Nesson: On behalf of the Berkman Center for Internet and Society at Harvard Law School, it's my pleasure to welcome you to this, which I hope will be a fun event. I'm very curious about it myself. I have to tell you that this event is the complete brainchild of Andrew Shapiro, with, maybe, a little Dave Marglin behind the scenes. And I want to thank Andrew very much for his initiative in getting this started.

At the same time, Harvard is, well, it's an open place. At least this part of it is. And there are questions, real questions to be asked about technorealism. I mean what is it? I actually think of myself as a techno "unrealist." Or maybe a technosurrealist, I think.

Harvard Law Professor Charles Nesson opens the event

I'd like to introduce you to three people: First, Larry Lessig; Larry Lessig will moderate the first of these panels. Larry, I'm proud to say, is the Berkman Professor of Law at Harvard Law School. And he will, otherwise, distinguish himself for you. Second, Jonathan Zittrain. Jonathan is my partner in the Center, the Executive Director of the Center, and he will moderate the second of these panels, along with me. And last on the list, Andrew Shapiro. And without further ado, Andrew, may I turn it over to you.

    Shapiro: Thanks, Charlie. I'm just going to introduce people on this panel and in advance of the second panel, as well. The so-called technorealists, we're a group of writers, people who think about technology stuff, and we came together fairly loosely and informally, a couple months ago to try to articulate some principles that we thought were basically fairly uncontroversial, reasonable principles regarding how we might think about technology, politics and culture.

It's not a top-down philosophy; it's not a way of life. It's just trying to inject a more critical perspective into the debate about how new technologies are affecting our lives. And we're going to try to use these two panels this afternoon to improve upon that effort, to get into more depth, to explain what technorealism is, and maybe explain what it's not.

The first panel is entitled, "What is Technorealism?" And it's an overview. And Doug Rushkoff, on this end, we'll start with Doug, he's written four or five books, hard to keep track, he's a contributor to Time Digital, and to the New York Times Syndicate, and regularly thought of as a leading social theorist about all things digital and cyber.

David Shenk, next to him, is the author of "Data Smog," an acclaimed book about the digital age and, particularly information overload. He's a commentator for National Public Radio and he's written for leading magazines, such as Harper's and the New Republic.

Mark Stahlman is one of the co-founders of the New York New Media Association. He writes regularly about cyber culture and politics.

"Technorealism is not a top-down philosophy. It's just trying to inject a more critical perspective into the debate."

He is also a noted gadfly in the cyberspace field, and is well noted by people all over the spectrum for putting up a good fight.

Simson Garfinkel lives out in Martha's Vineyard. He writes for Wired magazine, for the Boston Globe, you've probably seen his technology column. He runs an ISP out there called Vineyard Net. And he's a computer security expert; he writes books on those topics.

Paulina Borsook came in from the Bay area. She's working on a book called "Cyberselfish," which will be out shortly. Paulina is a leading critic of cyber libertarianism and has written for Wired and many other publications.

I'm going to quickly identify the other people who are on panel 2, who constitute the rest of the original signers of the technorealism statement. I see Dave Bennahum here, in the front. David is a contributing editor at more magazines than one could mention. But I think among them are Wired, ID, Lingua Franca; we'll stop there, I guess. David is finishing a book which is out this fall and is a personal memoir of computers and growing up with computers.

Brooke Biggs came in from the Bay area, also, and Brooke is a journalist at the San Francisco Bay Guardian On Line, and at the CMP Insider Techweb, and does work with other major online organizations, as well. We're glad to have her here.

Andrew Shapiro, Berkman Center Fellow

Steve Silberman is with Wired News, a senior writer there, and an all-around guru of, I'd say, Bay area living. ...(laughter)

We are waiting for three people who, because of the inclement weather, I think, have gotten a little bit delayed, but they're on the second panel anyway. But I'll quickly mention them: Steven Johnson and Stefanie Syman run what I think is probably the most interesting online 'zine, called FEED. And if you haven't checked it out, you should at FEEDmag.com. And they started it a couple of years ago. Steven is also the author of "Interface Culture," which is a very interesting book, and Stef has written for Rolling Stone, Wall Street Journal and other important outlets.

And also Marisa Bowe, the former editor-in-chief of Word, one of the most important online 'zines, as well. And I guess, with that, I'm going to turn it over to Larry Lessig to start Panel One. And I'm Andrew Shapiro by the way. And I'm a- (applause) fellow here at the Center.

    Lessig: Okay, so I'm Larry Lessig and I'm a moderator, and I'm a moderate moderator, independent of everything that goes on up here, and of course, independent of everything else in the world. I have no ideas and no thoughts ...(laughter) I'm here to bring out some ideas and thoughts, and start with a kind of critical summary of what this stuff is supposed to be about. It's a little bit bizarre, this stuff, technorealism. The sociology of technorealism is a little bit bizarre.

When the realists first pulled themselves together, I guess, I was struck by the extraordinary number of people who were furious about the existence of the technorealists. Now, I understand some people being furious, namely the people that are supposedly attacked by technorealism; it's the other people who aren't really attacked who are furious that I'm a little bit miffed by. You know, some of us were never cool enough to be considered a potential technorealist. So we weren't really worried by this at all.

"The sociology of technorealism is a little bit bizarre.... What the hell is this stuff about?"

But maybe there's a class of people who are almost cool enough to be a technorealist, who weren't called technorealists or something. They're furious about this. So there's something exciting here just because of the fury, right? But then, as I sat down and had to think about what, really, this stuff is about, as I go through these eight principles of technorealism, I think here is a kind of odd confusion and conflict in this list, that is fun to kind of puzzle through. And I tried to puzzle through. And the way, I think, I think in three's, and it just turns out that there are basically three ideas in these eight principles. And I'd like to just kind of put them in context. And I think that two of them, you guys will have no problem with, and one you might have a problem with.

So here are the eight principles of technorealism, a little bit obscured on the left, but that's appropriate, I think. ...(laughter) The eight principles of technorealism, that are this weird mixture of the following ideas, right? Here's the first, simple, banal idea that technorealism is about. It's great, it's important, but it's number two, not number one. And this is just about the idea that, look, we've got to take technology seriously, as technology is real. So who could disagree with that? This is the idea that we need to take this stuff seriously as a part of social and political life.

The second set, I think, is the more interesting set of technorealist principles, and it's interesting to me, because I'm kind of a, you know, boring law professor, who likes to think about the links between this and other historical movements in legal thought. There is a historical movement in legal thought, this law school contributes to its development quite importantly, that happened at the end of the last century. That's called "legal realism." And here's what legal realism responds to. There's a group of people out there who talk about something called "the market," and they say, "What we need is no regulation of the market. The market is just a natural order that exists out there that takes care of itself, and if we just stepped aside, the market would take care of all of our problems, right?"

Larry Lessig, Berkman Professor of Law

Now this, you know, way of "thinking" ...(laughter) dominates thought for a period of time, until people come around and say, "Wait a minute, this is bizarre that anybody would think this." The market is fundamentally political. It is constructed by government, contract and property, these are government's tools to construct the market. And the realists begin to say, "We need to think critically about the market, and how the market actually advances social policies, and doesn't advance social policies, and be realistic about that."

Now, there is a link from legal realism to technorealism in these three principles. Principle number one, technologies are not neutral, like markets, they're not neutral. We must think about the political values implicit in particular technologies.

Three: Government has an important role to play on the electronic frontier. Here's where these guys get in trouble. But, great, wonderful, right? Here is the "We need to think about how to regulate" in this context to advance values where these values have been displaced because of this market, sort of, laissez-faire ideal.

