Kevin Werbach

Kevin Werbach
  • Professor of Legal Studies & Business Ethics

Contact Information

  • office Address:

    673 Jon M. Huntsman Hall
    3730 Walnut Street
    Philadelphia, PA 19104

Research Interests: Internet policy, telecommunications, blockchain, gamification, business analytics

Links: CV, Personal Website, Kevin Werbach (@kwerb) on Twitter

Overview

Education

JD, Harvard University, 1994; BA, University of California at Berkeley, 1991

Recent Consulting

World Bank (2014-15). Advising on use of gamification in massive open online courses.

Marriott and Franklin Covey (2014). Developing gamification system for employee motivation.

Organization for Economic Cooperation and Development (2013). Analysis of the future of broadband networks.

Federal Communications Commission (2009-10). Advising on broadband, open Internet, and open government policies.

Academic Positions Held

Wharton: 2004-present

Other Positions

Founder, Supernova Group, 2002-present; Editor, Release 1.0, 1998-2002; Counsel for New Technology Policy, Federal Communications Commission, 1994-1998

Professional Leadership 2008-2013

Director, TPRC Research Conference on Communication, Information and Internet Policy, 2003-2009; Fellow, Global Institute for Communications (GLOCOM), 2002-present; Editorial Board, Info: The Journal of Policy, Regulation and Strategy for Telecommunications, Information and Media, 2010-present; International Editorial Board, I/S: A Journal of Law and Policy for the Information Society, 2006-present; Editorial Board, Journal of Information Policy, 2010-present; Faculty Affiliate, Penn Center for Technology, Innovation, and Competition, 2010-present; Faculty Affiliate, Wharton Public Policy Initiative, 2013-present

Corporate and Public Sector Leadership 2008-2013

FCC Review Co-Lead, Obama-Biden Transition Project, 2008-09; Director, Public Knowledge, 2011-present; Advisory Council, Institute for the Future, 2012-present; Advisory Board, Genesys Angelbridge Fund, 2000-2009

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Research

  • Regulation of emerging digital platforms and services
  • Capabilities approach to equity in information policy
  • Law and the blockchain
  • Will blockchain-based smart contracts displace contract law?

  • Tae Wan Kim and Kevin Werbach (2016), More Than Just a Game: Ethical Issues in Gamification, Ethics and Information Technology, 17.

    Abstract: Abstract Gamification is the use of elements and techniques from video game design in non-game contexts. Amid the rapid growth of this practice, normative questions have been under-explored. The primary goal of this article is to develop a normatively sophisticated and descriptively rich account for appropriately addressing major ethical considerations associated with gamification. The framework suggests that practitioners and designers should be precautious about, primarily, but not limited to, whether or not their use of gamification practices: (1) takes unfair advantage of workers (e.g., exploitation); (2) infringes any involved workers’ or customers’ autonomy (e.g., manipulation); (3) intentionally or unintentionally harms workers and other involved parties; or (4) has a negative effect on the moral character of involved parties.

  • Kevin Werbach (2015), Is Uber a Common Carrier?, I/S: J Law & Pol'y For Info. Soc'y, 12 (157).

    Abstract: The title of this essay may seem surprising. What does Uber, a transportation service considered an exemplar of the “sharing economy,” have to do with Internet regulation? What does common carriage, a regulatory construct most commonly associated with railroads in the nineteenth century and telephones in the twentieth century, have to do with Uber? Also, why does the answer even matter? These are precisely the sort of questions we should ponder if we truly care about the future of Internet regulation. Twenty years after the privatization of the network backbone and the birth of the commercial web, the world has changed. The Internet is no longer just a communications network to move digital bits. Its most significant manifestations involve reshaping markets and social relationships in the physical world. These “Internet-enabled” services use digital and mobile connectivity to coordinate the distribution of resources, such as transportation services and lodging. The scale of such online/offline hybrids, including Uber, Airbnb, TaskRabbit, and Lyft, now frequently exceeds that of their long-established competitors. Additionally, their influence on basic social functions, such as transportation and housing, promises to be even more significant than their financial impact. In such an environment, we must look at regulation differently. It makes little sense to enforce a strict separation between the cyber world and the physical world when firms increasingly straddle both. Moving beyond the rhetoric of regulatory obligations primarily as limitations to be overcome, the positive value of public policy to stimulate investment and innovation should be disinterred. Notions of common carriage and public utilities, once unmoored from their historical associations with sanctioned monopolies and rate * Associate Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. Contact: werbach@wharton.upenn.edu. I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY 136 I/S: A JOURNAL OF LAW AND POLICY [Vol. 12:1 regulation, can function as framing devices for the regulatory questions of the twenty years to come. Increasingly, their application will be to companies that operate over the network, rather than to just connectivity providers. This essay explores a future of Internet regulation that draws on the valuable attributes of longstanding doctrines to craft a viable regime for the future. Part I describes the rise of Internet-enabled network services, with Uber as the paradigmatic case. Part II explains how these services function as utilities and identifies the major regulatory conflict points. Part III speculates on how these issues may be resolved.

