My Body, My Pixels: A Deep Dive on Digital Autonomy with Todd Zywicki, Professor of Law at George Mason University

(Intro Narrator at 00:00:00) Today, we're bringing you a special feature episode. In today's digitized age, our screens act as the windows to our world, governing the way we receive information, communicate, work, and entertain ourselves. But do we genuinely have control over what we view on these screens? Joel has proposed an idea he's calling the Control Layer, and we're joined by George Mason University law professor Todd Zywicki to discuss the legalities surrounding digital autonomy. You're listening to Joel Beasley, Modern CTO.

(Joel Beasley at 00:00:37) Here's where I am. I'm a dad, okay? I've got three kids under the age of six, and what I found was, you know, I'm walking through the living room and I hear them watching something that I didn't agree with.

(Joel Beasley at 00:00:50) I was like, "Oh, why are they watching that?" And the problem was the show was still rated kid-friendly. It was like, "Oh, this is for five-year-olds and everything."

(Joel Beasley at 00:01:00) And the reason, those things, they do very objective, like nudity, language, those types of things. But there's cultural differences as you go throughout America on what topics you want to discuss with your kids or what is discussed to them through stuff, and there's no way to filter that. So that's what started this entire journey. I was like, "How do I filter that?"

(Joel Beasley at 00:01:23) And then I got sort of deeper and, I guess, you know, a little bit heady in the sense that I thought to myself, "Well, I've been building software for north of fifteen years before I started the show and everything." And one of those things I did was app development. And I thought to myself, "This is my phone."

(Todd Zywicki at 00:01:39) Right.

(Joel Beasley at 00:01:41) I own it. I don't have a payment on it to Verizon or anything. I own this phone. I've paid full price for it. Now, obviously, they own intellectual property that's running this phone to some degree.

(Joel Beasley at 00:01:53) But at some point, there's a render layer that's going to render out to a screen, which, I don't think—I don't know if Apple makes their own glass, but they're getting the screen made from somewhere. And it renders the pixels to the screen, and then that light hits my eyes. And so I'm wondering, how much of this do I own? That's my first question.

(Todd Zywicki at 00:02:16) Wow, okay. I never really thought about that particular question before. How much do you own of that? So the, I think, the answer is very little. Clearly, you own the phone, and you own the physical casement. But the actual content is typically something more in the nature of a license, which is that you can access it for certain purposes, but for only those limited purposes. So you're not allowed to necessarily download it, reproduce it, sell it, do any of those sorts of things. And so, the answer is you do own the kind of physical phone, but I don't think you really own much in the way of what is broadcast through the phone.

(Joel Beasley at 00:03:07) And that's where it gets confusing. It's because I own this physical screen. I could rip this screen off this phone and push data through it and make stuff show up on it. And so I own the screen, but I don't have much control other than the control that they choose to give me over what that screen displays.

(Todd Zywicki at 00:03:27) Yeah, that's right. I mean, obviously, you've got control in the sense that you can decide what you're going to access. But in terms of really owning it or anything like that, you don't control it by and large.

(Joel Beasley at 00:03:41) Okay. Because one of the things that we talk about a lot in society and that has been coming up is mental health. So I'm sitting there. I own this phone. I'm scrolling through. I have, you know, obviously, I have this higher level ability to even use the phone or not. I can—I got that? I have that control.

(Todd Zywicki at 00:04:03) Right.

(Joel Beasley at 00:04:03) But, so I have that control. I'm not forced because I'm a human existing on the planet that I must, gun to my head, use the phone. So it is a choice to use this phone.

(Todd Zywicki at 00:04:13) Although it feels like that sometimes though.

(Joel Beasley at 00:04:17) It—I mean, hey, if we give people illegally crossing into the country phones, it's because it is. You need a phone to exist in society. And if you don't have that, you'll devolve into deviant behavior even further, and it just gets worse. So, yeah, people need phones to connect and exist. But I was trying to figure out how much control—so I own the device, but I agree to licensing terms when I set the device up. And do—but I own every piece of hardware, though. They're only licensing the software, or do they have licenses on the hardware too?

(Todd Zywicki at 00:04:54) That's a good question. No, I've not looked at that particular issue. You certainly own the phone, but does that mean you could take the hardware and do other things with it? Probably. Could you take it and make an alternative phone? Probably. But I've never really looked at the particular details of the physical guts of the phone and what you could exactly do with that.

(Joel Beasley at 00:05:19) Okay. Yeah. Because that's what I was getting at with understanding, this is this phone. It's feeding me information that I need to exist. But one of the problems is content moderation. It's a huge problem. I think it affects mental health. I think it affects all types of things.

(Todd Zywicki at 00:05:37) And in that sense, the phone is not fundamentally different from, say, a television or radio that came before it, right? Which is you could take the picture tube out of one TV and put it in another TV, for example. But you couldn't repackage a TV and then slap the name Magnavox on it and claim it was actually a Magnavox when it wasn't.

