2012 10 28

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Contents

Feature Cast for 2012-10-28

(00:00:17.441) Intro

(00:03:44.555) Hacker Word of the Week: Frankenputer

(00:04:47.222) Online Censorship

  • One of the reasons I started the podcast and the blog
    • Is to create a space where I could think through questions and concepts
      • That I encounter in my day job and my own personal pursuits
    • Since I have undertaken a new career that focuses more squarely on technology policy
      • It makes sense to me to bring more of that to the fore in my writing
    • I actually had found myself backing away from topics with which I grapple during the day
    • Partly this is due to the extra patience and energy it takes to sustain focus
      • But I think I was also afraid of a misstep, saying something untenable with my personal voice
    • Neither of these are very good reasons for holding back
    • If I do trod in it, something that honestly has happened very rarely on this podcast
      • Then it invites a discussion that improves my thinking and rhetoric
        • Especially if I hold to my core personal values of listening and humility
    • Likewise, if I spend more time, not less, grappling with technology policy
      • Then I should improve at it, or at least store up well understood talking points
    • Previously I re-visited the idea of the value of privacy to serve both these ends
    • Now I want to talk about online censorship, to try to tie together a few key aspects
    • Censorship is a growing problem both as a consequence of the constant increase in Internet users
      • Amplifying any existence of blocks to access
      • But also as the existing reasons for such blocks are used
        • To expand surveillance and filtering to cast wider and wider nets
    • How users are ensnared by such systems isn't always obvious to all
      • Especially since norms, both for behavior and law, are still very much under developed
    • Worse, speakers and actors who previously wouldn't be exposed to risk
      • As with many other activities like personal file sharing
        • Are far more easily identified and both persecuted and prosecuted online
  • For starters, the problem is more ubiquitous than I think the average person realizes
    • In countries governed by some form of open society
      • Censorship of the net has arisen under a couple of different guises
    • In the past, I have talked about the global ratchet of enforcement powers against digital pirates
    • I first came across this idea in the writings of Glyn Moody, a technology journalist in the UK
    • Moody covers much of the goings on in the open source world but increasing has turned to copyright
      • For much the same reason my own interests tracked between those two points
    • In a nutshell, his idea is that the increase in copyright enforcement powers in one country
      • Followed by a "normalization", usually through trade agreement or treaty
        • Forms a one way mechanism that serves the interests of industrial copyright holders
    • In a digital and networked world, though, the granting of essentially online search and seizure
      • To private actors rather than law enforcers takes a form that is as easily is used for censorship
        • As it is for its nominal purpose, to protect the investment in time and effort
        • That it arguably takes to produce a commercial success in the form of a record, movie or book
    • It may be possible to reduce the use of digital copyright powers for blocking speech
    • For instance requiring that the operation of such powers is transparent to the public
      • And overseen by an independent and impartial body, such as existing judges
        • Rather than by even more private parties too often closely aligned with rights holder
    • Decreasing the cost to restore falsely targeted content and sites
      • Or even better yet pushing costs on rights holders, tied with a substantive standard of harm
        • Would also possibly slow the stream of overly broad complaints not driven by cases
        • That are clearly ones stemming from actual loss of revenue, value of the work or artistic credit
    • I have spent more than enough time over the last few years
      • Exploring the balance that favors industry over the individual
    • The point is that whether you think of it this way or not, this is a form of censorship
    • Worse, in my view, are similar powers pursued under the guise of decent speech
      • Or protecting children online
    • To be absolutely clear, I am not condoning the exploitation or harming of children
    • There are already laws in most jurisdictions that make such illegal and carry appropriate penalties
    • The problem for me arises when laws are sought that mandate filters for vague concepts
      • Ones that even more easily than copyright lead to legitimate speech being squelched
    • I am willing to bet that even in so-called democratic societies
      • Each of my respective listeners has run afoul of some form of censorship or another
        • That isn't directly labeled as such but really is no different
        • Than the more overtly politically motivated blocks in more closed societies
    • The even greater, global risk is that the more open democracies user surveillance, censorship
      • For seemingly innocuous uses like intellectual property rights enforcement or decent speech
        • The more it provides cover for authoritative regimes wishing to use these same tools
    • The more we view these lesser uses more socially acceptable
      • The more those seeking to use them for more invasive cases argue that if the one is acceptable
        • All the more reason the other is as well given much more is assumed to be at stake
    • I guess what really bothers me about this sort of rhetorical arbitrage
      • Is that in the cases of copyright and decency, there are other means to achieve good outcomes
    • Sustained investigation and nuanced regulations, however, take time and money
    • In the debit column of any cost-benefit analysis that ends with "mild" censorship as acceptable
      • We need to add how following that bottom line makes it easier in cases
        • Where those in open societies would side much more unanimously against stricter censorship
  • Online censorship is increasingly raising questions about human rights
    • As technology grows more sophisticated, so do the means by which censorship is effected
    • Originally, passive blocks on a few points where network traffic is centralized was enough
    • Unfortunately, the simple cases are easily identified and bypassed by those most affected
    • The current reality is that often for censorship to be even passingly effective
      • Even for the most innocuous cases like copyright and decent speech
        • Automation has to be deployed, often in the form on network surveillance