And number three is something like-- turns out to be number eight: Understanding technology should be an essential component of global citizenship, once again, the idea that people must see the politics in architectures that constitute the Web. These three ideals of technorealism, I think, are fundamentally important continuations of a critical tradition in law, and in critical thinking, generally, about anti-laissez-fairism in the sense of, "Let it all take care of itself and Panglossian ideals will bloom," right? That's what these three are about.

Now, there's another four. I don't know, I didn't have a really good name for them. Sometimes, I like to call them hype, and other times, just hype. But here they are. And who knows what these things mean, right? Or better, who are the opponents to these four ideas? Must be Barlow, right? You disagree with all four of these, right? Barlow, of course, says information is knowledge. Who says information is knowledge? Information is not knowledge, principle four. Okay, great. Wiring schools will not save them. I missed that claim. Who made the claim that wiring schools will save them? But somebody apparently did. These guys are against that idea--

Information wants to be protected. Well, we know the origin of the meme that this responds to, but this is bizarrely controversial, because if you read the real play of this, information wants to be protected, turns out to be, we need to replicate the real space copyright fair use regime in cyberspace, in some form. That's a nice thing for us to argue about.

And finally, the public owns the airwaves; the public should benefit from their use. Great. I don't know what that means but great. So here are four claims; I have no idea what they really mean or what they're really about. They don't seem to connect with much in my tradition, except the hype in my tradition, which is quite important, of course. But that's where I want to start. Andrew, what the hell is this stuff about, these four ideas?

    Shapiro: I'll start with the last one. The spectrum giveaway, by the United States Congress, taking space, taking goods, which are essentially owned by the people and giving them to private actors who benefit from use of those goods and that space and profit from it, in a manner which is completely exclusive and does not trickle down to the public, this is the digital television spectrum giveaway. It's a perfect example of how public resources, particularly in the arena of communications and technology, are often squandered, because of special interest pressures, because of a lack of foresight about public property and public ownership and public spaces, the public sphere.

And in response to that, actually, I don't think it's that controversial to say, that the public deserves more, when its resources are given away to private actors. So if Harvard Square, and I mean Harvard Square in the non-Harvard/Cambridge public property sense, were to be given to, oh, I don't know, Harvard ...(laughter) or some private entity, and they said, "Well, you know no more use of the public square because we're just going to use it, and every time you want to cross through this way, you have pay $5, and only certain activities will occur here, and speech will really only be free in the sense that we allow it to be free here," we basically think that it's important for the public to re-claim its ownership of the airwaves, and to be credited for it, and paid for it when those airwaves are essentially given away. That's one principle. And that's an important principle for technorealism. But I think that's something that a lot of people would agree on.

    Lessig: Right. What does it show that we've missed, though? Because you start the whole claim about technorealism by saying there's a certain blindness out there. People aren't getting something. Because they're either trapped in the neo-Luddite mentality, or in the techno-utopian reality, but what is this missing here? David?

    Shenk: I think I want to take issue with your premise, because that's not what we meant to do. And if people are reading it that way-- actually, no, what we said was that this is not a manifesto;

David Shenk, author, Data Smog

we deliberately did not use the word "manifesto," because we didn't want to connote that this was a body of knowledge that the twelve of us secretly had gotten together and discovered, and we were going to release it on the world. In fact, just the opposite. We see most people working in this realm, in this very nuanced, very interesting middle realm. It's not neo-Luddite and not techno-utopian, as we call it.

But the debate is, we think, too often, dominated by the extremes, which are still out there and quite vocal. And what we were trying to do was formally articulate a lot of the intelligent things going on, and a lot of the debate in this center, with a name and some words, and to try to order it. And we haven't, maybe, done a particularly good job ordering it, according to you, but now, we never claimed that it's our new information. We just, in fact, we explicitly said that we've seen this out there, and we're just trying to put a name on it and help foster the debate.

    Stahlman: But, Larry, this shouldn't be confusing, at all, if you followed the details of either the PCS auctions, or the digital television spectrum give-away, the first thing you'd notice is that there was no intelligent public debate about either of those questions. What technorealism is calling for is an intelligent public debate about all these questions. And so we go back to the PCS spectrum auctions, which were justified, based upon a budget deficit that no longer exists. So we have long-term leases on major pieces of the spectrum, for a reason that disappeared There should have been a debate about that. And I happen to know, because I attempted to get op-eds published unsuccessfully, attempted to get George Gilder to write something about this, unsuccessfully. He later changed his mind and wished that he had written something. But there was absolutely no discussion in the pages of the New York Times, or anyplace else, above what was going on.

And likewise, this whole digital television exercise. Why did the FCC force upon the television industry a 2006 turn-off of analog television? No one in the television industry wanted it. They accepted the spectrum as a part of a series of trade-offs that all happened well out of the public eye. And so the item that you happened to have picked here is the most logical, in a sense, of all-- ..(simultaneous conversation)..

    Rushkoff: Yeah, and, I mean, it could have as easily been about domain server registration or any of the other kinds of resources that seem to be moving more towards private and profit-control.

    Lessig: But what I want to just get you to think about here is the relationship between that claim, right, that there is not "public debate," and the last, sort of, what I think of, as the realist set of views here, that are about the idea that government must be involved here. Because what is the fact? The fact is that this spectrum was given away by the "government." No public debate translates into no effective public debate, but it doesn't translate into non-governmental action. The government was playing a role there.

Now what I like is, the sort of three realist principles talk about the need for government; who are you talking about? Because all these things you're complaining about in the second, and the domain names is a good example and--

Mark Stahlman, co-founder, New York New Media Association

    Stahlman: I completely disagree. The government was not involved, even thought the agencies are the US government. But when you walk into Congress, as many people have written, extensively, who in the government stands up and speaks authoritatively about technology policy questions? A very small number of people. There's only a couple people in Congress, a couple people in the Senate, the FCC; there are a lot of other people in the Pentagon and other places who don't talk publicly about this, for a variety of reasons, but the government, in the sense of a constitutional republic, holding some sort of major discussion about something important like this did not happen.

   Lessig: That's what sings in your second set, "The government, in the sense of a constitutional republic. Then, realism comes back. Not technorealism, but real realism, we look around and say, "Where is this government? This constitutional republic? Who are invoking, except, processes that already exist right now?" So what are you giving us, beyond what exists right now, which we all, I think, when I said it was hype, it was in the sense that I didn't see what was controversial about the claims.

   Garfinkel: Well, you're correct in that we've found some general principles, and then we have some specific things that we're angry about. And the specific things that we're angry about, and I'd sort of put number four in the general principles, but wiring the schools and the breakdown of intellectual property protections, and control, by writers over what they write, the airwaves. What we're seeing in our society today, is the abdication of reasoned debate and, as you said, with the laissez-faire allowing the market to run wild.

And we seem to be at this point in our society, where the idea of capitalism and the free market, as an ideology as the dominant religion of our time. And in part, that's because the Soviet Union collapsed, socialism has been completely discredited in people's views; and it's unfortunate that we've come to such a consensus in social policy at the exact point that we're laying the framework for the 21st century. Because many things are being built into the structure of tomorrow's society, which will reinforce these market notions. And I'm very uncomfortable with many of those market notions.

"What we're seeing in our society today is the abdication of reasoned debate."

Now, to move the argument away from the airwaves and over to the schools, yes, the government, our government has made a lot of decisions about the schools. So we want to government to play a role on the electronic frontier, but we also think that there are many other roles that the government should be playing, and on the whole, when our government has been making decisions about technology, it's been adopting a techno-utopian point of view that the best thing the government can do for the schools is to give then Internet connections. And we have this global fund, some sort of tax, on our telecommunications services, so that we can bring Internet connections to our schools. And I think we're saying that these are not reasoned ideas, and that they're not decisions that have been made, taking full account of the underlying technologies we're working with.