(Joel Beasley at 00:05:58) Yes. One of the problems that I've been thinking about is that there's all these apps on the screen. It's my screen. It's showing me things. There's all these apps on there, and they are all trying to figure out and choose how they moderate content within their own ecosystems and, basically, the stuff that I ultimately end up seeing on my screen. So one company will do it differently than another, will have different community standards and guidelines than another company, and there's just all of this diffusion across everything. And, basically, what that allows is it allows advertisers the ability to show me whatever they want to show.

(Joel Beasley at 00:06:10) It's weird because I guess what I want to say—and I'm sorry for thinking out loud here as we're talking—but I'm frustrated that the technology exists today for me to control what's on the screen to provide a control layer that sits on top of all the output and then uses my rule set. So I don't care if it's an app. I don't care if it's a website. I don't care if it's a text message. I tell this control layer, I say, "Hey, I want to see this," or "I don't want to see dead celebrity articles. I don't care what app it is or what community guidelines they have. I don't want to see that."

(Todd Zywicki at 00:07:15) Right.

(Joel Beasley at 00:07:15) I don't want to see adult—my kids, I don't want them to see adult content. I don't care what app or whatever interface it is. I just don't want that to be seen at the level of the screen. That technology exists today, but the operating systems of the companies don't allow us to do that.

(Todd Zywicki at 00:07:32) Yeah. And this is actually a really big issue, which is that's why it's the operating systems. But we have a system of consumer protection—now when we sort of look at the legal system, we have a system of consumer protection that goes back to the seventies, right? And Ralph Nader and that sort of thing. And it's based on this concept of sort of notice and consent, right, which is we'll give you our terms and conditions. You'll read them and you'll accept them. Now, we all know that's a joke today. I always joke, if I ever meet the guy who came up with the idea that every time I go to a website, there's a thing that pops up and says I have to agree to allow cookies, if he and I meet in a dark alley one night, only one of us is coming out alive.

(Joel Beasley at 00:08:24) It's you.

(Todd Zywicki at 00:08:25) Yeah. Which is it's a completely asinine way of doing the world. Nobody reads it. Nobody pretends like they can read it. And so to pretend like that's providing consumers any sort of protection is ridiculous because you can't really do anything about it even if you do read it. We just check the box and we go on, right? Because basically, we can't live our lives without checking that stupid box everywhere, everywhere we go on these websites. And to pretend like that meaningfully empowers a consumer or gives us any sort of rights—you know, somewhere there could be, you get, you have to surrender your second kid ten years from now, right? And they'd say, "Hey, look. You checked the box. You agreed to it." And so that's completely absurd. And so what I think we're wrestling right now with is this overwhelming amount of information that is constantly dumped on us. We're just drowning in these disclosures, in information, which is this pretense that somehow that's protecting consumers and it really isn't. And it's usually written in a way that is pretty much designed to satisfy government bureaucrats and the lawyers at the company to try to minimize the chances that you'll get sued in some way. And so what I think is, you know, what we really need in the world is a better way of thinking about consumer protection. We need to get beyond that myth of notice and consent to the consumer, whether it is doing something like you're describing, which is allowing the consumer more control over, you know, precisely what comes through their screen, or whether it is some more categorical government rules that say this sort of behavior is allowed on these types of sites and not on these, right? Or you say this is the default, and if you want this other stuff, you can go in and check the box to opt in. Kind of like we did with the National Do Not Call Registry, right? Which is most people opted out of the National Do Not Call Registry, but still the presumption was you would have to go to the, you know, you would have to go to the central government database and opt out. But I think you're touching on, I think, the critical issue that we're running into in this area, which is we've got this horse-and-buggy 1970s kind of style of thinking about consumer protection in a world that doesn't operate like that anymore, right? Where they're constantly changing the terms and conditions. There's this overwhelming deluge of information that we're trying to deal with. And right now, it's kind of the Wild West as far as I can tell in this pretense that somehow we're negotiating a contract through these terms and conditions.

(Joel Beasley at 00:11:30) Now, have we had situations before where we took what users want and their rights in relation to tech and have pushed tech companies into changing their platforms or their systems?

(Todd Zywicki at 00:11:45) Yeah. Well, there's sort of two things about that, right? Which is that the sort of—the way the—you know, what—that this sort of tech presents novel issues for us, right? Probably the closest we would have would be something like credit card agreements or something like that, right, which are also incomprehensible. And we still haven't really kind of figured out how to deal with that. And so what we've ended up doing, unfortunately, is there is sort of the downside of this. I've said, you know, maybe we need some sort of government regulation. The problem is as soon as government gets involved, right, then you open up the political Pandora's box, right? Which, you end up with our interest groups who basically want to push people to pay attention to terms they think they should pay attention to, or, you know, business influences that, activist groups influence, lawyers can influence it, all this sort of stuff that gets involved. And so we've kind of, you know, when we tried to do stuff kind of like this, I'll give you an example. There was this idiotic law called the E-Signature Law back in 2000 where they said they were going to fix once and for all the question of electronic signatures. And, of course, they totally screwed it up. Congress passed the law and it says you've got to, like, be able to print out the disclosure form. You have to sign it and you have to scan it and that sort of thing, right? Which doesn't work. I mean, pretty soon that was eclipsed by phones, right? This is basically early days of the internet before people had phones. And so, you know, one of the problems is when we tried to do this in the past, sometimes we've messed it up, right? And that's the challenge. This is a very dynamic world. Things are evolving very quickly. Several years ago, if you'd said people would just scroll through their phones or you'd be able to sign on your phone or you could check a box on your phone—even ten years ago, that was pretty unusual that people would look at relatively sophisticated documents and that sort of thing on their phones, which is a very different reading environment from sitting down in front of your laptop. And as they thought of the E-Signature people would, like, be printing out the documents and reading them at their leisure while they're, you know, watching American Idol or something. And so, you know, as soon as they start trying to make rules, it seems like the playing field changes. And that's the trick here is empowering consumers while at the same time trying to keep up with the fact that the technology and the challenges presented by the technology are constantly changing.

