, The Internet is Not the Answer, also author of The Cult of the Amateur Digital Vertigo. He is the host of Keen On and an entrepreneur himself, and also organizes a salon that talks — much like we will do here today — about important tech and policy issues called FutureCast. He's also a frequent Gillmor Gang member, and as a fairly frequent watcher of that show, Andrew, I think that's where I most often bump into you and hear your insights. But I'm in the middle of your book and really enjoying it and I'm thrilled to have you back on the network this week. If you missed him earlier on Triangulation on Monday, you should really watch that episode on-demand. Andrew and Leo had a wonderful discussion. Great to have you back with us.

Andrew Keen: Well, thank you, Denise. Real honor to be here. And I'm actually the only person in the studio, so I'm feeling a bit lonely.

Denise: Well, don't be lonely. We'll be sure to talk to you about all kinds of things today. Also joining us — a real treat, and we only have him for a limited amount of time — is Republican State Representative from Montana, Daniel Zolnikov. Hello, Daniel.

Daniel Zolnikov: Hey. How's it going?

Denise: It's going great. So wonderful to have you on the show. Correct me if I'm wrong, but you're 27, 28 years old?

Daniel: Twenty-seven, yes.

Denise: Twenty-seven, and an elected representative in the state of Montana and paying attention to a whole lot of tech privacy issues. In fact, you've been the author of two privacy bills in your state, one of which has passed, and that one related to the need for a warrant before obtaining information from a mobile device; right?

Daniel: Exactly. Yeah, we were the first state to get that through, and then it started going through all the other states right afterward, so it was kind of an honor.

Denise: That's great. And you also pay a lot of attention to the issue of data rights in general, and I want to get into that with both of you since there's a great intersection between that topic and Andrew's book and legislation that you may have in the offing in the future. I mean, Andrew's book. So let's start out on the privacy front.

(The intro plays.)

Denise: Okay. I think a great way for us to start our discussion is to talk about the relationship of data to our daily lives since it seems to have so many tendrils and ways in which that misuse of data can really come back to haunt people. The law that you passed in Montana is a great example, Daniel, where data on people's phones is presumed by them to be private and under their control; but law enforcement and others may not necessarily see it that way. I think that we are at a really interesting time as far as law and policy related to technology goes. I'm in the midst of Andrew's book, as I said; and what I'm gathering from your book, Andrew, is that you feel like people like Daniel need to be out there advocating and convincing their fellow lawmakers that we need to be paying attention and having more and better tailored legislation and regulation for all the activities that private Internet companies are engaged in. Am I summing that up properly?

Andrew: Yeah. I think — I'm a little ambivalent about the legislation in Europe, the right to be forgotten legislation. Probably doesn't work, and it's probably — as a first draft, it needs to be significantly improved, made more practical. But we definitely need some sort of legislation on the data side. It's certainly an issue that's deeply worrying consumers. We've all been made fools of by companies like Google and Facebook; we've all been packaged up as the product. And I do think that the government is not the enemy here. Legislators, regulators, are the adults in the room, and we need help from them. It doesn't mean that they come and impose solutions; it doesn't mean that they bash technology; it doesn't mean that they undermine innovation. But just as at the beginning of the Industrial Revolution, we needed regulation to make this great technological event manageable and to create a society that we wanted. The same is true of data. I think it's where — data is where everything is really happening. Data is the key issue in this so-called data economy, particularly when it comes to privacy. So if we don't have any laws, then companies like Google and Facebook win because they're moving way quicker than any politician can, and they're the ones setting the table, defining the agenda. We need to keep up with them. And most consumers are not comfortable with the way in which the Internet is evolving. I quote Ethan Zimmerman in my book when he said that the free economic model, which is essentially of creating a data economy — this was the original sin of the Internet. And Ethan, of course, is a [inaudible] guy. He was one of the original Utopians 25 years ago. So more and more of the people who believed in the Internet are coming out and saying, "We made a mistake when it comes to data. We made a mistake about building an economy which is essentially dependent on selling our data to generate the profitability of these large corporations.

Denise: So Daniel — and this is why I think we have such an interesting juncture we're facing right now. Daniel, you're sort of a conservative small government person by nature, but you're the person out there proposing the kinds of laws that Andrew was just discussing because of the urgent necessity for them. Can you give us some examples of how you think we should be tackling the personal data problem?

Daniel: Andrew said it right: This is our data. So from a small government, limited role in our lives standpoint, the one thing that the government is supposed to be doing is actually saying what our — protecting our rights. And the right of our property is a very important thing. That's actually one of the most important ones; that was the creation of why we had our government, to ensure we had our rights and our property. Right now, those two go together because, the way I look at it and the way I'm trying to put it out there, is data is your property, which then makes it a role to ensure that this property is not being gained, is not being collected, without anybody's consent. But it's not like that right now. I speak to a lot of my constituents — just normal people who have normal lives. They go to the games, they have their families, they're very busy people. And the assumption is that data belongs to them, that it's not being collected; and then, when they — the last two years' revelations that have come out has blown their mind. This is supposed to be theirs, isn't it? Why is it being collected? Why is it being seen by law enforcement and other groups without any protections? That's the real question; that's what we're trying to do. And I'll just leave on this note: Congress is in gridlock; it will continue to be in gridlock, and there will be no solutions, discussions, that I believe are going to go anywhere at the U.S. level — U.S. Senate, U.S. House. So I think states where we have a little less — we have a lot more ability to push this type of legislation through and get the ball rolling.

Denise: Well, that's what California has been trying to do. We see this month coming into effect California's Online Eraser law for minors, which has been really controversial. And some very smart people — including Professor Eric Goldman, who we've had on this show a number of times — think that this law is just too cumbersome and too — it's got great goals in mind, but when you try and implement it, it's not going to work well. Have you taken a look at that kind of law, Daniel? I should explain it a bit for our audience. I know we've talked about it before on the show; but in case you missed that, the way the new law works is if you are a minor in California and something that you don't like has been posted online about you, you can request of the company that is hosting that information that it be taken down. There are some caveats on that. If a third party posts a photo or something of you that you don't like, that's not covered under the law. And I think that's a huge way that embarrassing information does get posted. But at least this is a start to try and give minors more control over information about them. I don't know, Daniel. I have my trepidations about this law the way that Andrew expressed trepidations about Europe's right to be forgotten law. Do you think that this is a step in the right direction, or would you tackle it differently?

Daniel: I definitely am concerned about the way that they're taking this. This is going at it the exact opposite route. It's already out there; and now they're trying to say, Well, if it's been collected and you're under a certain age, then we can go back and you can take it back; and if there's information about you that a third party put out there, you can get that erased. Well, let's look at where it starts again. It starts with you, what you put out there. Is it yours or not? Because if it's not your data, then can it be erased? And are we now taking free speech out of the picture? If the data's your property, then — they can't even collect it without it, then you're going forward. Now you know who has it, what they're doing with it, and you can take it back. But saying you can take it back but no ownership's even given, it's — they're not going the right way with this, is what I'd say. That's why I like to go from the limited government approach that it is just property; and if it's your property, then they have to ask for it. Then it's yours, not, it's out there; we're going to try to put a regulation here to stop it; we're going to add a regulation there; but overall, we don't want to make Google too mad. We don't want to make these — Facebook too mad, so we're not going to go to the heart of the problem.

Denise: Daniel, are you familiar with Doc Searls and the work he's done through Harvard? It's called Vendor Relationship Management, VRM, which is very in line with what you're talking about, having ownership over one's data and being in the driver's seat, if you will, as to who gets what piece of your data and how it can be used.

Daniel: Just barely. I've been — it's very interesting from my angle. I've been trying to cover these topics from the most responsible way within government that does not expand it. So instead of dealing with a lot of philosophy, I deal with a lot of people who are trying it from the policy standpoint. That's kind of my angle I go at it.

Denise: So if we try and take this and make it into something practical on the government level, do you think it's a good idea to mandate that companies have sort of a property approach to data and require permission in very specific ways before putting things to use.

Daniel: Again, I'm not trying to put anything on the companies. So the traditional ways to say the company cannot do this, the company can do this — I'm going on the — I guess we're talking old-school, beginning of our country route of defining what is ours; and then, once that's defined, there are ways for you to be part of the conversation someone's collected. You get to decide what is, what is not — we can't — saying, companies, you can't collect this; companies, you can't collect that — not the best route because you're going at it the wrong angle. It also limits the relationship that I as a consumer can have with companies. If I want to put all my information out there and I say, go for it, that's great. But that's where the conversation has to be had, not saying, Google, you collected all this; we're going to now limit what you can do, how you do it, when you do it. It's — again, we're missing the main point, I believe.

Denise: Okay. So it sounds like you think we need some sort of constitution or bill of rights that relates to data.

Daniel: That's what I tried doing last session. And it was a little bit bigger  than that, and I've kind of got my scope back into focus of, yeah, we need to — that's exactly what we need to do. We need to include property within a bill — yeah, as data. So — but let me get to another point. One thing I have been doing is, it is my role as a legislator in politics to limit what government can and cannot do. So I am trying to — on the route of saying, You need a search warrant for this; you need a search warrant for that information. It's preventing the government from basically forcing companies to do their will without the people's knowledge. A great example is that shield law that came out that I'm working on.