   Shenk: And just to jump in, to answer a question you asked earlier, who said that wiring the schools will save them-- Bill Clinton said there will be revolution in education because of Internet connections.

   Stahlman: Actually, John Gage of Sun Microsystems wrote a piece of the State of the Union speech, that Bill Clinton then stood up and read.

   Rushkoff: The other thing that might help is that I would admit to being as utopian as almost anybody who talks about this stuff. And I probably still am but--

   Shapiro: He's a recovering utopian.

Author Doug Rushkoff, "recovering techno-utopian"

   Rushkoff: I am. But much of my own online experience and when I've talked to other people, their experience of online community and online conversation has changed dramatically over the past few years where, if anyone's been on a usenet conversation or on The Well, any discussion immediately polarizes into two extremes and those polarized extremes are what we, as journalists, end up, pretty much writing about. So you see, in USA Today, you'll see some guy writing, "Oh, there's computers in our kids' schools and no one knows how to use them; they're all in the closet, we shouldn't give any money to that at all."

And then you've got someone like me going, "Oh, computers are going to save the classroom and the kids will go and it will be great and they will be 'screen agers,'" and for the general public, and I think there is a general public, they see these two extremes and they go, "Well, duh, can't you just get a few less computers and then hire someone who also knows how to use them and, maybe, teach people." And no one's saying that. So I think the "duh's" in here are essentially acknowledging to the public, saying, "Yes, we're having this weird extremist talk about 'legal realism'," which I just learned about today, thank you, "and libertarianism, and all these deep issues, but there are a few of us who understand that, yeah, there is a middle ground and there is a way to do this logically and realistically."

   Lessig: But still, I want to come back to understanding, who is the government, here, right? Because--

   Panelist: We, that's what I learned, we are the government, we the people.

   Lessig: Well that would be nice. We the people, we, these technorealists? I mean who's the "we" here, right? Simson sort of talks about how it's bad that all of a sudden, we've all settled on market capitalism as the solution, and what does that mean? That means that pretty much we, in the sense of constitutional democracy, at least as expressed through the governments that I know, embrace market capitalism as the solution.

And what they do is, as Doug's complaining, we sell out, we sort of think about how to privatize domain names. We very poorly privatize the air space. So market solution, as expressed through "We the people," in our government, is the dominant solution, and you guys come along and say, "I don't know, a different 'we' is what? What is the contrast here, and who are you appealing to?"

   Rushkoff: Well, it's not Newt Gingrich, I guess, is what we're saying.

   Lessig: Well, that's too easy. I mean, nobody's going to appeal to Newt Gingrich.

   Rushkoff: It's different elected officials. I mean when we started out on the Internet, the government was seen as the enemy,

"Can't you just get a few less computers and ten hire someone who also knows how to use them and, maybe, teach people?"

at least when I did, in '88, '89, the government was the enemy of the hackers. The government isn't the enemy. That's not the "they" that we're afraid of anymore. The "they" that I feel more afraid of is this corporate America, so I've found, or they've found me, people who I formally consider policy wonks, it's like, "Okay, protect us. Do that government thing that you guys do ...(laughter) and make this more civic again."

   Lessig: Okay, good. So step one was a world where the techno-utopians said, "Government bad." And here's John Perry over here, "Government bad." ...(laughter) And not just government bad, but government bad and government can't do anything anyway. Those are two ideas that sort of start in the very beginning.

   Barlow: Government incompetent.

    Lessig: Government incompetent, right. ...(laughter) So now government can't do anything in two senses: One is that they're just incompetent, and the other is that the architecture of the Net is such that you can't regulate anyway. You guys come along, and Paulina, from a long time, has been attacking this type of view.

The second step now, is you guys want to say, "Look, government is not bad, especially when you look at the other 'bads' that are out there," and here's one of them, you just identified it, corporate. Is that really a principle here? Anti-corporate influence in this?

   Shapiro: Not anti-corporate influence, but look, I think if there's one word that summarizes what this is all about, it's balance. And the legal realists understood that the market came down to questions of balance. Contract and property don't work in the state of nature. Someone takes your stuff, where do you go to get it back? No where. You need balance. But balance doesn't mean communal ownership. Because as Simson said, that hasn't really worked either. But a balance between free market, autonomy,

"If there's one word that summarizes what this is all about, it's balance."

individualism, and at the same time, some conception of the public interest, protection of that public interest, and a role for equity and fairness, is what the people should be demanding of their government.

Now, I want to take issue with one thing that Barlow just said: "Government bad versus government incompetent." I think that the two got so confused during the early years of this space, because actually, you're right about the empirical claim: government, yes, mostly incompetent. But the difference between that view and the technorealists' view is that our view is aspirational. It says--

   Q: Utopian?

   Shapiro: It's not utopian, ...(laughter) it's aspirational. Let me just finish the point, which is, I get in debates all the time online with cyber libertarians who say, "No government intervention in cyberspace!" My favorite thing to say is, "The Internet is a government intervention." And of course, we would all have to acknowledge the truth of that, the Internet would not exist, but for the government's intervention into the so-called market or the sate of nature, or whatever it was. TCP/IP is a government standard, essentially. It would not be here, were it not for public funding, and the public driving of all the efforts to create the Net.

   Stahlman: I'd like to try again to move the conversation away from the specifics of the form of government to the question of public debate. And without unduly focusing on John, he once wrote, in Spin Magazine, the future of governance would be post-reason. Basically, the only thing he could say about what the future of governments would be, but it wouldn't be reason; it would be post-reason. And that is precisely what we're talking about. We have already moved into a realm that appears to be post-reason. There's no reason behind these decisions that are being taken. Because there isn't a larger public debate. And so it is the distinction between information and knowledge in one of our principles here, which may be the cornerstone, in some sense, of all that we're talking about.

I would also reduce all of these principles into a smaller set. ...(laughter) The two, however, are the one you identified about the state, which we've been talking about; but the other condensation of this is this demand on our part that we somehow step away from opinion and wild claims and justifications for things that make no sense when you really examine them, into something that has more of a basis in knowledge, and, therefore, some more broad public debate, which is what we are calling for. It's the--

   Lessig: Okay so you're not--

   Stahlman: --future of the governance must be reason, not post-reason.

   Lessig: Okay, so we have the facts here. Don't bring the facts in John Perry. ...(laughter) That's really cheap.

   Panelist: Information is not knowledge, John. ...(laughter)

   Lessig: Facts are not knowledge.

   Q: ...(inaudible)

   Lessig: Right. But then you're not talking about something particular to cyberspace, right? Now, you're complaining about-- I mean it's a good complaint, you're complaining about democracy in America today, in general.

"These points [don't] necessarily have an enemy...I mean the enemy to them would just be ignorance."

   Rushkoff: And I think part of this for me is that a lot of these issues are not particular to cyberspace, and in some sense, maybe there's not a hell of a lot that is particular to cyberspace. We have government, which isn't a terrible thing. They made libraries and parks and all sorts of things that, maybe, they'll be good at providing in an online environment, as well. Maybe there is no real difference.

   Lessig: Okay, so who's the enemy?

   Stahlman: Bullshit.

   Lessig: Bullshit is the enemy.

   Stahlman: Yeah.

   Lessig: Well this is controversial. ...(laughter)

   Rushkoff: I don't think that these points necessarily have an enemy and I don't think that they depend, I don't think that the sanctity of these arguments depends on an objective enemy to them. I mean the enemy to them would just be ignorance.

   Lessig: Right, but you want to disagree with somebody, right?

   Rushkoff: You want to disagree with us, but I don't think we're looking to disagree with anyone in particular.

   Lessig: Only for another half an hour, do I want to disagree with you. ...(laughter)

   Rushkoff: No, I really think what we're trying to do is to provide, actually, a sounding board for what we think is a great majority of people.