(Joel Beasley at 00:14:22) Yeah. Nothing says leisure like reading legal agreements.

(Todd Zywicki at 00:14:26) That's right.

(Joel Beasley at 00:14:27) We as a government—so the government is the people. It's like we the people. It's us expressing what we want as people. We do this with, I've got kids as I said, and we've got car seats and the mattress tags. And the government has a system and a method and a process for it to step in to a completed product and say, "No. You have to do it like this," and the company has to adhere to that. How does that system work? What is that system?

(Todd Zywicki at 00:14:56) Well, yeah. There's a variety of ways they can do this, right? It's kind of complicated, but there's two basic ways that we do consumer protection. One would be through a regulation, right? Congress passes a law, empowers the Federal Trade Commission, the Consumer Product Safety Commission, Department of Transportation, somebody like that, to issue a rule where they have to go out and they engage in this multi-year extensive process of collecting input from people, doing economic research, doing all this sort of activity. And at the end of that process, they come out with some thousand-page document that creates a new rule, right? The problem is by the time you've done that, you're almost ready to start revising it too because it's taken so long and it's such a cumbersome process. So the other way they can do this is through an enforcement action where the government can sue somebody. And they've done this quite frequently with respect to tech companies, right? They sue a company for, for a data breach, for example, or for not properly guarding the personal information of minors or something like that. That has the benefit that it can be a little bit faster, right? And it targets individual companies rather than trying to—who have been negligent or, you know, acted improperly. But it lacks kind of these democratic safeguards. It lacks this sort of open comment, notice and comment type thing. And so, you know, you risk the fact that it can be haphazard who they target.

(Todd Zywicki at 00:16:35) Makes it a little easier for government regulators to kind of ride their own hobby horses if there's particular things that they care a lot about, as opposed to other things. And so there's really no perfect solution to this. What I've argued—and I was the head of the task force of the Consumer Financial Protection Bureau, which is kind of doing a lot of this stuff, consumer protection in the financial space—and we argued for a concept called principles-based regulation, which is trying to think more coherently about what are the goals we're trying to accomplish here.

(Todd Zywicki at 00:17:14) Right? Identify a couple of goals, identify the trade-offs here. Right? Calibrate them to different industries or different people. And then that provides some guidance and some constraints on the regulators on how they could actually operationalize this and move forward over time.

(Todd Zywicki at 00:17:30) Right? And they can adapt within this sort of general framework of ideas. Ironically, a lot of times it's the industry that doesn't like principles-based regulation. Right? These industries, especially big companies—you can hire a lot of lawyers.

(Todd Zywicki at 00:17:46) They like these very precise rules that are very technical. They don't mind the thousand-page rule makings. Right? Because then they just hire a bunch of lawyers. And if they follow all those rules, then they're safe even if it really doesn't help consumers and doesn't do what we as consumers really want them to do.

(Joel Beasley at 00:18:07) If I wanted to get a mob together and say, "Hey, we want to make this control layer available"—obviously, these parental controls, you know, Apple has a different way of doing things in parental controls, it's a whole operating system, than Android. These screens now are all smart screens. They have their own operating systems.

(Joel Beasley at 00:18:33) Yep. And so one of the biggest problems is that even if I make rules over here for the kids on this phone for Netflix, that doesn't transition to the tablet or the Samsung or the other branded TV because everything's kind of different, but it's all our Netflix login. So rather than going around and forcing all the individual app companies to do it, and rather than putting the weight on Facebook for it to moderate its own content—

(Todd Zywicki at 00:18:58) Yep.

(Joel Beasley at 00:18:59) If we put a control layer available in there to just say, "This is how, as a people, we can control what we see on the screen," how would we go about making that happen?

(Todd Zywicki at 00:19:13) Now that is the big question. Right? That's the multibillion dollar question in terms of dollars. Right? What I think you're pushing at, Joel, is really important to think about is, what is the default rules?

(Todd Zywicki at 00:19:25) Right? Because the reality is, obviously, you're very technically sophisticated. I'm fairly unsophisticated, but moderately. Right? And my mom would be hopeless, right, in trying to do this.

(Todd Zywicki at 00:19:40) So there's two questions that get involved in that, which is first, what is the default rule? What is the default setting on these things? And second, how difficult is it to adjust those default settings? Right? And you probably know as well as any of your listeners would know.

