Gus Hurwitz on the Rural Digital Divide and Platforms

Dr. Sarah Oh:

Welcome back to Two Think Minimum. I’m Sarah Oh, Senior Fellow of the Technology Policy Institute, and I’m joined by Scott Walston, President and Senior Fellow of the Technology Policy Institute. Today is Thursday, January 28th, 2021, and we are delighted to have Professor Gus Hurwitz joining us.

Professor Justin Gus Hurwitz is an Associate Professor of Law at the University of Nebraska, where he is also the Menard Director of the Nebraska Governance and Technology Center and the Co-Director of the Space, Cyber and Telecommunications Law Program. He has particular expertise in telecommunications law and technology, including data and cybersecurity.

Professor Hurwitz has a background in technology having worked at Los Alamos National Lab and interned at the Naval Research Lab prior to law school, and he held an internet to land speed world record with the Guinness Book of World Records. Professor Hurwitz received his JD from the University of Chicago Law School and was a trial attorney with the DOJ Antitrust Division and the Telecommunications and Media Enforcement Section. He is also the Director of Law & Economics Programs at the International Center for Law & Economics, where he works to incorporate economic tools into legal and regulatory analysis, and his legal scholarship has been cited widely by the popular press and government agencies. Thanks, guys, for joining us on this episode of Two Think Minimum.

Gus Hurwitz:

It’s great to be here!

Scott Wallsten:

Before you jump into serious things, I’ve got to know about the internet to land speed record.

Gus Hurwitz:

Hahaha. That’s the most important thing on my CV. So yeah, back when I was at Los Alamos, I was working in one of the Computer and Computational Sciences Divisions, where we were developing computer networks, wide area networks for supercomputing applications, and we got our hands on some of the very first host base, 10-gigabit Ethernet adapters that at the time Intel was designing and we also got ahold of a transatlantic fiber connection going from CERN Geneva to the Stanford Linear Accelerator Facility, and we pumped a whole lot of data really fast using that. We saturated what was then a 2.5 gig per second, basically a fiber for about an hour, and back then, that was really darn fast. We actually, the team I was working with a year after that, got access to a faster fiber connection since we were working with 10-gigabit cards and they reset the record and they blew our record, the one I helped set, out of the water. Our team didn’t participate in that resetting of the record because, maybe I shouldn’t pick fights like this, but we were interested in doing the real science, and just changing the fiber out without changing the configuration, that wasn’t really all that difficult, but yeah, that was a lot of fun, and definitely being in the Guinness Book of World Records is a thing that my family is most proud of.

Scott Wallsten:

I can understand that. Okay, Sarah, I’m sorry. I interrupted you before you could get to the real questions.

Gus Hurwitz:

I thought you were going to ask Justin Gus Hurwitz, where does Gus come from? But we can hold that to later.

Dr. Sarah Oh:

Yeah, that too. I’m interested in that story. We’ll hold it for later. Okay. I’ve been taking part in the scholarly activities of the Nebraska Governance and Technology Center as a visiting faculty fellow, and as a participant in the Rural Digital Divide Round Table. The NGTC has a great network of scholars and interdisciplinary fields. Can you tell us more about the mission and vision of the NGTC?

Gus Hurwitz:

Yeah, so the Nebraska Governance and Technology Center, we just launched this past fall, and let me tell you, if you want to launch a big new initiative, doing it during a pandemic is great. It’s based at the University of Nebraska. It’s a partnership housed in the College of Law where I’m a professor but in partnership with the Colleges of Business, Engineering, and Journalism and Mass Communications. So, we are an interdisciplinary center from the ground up, and unsurprisingly launching in a pandemic, we’ve been doing a lot of pivoting and rethinking and shifting to a lot of online stuff. So, I’m also now the proud host of a podcast. I’ll be working on a series of explainer videos, things like that, and Sarah, it’s been great having you both on the podcast and working on some of our research initiatives on the rural digital divide. The mission, the thing that I think makes us unique as a center, is to put together or bring together an interdisciplinary cohort of faculty and students who aren’t focused on specific technology problems but more are learning the language of each other’s disciplines as they think about how technology is affecting and creating issues in their own fields.

