Who Will Protect Publicness?
Who will protect today’s Gutenberg press—our tool of publicness—the internet? Governments? Companies? Someone must. During Egypt’s revolution, the doomed Mubarak regime killed the net. At the same time, China prevented internet users from searching services such as Twitter for the word “Egypt.” That is the least of what China does to restrict internet freedom. It censors sites and search behind the all-too-whimsically named Great Firewall of China, maintained with the help of U.S. technology companies. It outlaws entire services, such as Facebook, that can be used by citizens to organize protests, which the government propaganda office then decrees cannot be reported.1 It uses the net to find and arrest dissidents, once with the help of Yahoo. It uses the web, too, to spread disinformation. Governments are not the net’s proper guardians.
In 2009, Chinese hackers attacked Google and other technology companies. The Chinese government has not acknowledged responsibility. But in a diplomatic cable released by WikiLeaks, a U.S. envoy’s sources said a top member of the Chinese politburo orchestrated the assault. He was upset at what showed up under a Google search for his name.2 Google publicly revealed the hacking. It also used the opportunity to reverse its policy on China. Google had been censoring searches, blocking some results about such topics as Falun Gong and Tiananmen Square. Now it refused to continue censoring search on behalf of the Chinese government. It threatened to pull out of the country. Some company executives had believed that offering a hampered Google to China was better—for the Chinese and for Google—than having none. Others believed it was wrong to do the dictators’ bidding—and they at last prevailed. Google defended its principles.3 At the time, no other corporate victim of the hacking stood by Google, and no government was willing to lend its vocal support. Eric Schmidt told a group of editors in 2010 that Google did not have laws or police or diplomats. It is not a country, he said. But in this case, it acted as a quasi-state, as the internet’s ambassador to China. Is Google the net’s protector?
At the Aspen Ideas Festival in 2009, Schmidt defended “the openness of the internet.”4 Yet a year later, Google entered into a devil’s pact with telco Verizon over the net’s openness. Proponents of net neutrality want to see all internet traffic treated equally. Internet service providers want the ability to discriminate against some kinds of traffic. They argue for the power to govern alleged bandwidth hogs who download more than others. They might also want to favor their own services over a competitor’s. Google and Verizon made a recommendation to the Federal Communications Commission to split the baby with a dull knife, and the FCC followed much of their suggestion. It divided the internet in two: the wired internet (the past) would have neutrality protection, while the wireless internet (the future) would have less. It’s the internet vs. the schminternet. If you use your iPad at home, connecting to the net via your cable company’s wires, then walk outside and reach the net on the same device via your mobile carrier’s signal, you’ll be operating under different regulations. The movie you’re watching could slow down just because the rules are different. Welcome to the schminternet. The debate over net neutrality is often framed in those terms: downloading movies at full speed. But there’s more at stake here. Whether an internet service provider cuts off movie downloads or China cuts off searches or Egypt turns off the entire internet, the question is the same: Who decides which bits get through? Who defends the openness of the internet? Who then nurtures the opportunities we are just beginning to understand? Can companies be the net’s protector? No.
“Changes in the information age will be as dramatic as those in the Middle Ages,” James Dewar writes in a 1998 Rand Corporation paper. “The printing press has been implicated in the Reformation, the Renaissance, and the Scientific Revolution, all of which had profound impacts on their eras; similarly profound changes may already be underway in the information age.”5 Dewar argues that the information age will be dominated by unintended consequences. The wise course, he says, is not to forestall these changes with regulation and resistance but to hasten the path and the adjustment to them. This transformation will be unsettling, sometimes frightening, and monumentally disruptive to the hierarchy of society. Corporations, governments, and old institutions are not built to operate so much in the open. Oh, they could change—and some will—but the transition requires a wrenching and expensive shift. By the time they recognize the need for change and the inevitability of it, new entrants using open platforms will often be ahead of them. Amazon.com disrupted retail faster than retail could shift. craigslist sneaked up on newspapers and shifted $13 billion a year from the companies’ coffers to consumers’ pockets. The regimes in Tunisia, Egypt, and Libya were incapable of reforming in incremental steps; their citizens decided to start over.