  • Kevin Werbach and Dan Hunter, The Gamification Toolkit (2015)

  • Kevin Werbach (2014), Reflections on Network Transitions and Social Contracts for a Broadband Era, Colorado Technology Law Journal, 13 (101), pp. 45-70.

    Abstract: INTRODUCTION Transportation is an essential service in the modern world. Without access to on-demand automobiles, urban residents would have trouble getting to work and going about their lives. Those residents can’t easily check before each ride whether their driver has a valid license, no criminal record, a working car, or an accurate meter. For these and other reasons, virtually every municipality regulates taxis and car services. Those regulations, though, have downsides. They can limit companies’ flexibility and raise prices by artificially restricting supply. Uber is a service that allows car service drivers to pick up additional riders in between jobs, managed through a mobile application.1 Many people find Uber’s service faster and more efficient than taxis and car services. However, Uber generally charges more than regulated taxis; it * Associate Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. Contact: <werbach@wharton.upenn.edu>. 1. See Nick Bilton, Disruptions: Ride-Sharing Upstarts Challenge the Taxi Industry, N.Y. TIMES, July 22, 2013, at B4. WERBACH-MACRO-V2-NOV 28.DOCX (DO NOT DELETE) 12/12/14 6:33 PM 46 COLO. TECH. L J. [Vol. 13.1 can pick and choose where and how to provide service; and it ratchets up its prices in times of high demand, sometimes by a factor of seven or more. 2 Uber’s defenders say these aren’t problems, because anyone who objects can just call a taxi. What if there are no more taxis? This is not an article about transportation. The challenge Uber poses to regulated taxi services, however, is a good analogy to the challenge that unregulated and differently regulated digital communications services pose to traditional telecommunications regulation. As we move into a broadband world, it becomes increasingly important—and increasingly difficult—to define the backstop obligations often described as the social contract. Communication is an essential service in the modern world. The primary providers of that capability have for nearly a century been subject to rules and requirements that don’t apply to most other companies in the economy. Over the past three decades, regulators have rolled back those requirements in two ways. The incumbents have been freed from restrictions deemed unnecessary or counterproductive, where competition is seen as a better way to achieve the same policy goals. And novel technologies and services have been shielded from the regulatory apparatus, either by carving out exemptions or by creating further restrictions on how the incumbents interact with them. Three of these technologies—voice over Internet protocol (VOIP), broadband Internet access, and mobile phone service—have now reached a point of maturity and adoption at which they are challenging traditional regulated telecommunications. And the incumbent telecommunications operators are looking to join them. The situation is inherently unstable. The transition from the legacy public switched telephone network (PSTN) to this emerging mesh of data-centric providers—some might call it a digital broadband migration3 —will produce great benefits for consumers, innovation, and the economy. The new technologies and providers bring a raft of new capabilities and the promise of competitive markets, rather than regulatory decisions, promoting the public interest. Yet there is a danger. An environment in which new services exist under a regulatory umbrella created for a legacy world is unsustainable when those new services become the mainstream. It depends on regulatory line-drawing that is increasingly untenable. 2. See David Streitfeld, Rough Patch for Uber Service’s Challenge to Taxis, N.Y. TIMES, Jan. 26, 2014, at B1; Dean Baker, Don’t Buy the ‘Sharing Economy’ Hype: AirBnB and Uber are Facilitating Rip-offs, GUARDIAN, (May 27, 2014, 7:30 AM), http://www.theguardian.com/commentisfree/2014/may/27/airbnb-uber-taxes-regulation. 3. See generally Michael K. Powell, Preserving Internet Freedom: Guiding Principles for the Industry, 3 J. ON TELECOMM. & HIGH TECH. L. 5 (2004) (describing the implications of the digital broadband migration). WERBACH-MACRO-V2-NOV 28.DOCX (DO NOT DELETE) 12/12/14 6:33 PM 2015] REFLECTIONS ON NETWORK TRANSITIONS 47 What if there are no more wireline circuit-switched telephones? We are now fairly far along in the evolution from analog to digital communications systems, and the grand convergence into a network of networks based around the technologies of the Internet. It is important to survey and consider the facts on the ground. It is even more important, though, to step back and consider the societal goals that animate communications policy in the first place. Standing behind the particulars of regulation is a set of broad, if imperfectly defined, normative commitments. Those commitments should not evaporate based on the configuration of the market at any given time. The means of achieving them, by contrast, cannot remain unchanged when the context changes. The difference between regulated communications markets and the bulk of the economy is frequently described in terms of social contracts.4 Social contract thinking provides a convenient way to explain why companies are subjected to obligations above and beyond the generic requirements of antitrust and consumer protection. Such language in telecommunications is especially common during periods of transition.5 The term “social contract,” however, is often thrown around in these contexts with little attention to its origins or meaning. In considering the transition to a digital broadband environment for virtually all communications and media services, social contracts provide a useful touchpoint.