(Todd Zywicki at 00:19:56) Right? That makes a big difference because the more information you can basically harvest from consumers and sell—right? The more information you can trade on—the more valuable that product is, especially if it's an otherwise free product. Right?

(Todd Zywicki at 00:20:13) And so what you'll see is industry will always be pressing for default rules that allow them to collect a lot of information and make it relatively difficult to opt out of its defaults. Whereas other people will want to make default rules that are—you know, allow less information and make it easier for people to select their preferences. Right? So I think a good example of a way you could think about this is the example I gave earlier, which is the national Do Not Call Registry. Right?

(Todd Zywicki at 00:20:50) Which is—what was very clever about that was they set up a rule that said, you know, the default rule would remain, the telemarketers could call you anytime they want to. Right? But they made it very easy for people to opt out just by going to a central government database and putting their name on the list and saying, "Don't call me." Right? That actually, even though most people want that, actually kind of made sense because it'd be really hard for a telemarketer to be able to call you to see if you want to receive telemarketing calls.

(Todd Zywicki at 00:21:23) Right? If they're not allowed to call you. There would have to be some way around that particular thing. And so I think that sort of model, right—a relatively sort of standard template for a lot of these apps, particularly targeted to different groups—that could then, you know, we could kind of figure out what the baseline is, being aware of the fact that there's this sort of conflict of interest by the industry providers themselves who are always going to want to push for easier rules on sharing and more difficult for people to toggle those switches. I think that might be the way we should be thinking about it.

(Todd Zywicki at 00:22:01) And what we call this in law and economics: transaction costs. Right? How difficult it is for consumers to define what their rights are and then adjust those rights in a way they may want.

(Joel Beasley at 00:22:13) Got it. So it extends way beyond phones in my mind. So I would want—if I were King Beasley—

(Todd Zywicki at 00:22:24) King. I would—

(Joel Beasley at 00:22:25) I would say it's a rule in the land that anyone manufacturing a screen, you know, a device output, that they provide the option for a control layer. And so, basically, you're just saying that—yeah, I can already do it with this phone, by the way. I can write the software on this phone. It just violates Apple's terms of services.

(Joel Beasley at 00:22:45) Like, they just—right. I could—you can already do it.

(Todd Zywicki at 00:22:48) You're probably one of those guys who cuts the tags off your mattress too.

(Joel Beasley at 00:22:52) Of course. That's the most fun part. It's like, America, what are you rebels?

(Todd Zywicki at 00:22:56) Oh, sorry.

(Joel Beasley at 00:22:58) I'll tell you what, the government's in my bedroom looking under my sheets, we have a whole other problem.

(Todd Zywicki at 00:23:04) That's alright. That's alright.

(Joel Beasley at 00:23:05) So how would I be able to—obviously, we do that. We do that across industries of products. We say if you're manufacturing a car seat, here's the rule. Here's the requirement.

(Joel Beasley at 00:23:17) You must do this specific thing. You must adhere to this if you want to sell them in this country. How do we just do that to screens? Like, how do I just get someone to sit—because the answer is not just for Apple and Android and the other four providers of screens to do it.

(Joel Beasley at 00:23:33) You would want all screens to have this because screens have become something in our lives so vastly different than—I'm 35—so vastly different than the early 2000s, prior to smartphones. Right? Screens are just so different.

(Joel Beasley at 00:23:49) Like, we look at screens eight to twelve hours a day. Right? You know? And so they've emerged as this new property and existence of life, and we don't have any control over what they show us as far from a technical perspective other than what the manufacturers choose to give us. So we should create a standard across all screens, and that would solve the problem.

(Joel Beasley at 00:24:17) Yeah.

(Todd Zywicki at 00:24:18) I would say two things about that, and I see the appeal of that. Right? The two things are, first, when we're thinking about the standard, we need to really think about—it really is the case, and especially in the modern society where consumers are heterogeneous—we really need to be careful about what our standard's going to be. Right?

(Todd Zywicki at 00:24:37) In terms of trying to avoid one-size-fits-all type thinking. Right? So we need to—so I think what I'm saying agrees with you—rather than sort of trying to make everything subject to this bogus notice of consent, sort of "check the box if you agree" type thing, there's some minimum standards that should be, that could be required. And those minimum standards, as you're saying, might include technological standards in terms of how people—what control people have.

(Todd Zywicki at 00:25:07) And secondly—so first, the minimum standard. And secondly, controls on how easy it is for people to toggle and switch those. Right? Because that's the other half of it, which is you want to have a minimum standard that is minimum, but not too burdensome because there is heterogeneity among consumers. Right?

(Todd Zywicki at 00:25:28) But then the second half of that is, well then, how easy do you make it for people to be able to adjust whatever their standards are that are built into their phone so that people could try to calibrate it to their own preferences? Because, you know, like you said, you're 35. My daughter's a freshman in college. Your kids are in kindergarten. My mom is in an assisted living facility.

(Todd Zywicki at 00:25:53) Right? We're all sort of at different levels of vulnerability, savviness. And a lot of it is just the technology. Right? Which is trying to navigate the technology so that people can kind of work it so that what they have is functional for them.