Denise: Yeah, I —

Daniel: We're trying to protect sources of the press, right? You can interject.

Denise: Yeah, please. We know we only have limited time with you, Daniel; and so, although the shield law — it is privacy-related if you think about it in terms of what a journalist has to reveal when confronted with a government request. So why don't you explain to us exactly where you're going with the shield law in Montana.

Daniel: So right now, the shield law is limiting what a journalist has to give with their source of the press. So if someone's a whistle blower, they can contact you and you are likely protected. As I understand it, there's no protections at the federal level for journalists, but all the states have pretty good shield laws. Well, one loophole with the last few years of my understanding of privacy issues is that if a third-party provider like Gmail has an email between you and a whistle blower, law enforcement can't force you to say who the leak is from, who the whistle blower is; but now they can go to Gmail and say, Hey, we're going to ask you — We don't even need a search warrant for this. We're just going to ask you for all of your emails and figure out who the whistle blower is so we can go after them.

Denise: Right. And so your law would address that problem.

Daniel: Exactly. My law says that the shield law which protects the press also includes third-party providers that the press is using.

Denise: So in practice, would the journalists be able to file an objection if a subpoena or a search warrant were served on Google, say, asking for the contents of their email that would reveal that confidential source information?

Daniel: That's exactly right. And that ties in with another piece of legislation that enforces that we get — that search warrants are required to collect generic emails. So — and if someone is — if there is law enforcement asking to look at, again, your emails, you're going to receive notification. And then, all of a sudden, you'll be knowing that they're looking at your emails. Interestingly enough with that cell phone privacy bill that came through last time through Montana, there was no opposition; but some groups, I heard later, said, Well, we like to find out where people's location is, and we don't really talk about it, but we can do that because we asked AT&T or Verizon. And they don't want to say no; they usually give it up. They don't even require a search warrant. So this information can be obtained without a search warrant. So we want to put the search warrant in place, notify the people; and then with the press law, it will also say, No, you can't get it from — to find out who a journalist's source is as well. So we're trying to hit it from multiple angles.

Denise: All right. Do you have anything else in the works that we should know about?

Daniel: Oh, yeah. I've got a ton in the works.

Denise: (Laughs)

Daniel: So we've got — we're trying to protect, also, the devices. This device will require a search warrant. I know on the East Coast, if they say, We think you're texting, they could plug in a device and take, basically, everything from your phone. That's a big issue. So we're trying to protect the device, the storage of the device, which is a third-party provider, and require search warrants for both. And then, we have one — when the information's being transmitted, basically, GPS and other data, that transmitted device cannot be obtained without a warrant. The last one that we're really working on that I want to hit on is license plate scanners. Anything that can identify an individual in a vehicle from point A to point B, we're trying to put an outright ban on. There should be no information collected in a free society about individuals. This is a big one that other states have done some things on, but we're trying to do an outright ban. A few years ago, Montana banned red light cameras, so this is the next step. I mean, Montana is kind of an idea as much as a place of wanting to be free. So I'm trying to make it that way and trying to get ahead of some technologies to ensure our rights aren't being stepped on.

Denise: Yeah. It's funny; from my perspective in California, California's always had very broad state-based privacy laws and is a very different state, politically and sort of philosophically, than Montana is. But it sounds like both states might be on the forefront and making models for other states to follow on these issues that everyone is paying attention to.

Daniel: That's exactly right. The one good thing about Montana — and I've been to other states and talked to their legislators — we have a citizen legislature. So we have people who have other lives outside of politics. When an issue comes up, they don't say, Well, this can affect my reelection; this could be $50,000 in donations. We have 170-dollar donation limits. We represent about 10,000 people each. We can knock on the doors, talk to people, hear what their issues are, and act on them without too much outside pressure really trying to stop us. So with our liberty-minded views, I think that we have a great thing going here, that a lot of interest cannot stop what we believe is good for people.

Denise: Are you getting a lot of corporate pushback on these kinds of laws? Because it sounds like a lot of what you're doing is law enforcement restrictive. But certainly, if you go further down the line of enacting laws that recognize the personal and property nature of data, you're going to find businesses having objections or at least comment about that.

Daniel: Well, believe it or not — so just — I have a few other bills, but the last one we'll hit on is event data recorders in vehicles record five seconds before and after a vehicle. We had the Automobile Manufacturers Lobby, who's in complete support of making that data belong to you, which then — inside the bill, I think there's also a minor statement that says this information is not meant to be used in courts — in cases against individual users because an individual doesn't know this information is even being collected. So with their support, we are making this information belong to the individual. What information's collected about you in your vehicle with event data recorders is yours. There is support; it's recognizing it and moving forward. So that is very — it's very nice to see that. Sometimes there is opposition; but if you kind of work well, a lot of groups are starting to go forward with this. The issue of privacy is becoming very big, and I like the progress I'm seeing.

Denise: Okay. This reminds me of — a couple of shows ago, we talked about the 19 automakers that got together and put out a statement recognizing that they were going to protect motorists' privacy with things like event data recorders. And we were wondering on the show whether this was — being skeptical commentators and thinkers — wondering whether this was more a PR kind of step or whether this is a positive step to see industry putting out statements that they're going to self-regulate and self-police. And it sounds to me, Daniel, like you think it's very positive.

Daniel: yeah. I'm watching them literally walk the walk. So the bill is being finalized in the next few days for that in Montana, and hopefully it passes here; and again, like my last bill last session, it will just fly across the states. I have to head out, though, so —

Denise: Yes.

Daniel: Thank you very much, Denise. I really enjoyed this.

Denise: It's been a pleasure having you on the show. We're very happy to let you go and vote on the House floor and fulfill your legislative role.

Daniel: (Laughs)

Denise: Great work that you're doing, and thank you so much for making the time to join us.

Daniel: Thank you.

Denise: All right. So Andrew, we've just had an example of a lawmaker who's out there paying close attention to the kinds of things that you discuss in your book; but I'm guessing you might think that his approach is not quite what your approach would be; am I right?

Andrew: Well, I think, in some ways — I think he's really a smart young man. I admire what he's doing. The one thing that strikes me about this data issue is this idea that the data is ours. I think that's problematic because of the business model of the Internet, which is what I stress a lot in my book. So when Ethan Zimmerman talks about the original sin, what he means, I think, is that we get all this technology free, and then the Internet companies make their revenue, their money, on packaging up that data — our data — which we self-publish or self-use to advertisers. So it's kind of ours, but what I would prefer, personally, is a different kind of business model where we pay for these services. So I wouldn't mind paying for Google. I use the Google search engine, but I don't have a Google account. I don't want to sign in to Google. I don't want Google to know how I'm using all their other services. So Google can know about what I search for, but they don't know me personally. They can only know my computer. And I don't have a Facebook account. But I would be much more comfortable using the Google services, which are excellent, or using Facebook,  which has its value — although personally I find it a little aggravating — if they charge for their services. So if Google had a package, a 10-dollar or 15-dollar a month package, for all their services — YouTube, Gmail, the search, everything else they're adding in, artificial intelligence and social networking — and part of that guaranteed my absolute privacy, I'd be much more comfortable using it. So I think, rather than arguing that it's our data when it isn't really because of the terms of service that's in some of these companies, because we get this stuff for free, it isn't really our data. The terms of service are so complicated, it's so hard to actually figure out whose data it actually is. I mean, who last read Facebook's terms of service? To read it requires to have a law degree. You may have a law degree; some of the people on this show do; I don't. I'm not going to spend —

Denise: Yes.

Andrew: I'm not going to hire a lawyer to read these things. So when I go into a store and I buy something, I know that thing is mine because I exchange cash for it. So I think it's that fundamentally simple economic exchange that's missing from the Internet economy. So I would prefer — law is important, and certainly legislators are important; and I'm sympathetic to the idea of kids being able to reinvent themselves. I think that's a really important thing that California seem to be pioneering. But I think that behind all these legal issues lay some fundamental economic ones that we need to sort out.

Denise: Well, the fundamental economic issue around the data that's being collected by Google and Facebook and others is oriented toward advertising, right? If there were no need to advertise to their users, Google and Facebook would not be motivated to collect this data; correct?

Andrew: Yeah. I mean, I use Apple email, .me.

Denise: Right.

Andrew: Now, Apple — I'm not claiming Apple; I'm sure that your chatroom would explode with people saying I'm pro-Apple. I'm not an Apple — what is it? The — what — fanboy or anything like that. I understand that Apple has many problems of its own; but I trust Apple more than I trust Google because Apple's business model is based on selling things. Apple is not a big data company, whereas Google is. So I think that's a very important thing to bear in mind. And more and more — I mean, Google in particular — Gmail is a really, really creepy service. I've had so many people say to me, people who aren't necessarily watching a show like this, who aren't as sophisticated as most of us on terms of service or the way this economy works; and they don't understand why the ads on Gmail often seem to replicate their own interests. It doesn't mean that there's some evil person at Google reading all their emails, but it does mean that it doesn't guarantee a kind of privacy. And I think that's the fundamental problem with this economy.