The tools revolutionaries and disruptors use to tear down the old order may not be sufficient to build a new one. It is also true that the tools are neutral—they can be used by bad actors as well as good. After the Egyptian revolution, three CDs filled with ID photos of Egyptian security police were found in security headquarters. The photos were put online at Flickr so citizens could crowdsource identifying them. Flickr took them down.6 NPR’s Andy Carvin asked why and was told that they violated the site’s terms of service, which require users to post original photography, and that an unnamed user—a government?—had complained. Then Anonymous, a corps of hackers that often defends WikiLeaks, took the photos and put them online again.7 The truth cannot be stopped. In that instance, the tools were used for good. But Evgeny Morozov also tells the story of security forces in Iran who took photos from demonstrations and put them online so loyalists could identify protestors via crowdsourcing and police could then arrest them. He speculated that facial-recognition software could be used to do the job instantly. These tools can be used for evil purposes as well.
Should we regulate and control the internet so it can be used only for good? Rand’s Dewar says that early modern European nations that tried to control the printing press and suppress its allegedly dangerous aspects not only failed but also fell behind other neighboring nations. “It was more important to explore the upside of the technology than to protect against the downside. In the information age, this suggests to me that the internet should remain unregulated,” he writes.8
I fear the unintended consequences that may come from regulation. Take, for example, European Union Justice Commissioner Viviane Reding’s four pillars of data protection, which she proposed in 2011.9 I have no argument with one of them: transparency. Companies that collect data should be open about when that is done and how information will be used. Another pillar sounds attractive: “the right to be forgotten.” But how far does that go? If I post something about you on my blog or write about you in a news story—a quote I heard, the fact that I saw you somewhere, the fact that you did something in the open—can I be forced to erase—to forget—that? What then of my freedom of speech? Another pillar is rhetorically appealing: “privacy by default.” But is that how we wish society to operate—closing in by reflex when we have so many new ways to open up? Flickr became a success, as I said earlier, because it was set to public by default. On a service designed for sharing—Facebook—what does complete privacy mean? Isn’t completely closed communication just email? Reding’s last pillar would require EU?level protection no matter where a service operates or where data are held. That sets a dangerous precedent. It could mean that we would all be ruled by the most stringent controls in place anywhere in the world—the high-water mark of control.10 Can we bear China claiming the same right as the EU? We see a related problem today with so?called libel tourism in the U.K. Because its libel laws are unfriendly to defendants, targets of published criticism go there to file suit against writers and publishers. In a global internet, the EU’s effort to become privacy’s sanctum could affect us all.
On the one hand, I argue against regulation. On the other hand, I argue that the government should enforce net neutrality, and that is a form of regulation. Am I hypocritical? At South by Southwest in 2011, Senator Al Franken delivered a ringing endorsement of net neutrality. He argued that proponents of net neutrality are not trying to change the internet but to keep corporations from changing it, from making the net less free than it has been since its birth. “This is a First Amendment issue,” he said. “The internet is small-d democratic. Everyone has the same say.”
Secretary of State Hillary Clinton, too, delivered a rousing defense of internet freedom in two speeches in 2010 and 2011. “In the last year, we’ve seen a spike in threats to the free flow of information. China, Tunisia, and Uzbekistan have stepped up their censorship of the internet,” she said in Washington just as the Tunisian revolt was brewing. “On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas…. The internet is a network that magnifies the power and potential of all others. And that’s why we believe it’s critical that its users are assured certain basic freedoms. Freedom of expression is first among them.”11 The following year, in 2011, she delivered another speech extolling transparency and attacking censorship. But in the same speech, she also condemned WikiLeaks for its release of cables from her agency. “Let’s be clear,” she said, “this disclosure is not just an attack on America—it’s an attack on the international community.” The leaks “tear at the fabric” of government, she argued.12 Indeed, they soon tore at the fabric of Tunisia’s corrupt government.