  • Kevin Werbach (2014), No Dialtone: The End of the Public Switched Telephone Networks, Federal Communications Law Journal, 66, p. 203.

  • Kevin Werbach, Sharing Spectrum to Fuel Growth and Opportunity.

  • Kevin Werbach, Why the Court’s Net Neutrality Decision is Not So Bad.

  • Kevin Werbach, Don’t Call Us Rock Stars.

  • Kevin Werbach, MOOCs: A View from the Digital Trenches.

  • Kevin Werbach The Development and Diffusion of Digital Content.

    Description: Report for the Organization for Economic Cooperation and Development

Teaching

Past Courses

  • EAS 499 - SENIOR CAPSTONE

    The Senior Capstone Project is required for all BAS degree students, in lieu of the senior design course. The Capstone Project provides an opportunity for the student to apply the theoretical ideas and tools learned from other courses. The project is usually applied, rather than theoretical, exercise, and should focus on a real world problem related to the career goals of the student. The one-semester project may be completed in either the fall or sprong term of the senior year, and must be done under the supervision of a sponsoring faculty member. To register for this course, the student must submit a detailed proposal, signed by the supervising professor, and the student's faculty advisor, to the Office of Academic Programs two weeks prior to the start of the term.

  • LGST101 - LAW AND SOCIAL VALUES

    This course presents law as an evolving social institution, with special emphasis on the legal regulation of business in the context of social values. It considers basic concepts of law and legal process, in the U.S. and other legal systems, and introduces the fundamentals of rigorous legal analysis. An in-depth examination of contract law is included.

  • LGST222 - INTERNET LAW PRIV CYBER

    This course looks at how courts, legislatures, and regulators confront the major issues of the internet world. Billions of people are now active on social media, and firms such as Google, Facebook, Amazon, and Alibaba are among the worlds most valuable and influential. The legal interfaces between the physical world and the digital world are therefore increasingly important. In particular, exploitation of personal information online by governments, digital platforms, and bad actors is becoming a constant source of major controversies. The material in the course ranges from the foundations of cyberlaw, developed during the e-commerce bubble of the 1990s, to current leading-edge questions around the power and responsibility of digital intermediaries; data protection in the U.S. and Europe; cybercrime;blockchain; and network neutrality. No pre-existing legal or technical knowledge is required.

  • LGST242 - BIG DATA, BIG RESP.

    Significant technologies always have unintended consequences, and their effects are never neutral. A World of ubiquitous data, subject toee ver more sophisticated collection, aggregation, and analysiis, creates massive opportunities for both financial gain and social good. It also creates dangers in areas such as privacy, security, discrimination, exploitation, and inquiality, as well as simple hubris about the effectiveness of management by algorithm. Firms that anticipate thte risks of these new practices will be best positioned to avoid missteps. This course introduces students to the legal, policy, and ethical dimensions of big data, predictive analtyics, and related techniques. It then examines responses-both private and gover nmental-that may be employed to address these concerns.