Denise: Yeah, that's an excellent point. And we're seeing, in other companies where they have a free service and a paid service, the paid service actually gaining traction because people don't want to be advertised to. If you look at Spotify or Pandora or — the music world seems to be leading on that right now, where if you want to drop out the ads, you pay your $10 a month. Now, I do fear going toward a world where the $10 a month that everyone is charging you eats up all your disposable income; but certainly it's a good tradeoff.

Andrew: Denise, $10 a month. I mean, you just go into a Starbucks or a Pete's, and you can spend that on a couple of cups of coffee. I don't think that's a lot a money. $10 a month for Spotify, where you have access to basically all the music ever recorded in the world — that's the best deal in history. In fact, the problem with Spotify is they don't charge enough, which is why Spotify isn't able to support the music industry. It's why musicians are very unhappy with Spotify because they're not generating the revenue to pay musicians properly. It's also a problem with the greedy labels. But absolutely. Why should stuff be free? Why should stuff be free on the Internet when it's not free in the world? When was the last time you went into a restaurant and they gave you a free meal and say, Well, we need all your data. We need to know where you're going next. We need to put a device in your car or in your shoe to follow you around.

Denise: Right.

Andrew: We do it in every other sector of the economy; and I just think Ethan Zimmerman is absolutely right. He summarized the problem; it's the original sin. It's like this Christian mythology. And out of that original sin we have all the rest of the evils that now seem to be really corrupting the Internet. It doesn't mean the Internet's bad. It doesn't mean the Internet isn't necessarily the answer. I hope it is; it has to be. It's the digital platform for the twenty-first century. But at the moment, it's just not working.

Denise: Well, back to the point of how the $10 a month all add up, a big point in your book is the problem of the hollowing out of the middle class, that certain people are, if they're able to avoid things like Facebook, they're probably fairly wealthy or well-to-do and don't need to be using it themselves as a marketing platform. But it does seem like, if you're going to make the free services now that improve people's lives in various ways paid services that protect privacy when you're paying, that seems to aggravate the same problem that you identify, doesn't it?

Andrew: Yeah, but Denise, $10 a month isn't a lot of money. Spending those $10 a month is not going to distinguish someone from being in the middle class or not. People are in the middle class if they have good, secure jobs. People are in the middle class if they have professions that support them. With or without the 10, the 50, the 10, the $20 they spend on a Facebook or a Google account is really not the issue. But you're right; I do — and cable; we all spend a lot of money on cable. I'm not a great friend of cable; I think it's a scam. I wish that there was an @ la carte system. I spend $120 on cable every month just so that I can watch the English football. But because I love English football, I do that. But I still think that that business model is flawed, and I wish that they would go @ la carte and I could just buy the English soccer. So I'm not idealizing the old system; I'm not idealizing the paid system. Cable companies, I think, are ripping us off, and I'm in favor of reforming that. But more broadly, in terms of my book, what I argue is that the Internet — the digital economy itself, which promised equality of opportunity, it promised us that we'd all have jobs and we'd have this — Chris Anderson talked about this — longtail, [inaudible], everyone would be rewarded for their labor. Everyone would have the same opportunity. The Internet is part of the problem now. It doesn't mean it's the cause of inequality. Even if Berners-Lee hadn't invented the web or JCR Licklider hadn't invented sort of human/computer symbiosis, we'd still have inequality, we'd still have Wall Street. But it's part of the problem; it's compounding the inequality between a tiny elite, often of the Silicon Valley mega-rich, the entrepreneurs and [inaudible], and everyone else. We're seeing the hollowing out of the middle class. We're seeing the fact that there are fewer and fewer jobs. In my book, I have one chapter on Kodak, which employed 140,000 people in Rochester and guaranteed a wonderfully rich civic life and gave job security for generation after generation of people; and then Instagram. Now, comparing Instagram and Kodak aren't exact; but in a sense we had the replacement of what I call the Kodak moment with the Instagram moment. Instagram employed 15 people and sold for a billion dollars to Facebook. Whatsapp sold for 22 billion and employed 35 people. So we're not seeing the jobs. The digital economy isn't creating the opportunity for ordinary people that are watching this, like you and I, that it was promised to; and that's a fundamental problem.

Denise: Okay. I mean, I understand what you're saying about the loss of jobs and the different kinds of companies; but how do you respond to a platform like Etsy or eBay or even parts of Amazon where, under any of those platforms, people who perhaps might be paying high rents for a local boutique or have no opportunity to reach a broad audience for their goods or services can do so?

Andrew: I accept that, and I think that's a fair argument. What I would say is that the jury is still out on Etsy. I think Etsy might be the answer to a lot of these problems. To be honest, I don't know that much about the Etsy business model or the Etsy entrepreneurs; but what I would say, more broadly — and this is the problem — is that the new monopolies are the platforms. So okay. You've got Uber. Uber gives a kind of opportunity for anyone to drive a cab. They lend you the money; although, judging from a lot of Uber drivers, they rip off the drivers. But what is Uber? Uber is really just a massive new monopoly. In the old world, you had tens of thousands of small entrepreneurs running cab companies that provided millions of jobs and many small businesses — you know, people who own five or six cabs. Today, Uber is a massive play financed by Silicon Valley and Wall Street, which are increasingly indistinguishable. They've raised — I don't know — $10 billion; they're valued at 40 billion. And you're going to have a dominant, monopolistic platform. And what's Uber already doing with that monopoly? Do we want an Uber monopoly where, when it rains, the prices go up fivefold? Do we want an Uber monopoly where they're not checking the background of the drivers and some of the drivers are sex offenders who are raping and killing their passengers? So the issue in the future is the problem of monopoly platforms. In a sense, Google and Facebook are Monopoly platforms. Look at YouTube. YouTube is essentially a video monopoly platform now. They control most of the video online. And what are they doing? Jason Calacanis, who's — he's hardly a reactionary; he's hardly an anti-tech guy; but he's the one who said that YouTube is a feudal organization. He refused to work with them because they take 40 percent up-front of the revenue; but they don't really make much of an investment. So what we're seeing — are these platforms behaving like the old feudal monopolies? And that doesn't mean it can't work, and maybe Etsy is a solution. And you're right: Etsy offers small manufacturers, creative people, an opportunity to sell their stuff; so does eBay. But the problem becomes one of these platform monopolists who are increasingly exploitative and, given the context of this show, need regulation. It doesn't mean we get rid of them; but we need laws to make sure that they don't price gouges. We need protection as consumers against these new monopolies.

Denise: All right. Well, I think we will inject our first mandatory continuing legal education pass phrase into the show, and that's going to be "platform monopolist." Andrew, we put these words into the show — like Groucho Marx's old "secret woids" — in the show in case people are listening for continuing legal or other professional education credit. Some of our listeners do that, and some of the oversight bodies that control monitoring and compliance with that credit like to know that they've actually listened or watched. So we put these secret phrases in; our first one is "platform monopolist." And I think we'll also take a break before we jump in and talk after the break about exactly what you were just mentioning, Andrew: what sort of regulations are necessary, given the kinds of businesses we're seeing grow up on the web and the adverse impact of some of those businesses.

We're going to take a break and thank one of our sponsors for this episode of This Week in Law: FreshBooks. Andrew, you were asking me before the show about FreshBooks and what the heck it was, so I'm going to tell you about it right now. (Laughs) It's a cloud accounting software that's designed from the ground up for entrepreneurs and small businesses and is perfect for attorneys. In fact, I use it in my own law practice for my own clients. And the thing that I love the most about FreshBooks is how little I have to think about it. It's just this wonderful cloud platform; it's very secure; I don't have to worry about the confidentiality of what I'm doing for clients being an issue; and it helps me keep track of all the non-fun parts of practicing law: the part where you have to keep track of your time and charge your clients. If you're still using a watch for that, that's not the way you want to be doing it because you can track your time just by opening up the FreshBooks app on your phone. You start the timer, and it's going to keep accurate track of exactly what you're doing. It's built for a growing business. On average, FreshBooks customers double their revenue in the first 24 months, and they get paid an average of 5 days faster. At the end of the month, tell me that doesn't make a huge difference to you. (Laughs) Are you still using Word or Excel or Google Docs to create invoices? You shouldn't be because — well, aside from all of the other considerations about Google that we've been talking about on the show, FreshBooks is the easier way to create professional-looking invoices in minutes. Avoid those awkward emails and phone calls to your late-paying clients because you can set up an automated late payment reminder that just makes it simple to nudge your client if they're having a little trouble getting back to you in time. You can set up recurring profiles, and your automatic billing is just put on auto-pilot. FreshBooks customers spend less time on paperwork, freeing up up to two days a month to focus on the actual work that you're doing that FreshBooks helps you with the administrative side of. Do you keep your receipts in a shoebox? Don't do that. You can snap photos of receipts right from your phone to instantly capture expenses. You can also instantly access complete financial reports so you can keep track of expenses and be ready for tax time, coming up in just a couple months. FreshBooks integrates with your apps — Google apps, PayPal, Stripe, MailChimp, FundBox, Zen Payroll, and more. And if you ever need help, you're going to talk to a real live person every time, and support is free forever. So try it now free with no obligation. You can get a 30-day free trial by going to FreshBooks.com/twil; and don't forget to enter "This Week in Law" when they ask you how you heard about us. It helps us out; it's very nice if you can do that, remember to do it. We thank you for doing that, and we thank FreshBooks for their support of This Week in Law.

