As most of you know, the Protect IP Act is a horrendous piece of proposed legislation sponsored by the “content industry” that gives branches of the Government powers to sieze domain names at will, force websites to remove links, etc. Congresswoman Zoe Lofgren has been one of the very few legislators fighting the good fight, speaking out against this grave threat to free speech.

I was invited to a brown bag lunch with Rep. Lofgren at Mozilla today. (Mozilla has gotten involved in this because of the events surrounding the Mafiaafire add-on and Homeland Security.) I asked the Congresswoman this question (paraphrased):

“Does the strategy of domain-name seizures even have a prayer of achieving the intended outcome, or is it going to lead to something similar to the Streisand effect, as we’ve seen happen repeatedly on the Internet? Tools for circumvention of censorship in dictatorial regimes, that we can all get behind and that the U.S. government has often funded, may be morally different from tools for circumvention of anti-infringement efforts, but they are technologically identical.” [Princeton professor and now FTC chief technologist Ed Felten has pointed this out in a related context.]

In response, Rep. Lofgren pivoted to the point that seemed to be her favorite theme of the day—the tech world needs to come up with ways to monetize online content, she said. Unless that happens, it’s not looking good for our side in the long run.

At first I was slightly annoyed by her not addressing my question, but after she pivoted a couple of more times to the same point in answer to other questions I started to pay close attention.

What the Congresswoman was saying was this:

1. The only way to convince Washington to drop this issue for good is to show that artists and musicians can get paid on the Internet.
2. Currently they are not seeing any evidence of this. The Congresswoman believes that new technology needs to be developed to let artists get paid. I believe she is entirely wrong about this; see below.
3. The arguments that have been raised by tech companies and civil liberties groups in Washington all center around free speech; there is nothing wrong with that but it is not a viable strategy in the long run because the issue is going to keep coming back.

Let’s zoom in on point 2 above. We techies all say we have the answers. New technology is not needed, we say. The dinosaurs of the content industries need to adapt their business models. Piracy is not correlated with a decrease in sales. Piracy happens not because it is cheaper, but because it is more convenient. Businesses need to compete with piracy rather than trying to outlaw it. Artists who’ve understood this are already thriving.

Washington is willing to listen to this. But no one is telling it to them.

There are a million blog posts that make the points above. But those don’t have an impact in Congress. “You vote up articles on Reddit all day,” Rep. Lofgren said. “Guess what, we don’t check Reddit in Washington.” Yes, she actually said that. The exact wording might be off but she used words to essentially that effect. She also pointed out that the tech industry spends by far the least amount of effort on lobbying. The entire industry has fewer representatives, apparently, than individual companies from many other sectors do.

A lot of information that we consider common knowledge is not available in Washington. It needs to be in a digestible form; for example, academic studies with concrete numbers that can be cited will be particularly useful. But a simple and important first step is to start communicating with policymakers. In my dealings with them, I’ve found them more willing to listen than I would have thought. So here’s my plea to the community to redirect some of the energy that we expend writing blog posts and expressing outrage into something more constructive.

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‘The Master Switch’ has two parts. The former discusses the history of communications media through the twentieth century and shows evidence for “The Cycle” of open innovation → closed monopoly → disruption. The latter, shorter part is more speculative and argues that the same fate will befall the Internet, absent aggressive intervention.

The first part of the book is unequivocally excellent. There are so many grand as well as little historical facts buried in there. Wu makes his case well for the claim that radio, telephony, film and television have all taken much the same path.

A point that Wu drives home repeatedly is that while free speech in law is always spoken of in the context of Governmental controls, the private entities that own or control the medium of speech play a far bigger role in practice in determining how much freedom of speech society has. In the U.S., we are used to regulating Governmental barriers to speech but not private ones, and a lot of the book is about exposing the problems with this approach.

An interesting angle the author takes is to look at the motives of the key men that shaped the “information industries” of the past. This is apposite given the enormous impact on history that each of these few has had, and I felt it added a layer of understanding compared to a purely factual account.

But let’s cut to the chase—the argument about the future of the Internet. I wasn’t sure whether I agreed or disagreed until I realized Wu is making two different claims, a weak one and a strong one, and does not separate them clearly.

The weak claim is simply that an open Internet is better for society in the long run than a closed one. Open and closed here are best understood via the exemplars of Google and Apple. Wu argues this reasonably well, and in any case not much argument is needed—most of us would consider it obvious on the face of it.