Really the goal over the first year or two of the program is to develop a cohort that can have meaningful substantive conversations with each other that break down and cross disciplinary boundaries so that we can be thinking and identifying three to five, five to seven years out, “What are the questions in other fields that folks in other-other fields should be working on?” So, what are the things that engineers are thinking about today that will be relevant in three to five years that folks working to commercialize or regulate them will be thinking about? How are regulators thinking about technology today in ways that will affect business and engineering several years out? How is the media coverage of all of this affecting what we’re doing, and how is the technology in the pipeline now going to continue to affect our media and democracy, something they expect everyone can agree is an ongoing phenomenon.

Scott Wallsten:

Do you think the coronavirus has, in some ways, made it easier to start up the center because people are so used to now participating in things regardless of location? So, you could be in Nebraska. You could be anywhere.

Gus Hurwitz:

Yeah. It’s a great question. At some level, yes. Obviously, with a Zoom and the familiarity and comfort with Zoom, it’s a lot easier to get a group of people together. At the same time, there’s been a proliferation of Zoom workshops and meetings, and there’s both Zoom fatigue, but even more, because it’s so easy for everyone to convene things, many more things, it feels like, are being convened. More fundamentally, the biggest challenge of what we’re trying to do is get people in a room to talk together, and that’s a whole lot easier to do in an informal setting. Everyone’s sitting around a table, possibly over a meal, possibly with “two thinks minimum” going on. So, it’s been hard to replicate that. I think that we’re doing some things now that are starting to accomplish that, however. So, I think that it’s been a challenge, but it’s also created a lot of new opportunities, and folks are much more interested in and willing to experiment with new formats and new media.

Dr. Sarah Oh:

Speaking of bridging, you know, misunderstandings or lack of knowledge. One area that you’re doing a lot of work in is the rural digital divide. In a piece that was recently published on The Truth on the Market blog, you write about how the digital divide reality on the ground in rural America is different than how many in DC and academia think about it. What do you mean by that? And how are you trying to bridge, you know, people on the ground in the middle of the country with policymakers in DC?

Gus Hurwitz:

Yeah. So, I came to Nebraska about eight years ago, and the thing that brought me here was the Space, Cyber, and Telecom Law Program. There aren’t that many law schools where you’re a new faculty member doing telecommunications law. You can go and they’re going to say, “Yeah, we need you to teach telecommunications law and cyber law, and your focus is going to be all these specialty issues.” At most schools, you might have a chance every couple of years to teach a seminar on a topic like that, or maybe you’ll get one of those classes, and I was just handed a plate and told, “You have all this, do what you want with that,” which is awesome! So, that’s what brought me here, and of course, I was coming from the Department of Justice and working with a lot of really great academics and thinkers who I will, they’re all friends, oo I will not shy away from derisively saying they’re all on the East coast, all DC-based thinkers or DC-focused thinkers, and I’m one of them.

And it took me a year or two to get my feet on the ground once I got out here and start getting out into the field, talking to operators and carriers and the Nebraska Public Service Commission and all those bolts, and heck, farmers. Actually, get out into the fields and see some combines, talk about what technologies are being used, see cattle with tags in their ears and all of that stuff. And the way that we or I used to think, and most folks in the DC federal policy sphere think about the telecom challenges we face here isn’t necessarily wrong, but it’s quite incomplete. The biggest thing that surprised me is the extent to which closing the rural digital divide is really an all-hands-on-deck issue out here.

Different providers work together, share equipment, share technology, share tips, and secrets there. Secrets is the wrong word, tips and tricks. They are working to figure out how to provide coverage to different areas. There obviously is competition going on. There’s a lot of concern about wealth. We put this policy, this rule in place. If the Nebraska legislature and enacts this law, or the FCC puts in place these rules, it’s going to affect our business in devastating or problematic ways, or it’s going to make things really great for us. All of that same stuff goes on here. A

At the same time, there’s a more rich and complex set of technical and economic, and business realities out here. One of my favorite examples is a small carrier and we have carriers that literally have half a customer per square mile. So, really rural parts of the state you’ll have carriers with 300, 500 customers that use a mix of DSL cable, fiber, and wireless to provide service to their customers.

That’s not the story that I was used to hearing back when I was on the East Coast. Back when I was in DC telecom circles, where it’s, well, you’ve got the fiber and telecom carriers and they’re competing with the cable companies and you’ve got these fixed wireless upstarts who are trying to come in and disrupt everything. No, there’s a lot more technological cooperation, learning coordination, and understanding that, “Hey, our number one goal is just to get people connected.” Once people are connected, we can start having overbuilders and we can start worrying about what happens with other people entering the market and is there lack of competition? Just getting that first, last-mile connected, however, is the first order of business.

