Key Themes of Internet, Law and Politics 2007

In preparation for the final class of the semester in Internet, Law and Politics 2007 at Harvard Law School, I am posting a draft of the core themes of the course to the class wiki. Comments, as always, most welcome.

* * *

Internet Law and Politics, 2007: Themes of the Course

– The puzzle of this course is to figure out how information and communications technologies — including but not limited to Internet per se — are changing the way that democracies work, the way campaigns are run, and the manner in which citizens communicate with one another and interact with their states. What are the most important of the changes that the use of these technologies is bringing about? Do we consider these changes to be desirable or undesirable? If you accept the premise that the use of these technologies does matter in this context, what could be done to ensure that we maximize the desirable and mitigate the undesirable? Are the changes most fundamental from the viewpoint of participatory democracy; economic democracy; semiotic democracy; or some other viewpoint altogether?

– We should acknowledge at the outset that we’re inquiring into issues that are still playing themselves out; the terrain is unsettled. The scholarly field studying these topics is still emerging. Empirical evidence is awfully hard to come by. The fault lines in the relevant debates are becoming clear, but there’s no consensus as to likely outcome or impact. Our frame of reference should be skeptical, if hopeful.

– As with any neutral technology, Internet and other digital communications tools fundamentally can be used for good or for ill. It’s not about the technologies themselves; it’s about how people choose to use the technologies. A lot turns on who is making the decisions about how they can be used. Does the citizen decide, or does the state or the technology company or the market or her peers decide for her?

– As we study and participate in this breaking story, we need to keep asking: can people really use Internet in a way that affects democracies in a *meaningful* way, or is it just cool and edgy and marginal? We saw this debate in each segment of the course: in the participatory democracy context, if Howard Dean’s campaign is the paradigmatic “success” of online campaigning, but he didn’t make it past the first few primaries, how meaningful can it really be (isn’t it all about raising money, whether or not online, to run persuasive 30 second TV spots, really)? Does e-government really change anything, other than how efficiently you can get your driver’s license renewed? If every city provided lower-cost wifi, would we really be any better off in terms of civic engagement or bridging the digital divide or other social aims? Are enough people making mash-ups that it represents a shift in control over our cultures (and is it just elites in wealthy countries who have wifi and lovely Macs with too much time on their hands talking to one another)? Is von Hippel wrong that user-centric innovation is a big deal and here to stay, or does that only work when the example is kite-surfing or other fringe (also elite) activities?

– Sometimes the changes wrought by citizens’ use of these new technologies is troubling. For instance, Cass Sunstein’s Daily Me argument represents a worry worth monitoring. clay Shirky’s power law argument draws our attention to the extent to which we are recreating traditional power relationships from the offline world in the new ordering of the online world. Some scholars argue that this framing of the debate is totally missing the point (Dean, Lovink, Anderson, Rossiter, et al.).

– The fundamental, and most promising, change is about how people can use these tools to change the relationship between individuals and institutions.

– An individual can have more autonomy via Internet and related digital tools than ever before. This change has the power to change politics. It has already changed business in a democratizing fashion (see e.g., eBay; the open source movement; and perhaps more fundamentally, von Hippel & Benkler).

– Often the way this change is manifested is via quickly and easily formed groups. Lightweight collaboration is a critical part of what’s different here. We can become members of many different groups quickly and easily and can leverage our collective power more easily than before, with vastly lower transaction costs involved. (Facebook groups are a good example of this dynamic — almost instantly, groups can express and harness broad opinion; but shouldn’t we meanwhile worry about the “Herdict,” as Jonathan Zittrain does in his forthcoming book, “The Future of the Internet — and How to Stop It”? Are the crowds really so very wise? Can you get recourse if harmed by the crowd?)

– The ability for individual citizens and activists to tell the narrative of political events directly — whether using blogs, wikis, or SMS text messages blasted to zillions of cell phones — is a big part of the change. Intermediaries, whether the state or big corporations, still have a role and can still dominate the discourse if they try hard enough, but individuals, and groups of individuals that form around ideas or campaigns, are fast gaining influence and power. This change might map to a new kind of “semiotic democracy,” or might be seen in more classic terms as part of the participatory democracy story.

– States that do not wish for the individual to have more autonomy, or more power relative to the institution of the state, have ways to push back. Censorship and surveillance, including using private intermediaries, are the surest signs of this push-back. (See the work of the ONI, RSF, HRW, and others for elaboration.) Often, the state needs to rely upon private parties to carry out this push-back. Those private parties might well be based in another part of the world, bringing up complicated questions of international law and politics.