    • Once enforcement crosses over into forms that can be seen as equivalent
      • To searching your person, your possessions or your property
        • It clearly raises questions of due process, ones for which there are no simple answers
    • Many non-profits in this space have recently banded together
    • Even setting aside how the analogy of a personal search can break down online
      • Problems arise due to what we take as the root of our agency in a digital world
    • Our person is inalienable in a physical space
    • The physical threat of search or, even worse, imprisonment are immediately apparent
    • Standards for how to deal with a person's body, such as, quite literally, habeus corpus
      • Though still subject to certain complexities are straightforward
    • By contrast, the start of our online self is rarely indivisible from our actual selves
    • We have to enter an overly long, impossible to read contract of adhesion
      • Via an "I agree" box on an ISP's terms of service, EULA or acceptable use policy
    • Contracts should not be a just limitation on free speech
    • Using those versus some basis grounded on the parallels we have in the physical world
      • Leaves too much power with market and other entities who can change the rules at will
    • If you end up in a criminal court or subject to the preceding criminal investigation
      • Your expectation of fair treatment doesn't generally hinge on contingencies
    • Even in societies in or just emerging from conflict and crisis
      • The struggles around governance are often driven by the desire
        • To agree upon a fixed model from which rule of law and a sense of personal rights can flow
    • The best we have so far in networked spaces are some overly broad and optimistic readings
      • Of somewhat more modern charters around human rights
    • However we come up with a translation of network rights and digital due process
      • We do clearly need them in order to more effectively push back on globally threatening limits
        • On our digital free speech and free access to knowledge
  • Maybe we need to expand our models of online activity beyond speech
    • Law evolves by process of analogy, likening new phenomenon to ones well understood
    • Most uses of the network do in many ways resemble speech
      • Giving rise to discussing questions of access, agency and limits thereupon
    • The problem is that network experiences bear on far more than political discourse
      • As important as that may be in exercising franchise, where individuals possess it
    • Even in limited and closed societies where the questions of franchise and governance are hotly debated
      • The role of network mediated interactions is only just being scrutinized
    • Regardless of the open questions, I submit their is a core value to having Internet access
    • Debate and criticism is key to paring down our understand of what exactly it is
      • But doesn't convince me that such value doesn't exist in any meaningful measure
    • In fact, I tend to think that to a certain degree, disagreements over the exact role of the Internet
      • And its impact on politic circumstances arises
        • Because of a too close comparison to other forms of speech
    • Pun fully intended, network activity is far more high bandwidth
      • Supporting a much broader set of activities and outcomes than traditional speech
    • Unfortunately, censorship then grows to become that much more troubling
      • As it isn't just a halting of mere broadcast or even person-to-person communication
    • Efforts like the Digital Due Process coalition
      • Or judicial cases dealing with questions of jurisdiction nibble away at the edges
    • I don't think we have really grappled with the root of online agency in a meaningful way
    • Rebecca MacKinnon's recent book, "Consent of the Network" gets closer to some useful questions
    • I think it needs to be technologically grounded
      • Such as in some of the open identity efforts I've followed over the years
    • Technology alone isn't enough, not just in the sense
      • That we need good regulatory policy to complement it
      • But also in terms of market and normative forces to see a designed identity
        • Between our inalienable physical person
        • And a meaningful online presence for expression of similar rights
  • For me the urgency around these issue arises from the need to protect the most marginalized of voices
    • Censorship is slowly becoming normative, a unconscious slippery slope
    • Saudi Arabia recently called for an international discussion around internet regulations on speech
    • The charitable view is that this may create an opportunity for less restrictive rules
      • For a country that traditionally has resorted to very stringent limits on speech
    • The risk is that by asking for this to take place in international forums
      • Any consensus, even a minority one, gives more cover to those seek limitations on speech
    • Ironically, the call is currently for more discussion on the issue
      • The regulatory risks not withstanding
    • Quite contrary to their intention, I am sure, it puts me in mind of my favorite applicable quote
    • "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence."
    • The source is US Supreme Court Justice Louis D. Brandeis, dating from a case in 1927
    • The easy answer in the wake of hate speech or acts inspired by hateful reception of speech
      • Such as the anti-islam film that sparked the Saudi request for talks of net speech rules
      • Is to silence speakers rather than cultivate the maturity and understanding
        • Needed to ignore or tolerate them
    • Fixing on censorship as the right answer far to closely equates the reception of such speech
      • With actively condoning it in any meaningful fashion which is ridiculous
    • From that flows the greater risk that unpopular but just and justifiable speech
      • Is categorized as hateful when it is merely intellectually threatening
    • I know I am showing my bias as an American but I still feel
      • That a better standard for which we should all strive regardless of circumstance
        • Is the maturity to discuss the individually distasteful which we may not condone
        • At least to the point where we can determine real harms and, conversely, real values
          • Such as getting past the unpopular speech to realize stories of the disenfranchised
    • I really believe we can get to a place, globally, most likely through the Internet
      • Where we can disagree, even deeply, on questions of governance and moral outcomes
        • But still protect the very means of that disagreement
        • A commons for speech and even action that should be open, no matter what
          • To all voices and agents

(00:21:28.280) Outro

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