All right. We've been talking about the various problems that legislators may be able to solve. Let's look at legislation and policy and talk about how to solve some of those problems.

(The intro plays.)

Denise: So Andrew, in your book, I get — I'm not done with it yet; I'm trying to read it slowly and savor it, so I haven't quite gotten to the punchline at the end. But the impression I'm coming away with is, you think that government has been far too hands-off in considering some of the issues we've been discussing.

Andrew: Well, yeah. I think government's slow; government's inefficient. Again, most of your viewers don't need to be told that. We have two speeds: we have Silicon Valley speed of these companies moving so fast, changing the world; and governments behaving like tortoises, barely able to move. So government have a lot of problems of their own. I think one of the biggest problems, actually, in America is attracting really smart people into government. In America,  smart people just don't go into government; they go into private companies. The smart people come out to Silicon Valley; they go into Wall Street. In Europe, it's slightly different. Smarter people go into government. I think that's why people trust government more in Europe than they do in the U.S. So that's a cultural issue, and certainly the Internet's not going to solve that. But I do think we've come to the point now where a lot of these Internet issues are radically affecting society. We know, at the beginning, we had the issue of piracy, and that was a big issue in terms of its impact on the music industry. I took a rather unpopular position on that, I think, in terms of most of your viewers, even with Leo. But at the same time, I think intellectual property of the creative class is important in the same way as consumers consider their own data to be their property, and that should be respected. However, saying all that, I think that — I just read something from my friend Larry Downes — he published it in Forbes — about the way in which — from CES — about all these new revolutionary technologies that are changing every aspect of our lives, from automotive to the Internet of things to energy to education to healthcare. And as we have all this new technology, as we have technology that records our health data, as our cars are full of all these devices that track wherever we go, as everything we wear, our pavements, our walls, are full of sensors — we do need government to step in and say enough is enough. We need to know where they're going to draw a boundary in terms of our privacy where we are not going to be exploited in terms of how we're watched and how our ads are served up. I mean, if Google had their way, for example, we would go from a self-driving car to a home controlled by NEST, and they would know so much about us. I mean, ten years ago, Eric Schmidt already half-joked in his inimitable way as only Eric Schmidt can do. He said, "Well, we're going to know more about you than you know yourself"; and there was that kind of evil laugh. But he meant it seriously. And that was ten years, or five or ten years ago. That was when I was writing Cult of the Amateur. That was before NEST; that was before self-driving car; that was before all these acquisitions Google are making in artificial intelligence. So there is a need for government to get involved, to stand up to these big data companies, because otherwise, government's irrelevant. What's the point of government if it doesn't protect us?

Denise: Right. But when government gets involved, it so frequently gets it wrong. We constantly see laws that are written without language that accommodates changes in the future; we see laws that ignore things — like the California erasure law that we were discussing — that ignores the entire problem of the third party posting about the minor and there being no recourse in that situation. Or we see — and we were talking about Europe's right to be forgotten stance, where it's either impinging on other important values like the need for a historical record or accurate information gathering, or an incredibly burdensome task placed on, in this case, Google and other search companies, or it's both. So although I tend to agree with you, Andrew, that we need government to be involved, we also need government to be involved intelligently. And I love that we have this show where we can get together and talk about how that might happen. (Laughs) So let me ask you a specific question along those lines.

Andrew: Can I just respond to what you're saying?

Denise: Yeah, absolutely.

Andrew: Well, of course you're right, Denise. I mean, that's obvious; government needs to respond properly.

Denise: Yeah.

Andrew: I spent yesterday at an event interviewing Jessica Rosenworcel, one of the FCC commissioners.

Denise: Yes.

Andrew: And she's this incredibly smart, switched-on person. She's one of the few Washington legislators who comes to Silicon Valley, who's building a bridge between us — working for us, we're, I think, more dynamic than they are; in many ways, we get it more than they do — and them. So of course, you're absolutely right: government needs to get it right; and government, at the moment, isn't. But that is not an argument for saying that we shouldn't involve government. If anything, that's an argument that says we need to educate government; we need to rely, to trust them; we need to help them; and smart people watching this should consider going into government. It's not just the app economy. People watching this need to remember it's only one in a hundred thousand of the app start-ups that strike it rich. Government is just as noble a profession as being an entrepreneur. But saying that — I mean, I don't know if I answered the question you're about to answer.

Denise: (Laughs)

Andrew: But of course we need government to be smart.

Denise: Yes.

Andrew: And at the moment, you're right: government isn't very smart. It's slow; it's archaic; it's stupid; it's reactionary.

Denise: Right. And it's actually so encouraging to see Daniel and other young smart people like him making that choice.

Andrew: Have you had Jessica on the show?

Denise: No, have not had Jessica on the show.

Andrew: You should definitely get her; she's fantastic.

Denise: Have certainly — yes.

Andrew: She's young, she's smart, she's interested, she's switched on; and the more people we get like Jessica and Daniel, I think the better off we'll be. But the people who I think are wrong are people like Travis Kalanick and Peter Thiel who seem to be intrinsically against government, who by definition, as hard-core libertarians, believe that government is the enemy. That's wrong; that's dangerous thinking.

Denise: Yep, I completely agree with you. So let's — even though neither you nor I, Andrew, is a lawmaker, let's consider the problem we were talking about before we took a break: the motivation for companies to gather everything about us, from our self-driving car to our — what we're doing at home via NEST to all our activities online. And one solution that we were batting about is to take these services from free to paid. But that's clearly a business decision. I don't think you would argue, would you, that we should have lawmakers step in and say, Thou shalt not offer free services.

Andrew: Absolutely. No, I couldn't agree more.

Denise: Yeah.

Andrew: I don't want to ban free services, but consumers have to wake up to the reality of free, and that's why I write my books; that's why other people like [inaudible], Nick Carr, Sherry Turkle — what we're all warning about. Ethan Zimmerman — more and more — Fred Wilson — all these people are beginning to wake people up to this stuff. Yeah. So no, I don't want laws banning free services; but what I would like, I think, are laws that force these companies to be clearer with consumers. So Facebook in particular seems, to me, a company that is so skilled in slipperyness, so skilled in not really telling us the truth about what they do with our data. And companies like Facebook should be forced, I think, to issue very simple terms of service, terms of service that anyone could understand. This is okay; our stuff's for free; and this is what we're going to do with your data. So I think these companies on the law need to be much more clearly accountable for what they do with our stuff, which is the only way to wake us up. We're responsible for reading those terms of service. Consumers have got lazy, too. We have a degree of responsibility. We can't just rely on lawmakers; that's a problem, too. If we rely on lawmakers, we'll end up in a kind of Soviet-style bureaucracy. That's even worse than the libertarian stuff from Silicon Valley. We need a balance between the two.

Denise: I've been struggling throughout the show to remember the name — and maybe you remember, Andrew, or the chatroom will — of the computer that was on the market for a while over a decade ago. It's business model was extraordinarily low-cost; it was 100 or $200; and at the time, you really couldn't touch a full-blown PC for that amount of money. But it was completely ad-supported, and all your browsing was surrounded by ads, and —

Andrew: Yeah.

Denise: Yes, People PC. That was it. And the death of People PC — it did not succeed; I think people were — did not like that model — is encouraging to me, that the market will recognize when they're being turned into a product at some level and fight back against it. As you said, your book and the others speaking out about these kinds of problems are very helpful along these lines. I wonder, too —

Andrew: What I would say —

Denise: Go ahead.

Andrew: What I would respond to that is — and you're right; I agree with you — is, I think consumers have a very different sense of hardware and software. I think we've — we still are used to paying for hardware; so that's why we're suspicious of those sorts of things. So most of us — I don't know. Would you drive around in a car that had a huge ad for Airbnb or Uber in exchange for a significantly lower price? Some consumers might be tempted to that; but others would be very wary. It's like those — not the Gatorade cars. What's that power drink? The drink that —

Denise: Don't know.

Andrew: Red Bull.

Denise: Red Bull.

Andrew: You see these Red Bull minis driving around that are designed like Red Bull cans. Would you do that? Would you sit in a Red Bull car for free and become an advertisement for Red Bull? I think the problem, again, coming back to the Internet, is we've become so accustomed to free software. We don't think we should pay for software. Somehow, Software's free; but it shouldn't be. It should be — it requires programmers to build it. It's just as real as hardware. And I think, once we get used to paying for software, we solve a lot of the problem. So I think it may be sort of a consciousness on the part of consumers that software should be free, whereas hardware isn't.

