The problem isn't that Congress is stupid about how technology works, as betabeat.com reports about a recent technology conference in New York.
The problem is that Silicon Valley is stupid about how the rule of law works -- and that's largely because they don't want it to apply to Internet technology corporations.
I see a press reports like that -- and this one outlining plans for a new lobbying foundation -- from the annual gathering of lefties, geeks and token bipartisanalists -- the Personal Democracy Forum -- is still obsessed with the Stop Online Piracy Act (SOPA) and related anti-piracy legislation PIPA -- both of which were stillborn after a wild backlash by kids on the Internet incited by Google and Electronic Frontier Foundation. The geeks hysteria about these laws and the cybersecurity bill known as CISPA was a marvel to behold as I wrote here, here and here -- and as Streetwise Professor wrote here, in a good analysis of WikiLeaks promoter Jacob Appelbaum's propaganda video.
I see this meme has now taken hold that works like this: Congress (and by extension, the East Coast establishment) is stupid and dense about technology and consists of lawyers and people who "haven't even run their own businesses" and by contrast, Silicon Valley is full of smart, modern tech-savy people who make profits while East Coast businesses had to be bailed out. Um, ok.
This caricature of Congress comes largely from the left, of course, because Congress is now controlled by Republicans.
The way to understand this story, however, is that Congress is filled with people who were elected democratically by their constituents, who know how to draft, debate and pass laws. Meanwhile, the amount of legal nihilism in Silicon Valley by contrast is very high. There's not even the most basic, working understanding of how law works or what precedents and practices mean. There's a brute, ignorant understanding instead of "code as law" that has overtaken the notion of how human affairs should be governed. Technologists have forgotten -- if they ever admitted it -- that code is only a primitive approximation of human institutions, not a good substitute for them.
That's why literalists and binary thinkers in the code cave look at laws being drafted and take them emotionally, hysterically and flatly as somehow privileging what they call "edge cases" or "corner cases" -- hypotheticals that *might* happen and disrupt the good intent of laws to stop piracy or other online crimes. It's as if the entire rich texture of how law is practiced and adjudicated is out of their view -- in part it's a deliberate ploy by lobbyists, but in part it's a new generation of Internet-educated kids who don't learn civics any more in school.
And the reality is that the California lobbyists don't really want to combat piracy -- they don't even want the notion of "piracy" to exist. That's clear, because their supposed "alternative" to SOPA with the word "open" in it never got off the ground.
Yet the Internet is not magic, and it is not hard to understand. It's a human artifact with humans coding it who have concretized their will as code and in some respects welded their own culture and politics into the tools. Any and of all of this can be questioned and revised; as Jaron Lanier, a critic of the Internet and one of its pioneers says simply, "The Internet is this way because we made it this way." It has evolved very far from the simplistic utopia of scientific collaboration that Tim Berners-Lee imposed on it, welding into it three destructive flaws -- a) demand for openness, so that privacy is constantly undermined; b) demand for only open source and open standards, so that "walled gardens" are constantly despised; c) an an anti-commerce demand for "free" so that business has had many hurdles to cross, including protection of intellectual properties rights, in making the Internet useful for the rest of the human community outside the scientific utopia.
Any reasonably intelligent person can follow how servers and Internet Service Providers work. I'm always appalled when I come to meetings where some technology lobbyist is smugly telling people that they need to explain "how the Internet works" and how some proposal for reining in its rampant lawlessness is "breaking the Internet". What they do, then, in ostensibly telling you the "science" of "how the Internet works" is to smuggle in a radical agenda for how *they would like it to work* but how it *does not have to work* and wouldn't work if there were any basic democratic deliberation of these issues.
No doubt the Highway Robbers lobbyist front groups did the same thing in the era of the westward expansion and the railroad and the telegraph. Any effort to stop robbers from hijacking trains or wagons was "harming innovation" and "stopping progress" and "interfering with the technology," you know?
The history of the Internet is one where all the founding notions of Tim Berners-Lee -- who is held in awed regard like a god -- have in fact mercifully been overridden. Geeks jeered and sneered at AOL during the early days of the web because it was a "walled garden" with proprietary code, a log-on, protected community of people and content that coders couldn't breach. Endlessly for decades now, we've heard that "walled gardens" are anathema because there isn't "openness" -- i.e., engineers can't get their hooks into the data. Well, too bad?
AOL survives where the free services of the dot.com era crashed. AOL bought out TechCrunch and Huffington Post, leftist bastions of the copyleftist and open source ideologies. Every teenager in the world was on AIM in the last 10 years, and AOL, whatever its failings, still makes money from accounts and ads. It remains a walled garden unabashedly.