   Shenk: Why did the principles have to be controversial to be worth talking about and interesting?

   Lessig: Maybe they're not. I'm just interested in the way that they are controversial. They happen to have gotten a lot of people upset, so I want to know what it's about.

   Rushkoff: The only reason people got upset was because anything online gets people upset. ...(laughter) Really.

"Cyberspace is like a centrifuge... As soon as you've put an idea there, there're going to be people looking for which side it's on, and 'how do we attack it?'"

I mean, cyberspace is like a centrifuge, so as soon as you've put an idea there, there're going to be people looking for which side it's on, and 'how do we attack it?' Because it's like there's no ground there. Or because people go, "Oh, this one has a book coming out so they're trying to--

   Shapiro: The fact that if you look at the list of signatories to technorealism, and this is not just shades of gray, this is paradox and contradiction, on the list of signatories, are Kevin Kelly, Executive Editor of Wired magazine, often thought of as one of the leading cyber utopians of libertarians, and someone like Langdon Winter or Richard Schlove, or Howard Rheingold or others. I mean, Rheingold's not the best example, but others who have been identified in public forums as Luddites or neo-Luddites. So technorealism doesn't need to be situated on a spectrum.

   Lessig: Except in the middle. ...(laughter)

   Garfinkel: I want to answer your question and then have Paulina say something.

   Borsook: Whether she wants to or not.

   Garfinkel: Yeah, whether she wants to or not. ...(laughter) Earlier, you asked who we were appealing to, and that would sort of be like a question in the 1965 - 68 time period, asking the environmentalists of the time, "Well, who are you appealing to? We know pollution is bad, but who are you rally appealing to?" And the government has made decisions to let rivers catch on fire and lakes go dead.

Simson Garfinkel, columnist, Boston Globe

Well, I think we're appealing to that great reservoir of American common sense and American people saying, "Look up and seize control of your country. And realize that there are decisions being made that are not in your interest. And the only way that you can make those things happen that are in your interest is to take an active part and to educate yourself. And to take place in this public discussion."

Thirty years ago, the environmental movement was gaining steam. And I hope that today, we're going to be putting in motion a technorealism movement that's going to be gaining steam to say, "Let's look at these technological issues rationally, and not just equivocate or abdicate our responsibility to make decisions on them. Let's figure out where there's a role for government, where there's not a role for government, which technologies are desirable, which ones we should not do, what is an appropriate use of public money what's an appropriate use of private money, and move forward. What we've been doing is we've been trying to move forward as fast as we can with our eyes closed. And that's a mistake. And I want to hear what Paulina has to say.

   Borsook: Well, I always say I'm not intellectual and my brains are made of fluff. But a couple of things have been on mind when I've been listening to everybody talk here. Because one of the things I'm always harping on, and when you talked about what is the relationship over government with all this stuff or who is the "we", is that I feel like there's so much imbedded government in how technology works. Everything from the fact that we more or less live by rule of law here, and the interstates more or less work, and your work study job is more or less paid for, there's a million things where you may not see the cop showing up at the door, but the government is making all this good technology come about.

There's another thing that I find myself thinking about is that the dynamic tension between the regulation and the market is a good one, and they should continue to bark at each other.

Paulina Borsook, author

And that's kind of a boring and obvious thing. And then this wiring the school thing is particularly irritating to me, because there's this phenomenon, now I live in Northern California, and I realize that that's a very strange place, but there's thing that I call "cat dead ratness", which is, if a cat loves you, it will give you a dead rat, whether you want it or not, because it's the thing it loves most. And so you see a lot, in Northern California, of throw technology; if you throw technology at the problem, it will solve it. And so maybe around here, people are more enlightened and they don't hear this "wiring the schools will save them" thing. But I see it everywhere I go. Now that's perhaps too specific a response.

   Garfinkel: It's a great response. ...(laughter)

   Lessig: You're taking back the mike now. ...(laughter)

   Garfinkel: Because the wiring the schools is one that I'd like to focus on. You know, we've seen a tremendous amount of money spent on this whole idea of bringing the schools up to line, but we're really bringing up the schools to line to 1997 technology. And in five years, we're going to be saying, "Well, we have to re-wire the schools for the new technology."

   Lessig: So you're against wiring the schools?

   Garfinkel: Oh, well we can talk about that, but ...(laughter) that's--

   Lessig: No, that's what I'm trying to do. I want to talk about it. What are you against? Are you against wiring the schools?

   Garfinkel: I'm for paying teachers more money. ...(applause)

   Lessig: Yeah, okay, me too. But I want to know, are you against wiring the schools?

   Garfinkel: It's unfair to say yes or no. Since there's a finite amount of money that society seems to be willing to spend on schools, I'd rather see that money going into the pockets of teachers than going into the pockets of Cisco Systems and 3Com.

   Lessig: I think that's a great position. I just want to be clear what the answer is.

   Garfinkel: But this is a misallocation of resources.

   Lessig: Right, so you're against wiring schools.

   Garfinkel: Yes, I am.

   Lessig: Okay, fine. ...(laughter) So that's all I'm asking. (applause) What it is is you're against the wiring of schools and you want to use the money to pay teachers more.

   Garfinkel: That's right.

   Shapiro: Let me just jump in to put the spot on David, since you may not know this. In David's book, he also makes the points, not just the question of if we had the money,

"Ideas like cyber-utopianism have an important influence on public policy... People read this stuff in Washington; they make policies accordingly."

David makes the point that putting computers in every classroom is kind of like, make sure I get this right, putting a power plant in every home, something like that? And that there might actually be something about judgment and reason and cognitive development that is not well served by wiring schools, even if we had the money to do all of Simson's great stuff and wire them.

   Shenk: And I would also say that, and really the most important point about it to me, and I honestly don't know how I feel about wiring the schools without any of this context, but I agree with Simson that in the context of the resources we have, I think that I'd rather see them spent on other things. But I think it's also important to realize, you know, we, in this society, already know how to do, successfully, many, many things very, very well. And one of them is we can educate people very, very well.

Before computers came along, we knew how to do that. I think, now you could argue that computers are going to help us educate more people more cheaply; it's going to save us money. I don't agree with that. I think we know how to do it very, very well, and if we spend the money, not just spending the money, but if we follow the prescription that many, many schools follow pre computers, we can do a wonderful job and I happen to think it's the most important thing we can do, as a society, is educate our children.

   Stahlman: I know that David and Simson have young children. I'm probably the only one on the panel old enough to have old enough children to have gone through this phenomenon. My fourteen-year-old daughter will be an excellent example here of what has been demonstrated over and over again, even though it is resisted for a whole host of reasons, which is that fundamentally, the only thing that really impacts kids' performance in school is whether the parents care about the kids' performance in school. And the reason why some sub-groups of the population do much better or much worse, it seems to me, is very straightforwardly a matter of hope within those families and the way that hope is expressed, in terms of the parental/child relationship. So I'd be very enthusiastic about some design to use technology to encourage parents and kids to care a lot more about their performance in schools. But that's absolutely not the way it's being done.

   Lessig: Right, well it is the most interesting of your proposals, because it does seem to me a little bit inconsistent with, again, the set of proposals about how government needs to intervene in the following sense: In this context, government doing "nothing" is to not wire the schools. We know that if government does nothing, rich kids will have access to computes and poor kids won't. And I think that it's not controversial, right that--

   Rushkoff: But is government doing nothing thought, having Cox Communications go in and do Channel One with McDonald's and all that?

   Lessig: No, I--

   Rushkoff: By government doing nothing, you're saying, would lead to no wiring of the schools and that's not necessarily true.

   Panelist: ...(inaudible)

   Rushkoff: There might be more wiring. I'm actually for wiring the schools; just doing it a little more intelligently than thinking of, you know, we're going to save them--

   Lessig: Okay, so what are the principles, then, that guide us in wiring the schools? Simson's against it but you're for it. And now we're trying to figure out what you're for when you're for wiring the schools.