We cannot rely on governments—neither democracies nor tyrants—to safeguard the tool of their own disruption. Nor can we expect corporations—not Google, not cable, not telephone companies—to operate contrary to their own self-interest. “Big corporations? They’re not inherently evil,” Franken said at South by Southwest. “Corporations have a contractual duty, a legal obligation to their shareholders to make as much money as they can.” They can make more money by putting some content in the fast lane, relegating the rest to sit in traffic, and favoring their own services—the networks Comcast bought with NBC Universal, for example—over competitors’.
I do not blame them for protecting their own interests. I blame us, the people of the net, for not protecting ours, for leaving the internet vulnerable and jeopardizing the disruption of the old order and the development of our new and open society. Where is our protest at the violation of the Chinese people’s fundamental human rights to speak and assemble? When Chinese citizens, following the example of peaceful movements in the Middle East, used the net to organize events and simply stroll together at certain landmarks, government security forces came to stop them. Did we stand up for them? Where is our concern over the implications of government attacks on WikiLeaks as an agent of transparency? Would we have stood for such intimidation of The New York Times and Daniel Ellsberg? Where is our dismay at the diminishment of the public domain with the Germans’ Verpixelungsrecht? Where are our principles?
As I contemplated those questions, I thought back to the Sullivan Principles, which helped put an end to apartheid in South Africa.13 To be clear, I do not equate the repression and tyranny of apartheid with the censorship of YouTube videos or the throttling of music downloads. But there’s a lesson in the Reverend Leon Sullivan’s proposition that companies must operate responsibly. In 1977, he wrote a set of principles to use as a wedge to pressure companies doing business in South Africa to ensure equality for workers or get out. Business, companies, and capital left the country in a process that helped freedom emerge there.
We need principles to defend our internet and our publicness—fundamental beliefs that we, the users and citizens of the net, can point to when we see governments or companies violate them and threaten our freedoms. I don’t want to establish a set of laws made by the United Nations or the governments that make it up. I want principles independent of those authorities. For the tools of publicness are what empower us to check the powerful. I quote the magnificently over-the-top Declaration of Independence for Cyberspace written by John Perry Barlow, a founder of the Electronic Frontier Foundation (and Grateful Dead lyricist), in 1996: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather…. Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours.”14
Barlow taunts governments, saying they do not know “our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions…. We are forming our own Social Contract.”15 He’s right. Among users of goodwill, we see a force of collective effort to create order, propriety, and justice in the digital world. A new and good society is emerging. We don’t yet know the shape of it. I have tried to use Gutenberg as a frame of reference. Others use economic terms. “Personal data is the new oil of the Internet and the new currency of the digital world,” says Meglena Kuneva, the European Union’s consumer affairs commissioner.16 Marc Davis, a researcher at Microsoft, uses the construct of property. He argues that we do not own the data we create, the data about us, the servers on which our information resides, or the wires that bring it to us. He believes we need a set of property rights and trusted agents to manage them for us so we can gain more control over our digital lives.
When technologists see obstacles, they look for detours around them. Developer and author Gina Trapani says they hack their way out of restrictions. They sometimes flout the law because they know it is doomed to be two steps behind technology. But Lawrence Lessig, of Harvard’s Berkman Center for Internet and Society, sees these questions in terms of law. Code is law, he says.17 When Facebook’s code says what is private and what is public by default, it creates statutes that govern the behavior of its users and communities. When Facebook finds its law in conflict with the norms and expectations of its community, one of them must change. The same is true even of the game company Zynga when it decides how its FarmVille agrarians will interact and how their economy of fake goods will operate. And certainly Google is aware that its code influences the behavior of both good actors and bad—the spammers who try to game its system. That is why Google publishes its software and design principles.18 When Google did the work of China’s censors, it was violating its number one principle, “Don’t be evil.”19 Is the best frame of reference for the principles of publicness history, economics, property, hacking, code, statute, or constitutional law?