Scott Wallsten:

So what do these people who work in the companies you’re talking about think of the Connect America Fund or the High-Cost Fund, which has spent close to, in real dollars, $100 billion since 1995. This was early on rural telecommunications, and yet rural telecom and rural broadband are still so terrible. Do they see this as a program that somehow went wrong? It didn’t get to them, or do they think it wasn’t enough? What do they think of these things?

Gus Hurwitz:

Yeah, so again, complex story. And of course, rural carriers, rate of return carriers, were a big part of the debates that the FCC several years ago had about cost models and alternative cost models and how all that played out. Speaking to the Connect America Fund, in particular, there’s a whole lot of discussion about Phase II and Phase I Auction, and this is one of the things I’m really interested in from a research perspective. One of the big surprises, probably the big surprise of the Phase II Auction, was the extent to which fixed wireless won those low bids, and there’s a lot of discussion about will fixed wireless be able to deliver on its promises for service? Will they be able to build out as quickly as possible? One of the things that I’m really interested in, however, is how will fixed wireless affect the overall cost model of the industry?

And in particular, what are the impacts of fixed wireless not needing to build out infrastructure in the same way as wireline service going to be on the industry? Because if you’re not running fiber more deeply into the network because you don’t need to in order to offer these services, that fiber has massive spillover effects. Once that fiber is in the ground, you can use it to offer services to more households, either for residential or business service, and that brings the fixed costs down dramatically. So, is the focus on fixed wireless primarily for a quick residential, moderate speed deployment going to actually increase the long-run costs of both high-speed commercial and residential service throughout the state? So, that’s one of the things I’m fascinated to see, and I’m thinking about a lot and hoping to work with some folks to study.

Scott Wallsten:

Does the fiber infrastructure exist to the extent that the fixed wireless companies can use it? I mean, they’ve got to connect to a wire at some point, right? And so are there enough places for them to connect or is that part of their plans?

Gus Hurwitz:

Yeah. So, one of the things that Nebraska I did several years ago, and this was a private initiative called Next Link, a number of private carriers actually got together and created this thing called Next Link, which is a fiber loop that runs through much of the state, obviously not all of the state, but it’s used to support infrastructure build-outs throughout the state and make it easier for those who need connectivity to get connectivity. One of the things that I’ve heard, and that’s just a great example of kind of the attitude and approach that folks have out here. One of the things I’ve heard, and this is second hand, I haven’t seen data to support this one way or the other, but I’ve heard that the fixed wireless carriers have not been securing contracts to interconnect to Next Link or other fiber providers in the state to the extent that we would expect.

I don’t know what that means. It could mean that they are being slow in build-out and deployment, or it could mean that they are relying primarily on fixed wireless for backhaul as well. And there are multiple bands that are being used by the providers, especially post CBRS with the idea that they will be able to be fixed wireless backhaul, to fixed wireless mid-haul, to fixed wireless last-mile. One of the advantages of fixed wireless is the speed of deployment. You can go fixed wireless all the way from wherever the physical wired hub is through multiple hops to offer some level of service initially and start recovering your capital. As you recover that capital, then you can build out a backhaul connection and then a mid-mile connection and possibly eventually a last-mile connection, replacing the fixed wireless altogether, and then use that equipment, reharvest it, and repurpose it to build out even further deeper into the network. So, I don’t know what’s actually going on the ground. We’re at the point post-CAF Phase III that we should be seeing actual build-out USAF Hub data. I’m really looking forward to seeing what starts to be reported in March, because we’re now three years in, and hopefully we’re going to see some interesting data on what’s actually being deployed.

Dr. Sarah Oh:

Great. That raises other questions.

Gus Hurwitz:

*Laughs* It raises a whole lot of questions!

Dr. Sarah Oh:

Yeah, that your center put out a request for papers on the rural digital divide and for research. In your ideal research agenda world, what kind of papers would you like to see written, and what kind of empirical analysis is needed?