   Stahlman: Well, let's be rational about it. We have enormous amounts of anecdotal, all sorts of studies. We've got all we need to know that it's the parent/child relationship. We don't need to study this anymore. And yet it gets, for a whole variety of institutional reasons, get's buried. So what we're precisely saying here is, government is involved with this but not rationally.

   Shapiro: And I just had a quick point, which I think, one of the reasons that we included, since none of us are experts in education, to have the moxie to put this in there in the first place, was because it's an exemplar of a rhetorical style which is so predominant in this area, that we could have been talking about almost anything, tele-medicine, for that matter.

And I think it's good that we point out that the culprit here is not some dreamy person from Silicon Valley, but the President of the United States. And this is an indication that ideas like cyber-utopianism, have an important influence on public policy. They trickle down or up. People read this stuff in Washington; they make policies accordingly, like let's do universal service funding for e-rate education, libraries, schools.

But the other point about it is that it's a rhetorical style. And President Clinton is as much beholden to it as anyone. I mean he has described the Internet as a "free trade zone." What does that mean? The Internet is not a free trade zone. I mean this whole debate about taxation on the Internet, "No taxes on the Internet," well, what does that mean? That's not actually what the bill says. The bill says "no discriminatory taxation up and above what you'd pay L.L. Bean when you order a sweater and you get it through UPS, over the phone.

So there's a kind of grandiosity to the way we talk about technology that just doesn't serve us well. And that's what technorealism is about countering, if anything. It's about extending the debate and bringing it back to a real level.

   Shenk: Let me "piggy back" on that point. I think another way of saying what Andrew just said is that language matters. And one of the things that we observed as we were just kind of thinking about this very vaguely, before we even started writing anything, is that there isn't a word, there wasn't a word in our lexicon to connote the idea of someone who's very enthusiastic about technology,

"And he said, 'Well, you're either a technophile, or a technophobe; which one is it going to be?'"

who thinks the Information Revolution is one of the most wonderful things happening to society now, but who's also very, very concerned about aspects of technology.

And this hit home for me 20 or 30 times when I was publicizing my book last summer; and just very quickly a story, which I think kind of is representative of what's happened to me many times. I went into a radio station, KPFA in Berkeley and met the host outside in the hallway, and he had read my book, which was wonderfully reassuring.

   Q: ...(inaudible)

   Shenk: And he said he read it-- no, we talked about many of the ideas in the books. And he understood what I was trying to say and he understood that I was someone who was a skeptic, in the healthy sense of the word. I was enthusiastic about technology, but I was also very concerned about various issues. We get inside the booth, he flips up the mike, the light goes on, we're on-air, the headphones are on, and he says, "This is David Shenk, he's written a book called 'Data Smog,' which basically says that the Internet is a giant hoax."

Now, that may seem just completely out there and how could anyone say that? But that is just an extreme version of what many, many people have said, and just recently, I had an argument with John Tierney of the New York Times, where he called me a technophobe. And I said, "I'm not a technophobe."

And he said, 'Well, you're either a technophile, or a technophobe; which one is it going to be?" ...(laughter)

   Rushkoff: Exactly, and I would get the opposite. I would go on that, probably that same radio show and they'll say, "Oh, so when our children are living in cyberspace, will they still come home for dinner?" ...(laughter)

   Lessig: And what's the answer? ...(laughter)

   Rushkoff: Of course not! ...(laughter)

   Garfinkel: They can't eat in cyberspace. You can't eat in cyberspace; there's no place to. But I'd like to, since we only have like ten minutes left on this panel, move--

[end of side A]

--move to number six, which everybody says is the Disney point of view, you know, the one that Disney paid us to put in..

   Lessig: Are you collecting royalties on that yet? ...(laughter)

   Garfinkel: I'm still waiting, you know. But sarcasm is very dangerous. And number six has come across as saying that we're in favor of big business being able to control its property on the Net, and we're opposed to things like free speech, and we're opposed to things like the rights of the people to pass information around. And I think that's a real misreading of this point.

   Lessig: So what does it say?

   Garfinkel: It says, "Information wants to be protected," and--

   Lessig: No, I understand that. ...(laughter)

   Garfinkel: --it's an argument against, information wants to be free. And I signed onto point number six, because I'm tired of not having my work, as a writer, being protected against large, corporate interests.

Panel One

And I'm tired of the power of the market, and the large media empires exercising their control in negotiating contracts that are very unfavorable to me.

And I think that, as we're moving into this new world, we need to understand that, we need to take none and to understand what's happening to information and understand what the subtext are to "information wants to be free." I don't like it when my stuff is given away for free, because there's some company that benefits from that, but I don't benefit from that, myself.

   Lessig: Yeah, but this is getting more and more bizarre to me, right? Because what this thing actually says, your sort of subtext explanation is that we ought to create a kind of equivalent to the real space mix between property controls and fair use in cyberspace. And you start by saying, "I'm really upset about the real space, controls that exist right now for copyright. So what precisely are you disagreeing with? Do you want--

   Garfinkel: No, I think that you're reading this as an electronic manifesto. And I don't think that number six is specifically discussing saying that-- well go ahead, I'm sorry.

   Lessig: It's not discussing what, then?

   Garfinkel: You know, it's not proposing a solution; it's saying that we need to be looking at what's happening with information and with ownership of information.

   Shapiro: But there are specific policy controversies that number six responds to.

   Lessig: Barlow's performance exercise.

   Shapiro: Well, Barlow's performance exercise, yeah. I mean, there are certain critics who have claimed that copyright can not exist in a digital world; whether we are talking about copyright of material online or off, I think becomes irrelevant. Because eventually, all material will be in digitized form and will be essentially, online in some way. And there have been proposals by Esther Dyson and others who have said, "Instead of compensating people with the traditional form of copyright, which is a limited exclusive license to use works, in order to incentivize to get people to create 'good stuff' for society, let's compensate them in other ways. Like writers will be compensated by giving lectures for five or ten thousand dollars a pop at, you know, big corporate conferences--

   Panelist: ...(inaudible)

   Panelist: Some writers. But there's also a whole bunch of other things that are going on in the copyright arena, attempts to criminalize copyright statutes, to create what's called sui generis information protection for databases; when we say, "Information wants to be protected, we want it to be protected from those kinds of conglomoratized, monopolized aggregations of information.

We're calling for a balance, between the exclusive interests that come from wanting people to create stuff, creativity on the one side, and fair use; fair use is the idea that the public has an interest in essentially cutting into that exclusive right and saying, "You know what? I want a quote from your book, and I don't care if you have a copyright on it. Because it's important to social knowledge and free speech for me to be able to quote from this book."

And that principal has worked pretty well, up until now, because--

   Lessig: Okay, but let's put this a little bit more in context. John Perry Barlow writes an article, the last part of this article is the one that's forgotten, the part that's forgotten. And I think the part that's most interesting. The last part of John Perry Barlow's article, the one that says, "Information want's to be free and copyright's going to be dead," is "Well you know, there's this technology out there, encryption technology, that could, and he suggests, maybe, should develop to permit copyright owners to control their words through code, rather than through law," right?

Now, you could use the code, the architecture of cyberspace to protect your words and digital copyright management systems and trusted system, by Mark Stefik, at Xerox Park, visions of this, to use the architecture or cyberspace to protect the copyright--

   Rushkoff: That's true. And you can hire a private army to protect your property instead of depending on the US armed forces.