Inspired by Barlow’s Declaration of Independence for Cyberspace, I was tempted to wish for the next logical step (for an American, at least): a Constitution for Cyberspace. But deciding who has the right to negotiate for the net and compromising on a set of laws would be limiting and dangerous. It would be too easy for a new and centralized power structure to emerge to enforce that Constitution. Decentralization is what makes the internet the internet. And as Dewar cautions, we should not be too quick to structure the net before we know what it is and what it can accomplish.
Making the next logical leap, I had the hubris to draft a Bill of Rights in Cyberspace on my blog. I was hardly the first to try. In 2009, a group of Chinese intellectuals issued a set of principles covering freedom of speech, including the freedom of opinion and the right to anonymity.20 The Association for Progressive Communications issued a charter starting in 2001 with a detailed set of rights. It was laden with many agendas and the tendency of committees to throw everything in with the kitchen sink.21 The Internet Rights and Principles Coalition drafted a preliminary version of its bill of rights that was similarly broad. But then, collaboratively, the group did a good job distilling it down to ten key rights:22 universality and equality; rights and social justice; accessibility; expression and association; privacy and data protection (including the right to use data encryption); life, liberty, and security; diversity; network equality; standards and regulation; and governance. The Brazilian Internet Steering Committee issued a more succinct set of Principles for the Governance and Use of the Internet.23 A group of Facebook users issued their own social bill of rights that’s quite specific to that community.24 Some have written principles covering just government data.25 These documents answer many needs with much good thinking.
What we need first, I think, is discussion. Through that we will begin to discern our shared principles for the internet and our public society. I doubt we will ever arrive at a single set of principles. But I am convinced that we must have debates around the notion of principles. In the course of that, some truths will become self-evident. We will come to examine what matters to us and what we must protect. We will expose different views, priorities, and needs. Most important, we will have an expression of some principles to point to when powerful institutions try to control our net and diminish our publicness, power, and freedom. “It is time for us to use the internet to save the internet,” Al Franken told the entrepreneurs at South by Southwest.
I return one last time to Germany, bringing the discussion full circle. After reading my proposed principles on my blog, German Justice Minister Sabine Leutheusser-Schnarrenberger responded in the Frankfurter Allgemeine Zeitung. She argues at the start that “the potential of the digital world must not be strangled by anxious over-regulation.” Net neutrality, she declares, is “the only guarantor of the free exchange of information.” She calls for a charter for the internet built on democratic and ethical principles, including human rights and free speech. We agree. Then we disagree. She calls my philosophy “post-privacy” and says that a society’s freedom is reflected in the protection given to a person’s privacy, which she argues needs better safeguarding, updated for a new digital reality. “Personal information is not an abstract concept of ones and zeroes. It is the digital recording of a human being.” We may not disagree as much as she thinks. In any case, we both see the need for this discussion about principles. “The digital world does not primarily need new laws, it needs universal digital values,” she writes. “The internet community must intensify this process of discussion.”26 Right. This is precisely the kind of discussion we need. That is why I submit to you my set of principles—which address more than the internet and privacy—and ask you to share your perspective in an ongoing discussion at www.buzzmachine.com/publicparts.
Principles of Publicness
I. We have the right to connect.
If we cannot connect, we cannot speak. That is a new and necessary preamble to our First Amendment. Finland has declared internet access—high-speed at that—as a right of citizens. Whether countries should subsidize and provide access is a separate question. But once access is established, cutting it off should be seen as a violation of human rights. That’s what a 2011 United Nations report said. “It’s now a basic human right to have internet,” Thomson Reuters CEO Tom Glocer told media executives in the Middle East. “Systematic denial of freedom of accessing information will lead to a revolution.”27
II. We have the right to speak.
Freedom of speech is our cultural and legal default in the United States. That First Amendment protection should extend not just to information and opinions delivered by text but also to information delivered by applications and data. Yes, there need to be limitations—on child pornography online, for example. But beware the unintended consequences of attacking a specific problem with an overly broad response. To fight child porn, Australia proposed mandatory filters to block content—filters that could be used against any content.28 We cannot manage everything to the worst case, to that which might offend someone, to that which could happen. We must not live by the lowest common denominator of fear and offense and the highest watermark of regulation, diminishing our most precious right of speech in the process.
