by Neil Turkewitz
Twenty years ago John Perry Barlow wrote a manifesto about internet governance in which he proclaimed the independence of cyberspace. In many respects, this vision of internet governance has indeed become operative, and has been introduced in various legal systems around the world through broad immunities from liability for internet intermediaries--including in the US through Section 230 of the Communications Decency Act and the DMCA, and in the EU through the E-Commerce Directive.
We need to begin at the beginning - to explore how a vision of "internet freedom" lead us astray, and how the internet as a tool of potential empowerment has instead frequently become a tool of oppression - how a surfeit of "democracy" has reduced the ability to engage in actual and informed democracy.
The early visionaries of the internet, including Barlow and his early EFF cohorts, defined freedom as the absence of constraint, and envisioned that an unencumbered and global communications medium would be self-governing and altruistic.
Barlow may have been an inspired poet, but he was no prophet. His vision of enlightened self-governance not only failed to materialise, but served as ideological cover for conduct that resulted in manifest social harms. It reinforced a cultural orthodoxy premised around the negative freedoms treasured by a small group of privileged Americans living in Northern California, largely uninformed by communities of color or by women. And due, at least in part, to the fact that no at-risk communities were meaningfully involved in shaping it, the self-governance premised on this ideology failed to understand risk.
Barlow, perhaps understandably since he was writing before the advent of broadband or the emergence of Silicon Valley internet giants, failed to grasp how the internet (as a communication tool, not a mythical place) would become the central vehicle in the business and personal lives of global society, and not merely a forum for civic minded debate.
In 1996 he wrote: "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different."
While it may have been forgivable in 1996 to be unable to accurately foresee the role of the internet, it is unforgivable in 2017 to pretend that this is an accurate reflection of the world we inhabit. I raise Barlow's vision not to make him the story, but to underscore the vitality of a vision which continues to inform the ideas and advocacy of many in this space who decry any internet-based restriction as a form of censorship inconsistent with the DNA of the internet itself.
But those positions rest on a vision of a theoretical internet which bears little similarity to the one we know. An internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content.
Achieving an internet that captures its potential to enhance social, cultural and economic well-being requires more than self-governance, and is predicated on the technology neutral application of laws to internet-based conduct.
Fortunately, governments, policy makers and many non-governmental organizations are increasingly aware that it is long past time to jettison the baggage of Barlow inspired cyber-libertarianism. Or perhaps, more accurately, that in order to achieve the kind of flowering of diverse human creativity and expression at the foundation of the cyber-utopian vision, we need to address misconduct regardless of the modality employed to effect it.
This understanding that freedom is dependent upon the application of rules - or that restraint and a recognition of interdependence empower meaningful freedom, has been increasingly expressed and has formed the foundation of government and private actions for some time now. It was excellently framed by U.S. Assistant Secretary of State, Michael Posner at the 2012 State of the Net conference:
Let me state for the record that international law applies to online behavior. Full stop. We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil - or more noble - when it is committed online rather than offline."
Much has been accomplished in the 20-plus years since the Barlow Declaration and the internet has transformed human existence in ways that were unimaginable, both for good and for bad. Capturing the benefits and minimising the prejudice requires an open mind and the capacity to embrace change in normative principles that are rooted in observations of behavior.
To build the foundations of a more functional marketplace that advances the human condition, we must take account of the disparate impact of various definitions of freedom, and reject the clearly-failed premise of the early tech utopians that decontextualised and defined freedom in a way that removed it from any sense of responsibility.
Chaos favors the wolves, so we shouldn't be surprised when wolves make the most of such opportunities. The issue of "fake news" or digital disinformation flows directly from the lack of accountability for the consequence of one's actions that was baked into internet theology 1.0 as expressed by Barlow, et al, and then weaponised by the captains of the internet economy as a way to avoid corporate liability.
But, as Isaiah Berlin notes: "Freedom for the wolves has often meant death to the sheep."
And let me remind you of what US President Lincoln once said:
We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name, liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names, liberty and tyranny. The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.
Let us also be mindful of the impact of this lack of platform accountability on the creative community. Creators have fuelled the digital age while being economically marginalised - forced to witness the decimation of our own fortunes as theories of permission-less innovation justify the theft of our creations.
Unfair competition has been dressed up as an economic theory to be celebrated. It is long past time to end this charade.
We must address the artificial ubiquity which undermines the ability of creators to realise economic returns as they are forced to compete with unauthorised versions of their own works. To restore the fundamental concept that the means of distribution does not upend the normative principles of society - that "cyberspace" is not, as cyber-utopians have suggested, an independent state governed by a form of techno-determinism and not by man.
We don't just owe this to artists and writers - we owe it to ourselves. The protection of art (and one can not divorce art from the conditions of the artist) will play a large part in determining the conditions of our existence in a rapidly changing environment.
Will we expand choice or contract it? Will we capture the potential of digital technologies to expand economic opportunities for creators and thereby fuel creativity and cultural diversity, or will our actions be governed by mere technological capacity?
Society can ill afford to take the wrong paths on these core issues. We need to be better shepherds.
Neil Turkewitz is CEO of Bethesda, Maryland-based Turkewitz Consulting Group, which is dedicated to expanding economic and cultural prosperity by ensuring accountability and the role of consent in the digital economy. Previously he spent 30 years at the Recording Industry Association of America (RIAA), principally as Executive Vice President, International, working to expand economic opportunities for the music industry through modernisation of copyright legislation and effective enforcement in global markets.