The strong claim, and the one that is used to justify intervention, is that a closed Internet will have such crippling effects on innovation and such chilling effects on free speech that it is our collective duty to learn from history and do something before the dystopian future materializes. This is where I think Wu’s argument falls short.

To begin with, Wu doesn’t have a clear reason why the Internet will follow the previous technologies, except, almost literally, “we can’t be sure it won’t.” He overstates the similarities and downplays the differences.

Second, I believe Wu doesn’t fully understand technology and the Internet in some key ways. Bizarrely, he appears to believe that the Internet’s predilection for decentralization is due to our cultural values rather than technological and business realities prevalent when these systems were designed.

Finally, Wu has a tendency to see things in black and white, in terms of good and evil, which I find annoying, and more importantly, oversimplified. He quotes this sentence approvingly: “Once we replace the personal computer with a closed-platform device such as the iPad, we replace freedom, choice and the free market with oppression, censorship and monopoly.” He also says that “no one denies that the future will be decided by one of two visions,” in the context of iOS and Android. It isn’t clear why he thinks they can’t coexist the way the Mac and PC have.

Regardless of whether one buys his dystopian prognostications, Wu’s paradigm of the “separations principle” is to be taken seriously. It is far broader than even net neutrality. There appear to be two key pillars: a separation of platforms and content, and limits on corporate structures to faciliate this—mainly vertical, but also horizontal, such as in the case of media conglomerates.

Interestingly, Wu wants the separations principle to be more of a societal-corporate norm than Governmental regulation. That said, he does call for more powers to the FCC, which is odd given that he is clear on the role that State actors have played in the past in enabling and condoning monopoly abuse:

The law in Germany tries to “protect the name and likenesses of private persons from unwanted publicity.” Of course, the Wikimedia foundation is based in the United States, and this attempt runs head-on into the First Amendment, the right to Free Speech. European countries have a variety of restrictions on speech—Holocaust denial is illegal, for instance. But there is little doubt about how U.S. courts will see the issue; Jennifer Granick of the EFF has a nice write-up.

The aspect that interests me is that even if there weren’t a Free Speech issue, it would be utterly impossible for the court system to keep the names of these men from the Internet. I wonder if the German judge who awarded a judgment against the Wikimedia foundation was aware that it would achieve exactly the “unwanted publicity” that the law was intended to avoid. He would probably have ruled as he did in any case, but it is interesting to speculate.

Legislators, on the other hand, would do well to be aware of the limitations of censorship, and the need to update laws to reflect the rules of the information age. There are always alternatives, although they usually involve trade-offs. In this instance, perhaps one option is a state-supplied alternate identity, analogous to the Witness Protection Program?

Returning to the issue of enforceability, the European doctrine apparently falls under “rights of the personality,” specifically the “right to be forgotten,” according to this paper that discusses the trans-atlantic clash. I find the very name rather absurd; it reminds me of attempting not to think of an elephant (try it!)

The above paper, written from the European perspective, laments the irreconcilable differences between the two viewpoints on the issue of Free Speech vs. Privacy. However, there is no discussion of enforceability. The author does suspect, in the final paragraph, that the European doctrine will become rather meaningless due to the Internet, but he believes this to be purely a consequence of the fact that the U.S. courts have put Free Speech first.

I don’t buy it—even if the U.S. courts joined Europe in recognizing a “right to be forgotten,” it would still be essentially unenforceable. Copyright-based rather than privacy-based censorship attempts offer us a lesson here. Copyright law has international scope, due to being standardized by the WIPO, and yet the attempt to take down the AACS encryption key was pitifully unsuccessful.

Taking down a repeat offender (such as a torrent tracker) or a large file (the Windows 2000 source code leak) might be easier. But if we’re talking about a small piece of data, the only factor that seems to matter is the level of public interest in the sensitive information. The only times when censorship of individual facts has been (somewhat) successful in the face of public sentiment is within oppressive regimes with centralized Internet filters.

There are many laws, particularly privacy laws, that need to be revamped for the digital age. What might appear obvious to technologists might be much less apparent to law scholars, lawmakers and the courts. I’ve said it before on this blog, but it bears repeating: there is an acute need for greater interdisciplinary collaboration between technology and the law.