III. We have the right to assemble and to act.
It is not enough to speak. Our tools of publicness enable us to organize, to gather together—virtually or physically—and to act as a group to demonstrate or to build.
IV. Privacy is an ethic of knowing.
We need protection of privacy. We also need to adapt our norms of privacy to new social tools and behaviors so we can better understand when something is said in confidence, when information should not be used without consent, what the harm is of spreading information, and how to give people more control of their information.
V. Publicness is an ethic of sharing.
The foundation of a more public society is the principle of sharing: recognizing the benefits of generosity, building tools that facilitate it, and protecting the product of it.
VI. Our institutions’ information should be public by default, secret by necessity.
Openness is a better way to govern and a smarter way to do business.
VII. What is public is a public good.
When public information or the public space is diminished, the public loses. Secrecy too often serves the corrupt and tyrannical.
VIII. All bits are created equal.
When anyone gains the power to decide which bits, words, images, or ideas can or cannot pass freely through our network, it is no longer free.
IX. The internet must stay open and distributed.
“Let’s give credit to the people who foresaw the internet, opened it up, designed it so it would not have significant choke points, and made it possible for random people including twenty-four-year-olds in a dorm to enter and create,”29 says Eric Schmidt.
Before the 2011 meeting of the G8, French President Nicolas Sarkozy gathered a thousand leaders from government, technology, media, and universities in tents on the Tuileries Garden in Paris to consider governments’ role in the future of the internet. I stood up at this first meeting of the e-G8 and welcomed the discussion of principles but then asked Sarkozy to take a Hippocratic oath for the net: “First, do no harm.” Insulted, he mocked the question, contending that protecting intellectual property, security, privacy, and children would not harm. That’s true, depending on how it’s done—by enforcing laws that already exist or by trying to extend new authority over our new world. Sarkozy had talked of civilizing the internet and was portrayed in the French press as the sheriff riding into town to tame our Wild West. He argued that government must have a role in governing the net. “No one should forget,” he declared, “that governments in our democracies are the only legitimate representatives of the populace.” Well, tell that to the people of Tahrir Square. Their government was most certainly not their legitimate representative and they used the internet, their tool of publicness, to find their own voice. I left the meeting fearful of those who fear the internet and its change.30
I also left doubting the metaphor of internet-as-continent. Sarkozy—who’d rejected the notion of the net as a parallel universe—liked the phrase I used, “the eighth continent.” Perhaps he saw himself planting his flag in its soil. The problem is, we don’t leave our native lands to come to the net. We are all citizens of some nation, subject to its laws. Now we can also be citizens of this new society. This idea of the net as a new society is confounding to nations of politics and laws, for the net’s own sovereignty depends on no one having sovereignty over it. That’s how it was designed. That is its core principle and its disruptive power. The net, I’ve come to see, is a counterweight to the power and authority of government and of corporations. Is this at last the embodiment of Habermas’ public sphere? I think of it more as a platform for the creation of publics. To be that, it must remain independent and free of those whose power it would check—that is, the people Sarkozy called to the Tuileries tents. If the net is our platform, it is up to us, the people of the net, to learn how to use it and to protect it, establishing and defending our own principles rather than waiting for companies to deliver theirs in terms of service or governments in laws.
As we face epochal change, it is fine and necessary to ask what could go wrong and to guard against our worst-case fears. But it is also vital that we recognize new opportunities, envisioning the sort of society we can build upon an ethic of sharing. We have the tools to do it. What Gutenberg’s press brought to the early modern age, these tools now bring to anyone in this, the early digital age. They empower us. They grant us the ability to create, to connect, to organize, and to aggregate our knowledge. They provoke generosity and collaboration. They allow people to make their living in new ways and to build new industries and markets. They lower borders, even challenging our notion of nations. I hope that publicness serves to make us a more tolerant and trusting society. But this future is not assured. The choices are ours. The shape of our new world is up to us, the public.