Version Two: My frame of reference: an internet society

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.

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.

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

The question and frame of reference

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.

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.

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.

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.

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.

So what role for lawyers?

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.

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.

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.

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.