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< | Version Two: My frame of reference: an internet society |
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> | An internet society: what kind do we have and what can we do to change it? |
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< | I started version one of this post by expressing ‘my confusion’ about working out what an internet society means to me. In the iterative process of writing and learning through class discussions, I am no longer as confused and my thinking has evolved. |
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> | I started version one of this post by expressing ‘my confusion’ about working out what an internet society means to me. In the iterative process of writing and learning through class discussions, I am no longer as confused about this question and my thinking has evolved. |
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< | I agree with Professor Moglen that the advent of the internet society furnishes an opportunity for monumental societal change: it creates the conditions for information to be free, and to be shared with people in all countries, of all levels of income and education. I am possibly less confident than Professor Moglen that this opportunity can be translated into ending ignorance across the globe, but I accept the premise and the call to action. |
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> | I will not reiterate what I have said in previous versions about one aspect of my learning; namely the distinction between seeing the internet as market (a descriptive and normative position many hold) and the internet as a society (which has been the driving theme of our course). Suffice to say that I support the premise and call to action that has underlain Professor Moglen’s discussions: that the internet society furnishes an opportunity for monumental societal change. It can create the conditions for information to be free, and to be shared with people in all countries, of all levels of income and education. |
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< | However, to reach this view on an internet society, I have had to develop my own way of thinking about these issues. I have needed to calibrate my own response to the question oft asked in class: what will it take to change your mind? I have also needed to think about what, as a lawyer, I can do in response to the call for action.
In the rest of this revised post, I will articulate how I have further developed my thinking on what an internet society means. I then turn to the issue of what role I (and other lawyers) can play |
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> | However, the subsequent challenge for me, which I am attempting to accept, is twofold. The first part of the challenge is to say something about the power distribution that informs how the internet operates and how this political dynamic hampers freedom. The consequent challenge is to say something about what lawyers can do to militate against the negative effects of an internet promoting unfreedom and, ideally, to positively assist in creating freedom. |
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< | The question and frame of reference |
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> | I don’t think I can say anything particularly new about the first part of this challenge. However, I can articulate how I conceive the problem. |
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< | What will it take to change your mind? Professor Moglen has asked us this question in the context of our own unthinking behavior on the net (Gmail, smartphones in our pockets) and also to tap into the broader issue of whether we will take up the challenge of helping end ignorance throughout the world. |
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> | Although the internet is capable of being a source and perpetrator of education, free speech, social interaction and entrepreneurialism, it is also a place where these things have and can continue to be suppressed. (Any new freedom creates new opportunities for repression). These things are actively suppressed in the name of proprietary interests in ideas (vaguely dressed up as expression) and through interests in access. The state creates the tools for this suppression. This state sanction is informed by an ongoing belief that such protection is a necessary corollary of innovation and exists because these corporate interests exercise significant power in the political process. Furthermore, the power of information for commercial gain—how it can be collated, parsed and distributed for myriad purposes—is the brave frontier of 21st century commerce. |
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< | The questions that have been asked in class in response to this challenge, and those that I documented in my first post, reflect a series of careening thoughts. The questions reflect the range of technical, historical, normative and practical issues that arise when someone confronts you with a vision of the world that is genuinely different to what you generally get in law school, in most jobs and in the media. |
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> | The positive vision of a free internet society is also suppressed by individuals themselves. We could be using free software, we could use a wide range of social networks, we could encrypt our email and not hand over vast amounts of information to Google. Most of us do otherwise, and become subject to the ever growing appetite for more information about us and our toothpaste brand. |
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< | However, I accept that you need to stop asking (stupid) questions once you know more. I know some more because of this course. I know more about what is technically possible to do through free software, encryption technology and the possibility of the Freedom Box. This means that I can now appreciate how privacy can be reclaimed. I also have come to a greater appreciation of how counter-productive intellectual property regimes are and how lawyers should welcome/assist their downfall. |
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> | Meanwhile, governments of all stripes see big opportunities and risks in how the internet runs. The opportunities of co-opting the private sector to access all of that information for surveillance purposes, as well as the laudable goal of providing government services in a more efficient and timely manner, appear greater or more achievable in an internet world which is controlled by the few (governments and private interests). While the risks—including all kinds of crimes which can be more readily perpetuated on the net and, less optimistically, the risks to corporate interests that are intimately connected with their political success—appear much higher if people can use the net in an anonymous and free way. |
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< | Fundamentally, the course has reinforced for me that the internet needs to be conceived of as a society and not simply a market. I accept that this is self-evident if you have already concluded that the internet is society’s exo-skeletal nervous system. However, there are many people who don’t intuitively think this way; there are many who want to think about the internet as a giant market-place. For example, my own experience in Australia is that policy-makers and others have adopted the language (and the world view) that the internet is the ‘digital economy’. All policy discussions about the internet’s infrastructure, uses and online behavior are framed as e-commerce, rather than in broader innovation and freedom terms. Consequently, I believe that we often need to make the argument, and sometimes re-make the argument, that ‘the internet’ is an opportunity for a free society, not just a market. I think that historical thinkers like Karl Polanyi can help us with the starting point of this analysis: that society comes first, not the market. |
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> | Consequently, the realization of a free internet society faces unwieldy road-blocks. Commercial and government interests in perpetuating an unfree internet are aligned and it is difficult to convince individuals that this is concerning, as we normalize our lives as privacy-free zones. |
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< | But I agree that there are limitations to relying on previous theoretical analysis to articulate a vision of an internet society. The analogy of Polanyi’s vision of a ‘Great Transformation’ in history only goes so far, particularly as Polanyi’s example involved a transformation that fundamentally was not about the freedom of the masses. Once you have made the leap (or reminded yourself) that the internet is not just a market, then the dot.com manifesto and the work of others interested in internet freedom provide a positive articulation of a new vision. Central to this vision is the need to challenge existing power structures. |
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> | This leads to the second part of the challenge: what is the role for lawyers in holding back the tide of an unfree world and even positively assisting in making it free?