Gus Hurwitz:

Yeah, so first, thanks for mentioning that Sarah, and I’ll put in a plug because I think the call for proposals is open until February 8th, and I guess since I’m the Director of the program, I can somewhat unilaterally say that even if they’re not open until then they are currently open, so send me your proposals. You can go to MGTC at UNL.edu, and you should be able to find a link to it there. The way that we describe the research that we’re interested in is admittedly awkward. I call it empirical or near empirical work. I love empirical work. I love actual data, actual econometrics, actual, robust statistical analysis of data if you can find it. So, we’re very much interested in just pure econometric analysis of rural digital divide and digital divide and broadband deployment topics generally. That said, a lot of the work that we’re interested in is possibly more qualitative but data-based.

What’s going on on the ground? Let’s go talk to some farmers, see how they’re actually using equipment and data. One of the things that I talk about with state and regional stakeholders is that need to be specific in your data needs. There’s a lot of discussion for instance, in precision agriculture about the massive amounts of data being generated by combines, by crop sensors, by cattle roaming fields. There is less clarity on whether the data, the connectivity needs to support that data, is asynchronous, bulk uploads. Is it the sort of thing where once a week you have a terabyte of data you need to move, or is it the sort of thing where you have the tractor in the field doing real-time telemetry, and you need to have a consistent 20 megabit per second connection to it? Those are two very different use cases and applications, and it isn’t clear to me talking to folks what the actual requirements are.

And one of the points that I make when I’m talking to folks about this is if you’re talking to a policymaker or a federal policymaker generally about residential consumer broadband needs, and you kind of do a hand-wavy, sort of, “Yeah, you’ve got maybe a couple of emails and a kid playing a video game and someone’s streaming Netflix and a couple of zoom calls. You probably need 500, 700 gigabits per second download and maybe 200 Mbps.” These are all hand grenades and everyone says, “Yes, yes. Perfect sense. Let’s, just in case, you want one fiber to the home, let’s make it three because we want to future proof this.” You have the same conversation about precision agriculture, you have the same conversation about rural needs, about farming, and suddenly the bean counters come and they want to know, “Okay, so what’s the actual application and what’s the actual data that you have here. Can you quantify this?” You don’t get the same benefit of the doubt. And at some level, I think that’s unfair. At some level, I think the problem is going the other way that we should be more circumspect and demanding in our understanding of what consumers actually need, residential users actually need, and it’s also fair to say that the farming interests, the precision agriculture interests, these are generally commercial operations. So, they’re businesses. So, the economics should be different. We should expect more. We should expect them to cover more of their costs. At the same time, let’s go back to that infrastructure and spillover effects discussion that I had a moment ago. The more infrastructure you can get out deeper into the network, the lower that makes the costs for every incremental household or interest that you want to attach.

Scott Wallsten:

So let me, if I could interrupt for a second. So, you’re saying a few things, and I’m trying to put them together. One is that policy tends to focus heavily on residential connections, but at the same time is sort of very loosey-goosey about what the technical parameters should be, and then people get into these arguments, should, you know, do you need a gigabit per second? Or could, you know, can you rely on 25 megabits per second and so on, but those may not be, those are less applicable to business in general, and I think that’s right where that sort of stability is often more important than bandwidth and even different for farming until you said, “That’s when the bean counters come out,” and I think you use that in a positive connotation because they want to try to figure out exactly what it is that they need. So, you know, one would expect that businesses would and farmers, because it is a business, would have a good sort of a good handle on what it is they need. But you’re also implying, you’re sort of saying that they don’t and is it because the connectivity hasn’t been there for them to experiment with different technologies or it’s all evolving now? What’s the reason that they sort of don’t know this information yet.

Gus Hurwitz:

Really great question. I think a lot is a chicken and egg, changing demands. A lot of it is the farmers using this equipment, and I should say, it’s not just farmers, but precision agriculture is a big topic and a very useful and important topic. They are relying on being told by John Deere and equipment manufacturers what the requirements are or contractors. The way that a lot of farming gets done, for instance, is small farmers don’t own their combine. There’ll be someone who owns a combine, and when crop season comes, they will go field to field to field, working in those fields. So, the individual farmers might not know what the requirements are, but they’re being told, “Hey, we need to have conductivity for the combine.”