Denise: Well, one — as we're talking about consumers becoming more savvy and more demanding of the companies collecting data about them, a really interesting article at FierceBigData.com that I have in our discussion points for this week highlights a [inaudible] study that talks about how consumers' attitudes toward customer service are changing based on their awareness that they are being monitored and that consumers, as a result, are becoming more demanding. It's becoming harder for companies to deliver satisfactory customer service because — and I'll read you the quote here. "The greater point is the shift of consumer attitude. They now expect a great deal more because they assume you use big data, whether you do or not, and therefore know all about who they are and what they want whether or not you actually do. Any perceived failure to deliver accurately on each and every occasion will result in far harsher judgments on brands than have previously occurred and probably a harsh rash of social media posts, too, which means such judgments will rapidly spread." So I guess companies, if they're not going to offend people through their gathering of data, they're going to enrage them by their inadequate use of it, which also might help solve the problem; don't you think, Andrew?

Andrew: Yeah. I mean, I think what's happening which is kind of interesting is we're having a more and more empowered consumer. So Uber is fascinating in that sense, where the drivers are ranked by the customer; and so that sort of, in some ways — and then also, the — but at the same time, in a peculiar way, the drivers are also ranking the consumer so that some consumers, if you're rude or you don't tip, then you don't get picked up. So the whole relationship between the consumer and the company is changing dramatically. It's turned on its head in all sorts of weird ways. People like J Rosen said that the audience and the author become the same thing; I think that's a rather trivial way of thinking about it. I think things have sort of been turned on their head, and what we have in the Internet is a cult of the consumer, the idea the consumer is always right. Jeff Bezos has really peddled this more than anyone. But what it's resulted in are companies like Amazon that have great service, a great product, but also very poor working conditions. They exploit their workers; they behave in a very bullying way towards publishers. So what we have is — the changing role of the consumer may also spark the need for new kinds of laws, a new way of thinking. And I'm not a legal person, so I always think culture, politics, social stuff comes before the law. I think that that shapes it rather than the law shaping the other stuff. You, as a law person, might think the other way. So I always think the law is the last piece of the puzzle; you probably think it may often be the first piece.

Denise: I think — actually, I agree with you that it should be the last piece and respond to the morays and needs of society at the time. There's danger in that, though, in that when you see lawmakers rushing in to serve some popular kind of need, simply as a way to curry favor with constituents and get votes. Oftentimes, you can see laws being made clumsily in that kind of context. But ideally, I think laws should develop from what we've identified as problems that aren't being dealt with privately. And I think you've just identified a whole area where there probably is the need for lawmakers to look at, and intelligently try and confront, what on earth do we do with this new order of business like Uber, like web companies that have been lightly regulated and have that sort of historical context as far as lawmakers go. What do we do with them vis avis the problems that we're seeing? You write a lot about Uber in your book. I'm curious how you think that lawmakers and regulators should tackle that problem.

Andrew: Well, they are tackling it, some better than others. They are — I don't believe that Uber should be regulated out of existence. I think it's an interesting company, and I admire them for executing on an idea. But it’s a catastrophe. I don’t think you could continue it in its current form. I wouldn’t put 40 billion dollars into a company – I wouldn’t invest in a company that is supposedly worth 40 billion dollars that has become the bad boy of every municipality around the world. So what we need I think, even before the law is Silicon Valley companies like Uber to kind of grow up and understand that they need to work with local authorities; that they need to be able to compromise. That the idea of creative destruction which may be fine in theory and practice results in many people losing their jobs and results also all sorts of problems in the market place. It needs compromise. It’s not everyone at Silicon Valley… Google in a funny way acknowledges the importance of the law. Google spends more money on lobbying in Washington DC than all the companies put together; than ATT and Verizon, they spend more than General Electric. I think they’re the largest. They spend more money than any company in Washington DC. So Google understands the importance of it. I think the important case was the Microsoft case. Bill Gates swaggered into DC after when Microsoft was under investigation and says “we don’t care about you; we know more than you and we don’t want to spend any money, we don’t take this seriously and of course eventually the political pushback was that they crippled his company which was a good thing because without that we wouldn’t have had Google. Today Google is much cleverer in how it manages to kind of manipulate Washington DC but the next Google won’t come I think unless Google itself is controlled. It doesn’t mean Google necessarily has to be split up but it does mean that it is increasingly a dangerous monopolist that needs to be managed if we are to benefit the innovation economy.

Denise: So is the next Google the video company that gives a fair share of the revenue to the creator? Is it the search company that allows freemium free kind of model and allows people to pay for a more private browsing experience? What do you think the next Google is?

Andrew: Denise, if I knew the next Google I wouldn’t be here and I certainly wouldn’t tell you. The next Google will be something that none of us expect because it’s unimaginable. If we’d been sitting here in 1998 and you had said to me; “what’s the next Microsoft?” the last thing you’d have thought of was a search company. We thought in 1998 that search was dead and finished. We thought that all these other companies and Yahoo had sort of solved the whole thing. So who knows what the next Google is. But there will be another Google and we need to make sure legally that we provide the kind of equality of opportunity. I think that the network neutrality issue is kind of moot. I don’t think that’s the issue. Monopolists like Google and perhaps Amazon are much more dangerous when it comes to stymieing innovation than the network neutrality issue. That’s obviously a live wire for a lot of your audience. The next Google will probably…Google is trying to be the next Google by rolling up all these artificial intelligence companies. Google is trying to be the next Google with its self-driving car initiatives; with its wearable initiatives in Google Glass. I somehow don’t think Google can become the next Google. The next Google will be something quite unexpected. I mean what do you think?

Denise: I think you and I both remember back to 1998 and we were both using the internet at it existed then and remember the breath of fresh air that came blowing through when Google came on the scene and all of a sudden you weren’t confined to Exite and AltaVista and Yahoo and all the blinking lights and the portals and all the marketing that was happening to you in the search context. Google swept all of that away and made it very clean and told us they were not going to be evil. They delivered a superior search product as well kind of incidentally. It was really the experience of not being advertised to that cemented Google’s control of the market. Don’t you agree?

Andrew: Yes, which is particularly ironic given that Google is now the largest advertising company in the whole world. Whatever it is – 500 billion – 600 billion dollar value evaluation is 90% based on advertising. So yes, Google was brilliant and it’s a wonderful product and in many ways they deserve all the success they’ve had. I think you may be right; I think the next Google may be someone that cracks this privacy danger issue. It won’t be done by some sort of non-profit, it won’t be done with open source, and it won’t be done with the way in which some non-profit idealists think that we can create a shared internet. It may be done by someone who completely reinvents the whole idea of data and the successful business models on the internet. But maybe you’re right, hopefully when we’re here talking in 10 or 15 years we’ll go back and go “oh do you remember in 2015 about how creeped out we were with Facebook, how suspicious we were of Google and then this company came along and they solved the whole thing”. Maybe there are some entrepreneurs out there who will figure this thing out. It’s a great challenge of our age; how do you square the circle, how do you create a company that protects our data in a big data economy? In an economy where everything we do online is watched whether we like it or not. It’s a fundamental challenge. If it was easy we’d all be doing it. It’s going to require a couple of geniuses like Sergey and Larry to do this thing; maybe geniuses technically but also in business terms.

Denise: I do think circling back to a point you made earlier that it is going to require some governmental control that requires companies to be very clear.

Andrew: It goes back to the Anti-trust stuff. If you hadn’t had the government anti-trust case against Microsoft, Microsoft would have crushed Google in the same way as they essentially crushed Netscape and in the same way they crushed so many innovative companies. So perhaps the government legislation (whether it’s on data collection or on anti-trust issues) will be the necessary trigger that will enable the next Google. I think that’s the way to think about government because we shouldn’t think about government as being anti the market, anti-innovation, anti-entrepreneurs. I think what the government did with Microsoft was great. It was the great trigger that enabled the wave of innovation and we need the same kind of brave government – go back to the Microsoft case and look how government was the one institution able to stand up to Microsoft. No one else could do it, they destroyed everyone else. Bill Gates was the ultimate bully, now he’s a decent guy. Google I don’t think is as much as a bully as Microsoft but they’re even more powerful, even more ubiquitous given their role particularly in search so I think it’s a really interesting idea that government has got to seize the horns and at the moment… look at Obama, look at the administration, look how close they are to Google. The new CTO is an x Google person. It seems that everyone associated with Obama’s tech policy is an x Google person or intimately bound up with Facebook or some of these other leading technology companies. So I hope in the next election that we’re going to have a sweeping out of all this Google control of Washington DC and someone either on the left or the right will come along and say these are big issues. These aren’t marginal issues anymore. Make tech policy, privacy, the big data economy, central in the election. I talked to Jessica Rosenworcel about this last night and I asked her if in the next election these issues are going to be central and she thinks they well may be. If not this election then the election after; we were the geeks who argue about this stuff and no one else seemed to care but I wonder whether there will be; Elizabeth Warren for example; whether she could pick some of this stuff up or some more coherent responsible republican who could make these issues more central in their campaign. I hope so and I hope it becomes an issue that they debate because it really matters. It matters more than North Korea; it matters more than Russia for most of us. It’s so important.

Denise: When you were speaking with Jessica Rosenworcel did you also talk about the net neutrality issue? They’re coming up for a vote on that.

Andrew: Yes, as you can imagine it’s not her favorite subject. She, as only Jessica can do, charmingly sidestepped it.