(Todd Zywicki at 00:26:15) But at the same time, they're not kind of surprised or don't know sort of what control they have of their data and that sort of thing. And that turns out to be a pretty difficult question. Right? What I do know is that what we've done so far isn't working. Right?

(Todd Zywicki at 00:26:30) This idea of pretending like people are—notice of consent or pretending like somewhere in there are systems you could do to—I think is just hopelessly flawed. And to some extent, I think we've settled on this because nobody has a better solution. Right? And that then kind of comes back to part of the problem being just the clunkiness of how laws and regulations are made, where they just take so long and are so difficult and so burdensome, the process that you kind of, once you finish, you have to start over again because the world has passed us by. And so that—but I think you're on the right track there, which is let's think about what is the minimum standard.

(Todd Zywicki at 00:27:16) And then let's think about also a standard on how easy it is for people to be able to adjust that default standard on their own.

(Joel Beasley at 00:27:25) Yeah. That makes complete sense. And I was thinking of it in terms of the screen stuff, that you would just open it up to be an option. Like, that you would—so that the private market, like, a company could come in and, you know, Company A can build their version of the control layer and Company B can build their version. As a consumer, now you've got options on how you're doing this, and it works across all of your screens.

(Joel Beasley at 00:27:48) And so I was advocating, you know, that the free market can create multiple versions of controls, but then you could even go—you can maybe go to where you were going and say, what's the control layer for what they offer to the developers or the engineers?

(Todd Zywicki at 00:28:01) Yeah. Right? So you're suggesting something—for one of a better analysis—something like a PayPal for screens that would work on your Apple iPhone and then on your, you know, Sony TV or whatever your gateway, you know, your Dell laptop or whatever. Is that kind of what you're suggesting?

(Joel Beasley at 00:28:23) Well, ultimately, at the end of the day, what's hitting your—the photons that are hitting your eyes are emitted by the pixel, which came from an electron at the power station.

(Todd Zywicki at 00:28:32) Yeah. Right.

(Joel Beasley at 00:28:32) To your computer. Right? And I don't know who owns the electrons, but somebody does. But, ultimately, light emits from the display, and it hits your eyes. And that whole chain of custody of that electron and how that thing goes, there is a moment in time where we can inject a layer to say, "Okay."

(Joel Beasley at 00:28:54) I don't care what is emitting this light. Yeah. But now I have a layer in between that light, you know, being rendered and it emitting—or the data being rendered that will generate the light—and then the light hitting my eyes. I have that layer. I have that possibility.

(Joel Beasley at 00:29:12) And now it's standard across all of them. So when I decide my values—because, look, man, I think mental health is so massively influenced by all of our devices and everything. And it's driving us crazy because all these companies—they have their own—they're having to determine what their own rule sets are, and I think that's somewhat unfair. I mean, obviously, it's happening. But when I think to myself about why it's not there—so that's my next thing.

(Joel Beasley at 00:29:40) I was like, "Why wouldn't it be there if we're going to progress the conversation?" Right? It's like, why isn't it there today, and what would the counterargument be to not doing this because of money interest? Right? And so what I came up with is the reason why it's not there today is just because it's an explosion of technology.

(Joel Beasley at 00:29:57) I don't blame any specific company or vendor or anything. I think it's just a realization that we had. It's like, "Hey. There's a better way. We can do it at the screen level instead of making all the operating systems do it."

(Joel Beasley at 00:30:07) And then, you know, how do you move that forward and make that happen? But I kind of lost my train of thought there for a minute because I get pretty excited. And I'm also trying to translate too from, like, to make it not too nerdy or too technical.

(Todd Zywicki at 00:30:24) Yeah. Yeah. Well, I think your intuition is right. Right? Which is the reason it's out there already is because, you know, there's basically money in consumer information.

(Todd Zywicki at 00:30:40) Right? Now, the reality is we also get something back for that. Right? We get, you know, target marketing is better than indiscriminate marketing, for example. Right?

(Todd Zywicki at 00:30:49) And so when we see ads that actually matter to us, or when Amazon recommends books they think we might actually like, right? Or YouTube recommends videos they think might—that's actually a value to me when they do that. Right? So there is some value to me. There is also value to people collecting information.

(Todd Zywicki at 00:31:08) So why haven't we moved beyond that? I think there's two reasons. The first is, not all consumers—consumers worry about this to different degrees. And the second thing that's related to that is the piper must be paid, right? Somewhere somebody has to make money off of these things to be able to sustain them, whether it's YouTube or Google or Apple or Facebook or whoever it may be.

(Todd Zywicki at 00:31:40) So I'll give you an example, which is a survey was done and they asked consumers, "How much would you be willing to pay if Google—if Gmail was no longer free? If you had to pay for Gmail, how much would you be willing to pay?" 80% of respondents said zero. Right? And basically, if you were to dramatically limit what tech companies could do with your information, the kind of stuff they're pushing through your screen, right? The kind of interaction type stuff they have, then things that we get for free now, we would have to pay for.

