ILAW: Benkler on Speech

Professor Yochai Benkler speaks in the next session here @ ILAW about speech on the Internet.

[I missed the opening of this session; also see notes and commentary by participants Frank Field and Jim Flowers.]

I'd like to use John Littleburn [?] as a symbol. The central idea is that freedom of speech is central to political freedom.

So, let us look at regulations of speech, using Larry's model, starting with "law." Different countries have different things that trigger the censors: in the US, it's smut, in the EU, Nazism, in other countries, like China and Saudi Arabia, political speech.

Once upon a time--not long ago-- Lady Chatterly's Lover triggered censorship in the US. The definition has since changed: it has to turn you on and gross you out at the same time. As opposed to lots of stuff that is merely uncomfortable.

Next form of regulation is technology: in the old days it was a brown paper cover; you also put things at the back of the store. This is a hurdle; not a huge one, but a hurdle.

There are also social norms: the shame of walking up to the counter and paying for it. A whole set of considerations has prevented enactment into law.

Finally, the market. The reality we live in, in the US: we have explicit violence but not explicit sex.

In radio, there is no brown cover. It comes into a home unwrapped. Radio has been cleaned by law. A station not limited by the market aired a social critique by the comic George Carlin: "Seven Dirty Words." The FCC imposed a penalty and this was upheld by the Supreme Court. [Plays the piece.]

It was permitted by the Supreme Court to punish this, so as to protect children from something harmful to them. In the name of protecting children, we structure spaces so they are cleaner than what direct censorship would permit.

So along comes the Internet. All sorts of things hard to find do show up. [Shows Time magazine cover with child bathed in glow of computer screen, a shocked, horrified look on his face.]

[...]

One of the responses is on the political level: what does it make sense to do with formal law? This cover exaggerates; life hasn't changed this much, has it?

Let's look at different cultures to see what they would censor. Easy to enter "XXX" into Google....Easy to get racist/Nazi material.

Let's look back again at the Nuremerg Files. This is speech, this is debate. [Shows web cam site.] Easy system for people with all sorts of views to get those views out. You can intimidate women who are seeking abortions. This is trivial and this as much information as one needs to put pressure on people who perform abortions.

Is this freedom a good thing? Should government regulate this?

Participant: I have a simplistic answer, but I'll say it. I think this should be permitted. Much is distasteful to me. But others may not find it so. I also respect that the Europeans might want to regulate Nazi propaganda. But here we should be free to look at it.

2nd participant, from Germany: We're looking at two different things... I am against censoring Nazi materials. I think I do have a problem with identifying the women getting an abortion. I would compare that to a Nazi site that threatens people. This is not about speech.

[...]

Andrew Rens: The material is all out there and the Internet breaks down the jurisdictional barriers.

[...]

Yochai: We will talk about the extent to which this is true. [...] It seems to me that what you're worried about here was not expression, but rather that you see this as a threat. It's not speech; it's the beginning of action.

Should we celebrate this technology, if it allows this?

Andrew: I think we just have to acknowledge it. We need to see that with the good also comes the dark side. Right now the information is free, and we need to assess the costs of changing that. Distinguishing between an idea and incitement is hard.

Participant: I don't see this abortion cam site as speech. Have there been any civil actions against this?

Yochai: You mean after the original case? No, I don't think so. In the US, it's hard as a straight privacy case.

Participant: Surprising. What about the Constitution? What about the Supreme Court sodomy opinion?

Yochai: Emphasis on privacy in the home. [...]

One characteristic of the CDA, is the notion of using age verification. Submitting credit card information to verify this should be viewed in light of our earlier discussion RE collections of data about you. 

[...]

Setting up such a system is expensive. Free sites might not be able to do this (sites about being gay, etc.). These sites don't have a market rationale.

Result: More porn (market demands it), and also more unecessarily sanitized sites.

[...]

The thinking: If the Internet is so liberating, then maybe by law we can force the Internet to stop it from being so free. It is too troubling as is. Attempts: v-chip for TV. An act that says filters must be installed on libraries with government funding.

I'd like you to see the effect upon users of goverment censorship. Jonathan?

JZ: So I already spoke briefly about this. In Saudi Arabia we have the home page of the Internet Services Unit. [Displays website.]

They couldn't tell us what they filter because they use commercial filters. You cant get the list from SmartFilter. We did have two weeks of access via proxy server, so it was as though we were in Saudi Arabia.

[Goes to Attorneygeneral.gov] Here is a place to report online child pornography. This is about offering accurate data to the government.

It turns out Saudi Arabia has a lot of bark, but no bite. They are eager to make it clear they're filtering, but they are a little asleep at the wheel.

China is the opposite. Plenty of bite, little bark. They program individual routers to drop packets. China blocks all of one destination, or not at all; not very precise. In the case of Google, they actually gave you a replacement. China diverted the traffic to the another site entirely.