Denise: So you didn’t get anything out of her?

Andrew: No, nothing and as usual she doesn’t like talking about it and she’s made that clear. It’s too sensitive for her and it’s such an incredibly sensitive issue. What she did say was that she was looking forward to seeing Wheeler’s comments so she’s looking forward to seeing the staff and she eagerly awaits it; so fair enough.

Denise: Fair enough. You mentioned a moment ago that you don’t think it’s quite the hot button issue – well obviously it’s a hot button issue – but seminal issue that the controversy around it would suggest?

Andrew: Well I think it’s been cleverly – and I’m sure that the chatroom now is going to erupt in anger against me but I think it has become; it’s an industry issue that has been oversimplified cleverly. Again I don’t mean to pick on Google but Google is financing a lot of these network neutrality organizations and it has been presented as a conflict between the large carriers and the people. As if the cable companies; Comcast, ATT and Verizon, these companies want to destroy the internet, they want to destroy and create a 2 tier internet and they’re exploiting simple ordinary internet users. The truth is in my view at least that the network neutrality debate is a fight between large corporations about what you can and can’t charge. It’s a fight between the Netflixes and the YouTubes of the world versus the carriers and I don’t think there are any good or bad dogs in it. It’s a business to blame which has been cleverly transformed by the publicists of internet companies into a conflict between people and corporations. But it’s actually a conflict between large, well-financed corporations with massive PR companies and advertising agencies and it’s very, very, complicated and it has been so trivialized by people as to turn it into this hot button emotional issue where evil corporations are destroying the internet. They’re breaking it and they want to ruin it for all of us which to me is absolutely absurd.

Denise: I agree with you that it is a far more complex and nuanced…

Andrew: And I personally…it’s probably a terrible thing to say but I don’t have a problem with a 2-tiered internet. I don’t have a problem. Just as when I get on an airplane there is a business class and there is economy. You get into business class if you pay for the seats. I don’t have a problem with a 2-tiered internet as long as you’re not allowed to slow down; as long as you’re not allowed to ruin economy class; as long as the so called slow lane can’t be destroyed. I think companies should if they want be able to pay for added services. It’s such a complex issue. They already can with companies like Yakima, so to me again I think the issue is whether a Comcast charges Netflix or YouTube to travel on their network. And given both the ubiquity of video and the demands of video I think those are legitimate issues. You’re sucking up the entire network. Is there an issue about having to pay extra? That’s not going to slow down the guy blogging or showing a video on Youtube. But the conflict say between a YouTube or a Netflix and the carriers is I think a legitimate issue.

Denise: Yes, I agree. I think we need to have some room for interesting business models to arise and if they get out of control or anti-competitive a vehicle for knocking them back down again…

Andrew: I do think that it’s really the responsibility of journalists like you, of media people to remind people about the complexity of this issue. You know with the SOPA Hipaa thing… it became almost like a witch hunt. It’s very dangerous. It sets precedence which I think is really bad for a mob like mentality and culture online.

Denise: Right but particularly given then points in your book about the continuing polarization of economic classes in the country – the last thing we would want to do is to make it impossible for the next Google, the competitive platform that is going to offer a better deal for creators – for them not to be able to offer their service because of the deals that the pseudo-monopoly and Google has made.

Andrew: You’re absolutely right but then again they’re the ones that need protection, not Netflix and not YouTube. Why is everyone talking about the people’s internet and protecting Netflix which is a great company but very well financed company or YouTube or Spotify. These are well financed companies with billion – huge amounts of money poured in. They’re not on the side of the people. They are just large corporations.

Denise: Alright well we’ve had so many great things to discuss and we have more to come. I’m going to take our second advertising break for the show and its right about lunch time here on the West Coast so it’s a good time to talk about Blue Apron. We’ve been telling you about Blue Apron on the show in the recent past and I continue to have great experiences with the company and their food. If you’re not familiar with it, it is a company that will send you all the ingredients to cook a fresh delicious meal. In fact 3 of them, I think you can tailor it down to a smaller size than that perhaps but the weekly box that they send is typically 3 meals and they just do an incredible job of putting together fresh ingredients, locally sourced to where you are and putting them together in such a creative way; giving you the instructions that you can really cook like a gourmet in ways that you might not have thought about. It’s easy, fun and health conscious. Whether you’re a gourmet chef who’s just in a hurry or someone who just aspires to more cooking talent than you might actually have, it’s wonderful. It’s a great alternative to ordering out which gets expensive and gets unhealthy really fast too and you just don’t know that much about the food you’re buying in your grocery store. It may have been sitting there for a while, or how far it’s had to travel. Everything that comes to you via Blue Apron (and I’ve had several great experiences with them now) is fresh, delicious and they’re so creative. Here’s what I did over the holidays. One thing you can do is you can tailor where your deliveries come. So over the holidays I was travelling in Northern California, I was with my mother right after Christmas. Christmas week she had gotten their weekly delivery of items. This is really great too because when’s the last time you want to be in the grocery store right before the holidays – Christmas or New Year’s. During the holiday week I really liked how they packaged up their weekly 3 meals as something that could have become your Christmas dinner and they explained exactly how you would put it all together and make it that way. My mother didn’t do that. She did I think 1 of the dishes for her main Christmas dinner and she had a bunch of homemade pasta and other things she wanted to do so she just did their roast beef dish. So we had left to make when I was up there her chopped chicken and Brussel sprout salad. Now that doesn’t sound all that exciting but let me tell you that the way this was put together and the prep instructions came this was one of the most phenomenal meals I’ve ever made.  First of all I would not have though off the top of my head to chop up raw Brussel sprouts and put them in a salad that was otherwise escarole lettuce. But those gave it such a nice tang and snap so that was a great point. Then the other really cool thing they did in the prep instructions was after you’d grilled the chicken they had you de-glaze the pan and save all the pan drippings and then add those to a nice sherry vinaigrette for the dressing and then finally there were 2 shallots included with this meal. 1 of them got diced up and put in that sherry vinaigrette, the other one you saved until the end and you cut it as rings and drenched them in flour and fried them. So there were these wonderful crispy shallot rings on top of the salad which also had pecan which you roasted by yourself in the pan and also currants which gave it a really nice sweet counterpart to all the tangy smokiness of the chicken. It was just awesome. This was really a great meal. Every one of their meals is only 9.99 per person. You get a refrigerated box that comes right to your door. You can control when it comes, how much of the food you want. The meals too are only 500-700 calories per serving. You’d never know it by how great they taste. They’re going to work around your schedule, your dietary preferences, if you’re not a shell fish or a fish person you can throw those things out. If you’re all vegetarian or if you’re vegan they accommodate you too. They really have some great offerings. Here in our copy they talk about pulled chicken tacos with jicama and avocado salad or here’s another Brussel sprout salad. This one is warm with pickled raisons, shaved parmesan freekeh. I’ve no idea what freekeh is. That is unique. There are frequently things in the dishes that you may not have heard of and you just kind of raise your eyebrows and go what? But they come and you’re tried something new and it winds up being phenomenal. I know that next week’s menu consists of whole wheat linguini with kale, red walnuts and pecorino cheese. That’s one of the meals, the next one is chicken mulligatawny soup and then the final one is a Mexican style quote unquote rice and beef casserole. They put the rice in quotes because I think you make it with quinoa. So it’s just really great food. I definitely encourage you to check it out. You can do that as a listener of this show absolutely free. You’re going to get 2 free meals with no obligation at all to keep going so you might as well just try it. Blueapron.com/twit; you’re going to get 2 meals for free when you go to that site. Thank you so much Blue Apron for the delicious meals over the holidays and for your support of this week in law.                                                                      Alright Andrew, let’s get back to talking about the important law and policy issues facing the internet. As far as net neutrality goes I think we’re basically on the same page. It’s a complicated issues and I’m very happy that the commissioner Rosenworcel is thinking about these issues because she’s as you were mentioning one of the smart people at the FCC. I think we should also talk about wearables before we go ahead and end the show. You were already bringing up the various ways that companies are knowing things about us whether they’re controlling the thermostat in your home or they know exactly where you’ve gone in your car and how fast you’ve gone there. If we’re all wearing things around that monitor all the rest of our activities that sort of closes the circle as Dave Eggers might say, wouldn’t it.