   Lessig: Let me just finish this point. Because I want to respond to exactly what you were saying. You can use this code to protect information, rather than using copyright law. Now, here's the question, I want to know about this claim of information wants to be protected. The problem with using code to protect information is, as Andrew was just saying, there's no necessary fair use built into the architectures of these code systems, right? Trusted systems doesn't require that you have fair use built into it. So when you say, "Information wants to be protected," I read it to be that Barlow's idea will take off and all these architectures of control will be built into the Internet and information will be protected and fair use will be dead. Now, are you against that?

   Shapiro: We are against that, strongly against it.

John Perry Barlow, Co-Founder, Electronic Frontier Foundation (EFF)

   Panelist: ...(inaudible) ...(laughter)

   Barlow: What I said was that we could have it both ways. But we're not going to be able to have it both ways ...(inaudible) by the industry.

   Lessig: No, say more, John.

   Barlow: Well in essence, I thought that it was unlikely that copyright was going to preserve itself under conditions where there were no copies ...(inaudible) where someone could make an innumerable copies and distribute them infinitely at zero cost. And if you were go try to preserve the method that you've been using into cyberspace, what you were going to be doing, in essence, was to preserve the ability of large, corporate entities, publishers and other kinds of distributors, to go on doing what they've been doing, to the greater diminishment, as it has been all along, of the creative people.

I wanted to set something, set up an architecture that would make it possible for creative people to protect their own work and not use law, which is going to be naturally inclined to protect publisher and not creators--

   Stahlman: Do I misremember your saying at a conference in New York, that the Berne Convention was fundamentally the ultimate bulwark of the nation state, and that it would only be by destroying copyright that we would finally be rid of the nation state.

   Barlow: No, you have a marvelous way of taking what I say and turning it into something that you're thinking I'm saying. But what I said was that if you wanted to have a global system, whereby the nation state could preserve itself, something that would extend beyond its own boundaries, and maintain the ability of the nation state to restrict freedom of expression in a global environment beyond its jurisdictions, the best way it could do it would be through the Berne Convention, and it was already doing it. And imposing the constraints of the Berne Convention on cyberspace would be the only method the nation state would have to rule cyberspace. That's what I said, essentially.

   Lessig: Okay, but let's pick up the last part of the question. So let's imagine that these code architectures develop, and the code architectures develop such that they don't preserve what traditionally is protected by fair use in law, right now. Now, your view about that is what?

   Barlow: Well, first of all, I think that the code architecture is something that a lot of people are going to want to use to preserve them through a transition of confidence. I mean, I think there are a lot of people who think they ought to get paid for the work that they have done and not the work that they will do. I find that bizarre. But nevertheless, that's how people feel comfortable; that's what they're used to.

If they want to get paid for the work that they have done and not the work that they will do, there are technical means of assuring them that. I think that, in the long run, the market is going to show them that this is not in their best interest, that they are far more advantaged to do what I have been advantaged twice by, which is giving their work away, and making themselves a lot more available to a general following in readership than they otherwise would have been.

Because that increases the value of what they haven't done yet, enormously, which it did for the Grateful Dead, as an entity, and it has done for me. And I think most people who go into a completely un-materialized information economy will find this to be true. And fair use will be preserved because it is simply practical and in the self interest of actual creators.

   Lessig: Okay, so there's a belief that it will naturally lead to the case that fair use is protected.

   Barlow: That's a belief, that there may be something utopian about that but I've seen it work for me twice, and I've seen it work for a number of, practically everyone else who ever tried it.

   Shapiro: Would you support the right of the government, using law, to essentially work against this code architecture in certain limited circumstances, when individuals could say, "You know, in the old world, I would have had a fair use right to use Barlow's words to criticize him; but because of the new trusted system, crypto copyright management perfect controlled information system, I can't. I can't take Barlow's three sentences, write an article about them and criticize them because there's no more fair use. And I need the power of the state behind me--

   Barlow: You'd still be able to misquote me to criticize me, as you've essentially done. ...(laughter)

   Garfinkel: Let me take the microphone a second and say that now we're really showing the danger of discussing number six without discussing number eight. ...(laughter) You see, my big fear of this code architecture of the future is that in order to make it enforceable, you have to control the software that runs on every computer. And you have to remove the ability of people to control their own machines. And I've spoken with the people at InterTrust, and basically, they envision an architecture where you can see a document and, if the person who wrote the document doesn't want you to be able to print it, there's no print button. And no matter what you do, you can't make that document print.

And that's okay. That certainly is part of the code architecture. But the dangerous thing, and the reason I'm bringing up number eight here, is that people who are having the discussions about code architectures and crypto protections don't understand the deep technical implications that that architecture brings about.

   Lessig: Political or technical?

   Garfinkel: Technical implications. And that's because they don't understand the technology. And that's an essential component of the global citizenship.

   Lessig: It sounds like we have an agreement here; you two are both saying that we ought to ask what the political implication is, from a particular code architecture and intervene if we don't like it. That's certainly what Andrew was saying.

   Garfinkel: I think that's what the entire technorealism document is.

   Lessig: So you want to reserve the right to intervene if you don't like it; you say we're not going to need to intervene.

   Barlow: I say I'd like to preserve the right to intervene if we have the means.

   Stahlman: What we're saying is you need to understand it. We're not really focusing on the question of precisely, mechanically, how you intervene. It's much more fundamental than that. We don't understand it because we haven't been talking about it before now.

   Borsook: I'm just going to ask a really moronic question here, which is, how is it you get compensated for stuff you do in the future, but not for stuff you do in the past? Isn't that an infinite, like, regress?

"I'm a starving writer. How do I get compensated?... I'm not going to be licensing lunch boxes."

   Barlow: Well, a machinist doesn't come to work everyday to make caulks because he's getting a royalty on all his previous caulks.

   Borsook: No, don't use a beautiful metaphor.

   Barlow: I'm not using a "beautiful metaphor"; I'm using reality. Most people get paid for the work that they haven't done yet.

   Borsook: I'm a starving writer. How do I get compensated? Right now, I get compensated; I write something and people pay me. I believe in fair use. Sometimes it gets reproduced without my permission, sometimes it doesn't. That's the system as it works now. It's imperfect but it works okay enough. In your ideal universe, five years down the road, how will the system work? Aside from whatever fancy speaking gigs I may get, which nice, but I don't see myself, fundamentally, as a speaker. I see myself fundamentally as a writer. And I don't see myself fundamentally as a personage, either, and I'm not going to be licensing lunch boxes. ...(laughter)

   Barlow: God damn, sorry to hear that. I wanted one. ...(laughter) No, Paulina, most writers, I mean, first of all, most writers aren't getting paid very much to write, to begin with.

   Borsook: Sure.

   Barlow: And I would submit that most writers don't write for the money unless they're fools, despite what Samuel Johnson said. Most writers write because they feel a strong need to express themselves. ...(inaudible) It would be a good thing if that expression could be properly compensated for. I think it's more likely to be compensated for by the system that we're already using, which is where people are getting paid to write by publications. I mean, Stephen Levy is not getting paid much in royalties on his columns, but he is getting paid pretty well by Newsweek to write them every week, or every month, or whenever it is.

   Rushkoff: But not significantly ahead of the moment where he actually writes them, though. ..(simultaneous conversation).. They say, "Here's my ten cogs; here's your ten dollars. Now, tomorrow, I'll make 100, can I have that now?" I mean they're not going to pay him for--

   Shenk: You work for two weeks and you get a check at the end of two weeks.

   Barlow: Well, what's wrong with that?

   Rushkoff: Well then it's not your future work. It's the cogs that you made.

   Lessig: Okay, it seems to me, and you'll correct me, I'm sure, if I'm wrong. ...(laughter) It seems to me you have two stories about how people would be paid in the future. Both of them are plausible, it seems to me. One story is the giving-away story, which is completely plausible; we have examples of it. The other story is, the code architectures facilitate the payment for people who won't get paid by giving it away, but need to be paid on the margin for every small thing that they actually produce.