(Todd Zywicki at 00:32:11) And it's as simple as that. Right? And right now, what we see is a lot of consumers just don't really want to pay for it. And they're willing to give up what they think of as being reasonable—what they think of as being reasonable use of their data, that sort of thing. Another survey suggested very interestingly that most people don't really care if some algorithm somewhere is using their data for some reason. They do care if the government or if somebody's looking at their data and their surfing behavior. But if it's just kind of going into some mall somewhere as part of an algorithm, like Google or whatever, most people seem to be okay with that. Right?

(Todd Zywicki at 00:33:00) And we may say consumers understate the value of their privacy. And that could be right, that we don't know everything that people are doing with it. We could say that consumers should be willing to pay more for it. But that's the problem, is that there's a cost in the system somewhere. And we've hit upon a system that's kind of like the old TV system where you had to sit through commercials in order to get free CBS.

(Todd Zywicki at 00:33:27) Right. So that's kind of what they've replicated here, except as you said, it's a much different dynamic in the digital world where they've got them pushing personalized products, collecting personalized data, in a way that's totally different for broadcast TV. Right. And I think a lot of us have just mapped our mental models of the old broadcast TV model onto the phones and the screens without really thinking about the similarities or differences between what might have been going on then versus what we're seeing now.

(Joel Beasley at 00:34:06) Yeah, yeah, you're exactly right. People have to be paid, right?

(Joel Beasley at 00:34:11) And I think that is one area. So like, let's say that this control layer exists today, right? Well, the first thing 99% of people are going to do is say to the control layer, "I don't like ads." So when they scroll through Facebook, the ads will just be blurred, right?

(Todd Zywicki at 00:34:28) Remove them.

(Joel Beasley at 00:34:29) It will blur them.

(Todd Zywicki at 00:34:29) Right.

(Joel Beasley at 00:34:30) And so what I thought, not to get too nerdy, but I was like, well, we could design the system to where we can send data back. We can tell Facebook, you know, "Our control layer blurred this for this reason." Then Facebook could subsequently make the decision that this person's using a control layer, and so now we're going to shut service off to them unless they want to pay $2 or they can stop using the control layer. Right? And I think that's a completely fair trade, or whatever they end up charging.

(Joel Beasley at 00:34:56) I am the opposite of my wife in one very specific way. So we are best friends. We are very, very on track and love each other very much. But she does the free version of everything, and I can't stand interrupt ads. Like, I pay for everything.

(Todd Zywicki at 00:35:13) Exactly.

(Joel Beasley at 00:35:15) If Google was like, "You need $5 to search Google without ads," I'd be like, "Here you go."

(Todd Zywicki at 00:35:19) Yeah, I know. I hear you. Yep, yep.

(Todd Zywicki at 00:35:22) Yeah. And so that's the thing, right? There's heterogeneity among consumers, and it's very dynamic, right? Different generations, different age groups, different demographic groups have different preferences. And so it becomes pretty tricky to start thinking about what would be the basic standard, right? And what would be the opt-out effects on it, because there are economic consequences to both those decisions. But I think the sort of obvious explanation of why we're where we are right now is that it's been very good for business.

(Todd Zywicki at 00:35:59) You know, and so business—Facebook, YouTube, these guys—kind of really like the existing model. And the inability to kind of coalesce around a clear alternative, for the reasons we're talking about, right? I think one of the things listeners will take away from this is, "Wow, this turns out to be a pretty complicated and difficult question to think about, how we actually operationalize this on the ground, right, in a way that's self-explanatory."

(Joel Beasley at 00:36:30) Knock on the door of Apple. That was my plan.

(Todd Zywicki at 00:36:34) Yeah.

(Joel Beasley at 00:36:34) "You guys don't like ads?"

(Todd Zywicki at 00:36:36) But, you know, both to come up with what we want to do, but then also deal with this problem of regulatory obsolescence and keeping the regulations updated as we get new threats, as we get new opportunities, as technology changes. You know, all those sorts of things that, you know, government moves very slowly on these things. And most of the time, we probably want them to move slowly, right?

(Todd Zywicki at 00:37:02) When they move quickly, they do things like bank bailouts and, you know, wars with Iraq and stuff like that, it seems like, right? So there are reasons why we try to have a deliberative process for government. But in a situation like this where things are emerging very quickly, that can really present a real problem to thinking about a solution that will come up with some sort of regulatory something that'll be helpful in a dynamic and very rapidly changing environment with a heterogeneous group of consumers.

(Joel Beasley at 00:37:37) I think it would be helpful. So you've definitely got the advertiser aspect to it and sending data back to them and letting people make decisions. That is a potential solution to the advertiser. But as far as just this idea and popular in society of if I go around and it became a political thing where we said, you know, let's say it became a bill or whatever it became and people got to vote on it, the question comes down to: "Do you want the right to control what's on your screen or not?"

(Todd Zywicki at 00:38:04) Yep.

(Joel Beasley at 00:38:05) "Do you believe you should have that specific right?"