Andrew: Yes, and I think one of the things we should learn from the Sony hack story recently is that data is never secure. I spent some time with Leander Kahney. Do you know him? He’s the editor of Cult of Mac. I interviewed him at CES this week and we were talking about Apple and the next big thing and I said like everybody else I’m not an Apple expert and I said Apple needs the next big thing. They’ve been riding on the iPhone coattails for too long. He said that the watch is going to be really spectacular. I said yeah why do we need another watch? I don’t need that, I don’t wear a watch. He said that the Apple watch will be able to monitor everything about you. Apple just as any company they are the ones who really invent the future and make things real just as they made the music revolution real with the iPod they made the telephone revolution real with the iPhone. I think that they may make the next stage of the revolution real with the iWatch. If you like we’ve gone from this weird arrangement where computers used to be – mainframe computers used to be in someone else’s building and then we were able to import desktop computers into our own homes, then we got laptops that we could take around with us. Then we got smart phones that we could put in our pockets and now we’re putting these things on our wrists. It’s becoming closer and closer to us and those devices are becoming more and more intimate. This device that we’re going to put on our wrist will know everything about us. It will be able to monitor our heart rate, it will eventually be able to explore our DNA and know who we are and where our origins are. And again coming back to the subject of this show it’s going to require massively thoughtful legislatress to know where consumer rights lay. We know again coming back to the Sony hack; we know data isn’t secure. It’s never going to be secure in this economy. We know that there are always going to be hackers out there. Maybe there are some hackers in the audience who are always 1 step ahead and who are figuring out how to break into these systems. So when the Apple thing comes out and they say we guarantee your data – no one can ever guarantee data. We can’t rely on lawmakers either to guarantee data because just because you make it legal doesn’t make you able to secure it. I think that with the Apple watch and devices like it, other wearables, we are coming to a new moment in the history of digital society where these devices become part of ourselves. They become intimate. It is not just knowing about our sex lives, it’s not just knowing about us paying or not paying taxes or making rude remarks or something. They become part of us. They know everything. Eric said we know what you’re going to wear; we know where you’re going to go tomorrow. These devices go beyond that, they know everything about us. They know our health, they know when we were born they know when we will die. They know our vital statistics; they know what illnesses we’re prone to. They know the illnesses of our ancestors. So lawmakers again are so slow. Who knows if they’re going to be able to do this but they’re going to have to get ahead of the game. They’ve got to understand that this is one of the most fundamental changes in society since the industrial revolution. And again unless they figure this out it is going to be a catastrophe for the consumer because you’re going to get cowboys with some remarkable new company that will exploit this in ways that make most of us really creeped out. Whether or not it is the Apple watch or not one of these devices is the moment they haven’t really broken through but they will break through because someone will come up with something so spectacular that everyone will put it on their wrist or will ingest it or will have it burnt into their skin. You laugh but it is real and it’s not that much into the future.

Denise: No you’re absolutely right and we’re just around the corner from where the beads headphones that everyone might be wearing might have a dual function as well.

Andrew: That’s a brilliant point. I never thought about that. You’re absolutely right. When I said I’m not scared of Apple; Apple isn’t a big data company – when you think about the iWatch and that application of beats, Apple could be. Someone said to me that Tim Cook is a really nasty guy, he’s a very aggressive business man so if there is a fortune to be made there expect Apple possible to go in that direction. There’s nothing inevitable about Apple not being a big data company either.

Denise: Right. Given the kind and amount of data that these wearable things will be able to fill in about us; do you think that there should be limits on what kind of data a device should be able to collect or do you think it is all fair game and we have to deal with it in the disclosure and control that is given to users and that users have?

Andrew: That’s a really good question. I don’t think we can limit it by law. I don’t think I would be in favor of a law that says you can’t have a device that you can strap onto your wrist that will say mine into your DNA. Because that’s what’s on the horizon; it might not be available yet but it will eventually be coming down the line. So again we need laws about this economy, the limits of what companies can and can’t do and of course most importantly really strong protection because this is…it’s one thing to have your search records publicized but it’s quite another to have your vital statistics publicized. These are devices that will know so much about us; they’ll know what diseases we’re prone to; they’ll know whether or not a woman can or can’t have children. Imagine the power that this gives employers and imagine the power that it gives the government. So there is a need for fundamental laws which won’t always work because there will always be hacks. Hacking is of course one of the central concerns. It’s one of the most dangerous aspects now of life. We need laws that stand up to this technology and understand its fundamental challenges. If politicians in DC are going to spend their time pointing fingers at one another or worrying about some archaic 20^th century thing while this stuff goes through unnoticed it would be really scary.

Denise: Have you paid attention to the fact that Doc Searls and David Weinberger just issued yesterday or maybe the day before an update to the Cluetrain Manifesto called New Clues?

Andrew: No what did they say? I like these guys. They’re both friends of mine. We started kind of as enemies and Weinberger in particular I bump into on the circuit all the time. In fact he and I are doing… there is this thing called intelligence square where 2 people square off against another 2 and I’m doing a debate – I think it’s in April or May in New York and it’s me and Nick Carr against Weinberger and a woman from IBM about whether or not technology is making us stupid. I respect those guys and I think that Weinberger and Searls are examples of internet idealists who are now really sour on this stuff. Searls in particular is really concerned with the data economy and Weinberger is a really smart guy and a very good guy. He’s still really optimistic. I bumped into him at the Web conference last month where we both spoke and he’s still obstinately defiantly optimistic. If he’s watching this I would challenge him. In his heart of hearts I think he knows that something has gone seriously wrong here.

Denise: I think they acknowledge that in their update to the Cluetrain Manifesto.

Andrew: What did they say?

Denise: New clues, from 2 cluetrain authors Doc Searls and David Weinberger. They’ve done it in the spirit and I think maybe even the font of the original Cluetrain manifesto. It’s a series of tenants about understanding the web today. It’s at cluetrain.com/newclues and just like the original clue train manifesto which became a book and became I think for a lot of people of our generation Andrew – a way that they were able to go to the people they worked for, the big impersonal companies that they were either dealing with or working directly with and say hey you guys are just missing the boat and here is why, in a very concise message. I think that this does the same thing for a lot of the things that we’ve been discussing today. It is very optimistic. I think you’ll decide that when you go through and read it but it includes things about “how did we let the conversation get weaponized” they ask and they have a bunch of points about that. As far as privacy goes they have 2 topics on it; privacy in an age of spies and privacy in an age of weasels; the spies being government and the weasels being the Googles and Facebooks of the world. Let’s see their manifesto number 92 here says “at the economic and political incentive to de-pant and up-skirt us are so strong we’d be wise to invest in tinfoil underwear.

Andrew: Yes I always wear tinfoil underwear. I hope you’ve got yours on too.

Denise: I don’t know I’m trying to figure out a world in which we can live without tinfoil underwear.

Andrew: I think that is interesting and this is in the context of my new book. I wrote Culture of the Amateur in 2007 very much as a reaction to the Cluetrain Manifesto and maybe I personalized it a bit and Doc Searls originally wasn’t originally very friendly towards me and Weinberger was a bit annoyed. We got to know each other and became friends. The Cluetrain Manifesto was the Zeitgeist of the – I don’t know when it came out, 2005 or 2006. It was the thing that captured what everyone was thinking. It was the same with the Long Tail and other books like that and some of Lessing’s books and other books by people like that. Today I think the Zeitgeist is changed. I think the fact that they’ve written an update that while optimistic still warns people to put on their tinfoil underwear shows how much over the last 7-8 years the Zeitgeist has changed. One of the things that troubles me a little bit about the internet is not the – all these people are saying I’m right. I like to be wrong. I make my money on defending people and pissing them off and them saying that I’m the anti-Christ and the elitist and all this stuff. So maybe the timing in a way is good for this kind of book but I think there has been a very sharp shift over the last 8 years in the way in which people think of digital. I think it needs to be thought “why is that happened”; I think the reason is because these big internet companies have made fools of us. They’ve done everything to take advantage of us and their language of improving…Zuckerberg epitomizes it, Zuckerberg says oh we want to unite the world. That’s our goal; collaboration, conversation and all the rest of it. But he just wants to create more Facebook users. So the hypocrisy of so many of these people now is becoming clear and people aren’t stupid. They’re beginning to see through it. Google isn’t evil but it isn’t good either. Google is a large corporation no different than General Electric or General Dow Chemical. It is focused on pursuing its own profit and people are seeing through that. This language of presenting yourself as a kind of public utility of benefiting mankind is clearly a fraud.

Denise: Right unless you back it up. I think if you’re going to market yourself as a company that benefits mankind…

Andrew: I think that’s what it is if we’re talking about an original sin I think that’s the original sin of Silicon Valley; to believe that you can be good and rich at the same time. I really think this idea that somehow – and the Google boys think this more than anyone else and you know in some ways Google has been good. Clearly the Google search engine is a wonderful thing but the idea that you can simultaneously do good and be immensely successful. I think it’s an illusion. Now sometimes you can be successful and kind of accidentally do good but this idea that large successful corporations are for the moral benefit of mankind I think is a dangerous delusion and I think this is one of the great delusions of Silicon Valley and it’s why the change in the Zeitgeist is good because I think people will begin to rethink this thing. I think the grownups of Silicon Valley – guys like Marc Andreessen who’s been through several cycles and knows what it’s like to be not only a start up entrepreneur who has made a fortune but also a mature investor. I think these are the people who are beginning to create a more responsible conversation around these issues.

Denise: Yes. It sounds like you may have undergone a change in your Zeitgeist as well since writing the Culture of Amateurs.

Andrew: Me? I didn’t change anything.

Denise: You sound far more receptive to people making amateurish runs at what traditionally has been the province of big media; like we do here at TWIT.