   Barlow: Well, the central story I have is that you're protected, not by property, but you're protected by the relationship that you can form with the people who are interested in what you produce, creatively--

   Lessig: But you need code.

   Barlow: --and if you think about how most people who make their livings with their minds right now, are compensated, whether they're doctors, lawyers, stock brokers, whomever, they're not using copyright to do it. Not even copyright lawyers use copyright to do it. They use the relationship that they have with their clientele.

   Lessig: But you're using code to help assure that this relationship turns into money for the writer. And the only difference it seems that you've got here between this, I mean, who knows whether it turns out like this, Paulina, right? Who knows whether giving it away will work and who knows whether trusted systems will work? The only difference it seems that you guys have is reserving the right to intervene. And it's not even clear that that's a difference, because you're not promising us anything, are you? It would be nice if you could.

   Barlow: There was actually a moment last night where I thought I could make this whole thing go away if I simply signed. ...(laughter) Then you guys wouldn't have anything.

   Rushkoff: It's okay, Kevin Kelly tried, but it didn't work.

   Barlow: I know.

   Lessig: Right, so you don't see any real essential difference here, do you? No essential difference here. Let me just ask one last round. So is there a techno-utopian that you're attacking?

   Garfinkel: We are not attacking anybody.

   Lessig: Okay, no, everybody's-- ..(simultaneous conversation)..

   Stahlman: --but Larry, look what's happening here. When the New York Times covered this release, I wasn't happy, I don't know if anybody else here was happy with the story, even though it was in the New York Times, very prominently presented, because it was couched in exactly those terms. "Who are we against? Who's fighting whom in this?" There's a very particular reason why this whole thing revolves around point number four.

"We don't want to fight. We want a real dialogue, which moves at least to the level of knowledge, as opposed to opinion."

Information is not knowledge. Information is what we get everyday with the personalities that flow through the news, that are always in combat with each other, and all that you see is the combat of the personalities and this opinion against that opinion. We want to step back from all of that.

We don't want to fight. We want a real dialogue, which moves at least to the level of knowledge, as opposed to opinion, even though all of us get paid for opinions, as columnists, up to the level of knowledge, and possibly, even beginning to introduce some wisdom into the situation, as difficult as that might be. And that's what this whole thing revolves around. Number four. Anyone else want to talk about number four and why it's not a battle? ...(laughter)

   Shenk: Well, I'd rather just talk about, I mean, I want to, again, disagree with you. I don't think, and if Barlow feels that this is all about him and that this would go away if he signed it. What I've been telling people is that, "Look, if this document is obvious to you, if everything on here seems beyond debate, great. Give me your e-mail address and I will send you the million words that have been written last week, arguing with the ideas in here about whether government should be involved in some of these questions at all."

These people are very vocal; they're very articulate and they're very political. And what we saw was that most of the conversation, most of the more interesting things going on were going on in this realm, just to quote very briefly, even as the debate of technology has been dominated by the louder voices at the extremes, a new, more balanced consensus has quietly taken shape. Not here, we're just trying to put a name on it. We're just trying to encourage people to have more conversation in that nuanced area. And it's not an attack on people, it really isn't. It's about--

   Shapiro: ... a silent majority

   Lessig: The silent majority.

   Shapiro: I mean, it's a joke, but it's not really a joke. This goes to more about the nature of media than anything else. I mean this is a different iteration of Mark's point, that personalities get attention; ideas don't. And it's not just personalities that get attention, but buzz words do. And I think we'll be the first ones to admit that what happened was we were looking around at one and other and saying, "Gee, none of the people we know who think about this Internet and cyberspace stuff subscribe either to the far out utopian view, or the neo-Luddite view. And yet there's nothing that describes who we are. And so, yeah, we took the very, sort of, media-savvy, whatever, step of trying to come up with a name for it.

   Shenk: And it would be wonderful if this becomes irrelevant.

   Lessig: Okay, well, then I want to draw this to a close so we can take a break and then move to the second one. But it seems to me then, there are one or two ways to understand what we're singing about here. One is a general attack on the media. Because what you're talking about, when you're talking about the way that the media reports cyberspace, I don't know how it's distinguishing the media from anything else. So this might be a good vehicle for arguing about the media.

But that's not directly what these principles seem to be about. what these principles are about something that's an advance over what you're taking to be the extremes in the position, I do think it is an advance; I do think it is an advance to the extent that, for the first time, somebody's coming forth and saying that we need to use government to be critical about the emerging architectures of cyberspace. And to that extent, it's saying something that is in disagreement, I think, with some people out there. And I don't know why you should be so upset about disagreeing with people, right?

   Shapiro: We're not scared of disagreeing, but we don't have to say we're the anti-anybody group.

   Garfinkel: We're not attacking anybody. ...(laughter)

   Lessig: Right, not attacking anybody, you're not anti-anybody, but you're disagreeing with a lot of people.

"If this document is obvious to you, if everything on here seems beyond debate, great."

   Rushkoff: No, you could make a statement that people would disagree with, without making that statement in order to infuriate Louis Rosetto or Bill Clinton or Stewart Brand or whoever, or Ned Brainard, or whoever might get upset by what you've said.

   Shenk: And I think there's an important distinction to be made between an attack on the media, which I don't think this is, and a critique of the conversation, most of which, is taking place in the mass media.

   Rushkoff: And much of which, we actually participated in and exacerbated. ...(laughter)

   Barlow: I was going to mention this irony. There is a profound irony here. And it's contained in the very beginning of your document. You use, at the very outset of the document, two media cartoons that I, as the victim of one of these cartoons, have been trying to fight for a long time. I mean, people are constantly trying to characterize me as saying that the Internet is going to bring nothing but good. That's like saying that the weather is going to bring nothing but good. It's an absurd thing to say.

   Rushkoff: It is absurd to say about you, and it's just as absurd for people to say that about me, which they've also been saying for the six or seven years I've been in this. And that's part of why I'm on this document is to say, "No, I'm not one of those people.

   Barlow: But the more substantive discussion to have here is really a discussion that's been going on for a long time and it's just found a new venue, which is the debate between liberalism in the classic sense of the term and libertarianism in the classic sense of the term. And that's what we're really talking about.

"Saying that the Internet is going to bring nothing but good [is] like saying that the weather is going to bring nothing but good."

   Shapiro: Fair enough. I think we're the liberals and someone else is the libertarians.

   Lessig: Okay, with that, we're going to take a break and we'll--

   Nesson: Can I just jump in for a second? My sense of the room is that there's just a whole lot of people who'd love to jump in here. And instead of taking a break and killing that, why don't we just take a few more minutes and open up the floor and see what happens?

   Lessig: Okay.

   Q: Andrew, earlier, you used the metaphor of a centrifuge, you said whenever you throw anything out on the Internet--

   Rushkoff: No, that was me.

   Q: Sorry. It gets thrown out of the center. And so what I've been wanting to say for a couple minutes is to ask you whether your goal is to create a hot burning core of reason and critical discourse about technology and democracy. Would that a be a fair way of--

   Rushkoff: Sounds good.

   Q: I don't want to go home and think, "Yeah, okay so I heard some people arguing about technology and the Internet." That's not interesting to me. What I'm really interested in is, okay, so like we agreed that there are failures and weakness and polarizations and what-- okay, maybe all you want to do is say, "You know, we can do better than what we're doing right now." And that would be a worthy gesture in itself.

But is the goal of the Berkman Center to produce some form of a think tank policy? I mean maybe you don't know yet. Maybe you're just like the people who got together and said, "We should say this thing."

    Shapiro: Do you have some connections to some funding? I mean look, if you wanted to summarize it and encapsulate it in one sentence, it's to enhance the idea of technology criticism. I mean, one of the things we say in here is it's so weird from, again, a language standpoint, that we don't have people called technology critics who are not presumed to be against technology.