(Todd Zywicki at 00:38:08) And I think, you know, to some extent, our kids—well, I mean, obviously you're savvy, I'm not, right? Our kids are going to be more savvy about this than we are for most of us, the ordinary person, right? And so over time, I think the kind of things you're thinking about, about consumers being more capable of controlling their own data flows, right, of adjusting their screens and coming up with these solutions where they can kind of tailor their own experience. You know, if you could compare your kids or my daughter to my mom, who's 82 years old, right, that's like a totally different world in terms of, you know, she still can't figure out FaceTime as many times as I've tried to teach my mom FaceTime, right, much less trying to do the kind of things you're talking about. And so I think over time, it's likely that there will be more consumer demand for this and there will be more consumer ability of people as they get more used to this kind of environment.

(Todd Zywicki at 00:39:10) And in that situation, then it may become more possible to kind of coalesce around ideas that make sense and can also be adjusted to changing conditions. You know, a lot of times we get new technologies and, you know, cars or whatever, and people don't know what the heck to do with them when they first get them, right? But over time, we kind of—historically, we've kind of tamed our technologies and made them more user-friendly and more under our control.

(Todd Zywicki at 00:39:38) And so it wouldn't surprise me if, to some extent, just the passage of time and experience of younger people growing up ends up exerting the same sort of market regulatory pressures here.

(Joel Beasley at 00:39:48) Yeah. And I think it would help. While it definitely has drawbacks to advertisers and forcing them to think about this new model, areas where I think it could help, like areas where I think tech companies might be on the side of having this, right? Because right now, we look at what's going on with TikTok and children and, I mean, they're getting sued and all sorts of stuff's happening. Legislation is trying to pass and all that. And then, you know, the whole Facebook and kids killing themselves. There are some really deep situations happening there, and it's resting on their shoulders.

(Todd Zywicki at 00:40:18) Right.

(Joel Beasley at 00:40:19) I would like to take that off of their shoulders. I would like to put that on the shoulders of the control layer, of a control layer that exists between the screens. And I think from that, that would be the thing I think they might be weighing in their legal team: control layer or advertiser? You know, like, what's—how is that going to—getting that stuff off of our back? Because here's the thing.

(Todd Zywicki at 00:40:45) Yep.

(Joel Beasley at 00:40:46) I know these systems in detail, so I won't be nerdy about it. But I can guarantee you that 80% of the parental controls today, kids can get around. They just know how to get around them. And it's because of the level of where the controls sit in the operating system and how they're implemented. And things like TikTok, they're never going to build an algorithm—and it's impossible. And the reason why it's impossible to build algorithms and blocking stuff that will satisfy the people, the reason why this is an impossible ask, is because different communities have different values.

(Todd Zywicki at 00:41:22) Right. That's right.

(Joel Beasley at 00:41:24) And you're never going to be able to satisfy every community.

(Todd Zywicki at 00:41:27) That's right.

(Joel Beasley at 00:41:27) And as long as you continue to operate, you're going to get people coming after you for this inappropriate content.

(Todd Zywicki at 00:41:36) Right, right.

(Joel Beasley at 00:41:38) And this would solve that. This would solve it. It would put the power back into the people's hands.

(Todd Zywicki at 00:41:43) Right. And that's—yeah, yeah. And just to kind of, you know, revisit what we talked about before, right? That fact that different communities have different values is precisely what makes it difficult to figure out what the basic standard is, right?

(Joel Beasley at 00:41:56) This is America. It's free.

(Todd Zywicki at 00:41:57) Yeah, right, yeah, right, exactly. Right. And then you get to the second point, which is your point, right, which is how do we then make it possible for people to adjust? And then, you know, that raises the question of coming up—you've got to remember, most people are like me, not you, right? Which is coming up with a system where I can actually set the parental controls.

(Joel Beasley at 00:42:18) That's the hardest part.

(Todd Zywicki at 00:42:19) Yeah. Figure out how to set it.

(Joel Beasley at 00:42:20) Yeah.

(Todd Zywicki at 00:42:21) At the same time that make it simple enough for me to set it, but difficult enough that my kid can't undo it, right?

(Joel Beasley at 00:42:30) That's settled science.

(Todd Zywicki at 00:42:31) I need to start—

(Joel Beasley at 00:42:33) That is easy to do.

(Todd Zywicki at 00:42:34) I'll ask you for a tutorial offline on how I do that. So, you know, there you go. But that is—but I think you're right. I mean, that is the thing. How do we calibrate this to heterogeneous communities, norms?

(Todd Zywicki at 00:42:49) And, you know, what I keep coming back to is how do we calibrate this to people's different levels of technical sophistication so that ordinary people across the generations can actually still use these things in a way that's functional to them?

(Joel Beasley at 00:43:07) I think that's one of the reasons why Apple has had so much success is because of their multi-thousand-page document called the HIG, the Human Interface Guidelines. So they require you as a developer to adhere to the most basic, fundamental control guidelines that they have for usability, and they won't publish the app if it doesn't meet a certain criteria.

(Todd Zywicki at 00:43:27) Obviously, they can—

(Joel Beasley at 00:43:28) They do it better.

(Todd Zywicki at 00:43:29) First phone I ever got was an Apple. Every phone I've gotten was an Apple, basically for that reason, right? Which is I can figure out how to use it.

(Joel Beasley at 00:43:37) Out of the box.

(Todd Zywicki at 00:43:38) Yep.