So, there’s lots of things that can be complex, and also, a lot of farmers are small farmers who aren’t necessarily, telecommunications engineers or experts. They don’t necessarily know a bit from a bite. So, they are still learning these details, and they know that they need connectivity. So, just like any individual consumer, they know gigabit is a lot. That should be enough. I want to gigabit, and that doesn’t mean that they know how much they need. It means they know how much is enough. So, they’re in a learning process as well, learning how much they actually need for these newer technologies and applications.

Dr. Sarah Oh:

I guess we can use that and shift a little bit to how you think things will change in the new administration. Do you think there will be more or less focus on the rural digital divide and maybe just generally on telecom and tech topics?

Gus Hurwitz:

Yeah. So, actually, before we get to that topic, I don’t know. That might be a good last topic to jump to. There is one point that I like to get into if we can on rural telecom infrastructure. So I don’t know, I’m, I’m breaking, I don’t know if it’s the fourth wall of the fifth wall of podcasting, but one of the projects I’m working on with engineering colleagues here are a few grants that are focused on using existing rural infrastructure to try and close the rural digital divide. So, instead of focusing on, we know how to build traditional infrastructure, telecom infrastructure, how do we do that here? There’s a whole lot of farming infrastructure out there. If anyone has ever flown over the Midwest and you look down and you’ll see one of two things, depending on where you are, you’ll see a lot of squares because the fields are aligned in grids, or you’ll see a lot of circles.

And what those circles are, are what are called pivots or center pivot irrigation systems, where you have water coming up a pipe in the center, and then you’ve got this long tube on wheels that spins around and carves out a circle, effectively irrigating the land, and a lot of those pivots nowadays, an increasing number are powered. A lot of them have some level of pivot to pivot connectivity already. And one of the things that I’m working on with some engineering colleagues to investigate is, can we use them as infrastructure? Can we use them to create mesh networks, to cover the fields either to provide coverage to the individual field or to extend coverage effectively as repeater systems? We have a lot of silos. We have a lot of water towers, tall buildings without much between them. Can we use fixed optical systems to transmit optical wireless communications? So, lasers, to support extending broadband to the extent that we can do this. It’s not just about connecting the farms or the commercial stakeholders.

The traditional… Okay. So, when we think about anchor institutions is how do we connect cities, localities, hospitals, schools, thinking as we build out the infrastructure to support these, that will make it easier to connect other stakeholders. Well, if the primary stakeholder institution in many of these areas are the farms and farmers, we can connect to them. That can create the mid-mile connection that can then make it easier and cheaper to connect to remote towns, going over a mid-mile connection created by the agriculture interests.

Scott Wallsten:

So, what is the reason why these kinds of connections don’t exist already? I mean, some of it sounds like it’s a whole new way of thinking of how to use these, I forgot what you called them, but the circle creators as repeaters. That sounds like something brand new, but other things sound like structures that we put towers and microwave transmitters on now. Why isn’t someone doing that? A lack of capital? Is there a lack of demand? Is there new technology that makes it possible now when it wasn’t in the past?

Gus Hurwitz:

Yeah, so it has been done in some cases for a while. You have a water tower, a local cell carrier might use that instead of a tower. There are several challenges. The first is connectivity. How do you get the call to a tall structure? So a fixed-based opti-call, for instance, is a possible way of addressing that. Another big issue, however, is power. So, historically those pivots haven’t had much power to them. So, as they become powered, that gives us the electricity that we need in order to do this. Also demand is another big thing. Precision agriculture is still new, and getting in-ground moisture sensors, getting crop sensors, ear tags in animals, stuff like that is creating demand for much broader coverage in fields. So that’s the demand issue, and it’s worth noting that there too what one of the biggest constraints is, power. When you have a transmitter that you are burying underground to monitor soil moisture, it needs to be powered and you can’t dig it up to change the batteries every couple of weeks, it needs long-term power support, and you can’t weigh down a cow’s ear with a three-pound lithium-ion battery. So, you need to have power. So there are technical challenges, there are demand challenges are infrastructure challenges.

Scott Wallsten:

Does that suggest that there’s a problem with the Connect America Fund? I mean, that may be the bottleneck is lack of electricity, not lack of demand for the broadband infrastructure itself?

Gus Hurwitz:

Not necessarily with the Connect America Fund directly.

Scott Wallsten:

Sorry. I should say rural subsidies in general.