    Q: I like that analogy to art critics, and I like that because I think that a lot of cultural studies, and-- I mean there are a lot of people who do things like this who are not specifically associated with technology, necessarily. Although, I think that's an emerging field. Which is why I think it's exciting that you're here, which is why I want to hear what we're trying to do, as opposed to what we're not doing over there.

    Shapiro: I think the second panel is going to focus, I mean the second panel is called "Technorealism Applied." And one of the things that we are going to try to develop is turning ideas into action plans.

    Q: And do you think that the better way to approach that would be to identify specific issues, such as wiring the schools, or some of the other specific issues? Or to try to discuss some fundamental principles

A question from the audience

that relate to questions of technology and democracy?

    Shapiro: Both. But here's something really specific that we could say needs to be done that's completely in the realm of action. The Office of Technology Assessment in the Congress was de-funded three or four years ago--

    Q: Two years.

    Shapiro: --two years ago, thank you, at the very time when we needed that office to be boosted and to be enhanced with scholars and critics who would help us understand this time.

    Q: So it would be fair to say that you--

    Shapiro: It would be fair to say that we should all lobby for the reinstatement of the OTA.

    Q: We live in a world where we're constantly accelerating the number of dollars that we put into developing technologies that we don't understand. We need to develop the modes to be able to think about them ethically and responsibly, and imaginably about the future.

    Q: I'm Mitch Kapor, and I'm the other co-founder of the EFF. I just wanted to say I'm extremely proud of the group of original signers. I don't know if I have any right to have pride over this or not. But I guess being 47 must have some virtue to it. Because I think it's very difficult in an atmosphere that lends itself to extreme polarization and adversariality, not to fall prey to that. And I especially want to commend the panel, despite Professor Lessig's enthusiastic efforts to propel this in a direction of adversariality, for your non-adversarial resistance to that. I think actually, that, in itself, is a wonderful thing.

John Perry Barlow and Mitch Kapor, co-founders of the EFF, square off in the audience

And the very ability to be in the midst of very heated dialogues and not turn into a pit bull, even for what you think is the right cause is probably the thing that's the most missing. So I want to both commend all of you for stepping up to this.

One of the reasons I dropped out of EFF was my own frustration at having lost the ability to synthesize some sort of a balance on a board that had dominated by libertarians and techno-utopians, a fact that I've never spoken out on. But I certainly feel very strongly that way. More power to you.

    Shenk: That means a lot to all of us, and just to speak for myself, because we did strive for that tone, not only the substance, but the tone that spoke of balance and reason.

    Q: I don't think you got it. You had six people, non-lawyers, sitting in a row, basically saying for an hour, that lawyers do productive work, that technology can't really be deployed, without some solutions of the kind of theoretic problems that, example of the airwaves, the technology to do the various kinds of broadcasts was discovered. But it doesn't become useful without making it into some kind of property of some other kind of vehicle that keeps you from all speaking at once.

And what they're saying is that those kinds of dilemmas are what we're stuck with forever, and that the technology changes and ruins the pre-existing solutions to them and we'll perpetually need to come up with new solutions. That's work for lawyers. Why weren't you happy?

    Garfinkel: Of course lawyers do productive work.

    Q: But the basic problem of solving the predicament caused by our different interests in trying to use this technology and the fact that often, they can't be used at all without some kind of social contract is, it seems, what you're talking about, that we are moving the structure of the existing social contract, is perpetually disrupted by the new technologies, and it needs to be repaired, looked at critically and there needs to be a mechanism for driving that process forward.

    Lessig: Right, critical thought. That's what you guys are saying.

    Q: The methods of broadcast were discovered, but indirectly, somehow, I hired a bunch of guys in blue suits with guns and clubs to tell me whether or not I could use it. And, in fact, if I look at what actually happened on the ground, they basically told me I couldn't use it and somebody else could. That's a problem. And that kind of problem will continue to unfold. I imagine there are all kinds of things that are just over the horizon. Imagine when it's possible, when organs are really property items, in the real sense, can be transferred easily without rejection problems. Are we ready for that? It seems like these people are saying something that you should have been very much receptive to.

    Lessig: Well, you've got to understand my role. I'm the moderator, right? ...(laughter) And don't be upset if I'm not happy. I mean people are so upset if I'm not happy. Okay, I'm happy. You guys are great. I love you.

"Our tradition is, be critical about these structures... The market's political, the code is political, and we have to be reflective about it."

But my job here, and I agree with Mitch, here, completely, You know, what I want to do is see if you guys can be pushed from one side to another. Here they are, right at the center, saying we have to maintain critical perspective on technology and policy here together. We're not going to buy the libertarian view that no government plays; we're not going to buy the utopian view that the market's going to take care of it or technology is going to take care of it.

Great for them. They're right in the center and that's what I was saying is our tradition. Our tradition is, be critical about these structures; it's politics in the sense of, we should be critical about it all the way down. The market's political, the code is political, and we have to be reflective about it, and we have to be governance-focused about it. Absolutely. There's my "immoderate" moderator speech. Let's have this one and then we'll take one over here.

    Q: I'm Mark Dessaur, and I'm working on education and technology issues for the Global Information Infrastructure Commission. Just, I think, providing critical thought is great, and what you're doing is, perhaps, and this might sound arrogant, but translating a lot of the issues from the extremes and bringing about many of the different perspectives. What I see you're missing on education, John Gage was talking about why you should wire the schools, it's bringing the parents into the schools to realize what poor shape they're in, to say, "Hey, get parents involved. Get the community involved."

This isn't just, you plug in the school and you let it go. But you're seeing, once they realize what shape the bathrooms are in, they're like, "How are we going to do this? Maybe I should vote for that tax increase." And I think technology right now in schools, the problem is you're applying the old industrial way of thinking in technology, teaching a certain way. And there are theories out there, and hopefully, that mix will be found. That's my point.

    Nesson: So let's take a break here.

    Lessig: I promised this one guy over here.

    Nesson: Yeah, you did, you promised.

    Q: My name is John Bloah (?) and I used to be a writer; I'm now a content provider. ...(laughter) I'd like to come back to point six, which intrigued me. Information wants to be protected. It sounds very attractive, doesn't it, on the face of it? In fact, it's nonsense. What it should read is that the providers of information or the creators of information want to be protected. I followed the discussion about copyright and content providers like myself being paid for that, in bits and pieces, the thoughts and ideas I throw out there, with an increasing sense of incredulity and surrealism.

We heard about the highly techno method of encryption and somehow you'd provide a code: You can't print because there's no print button. Paulina, I think it was talked about that. I think the point has been missed that we are all publishers now. This medium makes everybody a publisher. If I buy John Perry Barlow's book, a proportion of that $19.99 or whatever it is, falls its way down through the ladder into his pocket. That's conventional. Once you start publishing digitally, that relationship disappears.

Now, I don't believe the answer of content providers like me, being paid for what they provide lies within the conventional spectrum of compensation. Perhaps we need to step outside of the frame on this one and start looking at, perhaps taxing the medium of transmission, as opposed to the content of transmission. Perhaps this could take the form of Internet service providers buying into, if you like, content. Sounds terrible, doesn't it? It sounds like an America Online model. But strangely enough, the news that MCI and Yahoo are doing precisely that, which seemed to bear out the kind of model that I'm proposing just off the top of my head. I think everybody on this panel has failed us here, in terms of how we get compensated for what we put up there. I found there was a rather poor ...(inaudible) of imagination there. That's my two cents' worth.

    Lessig: Okay, so the second panel is going to go into applications of this. And so this might be an application. Let me take this opportunity to thank this panel and we'll take a break. (applause)