Thoughtful Write-Up of the Berkman Center Discussion

So which is more dangerous, then: a state-of-nature Internet, or a state-controlled Internet? If Wittes was solidly on Team Hobbes, then Schneier was flying colors for Team Rousseau (if without name-checking the philosopher directly). Hobbes would see a greater danger in the state-of-nature Internet, which Wittes likened to a foreign war zone. Rousseau, on the other hand, would see a far lesser danger in the “primitive” Internet, which Schneier argued was really not so bad. The state has only figured out how to police the Internet comparatively recently, Schneier said; up until that point, “We had the unpoliced Internet…and we came out pretty okay.” It’s not that we need the state to protect us from each other on the Web, but that we need the Web to protect ourselves and each other from the state. Similarly, while Wittes and Okobi were more concerned with the crimes that would take place via the Web without strong state enforcement, Schneier was concerned with the crimes that wouldn’t occur if the state had more control over the Web, such as activism and dissident speech. “Being able to break the law is how we improve society,” Schneier said; “That’s how we got gay marriage, for instance,” or the Civil Rights Movement (to name just a few such improvements). “The price of liberty is the possibility of crime.” Schneier further argued for the value of “the unowned commons,” and for preserving the Internet as such—because ownership grants control. “There are protests you can have outside Harvard Yard that you cannot have inside Harvard Yard,” Schneier pointed out. Although foot traffic can move freely between Harvard Yard and the sidewalk beyond it, these two places are not the same thing; different rules apply in each. The same holds true for the Web: Facebook, for instance, is like Harvard Yard, even though the lack of a giant iron fence around the site makes the distinction between it and the open Web a bit less obvious. A world in which we all thought we were standing on the sidewalk, but were in fact locked inside Harvard Yard, could have dire consequences. As Zittrain observed, the specter of “conformity” looms large on both sides of this conceptual spectrum. Give the state too much power over the Internet, and it will use that power to squelch its opposition; activists will be targeted, and dissidents silenced. Give corporations too much power over the Internet, on the other hand, and it’s not terribly different from giving too much power to the state (the downside is even less recourse for the public; the upside is that Google doesn’t command an army…yet). Give power over the Internet to no one, however, and existing power structures continue to reproduce themselves: women get death threats, children get exploited, and marginalized Others get further marginalized. Now what? In the absence of utopia, all imaginable solutions seem untenable. DDoS attacks against blogs, threats against women, and marginalization of Othered authors remind us that, in the words of my friend Daed, “greatest individual liberty and smallest ruleset are totally orthogonal to one another.” Put simply: If we agree that free speech should be protected, we must also acknowledge that free speech cannot exist in a vacuum. Until such time as Utopia has arrived and all social injustice has been ironed out, self-policing will not be an effective way to promote justice on the Web writ large. Accordingly, preserving “free speech” must mean building systems and structures that shield our ability to speak not just from the state, but also from each other. Seriously though: How do we do that? No one on the panel suggested leaving that matter to corporations; in fact, Schneier warned against it, and Okobi indicated that corporations frankly don’t want the responsibility of having to decide what is “the right thing to do.” That leaves us with the state, which…oh man. Wittes was all for it; Okobi admitted the current version of state enforcement isn’t great, but still felt the state was the best actor to do it; Benkler was concerned about state control, and moreso than he was about corporate control; Schneier all but argued that the state is the worst possible option. Compared to “corporations” and “individuals,” I thought “the state” sounded like the least of all evils—but only until I stopped thinking about some vague concept of “the state” and considered instead the track record of the U.S. government during my lifetime, at which point I was right back where I started. For Wittes, the enforcement question boiled down to two key questions: 1) “What is the substance of the rules?”; 2) “What are compliance systems, and do you have faith in them?” Wittes—who, recall, had some pretty strong faith in the compliance systems surrounding law enforcement in the U.S.—looked at these questions and was happy leaving control of the Web to the state. As one hashtag participant noted, however, “technologists have WAY more faith in the processes of warrants than us lawyers”; another hashtag participant responded that this is because technologists have less faith in technology than do lawyers. Still another hashtag participant answered Wittes’s questions by saying, “I have very little faith in the compliance systems and I’m not sure about the rules in the first place.” Perhaps I’m too much the cynical sociologist, but for real: If keeping power accountable has become a matter of faith, we are all in some serious trouble. My conclusion, then, is that the best agency to regulate the Web in accordance with social justice is some agency as-yet unimagined, some option not currently on the table. Corporations won’t design that, and neither will the state; after all, power hates to relinquish power. Looks like the ball is back in individual users’ court after all.