More to the point, Facebook, the premier walled garden of the world, now has some 850 million users and just went public, even if it stock hasn't done so well. That's 850 million people who chose to be in a commercially-profitable walled garden where identity and content are in a proprietary system. To be sure, engineers can have apps to interact with this system, but it has rules -- you have to use a real name to sign up, you have to pledge not to do harm and abide by a variety of rules or you will be kicked out. Good! The notion that coders get eminent domain to hack and scrape data and monetarize it or use it for whatever they want is what's outdated. The walled garden has triumphed. Open source social media projects like Diaspora and -- what was the name of that Twitter substitute? -- failed. Ideology does not triumph when it is against human usability and comfort. Facebook won because it was easy to use, and whatever its many privacy issues, most people are happy with it -- their usage hours tells you so, whatever they grumble.
Sen. Daryl Issa (R-CA) and Sen. Ron Wyden (D-OR) are two senators from high-tech states with big IT companies among their constituents. They've avidly opposed SOPA -- in fact, giving the lie to the meme that Congress is 'too stupid to understand the Internet" blah blah.
And now they are calling for a "digital bill of rights." Oh, hell, no! We absolutely do not need any such thing. We already have a perfectly good bill of rights with the First Amendment, "Congress shall make no law..." that is all you need for a free Internet. Freedom of expression is a so-called "negative" right -- the government gets out of the way and does not prevent it. The First Amendment doesn't entitle you to your own TV station and millions of viewers. The free market is available for you to make your way with your media company in competition with others.
What the PDF notion of "the digital bill of rights" does is try to convert this negative right into a "positive right" where the government -- and Big IT -- have to supply this right in a developmental fashion. Inevitably, when you have governments "provide" rights, they take them away or limit them. It's actually the worst possible way to get freedom. Americans always tell people in countries making the transition to democracy that "the best press law is no press law." America doesn't have tomes of press laws; it has the First Amendment. Other countries fill up books with prescriptive notions of everything from registering a newspaper to how many journalists can sit in a press conference in city hall. These kind of procedures that develop in institutions in the US aren't prescribed by law, but in fact governed by First Amendment Supreme Court precedents, so that if journalists are kept out of city hall, they have a legal means to fight it.
But the "bipartisan" technolibertarians that PDF has convened have a different idea.
As betabeat.com reported:
Sen. Wyden proposed a “digital bill of rights,” to repair the relationship between Congress and the American web industry. ”It sounds like you’re starting what amounts to a digital Constitutional convention,” he told Mr. Rasiej. The bill of rights would enumerate broad rights such as “freedom,” “open Internet” and the right of digital citizens to “share.
This relationship doesn't need "repairing" because Congress isn't "broken". Congress people don't need to learn technology; they all use the Internet and many of them have Twitter accounts. Rather, Silicon Valley needs to learn how law works -- and start applying it to themselves.
I would utterly oppose a "digital Constitutional Convention" because it would amount to an overthrow of the already-democratically established United States Congress with the checks and balances of a liberal and free state in three branches of government. It would be a putsch attempt by Silicon Valley simply to take over the executive under the guise of "showing us how to use technology". No thank you.
The notions that the leftist PDF has -- its roots are in the socialist magazine The Nation -- are merely a conversion of the old failed Marxist principles into New Speak that will resonate in the cyber age.
"Freedom" may incorporate the basic civil liberties we already have and which make the Internet possible in the first place, but for these radical activists, it is a larger concept that includes "freedom from prosecution" for crimes like piracy, child pornography, and sale of illegal drugs (which were targeted by SOPA and PIPA and other similar legislation). The Internet is a human community. We cannot have a human community where theft, harm to children, sale of illegal harmful drugs and other crimes get a pass. It's ok to prosecute them. It is not "clumsy" to prosecute them on the Internet. The legislation is not "poorly-drafted".
"Open Internet" means "open source cultism" -- it is antagonistic to proprietary software and "walled gardens" like Facebook. It takes the side of Google and Android rather than Apple.
The "right of digital citizens to 'share'" is the worst of the notions because it means essentially liberating all content, regardless of who owns it, and enabling anybody to consume and disseminate it without compensation to the owners.
The technologists don't get the basics here as they aren't schooled in law or civil rights: you can't have government prescribe a thing like "the right to share" because then it means the government supplies it and can limit it; coercion creeps in.
You don't need to stipulate the "right to share" because it is already part of the First Amendment's protected speech. That protection doesn't extend to monetarizing content you do not own, however, and that's the real motivation for this "need" for a "digital bill of rights".
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