by Heather Ford, Thomas Schlucter and Emily Wagner
The tussle between the government and civil liberty groups about how to regulate the Internet often has more to do with the changing role of government and its struggle against this change than any specific inability for the government to understand how the Internet is “different” technically.
Regulating freedom of expression before the Internet was characterised by well-defined roles for the government as rule-maker and enforcer. Both roles were easily documented and could be clearly measured in terms of their effectiveness. In the Internet era, the role of the government seems to favor softer roles as educator and advocate – leaving the choice of regulation to individuals and corporations.
For example, in COPA, it wasn’t necessarily that the government was trying to place the framework of the old analogue ways of achieving regulation and enforcement (in this case substituting age verification mechanisms in place of blinder racks for magazines) but rather that the government used the framework that they make the rules centrally in order to ensure enforcement.
As Greenberg narrates: ‘The court reasoned that “unlike COPA there are no fines or prison sentences associated with filters which would chill speech.”‘ It is exactly the lack of and the statistics arising from such centralized enforcement that the government seems to be afraid of. How will they know whether they’re being successful or not? How will they justify their role in government if they can’t persuade the populace that they have allayed their fears (even ineffectively)? If people can govern themselves and achieve freedom of expression through technology, why do they need the government?
It is this central question that forces governments to regulate the Internet as they did old media – not because they don’t get the technology, but because they don’t get their changing role.
The changing nature of speech
The advent of the commercial Internet has brought not only a new technical infrastructure (and the struggle to keep up with it through legislative efforts), it has also changed the nature of speech. Two key characteristics of speech in pre-internet days are: attribution and limited reach. Whether you look at Habermas’ vision of a deliberative public culture in 18th century Europe, the proverbial speaker on a soapbox, the circulation of newspapers in the formative phase of the American democracy or the channeled architecture of a television network: speech that is delivered in these forms is always attributable to someone and it reaches a limited audience.
The latter examples are, with regards to attribution and limited reach, very different in nature. The key difference is the one between mediated and unmediated speech. With unmediated speech, the case could not be clearer: The soapbox speakers’ effect reaches as far as their voice does. They embody the speech as they deliver it, it is always attributable to them. (It would be an interesting experiment to try to anonymously exercise your right of speech in public. Many countries guard against this by banning face coverings at demonstrations.)
Mediated speech, in comparison to unmediated speech, reduces attribution while expanding reach. The content of newspapers or television programs cannot as easily be attributed to individuals as embodied speech can, and the distribution of speech through media extends the audience that can receive it by several orders of magnitude. From a practical perspective though the principles of attribution and limited reach remain unchanged: even if it is not possible to find the one person responsible for a news show on television, we can attribute that speech to the institution that broadcasts it. And even if newspapers circulate widely throughout a nation, the physical nature of the medium and its inner logic limit its reach to those territories where a reasonable logistical effort can be made to deliver it.
The Internet changes this equation entirely. Where the architecture that Berman and Weitzner argue for becomes reality, there is a potential for a medium that delivers speech with no attribution and potentially unlimited reach. The First Amendment was conceived to further a set of societal goals that we have come to view as essential to democracy. But the conditions of speech it was designed for are changing. The struggles over regulating the Internet reflect, in my opinion, this fundamental shift. Whether democratic structures can be fostered by speech that is freer (with regards to many constraints) than ever before, remains to be seen. Those who try to regulate the Internet clearly see a danger that uncontrolled speech might erode the foundation of society.
There is evidence to suggest that the Internet may not necessarily be a medium of limitless reach.
The Berman and Weitzner article emphasized the potential pitfalls and issues in providing a user-controlled Internet over those of creating one of open-access, and I think we should be cautious to not think that open-access is a foregone conclusion. While the end-to-end architecture of the Internet is well-positioned to support a decentralized, open communication medium, there are still economic and skill factors which stand between where we are now and the democratic ideal of freedom of expression and an abundance of ideas on the Internet.
First, this may seem obvious, but someone still has to install wires, fiber optic cable, or wireless access points for any kind of network to exist. Then of course there are devices at the end points needed to connect to the network. What I found interesting about overcoming these obstacles was the different take Berman and Weitzner had compared with the U.N’s Joint Declaration. Berman and Weitzner were proponents of open technical standards to allow for a multiplicity of devices and avoiding restrictive licenses but left the nuts and bolts of network architecture to the telecomm companies and market forces, whereas the U.N.’s declaration took a much more active stance by stating that the international community should provide assistance programs to help provide public access. It just made me think about whether the U.S. government would ever subsidize telecomm the way that they subsidize the postal service now (news to me) or not, which has been experiencing solvency problems for several years now. If you consider computer terminals in public libraries, then I suppose we already are. Providing the infrastructure for the free exchange of ideas is not an insignificant or inexpensive task, especially at the fringes of the network.
Secondly, and this may be another obvious point, not everyone who has access to a home or public Internet connection is able to self-publish their ideas on the Internet. Does this mean that we also need to provide technical “translators” to write web pages as we provide translators for voters during public elections? Wouldn’t hiring web developers at every public library rival the postal system in terms of cost for these particularly skilled workers? My point is that architecting a decentralized, open-access Internet is necessary, but not sufficient for enabling freedom of expression online.
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