(Todd Zywicki at 00:43:39) But I'm not alone, I think, on that. So yeah, that's the idea. That's the challenge, yeah, right.

(Joel Beasley at 00:43:44) It's a beautiful operating system. Um, so yeah. My whole feature, the thing I'm exploring, I'm titling it "My Body, My Pixels."

(Todd Zywicki at 00:43:54) Yep.

(Joel Beasley at 00:43:55) Because I thought that was catchy and it made me laugh.

(Todd Zywicki at 00:43:57) There you go.

(Joel Beasley at 00:43:58) And it's not about actually going and trying to make this happen. It's just about exploring, you know, "Hey, here's a really good idea that's something that's impacting—everyone can relate to this. Everyone realizes how little control they have over their screens."

(Todd Zywicki at 00:44:13) Yep.

(Joel Beasley at 00:44:14) You know, look at Netflix autoplay. Does that ever get you when you're sitting on the couch, like, "Don't autoplay the video," and it's like autoplay anything you're hovering over?

(Todd Zywicki at 00:44:22) Oh, I know.

(Joel Beasley at 00:44:23) Such little control.

(Todd Zywicki at 00:44:25) I know. I always put it on mute too when I get to there just so I can't stand to listen to them blaring whatever video it's clear pops up on my screen. So—

(Joel Beasley at 00:44:34) Yeah. Or like Roku. They have a home screen, and they'll advertise like the movie It or something very scary, and my kids are walking by. And I'm like—

(Todd Zywicki at 00:44:42) Yeah, right.

(Joel Beasley at 00:44:43) No one has forced Roku to put some sort of control system in here for me to turn off horror movies because it's broadcast in my living room in 50 inches.

(Todd Zywicki at 00:44:52) Yeah. Great point.

(Joel Beasley at 00:44:53) So it's wild thinking. What I have here is wild thinking. This idea that we could just wave a wand and say, "If you're building screens, you have to adhere to this control layer," and then that opens up the free market for the ability to—I mean, you don't have to use it. You don't have to enable it or do anything with it, right?

(Joel Beasley at 00:45:12) You can just use what you're using today. But the idea that it would be available, it would help mental illness. It would help kids killing themselves. It would help bullying. It would help all the hot topics that people are concerned about. It would help you become a better parent.

(Joel Beasley at 00:45:29) Because, Todd, I am the software engineer for over 15 years, build these systems. I still don't have the ability to go configure every parental control system. It's an impossible ask because they're all different. They all consistently update and change. And it's just not mature enough for it to be usable. And so, to me, it's frustrating when you can see the solution, and you understand the problem, and you understand the solution. But then you have the resistance of the entire universe to make it reality.

(Todd Zywicki at 00:46:04) Right, yeah, yeah. No. And I think it's—I think it's, you know, it's obviously a huge question. It's an important question. It's a difficult question. It's not going to get easier as AI and machine learning becomes more and more prominent, right, and becomes even better and better at sort of what they're doing, right? In terms of targeting, you know, providing that sort of information. As I said, there's an upside to it, both in terms of cost and also in terms of content, but there are obviously these risks as well. And so I think, you know, the kind of thinking you're doing is the most important thing we can be doing at this point, which is really thinking through this, thinking through this as a legal matter, as a policy matter for parents, but also as a technical matter, right?

(Todd Zywicki at 00:46:55) You know, the kind of things that you and your listeners do, in terms of making this a user-friendly system. You know, that's where the rubber will hit the road on this: how do we design these systems that allow people to tailor their experience to what they want in a way that they can actually use it and they can adapt and it can adapt over time and adapt to changing threats over time and that sort of thing. And so I think it's a really—you know, it does kind of require everybody thinking through this from the law all the way down to what goes on inside the phone stuff. And so, you know, I think it's great that you're raising this and that you guys are thinking about this from your side and not just from my side, from the government kind of regulatory perspectives.

(Joel Beasley at 00:47:45) 100%. Yeah. Yes. You are brilliant, and I really appreciate you just giving us some of your time today in doing this. Is there anything I can do to help you?

(Todd Zywicki at 00:47:56) Well, just keep thinking about these things. We've got a lot of law professors who think about these things, but we don't have enough people like you who understand the technology behind this, right? To tell us this will work or that won't work, right? Or here's how to make that work better. And those are the kind of things that we need. That perspective in these debates on consumer privacy, on regulation of the internet, all these different sorts of things. For the reasons you were saying, we've got basically a bunch of lawyers in Washington making policy, but we don't have a lot of people thinking about how the technology and the policy actually intersect on the ground and how to make that work for real people. So I would just say, what you can do is just keep thinking about this, talking about this, and urging other people to do the same so that people like me can learn from what you guys are saying and doing. So it's been a thrill to talk with you and kind of work through some of these ideas with you today.

(Joel Beasley at 00:49:06) Thank you so much for listening. And if you found this episode useful, please share it with a friend or colleague who you think would get value from it. And if you have topics that you'd like to hear discussed on the podcast, either add me on LinkedIn or send me an email, [email protected]. Every time I get an email or LinkedIn message, it absolutely makes my day and inspires me to keep going.