Gus Hurwitz:

So, I think that we do need a lot more creative thinking and experimentation with how we connect rural America, and I’ll note the 5G Rural Fund, the NPRM when it was released, and this is still in the order, though It’s not phrased as much in the question. The NPRM noted that the second phase would reserve any unspent funds to connect the hardest, most difficult to connect parts of America, expressly noting ranches and farms, and suggested that that wouldn’t just be a 5G solution.

Rather part of the reason for delaying awarding that funding until after Phase I was over, was to do more research, to address the fuller range of wireless technologies that could be used to connect to these remote areas. So, I think there’s recognition that we need different thinking for how to connect a lot of these areas. Another example, Sarah mentioned is the call for papers we have out.

Another topic I’m really interested in is really remote areas where for instance, villages in Alaska, where it’s actually not necessarily difficult or expensive to do the last mile. The last-mile connection isn’t the expensive part of connecting these areas. The mid-mile is the expensive part of connecting these areas, and that’s not been a traditional focus of Universal Service Connect America funding. So, as we continue at the standard Pareto, 85%, 15% is there. The last 15% requires 85% of the work. So, as we get 85ish percent connected to 90% connected, those last increments are going to require more and more creative thinking and different solutions.

Scott Wallsten:

Are there any cooperative efforts with say Canadian institutions? They’ve got this problem as well? Probably even more so than we do.

Gus Hurwitz:

Well, now you’re making me feel really bad because the answer is no. I do, however, have several colleagues at Canadian institutions and they should be expecting emails from me. Sure.

Scott Wallsten:

Let’s talk about platforms for a minute. That’s a different topic, but you’ve worked on that too. So, right now we’re in this debate about how much power platforms have, how much they should have and what is that, and what does it mean for us? And then today, or in the last couple of days, there’s sort of a new twist on this, which is the GameStop thing and Reddit, and what is the trading platform? Robinhood.

As platforms and sort of putting rules on what people can and can’t do. So extremely open-ended, but what do you make of all this.

Gus Hurwitz:

Oh wow. I’m thinking that shouldn’t have tweeted mean things about Robinhood earlier today. Perhaps, so the name of the center, the new center at Nebraska is the Governance and Technology Center. Governance is what all of this is about, and in particular self-governance and how organizations and institutions govern themselves. My general thinking about a lot of our contemporary governance issues, everything from the social media platforms, Facebook, Twitter, throw in Google, to a lot of our contemporary political moment, to a lot of what’s going on on the stock market perhaps, is platforms, entities, institutions have to govern themselves. If you don’t have internal governance rules, if you don’t have internal accountability mechanisms, two things are going to happen. First, bad actors are going to be able to co-opt your institution and that’s bad. And second, external regulatory authorities and institutions, they don’t have the internal knowledge, skills, tools to do fine-grained regulation that is well attuned to the needs of your institution. So, they’re going to regulate you using the only tool they got and that’s a sledgehammer. So, I think what we’re seeing a lot of is a lot of institutions have taken very laissez-faire, we don’t want to police our own members because it’s going to create internal conflict or, “Hey, this is our brand and we don’t police our internal members because it’s what we do. We believe in the absolute marketplace of ideas,” and when that goes wrong, society writ-large, our macro-level institutions, they come walking in and say, “Look, you had a chance. You had section 230, Section 230 says, ‘You don’t need to regulate, but you can regulate.’ You chose not to regulate. You created a mess. So what do you want us to do?” There’s only one thing they can do, and it’s what we’re seeing a lot of, again, throughout all of our current society. This is a huge political economy issue. Technology has exacerbated it in a earlier…

Scott Wallsten:

Oh wait, you said there’s only one thing they can do, and now I’m waiting with bated breath to hear what that is.

Gus Hurwitz:

The sledgehammer….

Scott Wallsten:

Oh, the sledgehammer. Okay.

Gus Hurwitz:

We’re going to gently regulate you with a sledgehammer.

Scott Wallsten:

Right, ok.

Gus Hurwitz:

So, that’s the only tool that Congress or the FTC has to regulate Facebook and Twitter. So, that’s what I think we are seeing and are going to continue to see, and to their credit things like the Facebook Oversight Board, that’s a step in the right direction, maybe too little too late, maybe too much too late. Twitter has been doing a lot of really interesting experimentation over the last 12, 18 months or so, and my own view on all these things is we shouldn’t be prescribing rules that this is how you must moderate your content, but rather we should be looking at are you making, I don’t want to use the word good faith because it’s overloaded in Section 230, are you making good faith efforts to do things here? Are you following industry-standard practices to the extent they exist or trying to develop them? If so, keep at it. If not, then we’re going to have a talk.