Andrew: I never was against this kind of network. My stuff got parodied; I would never argue that what you’re doing is a bad thing. Leo is anything but an amateur. Again this may or may not be popular on your network but I still believe that some people are really good at what they do. Leo and you are very fine broadcasters and it’s a very hard thing to do. Leo has built a really successful business because of his skills as a broadcaster and as a businessman. You have your long running show because you’re really good. It’s not easy to do what you do. I couldn’t do that commercial for that food stuff without bursting into laughter.

Denise: It’s really good stuff though.

Andrew: We have to recognize and I think over the last 7-8 years we’ve realized that it’s actually hard to be a professional broadcaster. Just because everyone can go on YouTube, just because you can broadcast from your iPhone doesn’t mean that anyone can become Leo and I think that’s still something that I believe in and I think that over 7-8 years it’s becoming increasingly clear that professional creative people are struggling in this economy. Leo is the exception but it’s harder and harder for journalists to make a living. Again I have a whole 2 chapters in my book on that. They may not be that popular with everyone but I think it’s been a failure. I think in overall terms film makers, musicians, journalists, animators have not benefited from this revolution. It’s harder and harder to make a living. I’m doing a review for the Los Angeles Times on a new book called The Death of the Creative Class and I’m not sure if I’d go that far but it’s a tough business to be a creative. Don’t you agree?

Denise: I do, I think it’s always been tough to be a creative. I think in some ways it’s easier to find an audience now than it has been in the past and I do think that this whole topic of the impact of the internet on the creative arts; I would love to have you back on the show to talk more about that at a future date because I think we are coming up against our 2 hour limit for the day. It’s a long topic and I think that there is a lot that we could discuss about it but I agree that… I don’t think that it’s ever been easy to be a successful creative person. I do think there are some avenues that exist for getting the word out about your talent and creations that haven’t existed in the past but the economics have always been difficult.

Andrew: You’re absolutely right and it is easier to get the message out. But again coming back to economics maybe we need a show on the TWIT network called This Week in Economics but it’s business – fine you’ve got an audience of 2 million and it’s really hard to monetize and again what you’ve done and you’ve done it the old fashioned way is you have advertising, but it’s clear that it’s advertising right. You have a commercial break and you make it clear. It’s a very honest transparent arrangement. It’s also for audiences to realize this that nothing is free – excusing the pun about lunch time but there are no free lunches on the internet and when it seems to be free they should be really suspicious because something really underhand is going on and they should beware and put their aluminum underpants on.

Denise: That’s right.

Andrew: I mean tinfoil.

Denise: Well we say aluminum often here in California as you know.

Andrew: Maybe you should have the advertiser on selling aluminum underpants.

Denise: Yes. And equally so on the internet cookies aren’t always as delicious as you might think. We always end the show Andrew with a tip of the week and a resource of the week so I want to quickly do that before we get out of here. Our tip of the week has to do with super cookies. This comes from a piece over at Ars Technica where you can read more about super cookies which are devious in a couple of ways. Number 1; they can keep tracking you even when you’re browsing in incognito mode and they can be used from multiple domains, not just the domain that placed the cookie. This is something that came out by technology and software consultant Sam Greenhalgh if I’m pronouncing him properly. I’m sure there is more about this at Security Now if you want to learn more about super cookies. But the piece at Ars Technica has a great tip; it’s by Dan Gooden and he tells you how to avoid them so I’m going to share that with you. It’s pretty easy, before you switch to privacy mode on your browser. This works on all browsers except Safari on iOS devices so that’s kind of a big exception but… If you’re using a different browser and you’re not on an iOS device before you switch to privacy mode you delete all your cookies and what happens then is all standard browsers will flush the data that allows super cookies to work. So read more about that at Ars Technica. Thank you Dan Gooden for that good tip in keeping with all the topics we’ve been discussing today. Then further in keeping with what we’ve been discussing today I have 2 resources I want to recommend. Number 1 is what we were talking about the new Clues from David Weinberger and Doc Searls; a great way to kick off a discussion if you need to have one with a lawmaker, with a company about doing things transparently and productively on the web. So check that out at www.cluetrain.com/newclues and also if you are someone engaged in developing wearable technology or you know companies that are and you want them to do it in a responsible way. I encourage you to check out a paper from Futureofprivacy.org called a Practical Privacy Paradigm for Wearables. It goes through and puts some principles out there. It talks about the future of wearables and then it talks about various things that wearable devices should be doing to recognize user privacy so I would encourage you to check that out. Respect for context is one of the points, analyzing the risks and benefits of what the wearable is doing, being transparent about what kind of data it’s gathering, de-identifying that data when it’s stored and giving reasonable access to the user to all that data. So check that out, it’s far more detailed than I just made it sound but it is a good road map if you’re in that area or dealing with companies that are a practical paradigm for wearables from futureofprivacy.org. So with that we’ll go ahead and wrap up episode 287 of This Week in Law. Andrew, I’m so looking forward. Here is my copy complete with the book light on it because I was reading it last night and intend to continue to do so into the wee hours of the morning. It’s a great read. I encourage people to check it out. The Internet is not the Answer. Do you wish you’d titled it something else though?

Andrew: You don’t like the title?

Denise: I don’t know, it’s a controversial title. It will definitely help you sell books but maybe it’s not the answer unless we pay close attention or…

Andrew: Well actually the book was originally called – my first title was Epic Fail. Of course publishers weren’t very happy about it. Actually the first title was The Network which was a bit boring. Then Epic Fail which of course we had to take out the F word in the middle so it became Epic Fail and then my New York publisher a wonderful guy was really against that because he said he didn’t know what the fail was about – it’s not clear so you need something very specific and he was arguing with my agent on the phone and at one point Morgen shouted “the internet is not the answer” and then there was this silence. It was a good title. I think the title is great because it gets people thinking. It’s provocative; they ask what’s not the answer so I don’t think it’s that vulgar. I mean my first book “How the internet is killing our culture” I never really said the internet was killing our culture but that was a way of selling books. I think the internet is not the answer is a good way to get people to think about the internet and the operating system for the 21^st century. So it’s not too bad and it’s kind of an intriguing title. What would you rather have if not Epic Fail?

Denise: No I don’t know. I’ll give it some thought.

Andrew: I’ll come to you for my next book.

Denise: Yes reprint it. It’s a great read. Folks should definitely check it out.

Andrew: Interestingly enough I just got the German title of the German copy and it’s got some… the Germans have redone it and it’s like the Internet and then one word so it’s probably How the Internet kills our world or something. But titles are important and when you go to the book store and you’re looking on that table and you’ve got 1 book to buy and you’ve never heard of any of the books the most important thing is the title and of course the cover. What I do think they’ve done is I think the cover is fantastic. It really stands out.

Denise: Nice and bright.

Andrew: Do that more often Denise, that’s what you need to do for the next show.

Denise: It’s been really great having you on Andrew. We appreciate all the time you’ve spent with us here at TWIT this week and we’ll continue to follow along with your writing and your doings. Is there anything you’d like to add?

Andrew: Oh yes, the German title is the Digital Debacle. So you know they’ve made it more blunt. I really enjoyed it. It’s fun to be on the show and it’s the quickest 2 hours of my life and I hope I come back again. Anyone who wants to email me I’m a.keen@me.com obviously @ajkeen on Twitter but I really hope people have the chance to read the book and tell me why I’m wrong or right. I always like to get… it’s always nice to hear what people are saying, even if I was the one who was against internet comments in theory and practice it’s a good thing. When they’re behaved and your audience is behaved. That’s the point.

Denise: It is.

Andrew: I don’t know how you’ve done it without curating. It’s probably because you’re good people and the audience…you don’t really get people behaving badly because they get thrown out by the audience.

Denise: Yes, I’ll tell you a couple of tricks of our chat room to keeping it civil in there. We do have moderators in the chat and whenever anybody types a swear word in the chat there is a script that runs that converts that automatically into the word vaynerchuk after Gary Vaynerchuk and if people are cursing then they get tossed out so it is very civil

Andrew: That’s great and it’s a great audience. It’s been fun thank you again. I’m convinced of Leo’s … and I’m going to pitch him a show now. This Week in Culture; how about that?

Denise: Yes, we could have you and Dvorak and explore the depths of contrarianism.

Andrew: Good. Well a real pleasure thank you so much. I’m going to go get some lunch now.

Denise: Alright, enjoy your lunch and thanks so much everyone for joining us for this show. If you’ve done so live with us you’ve done so at 11 o’clock Pacific Time 1900 UTC. That’s when we record the show live at 11 if you can join us. If you can’t please find all our backup episodes of the show at twit.tv/twil; we are on YouTube. We have a YouTube channel there at www.youtube.com/thisweekinlaw; we’re on Facebook as well as Google Plus. Those are good places if you have comments or suggestions, want to further riff on the topics that we’ve brought up during the show or you can just email me. I’m denise@twit.tv. Let me know what’s on your mind, your reactions to what we’ve been discussing, future guest suggestions such as FCC Commissioners or whoever else you think might be a good guest on the show. We’d love to hear from you about that and all the rest. You can follow me on Twitter too. I’m dhowell there and that’s a great way to get in touch too if you have something short and pithy or just want to send me links so that I know what’s on your mind and we can put it on the next show. Thank you so much for joining us and we will see you next week on This Week in Law!