  • LGST244 - BLOCKCHAIN/CRYPTOCURRENC

    Blockchain techonology is a form of decentralized database that allows for the secure exchange of value without reliance on trusted intermediaries. Blockchain is the foundation for cryptocurrencies such as Bitcoin, as well as for distributed ledger platforms used by enterprise consortia in various industries. Many believe that blockchain solutions have revolutionary potential. They promise to replace legal enforcement with technical mechanisms of cryptographic consensus as the means of generating trust. The technology has generated significant excitement, investment, and entrepreneurial activity in recent years. However, the business value of blockchain-based solutions is uncertain, cryptocurrency valuations are speculative, and there are serious legal, regulatory, and governance challenges to be addressed. This course is designed to give students the tools for critical assessment of ongoing developments in this evolving area.

  • LGST299 - SEMINAR IN LAW & SOCIETY

    A study of the nature, functions, and limits of law as an agency of societal policy. Each semester an area of substantive law is studied for the purpose of examining the relationship between legal norms developed and developing in the area and societal problems and needs.

  • LGST612 - RESPONSIBILITY IN BUS.

    This course introduces students to important ethical and legal challenges they will face as leaders in business. The course materials will be useful to students preparing for managerial positions that are likely to place them in advisory and/or agency roles owing duties to employers, clients, suppliers, and customers. Although coverage will vary depending on instructor, the focus of the course will be on developing skills in ethical and legal analyses that can assist managers as they make both individual-level and firm-level decisions about the responsible courses of action when duties, loyalties, rules, norms, and interests are in conflict. For example, the rules of insider trading may form the basis for lessons in some sections. Group assignments, role-plays, and case studies may, at the instructor's discretion, be used to help illustrate the basic theoretical frameworks. Course materials will highlight industry codes and professional norms, as well as the importance of personal and/or religious values. Format: class participation, quiz, group report, and final paper or exam. Materials: coursepack. Prerequisites: none.

  • LGST642 - BIG DATA, BIG RESP.

    Significant technologies always have unintended consequences, and their effects are never neutral. A world of ubiquitous data, subject to ever more sophisticated collection, aggregation, and analysis, creates massive opportunities for both financial gain and social good. It also creates dangers in areas such as privacy, security, discrimination, exploitation, and inequality, as well as simple hubris about the effectiveness of management by algorithm. Firms that anticipate the risks of these new practices will be best positioned to avoid missteps. This course introduces students to the legal, policy, and ethical dimensions of big data, predictive analytics, and related techniques. It then examines responses-both private and governmental-that may be employed to address these concerns.

  • LGST644 - BLOCKCHAIN/CRYPTOCURRENC

    Blockchain technology is a form of decentralized database that allows for the secure exchange of value without reliance on trusted intermediaries. Blockchain is the foundation for cryptocurrencies such as Bitcoin, as well as for distributed ledger platforms used by enterprise consortia in various industries. Many believe that blockchain solutions have revolutionary potential. They promise to replace legal enforcement with technical mechanisms of cryptographic consensus as the means of generating trust. The technology has generated significant excitement, investment, and entrepreneurial activity in recent years. However, the business value of blockchain-based solutions is uncertain, cryptocurrency valuations are speculative, and there are serious legal, regulatory, and governance challenges to be addressed. This course is designed to give students the tools for critical assessment of ongoing developments in this evolving area.

  • LGST799 - SEMINAR IN LAW & SOCIETY

    A study of the nature, functions, and limits of law as an agency of societal policy. Each semester an area of substantive law is studied for the purpose of examining the relationship between legal norms developed and developing in the area and societal problems and needs.

  • OIDD222 - INTERNET LAW PRIV CYBER

    The Internet has become central to business and daily life. This course looks at how courts, legislatures, and regulators confront the major legal issues that the Internet poses. The fundamental challenge is that law comes from governments and other institutions in specific places, but the Internet is global and virtual. Conflicts such as the shutdown of the Napster peer-to-peer file-sharing service and the debate over "network neutrality" regulations for broadband access illustrate the challenge. How does the legal system think about Google, Skype, Twitter, and Facebook? How should it?

Awards and Honors

In the News

Knowledge @ Wharton

Activity

Latest Research

Tae Wan Kim and Kevin Werbach (2016), More Than Just a Game: Ethical Issues in Gamification, Ethics and Information Technology, 17.
All Research

In the News

The Promise and Pitfalls of 5G: Will It Kill Cable?

Expectations are riding high for the next generation of wireless technology, but is 5G ready to compete with wired broadband networks?

Knowledge @ Wharton - 2019/04/29
All News

Awards and Honors

Wharton MBA Program, Teaching Commitment and Curricular Innovation Award 2012
All Awards