Now the real Google is back. But if you type in a sensitive search term, you are sometimes dropped. You can't get anything at all for 20 minutes.

Does it work in its entirety? No. But there is the Bovinity Principle. A thin wire stops the majority of large, slow mammals.

Yochai: So information may want to be free, but there are fixes for this particular bug in the system.

How much freedom do we want? How much are we willing to give up in order to protect our values?

Law is not the only way that censorship happens. Sometimes speech is restricted so that speech will be enhanced. Copyright is an example of this. Trademark is another restriction.

Spectrum licensing is another form of benign regulation. It is a way of restricting speech. Standards setting is a restriction of speech.

Here's a site called the Free Republic Forum; what you get is some story from a news site, people posting comments, discussion, etc. What could be more democratic? Except that the two bastions of democracy--The New York Times and The Washington Post--brought suit against this site. Fair use is not found. A cost barrier is brought to bear on non-commercial sites.

You would have to think that the Washington Post losing a few bucks is sufficiently important to supress this speech.

Participant: What is the difference between this and the book club not being able to purchase a book they'd like to discuss?

Yochai: Excellent question. In [...] DVD case, the court said that fair use doesn't give you a right to top-quality materials.

Story about low power FM. Little commercial value. People talk and communicate only for a few blocks. FCC constrained this a bit, but they got many applications to set up small stations. Congress passed an act that removed from the FCC the power to do this.

This is spectrum regulation deployed in a way that silences non-profit speech. A category of decisions that have substantial implications for freedom of speech.

We also have technology enforcing this: DMCA, Felten, Sklyarov, 2600. The CBDTPA. The Fritz chip. Hatch vigilantism. Behavior in the interests of the market, but supressing speech. HDTV. Pushed into American homes. Rather than spending on open spectrum. So you see the beads of sweat on a news announcer, but not six more news announcers.

All is not going poorly. I am not Larry. There is push back from social norms. Push back from markets. WiFi. KaZaA. Google. IBM and Red Hat. Push back in favor of a free and open information market.

Two primary values at stake. Political democratic discourse. Not a new insight. There has long been criticism of mass media in relation to democracy.

Berlisconi effect  [...] and the Baywatch effect: market offers no news if it doesn't pay.

Bloomberg effect: more money, more ability to influence news outlets. Campaign finances.

How are these affected by the Internet, when it is open? [Plays "Showdown in the Golf" info-tainment parody. Bush starts bombing rabbits in Teletubby land.]

So politics can be affected by copyright, trademark, control over distribution channels.

The Supreme Court decided that a man wearing a "fuck the draft" shirt was allowed.

[Shows Democracynet.org] This website compiles data on politicians' views. High level of transparency not seen on broadcast television. Plenty of detail.

Cultural democracy/semiotic democracy. How does our structuring of media shape us?

"The Phanton Edit" cuts Jar Jar Binks out of it. Is this semiotic democracy? It is a powerful critique. The ability to answer back to our poltical environment [plays another clip, a Star Wars parody. Darth Vader/Mickey Mouse/Japanese anime hybrid].

So, Terry, is this cultural democracy?

Terry: It's a beginning. It's awkward to treat this last clip as an example. But it's suggestive of the possibility that permissive use of copyrighted materials can be a form of semiotic democracy.

A firm will be offering a product soon that will enable users at home to modify what they watch ["Cleanflix"?]. Dials for adjusting levels of sex, violence, etc. The film you're watching is edited on the fly. You're making a derivative work on your own, in your home. This is some version of semiotic democracy.

There are opportunities for much better stuff. Meta-data. Rearranging things. "The Phanton Edit" took one Star Wars movie and removed scenes to diminish the role of Jar-Jar Binks. Make a less juvenile infant Darth Vader. Altered characters simply via deletions. Anyone will soon be able to do this and more.

This is creative engagement--making, not just seeing, is an opportunity for a better life. It's fulfilling. It radically increases the variety of things available to us, opens up choices. Finally, it fosters creative, collective creativity. 

Yochai: I must be more of a libertarian than you are. I do not feel the need to disassociate myself from this film...

Terry: Well, you asked me to found a poltical theory on this. [Laughter.]

Yochai: ....We have moved in a trend toward mechanical reproduction. Digital technology permits an inversion of this model. It provides the means of producing a story and taking part in culture. It enables radical decentralization, and an increase in the role of non-market behavior. This enables an information environment that is free--even of old social norms.

Question: Will we develop further along this line? Or will we return to the broadcast model?

In terms of building a commons: we can build an infrstructure alongside the commodified infrastructure.

Physical layer: license free structure. Logical layer: reversing DMCA or destabilization. As a matter of freedom, government procurement policy for open software. 

Content layer: resisting pressure.

Intellectual infrastructure: understand better the principles of cooperative activity, not money-based activity. In the future, we need to understand the "politics of freedom in the commons."

[Concluding remarks; end of session.]