– Private parties sometimes do not like these changes either. Intellectual property, defamation law, computer security provisions are invoked to protect the power of private institutions.

– It may not be the case that we want the power to shift wholly away from institutions to individuals. We may seek a balance between autonomy of the individual and the power of institutions. The state and private corporations, for instance, serve important functions in modern society. Most of us would not choose to bring them down. But in the shifting sands of power that are taking place on the Internet, we should be aware that our decisions involve resetting this power balance.

– How much difference can the law make in the outcome of this narrative? If you adopt Lessig’s view of what counts as “law,” the answer is quite a bit. If you limit the frame to “East Coast Code,” (i.e., what legislators pass or regulators enforce), the answer is sometimes a lot and sometimes not much. In certain contexts, the law doesn’t have all that much impact; in others, the law is quite important.

– How and when is this all going down? This story is playing out right now, all around us, on a global basis. There will be no single constitutional moment for cyberspace. These are decisions being made constantly, all the time, by very many actors — including each of us. In the readings by Goldsmith and Wu, as well as the final chapter of Benkler, these institutional battles are described differently, but with the same core premise: there’s a quiet battle going on right now, between institutional players as well as individuals, for who will control the Internet and how it is used now and in future.

– There are many ways to get it wrong: too much autonomy for too many individuals or loosely formed groups could result in tyranny of a majority or chaos; too much power retained in the hands of institutions could thwart the innovation and other positive changes afoot online. If we can figure out how to get it right, the net effect could be a very good thing for democracies.

– So, where do you come down? For me, in a grand sense, the potential benefits in terms of strengthening democracies outweigh the potential harms. The clearest example of this promise, to me, is Global Voices. People can use the Internet to empower themselves and others, and to empower loosely organized groups, to have greater voice — and, in turn, relative impact — in political and cultural contexts than ever before. In the cyberlaw literature, the arguments for why this matters are set out most explicitly in Benkler, Wealth of Networks; Lessig, Free Culture; and in the work of Jack Balkin and Terry Fisher (broadly, the literature of semiotic democracy and the Net).

7 thoughts on “Key Themes of Internet, Law and Politics 2007

  1. I wasn’t familar with your reference: von Hippel & Benkler. Help?

    Is “Herdict” composed of Herd & Verdict as in a Herd Mentality?

  2. Yep, “herdict” is a neologism of “verdict from the herd.” I think these can be very useful and powerful — in our StopBadware inititiave, the hope is that a distributed application can help aggregate vital signs and judgments from a number of sources, expert and non-expert alike, that in turn can help participants figure out good code from bad. Kind of a reverse botnet. The principle is widely applicable, I think — the kind of architecture that can help ferret out bad code can also help answer the question of filtering — “Why can’t I get there from here?” — by comparing notes among different internet users automatically.

    Also, if done right, the verdicts based on broad participation might be hard for a single entity to commandeer or subvert. But JP also points out the downside — this is a new architecture for aggregating judgments, and the more complex it is the harder it is to know why it comes up with the judgments that it does.

    Best,
    JZ

  3. Tell me, John, who will decide what’s desirable and what’s undesirable?

    For example, is it desirable if, Lord forbid, Cisco or Yahoo or Google or another software giant might make it possible for a police state to snare its free-ranging citizens as they inquire into what the police regime cosniders undesirable?

    Should there be a form of export control on software or hardware exports
    that help police states to identify ‘transgressors’?

    I’d be interested in your views.

  4. Dear Bobby: Benkler refers to Prof. Yochai Benkler’s amazing book, The Wealth of Networks. It is free online at the wiki of the same name; just google “the wealth of networks” and you’ll get there. Prof. Eric von Hippel has written an extraordinary book, too, which is also free online, called Democratizing Innovation. They are both worth reading. They connect on the topic of peer production of economic and social goods.

    Dear Ike: Who will decide? A great question. I think we are all deciding, all the time. I think we’re in a rolling consitutional moment in which we as Netizens are participating through our actions. Should there be a form of export control on software or hardware exports that help police states to identify transgressors? Well, the proposed Global Online Freedom Act suggests “yes” (though does not go on to define that regime, rather punting it to the Dept. of Commerce et al.). It would be hard for the US to pass such controls, because, as Cisco argues, there’s a US law — the Communications Assistance to Law Enforcement Act (CALEA) — that requires the hardware to be built in a way to allow police to do just that — here in the US! So, no, against that back-drop, I don’t think we should pass such an export control.

    Thanks for writing.

    JP

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