Lawyers come in all shapes and sizes and I don’t think there is simply one role for us all to play in responding to this challenge, or that there is any silver bullet. However, in thinking about the kinds of things that lawyers can do to advance freedom, it is helpful to consider lawyers’ strengths and weaknesses. |
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< | So what role for lawyers? |
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> | A key strength is our education. For all its possible faults, legal education makes us good problem identifiers and passable problem-solvers. It emphasizes communication. More fundamentally, the study of law gives us an appreciation of power, how power unchecked by law can be abused and how law itself can perpetuate power and inequality. Furthermore, lawyers are imbued (though many lose it) with their professional responsibility. It is a calling higher than client interests; justice is its guiding force. |
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< | If we ‘change our mind’ about the internet society, Professor Moglen has asked us what we will do about it. The ‘baby steps’ that I outlined in version one were my first attempt at working out what role lawyers have in this world. |
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> | These strengths mean that lawyers are well placed publicly to explain the ways in which politics is dictating the terms of our internet society and the problems that result. In addition, we have a specific tool set and language that we can use to lobby governments. Many lawyers can also represent clients (pro bono or cheaply) who are seeking to further freedom through new innovations and disseminating information. |
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< | There are lawyers and technologists who can work on technical solutions to unfreedom. However, not everyone is capable of doing this; neither is everyone motivated to do it. There are also lawyers who will represent clients who are seeking to further freedom through new innovations and disseminating information. |
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> | However, lawyers will also need to overcome weaknesses. Like other information, it is our responsibility to make more legal information and products accessible and free and we will need to think in less proprietary terms to do so. It is increasingly obvious that bread and butter legal work can no longer be protected anyway, as it is being outsourced or automated. |
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< | I also believe that lawyers have a role in working out when there is a need for a new or different law, and when this part of the ‘tool-box’ is not going to be useful. In this context, I think that regulation is not always a ‘cop-out’. It can be one of the tools for militating against unfreedom and can be a means of challenging power structures. |
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> | Additionally, lawyers tend to specialize: we shirk being even legal generalists, and in particular working with other disciplines. The free software movement is a good example of how lawyers and technologists can work across the aisle on technical solutions to unfreedom. Lawyers will have to do better at this kind of cooperation in the fields of advocacy, policy advice and litigation. |
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< | By way of example, although the advent of a Freedom Box will allow more individuals to control their privacy, I still believe that lawyers should advocate for greater controls on the amount of information that governments and private actors can collect from their citizens, or other nations’ citizens. I want there to be laws that people can seek to rely on if they aren’t protecting themselves online as well as they could, or when governments and private entities seek to limit the ways you can operate as a free agent online.
I believe advocating for laws that promote freedom a way that lawyers can take up the call to action of an internet society. One that I—and many of my colleagues—should take.
Because the wiki retains every previous version of every page, gluing
the revised version atop the previous one actually makes things
harder, rather than easier, to deal with. Your first version, my
edits, your responses, my edits to those responses, etc., can be
taken from the History of the page, which you might want to explore.
Hence I have cleaned up here.
This rewrite seems to me a retreat, rather than progress. You offer
repeated assurances that you agree with me, but no actual substantive
new ideas seem to have resulted from the agreement. Given that what
I want is to interact with your ideas, not my own, this draft rather
fails the only reader in the world it could possibly be taken to
flatter.
That the Net isn't merely the market, which is now the
primary substantive idea presented by the essay, was previously
established by your "Great Transformation" argument. As I noted last
time, this way of establishing the proposition paid too much to buy
too little; your solution here is to mumble "Marx" without actually
doing more, as though the work I was doing for you was name-dropping,
rather than analysis.
The new element here was supposed to be an enlarged understanding
what lawyers could do about the problem you haven't defined. The
answer, we now learn, is "advocating for laws that promote freedom."
This is not, of course, a very specific or useful direction.
The problem, as I noted last time, is that you don't come to grips
with the politics at all. It's fine to say that the Net is
pervasively misrepresented as "the digital economy" or "the
information superhighway," leading to public policy outcomes that
would be completely different if we called it instead "The Universal
Education System." So fine, in fact, that I said it in 1997 in a
piece I asked you to read back in September. The result of that
none-too-new insight is a power distribution, in which the few
acquire new forms of control over the many. Your mission, which you
do not seem to be choosing to accept, is to analyze the power
distribution that results, and to decide—as lawyers can who
will—how you intend either to further or to disrupt it. None
of those questions, which I tried to help frame in my comments last
time, have been addressed, let alone answered even partially, in this
draft.
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> | I think many of us can work as champions, advocates and educators of a free internet society if we exploit our strengths and respond to our weaknesses. |