Oh, and on the technology front technology has made all this stuff harder. If you go back to the 1990s, the 1980s, when society was smaller and our institutions were smaller, people were more tightly woven together. A lot of regulation was this self-regulation, it was reputational, internal raised eyebrow sort of stuff that you didn’t need to be either as explicit about or put as much effort into doing. It kind of just happens when you have a group of friends who get together in person. When the one person starts saying the crazy stuff, everyone looks at them funny, and maybe they’re not invited to play poker next time, but when that’s all online and you lose a lot of those cues, those social cues, they’re more able to invite themselves, or they need to be more expressly disinvited to come back the next time. You need to be more express in how you’re doing self-regulation and our self-governance, self-regulatory intuitions, norms, values, haven’t caught up for what we need in a modern technology world.

Scott Wallsten:

Do you think we end up with something like FINRA sort of a self-regulating body that comes to be accepted as a regulator? I mean, FINRA is a weird thing because it’s owned by the group that it regulates.

Gus Hurwitz:

Yes, a FINRA is very weird, and I’ve actually been wondering and talking to some folks about whether what we’re seeing with a GameStop actually was facilitated by FINRA’s short-selling disclosure rules, which created the opportunity for the Reddit, Wall Street Bets folks, to take advantage of their disclosure rules to create this short squeeze.

I’ve got no idea if that’s right, but I’ve been wondering about that, but yeah, I think we could see the development of some industry consortium or some set of industry, best practices, standards for content moderation, or things like that. It could either be something that is more like how the medical profession works. So, a medical malpractice suit comes along. You’re going to bring in witnesses saying Dr. Walston did this, “Hey, you, expert in his field. Was that up to the standard of care? Or was he just doing some crazy quack procedure that no reasonable doctor would do?” That’s not a FINRA style thing, though we do also have medical accreditation obviously and licensure, but that’s some level of self-policing and standard creation. We could have some oversight board, the challenge with it in the tech sector and social media, in particular, is it’s much thinner market amongst the large platforms. So it’s, we only have three, four, five really key platforms, arguably, and then lots of much smaller ad hoc platforms. And that’s different than the number of broker-dealers out there involved in financial industries.

Scott Wallsten:

Well, you know, I mean, it’s different than the number of broker-dealers, but if you think of the platform, if you think of the exchanges as platforms, then maybe it’s not so different. You have a few really big ones, and then you have lots of brokers and so on who worked within those platforms. So, is that really so different from the setup of the social media platforms?

Gus Hurwitz:

So I guess, I don’t know where the broker-dealers are here…

Scott Wallsten:

Yeah, me neither.

Gus Hurwitz:

Are the broker-dealers the users, or are they the smaller platforms? Parler Isn’t a broker-dealer that works for the Facebook exchange for instance, but I think that there is a lot of really interesting thinking to be done looking to… In my own work, I’ve been thinking about FINRA as an example of a self-regulatory organization and wondering, does that specific model inform other models? Does it have applicability here? And so I think that it’s 100% a path that at least needs to be thought out.

Scott Wallsten:

So this is kind of a clumsy segue, I guess, into this topic, but how do you see politicians relationships with these platforms, and in particular people like Ted Cruz and Josh Hawley?

Gus Hurwitz:

You really want me to… I’m not wearing my “Josh Hawley Sucks” shirt right now. I mean, it’s I’d almost say the question isn’t so much about the tech platforms vis-a-vis Josh Hawley and Ted Cruz. I think my real here is both parties, since we’re a two-party system, I wish we were more party system than that, but both parties suffer the same self-governance deficit that I’ve been talking about. Each party needs to do a better job of policing their own members. And if that doesn’t happen, when the other party comes into police, that’s going to be clumsy, political, messy, and not really all that productive for our society or our polity. The relationship between politicians and the platforms can look at the Fairness Doctrine, absolutely the history of speech regulation and trying to promote good speech in the United States has been one of arguably good faith efforts to respond to serious problems that open the doors to serious public choice concerns. We have long histories of politicians on both sides of the aisle, exploiting the Fairness Doctrine and abusing threats of government regulation of speech to harm their political enemies and promote other political friends ultimately to promote themselves. The same story plays out on social media though, arguably the denominator, the stakes, the other side of the ledger is much greater than historically because the media of most of the 20th century, I think was more self-regulating than the social media of the 21st century.

Scott Wallsten:

Why do you think they haven’t been kicked out of the Senate yet? You’ve been tweeting about it every day.

Gus Hurwitz:

For those who don’t know that, every day I wake up and ask why Hawley and Cruz haven’t been kicked out of the Senate yet. I don’t expect that will happen is my unfortunate answer to that. We’ll see. So two things I think are pink priority over any sort of move to actually have Hawley or Cruz have a censure or any repercussions for inciting sedition against the United States Government, ignoring their oath to Congress and trying to have a bunch of their fellow members of Congress killed by an angry mob. The impeachment of Trump, we need to see how that plays out, obviously in the unlikely event that it is successful. That makes it much more likely that Hawley and Cruz would face repercussions. I doubt that that will happen.

Scott Wallsten:

Seems unlikely…

Gus Hurwitz:

However, the other thing, however, is what’s going to happen with Trump’s purported efforts to, I love how this has turned into a conversation, not about telecommunications, but Gus riffing on how can I make as many political enemies as possible.

Scott Wallsten:

I think that was the secret goal all along.

Gus Hurwitz:

The more likely, also still probably unlikely thing, is Trump really creates his own party and pulls the current Republican party in half, and then what happens to the Romney, Murkowski, Sass branch of the party when they have no large caucus home. Do they follow the Trump half of the party? Or do we end up with a more moderate right party that might be able to cross the aisle, and possibly pull some folks from the Democrats to really create a centrist party? I think that would probably be much healthier for our democracy.

The Democrats have the same problem with their far-left progressive part of their caucus. And the more centrist part of their caucus there very likely could be a, just making up numbers. 35, 35, 30 splits, 35 far left 35 far right, and then this a small cohort and descent, smaller cohort, it doesn’t need to be that large for it to really influence a lot of power.

And of course, I’m really just talking about what I would like to see happen in the world. Will this ever happen? Not unless we see other bigger institutional changes, ranked-choice voting implemented.

Scott Wallsten:

It’s funny sometimes how controversial things like rank choice voting are. If you go to some of the Wikipedia pages on different types of voting, they’re locked because people get so worked up talking about them.

Gus Hurwitz:

Well, one of the great things about living in Nebraska, to just really drive us completely off the rails, we’re one of the two States that splits our electoral college vote. So, we did have one vote for President Biden this year and four for former President Trump. And of course, now there’s an effort to undo that and make us follow the pack and be a winner-take-all state. And I’m just screaming at the top of my lungs, sitting here in my basement where no one can hear a saying, “No, this is, we should be doing the exact opposite.” If you really truly believe in one person, one vote. If you think that we should do away with the electoral college 100%, then you should be demanding that your state do away with winner take all voting so that the folks in your state whose vote doesn’t get represented in the winner take all votes cast to the electoral election, they actually get a vote.

It’s an incremental step, but I think that that would dramatically reshape our political discourse as well. But that’s, I, this is the great thing about politics. None of this is ever going to happen, and this is just some idiot law professor invited to talk about telecommunications spouting off about his [inaudible] views on political theory.

Scott Wallsten:

It’s always best to have opinions on things in which we’re not experts. Then we can’t be expected to be knowledgeable.

Gus Hurwitz:

Any more questions for me to lose some friends over?

Scott Wallsten:

I’ll give it back to Sarah, and I successfully baited you. So, my work is done.

Gus Hurwitz:

Fortunately, I know I’ll never run for office.

Dr. Sarah Oh:

No, I think that’s a great ending to this podcast episode. You have a lot of good commentary and you know, I agree on a lot of what you’re saying about self-governance and the need for institutions to be taking more responsibility internally. Thank you, guys, for coming on to Two Think Minimum, and best of luck with all the work that you’re doing in Nebraska.

Gus Hurwitz:

Yeah, absolutely. It’s been a pleasure. Hopefully, I’ll still have some friends after this airs.

Scott Wallsten:

Thanks a lot, Gus!

Gus Hurwitz:

Yep, absolutely.