During David Isenberg's terrific conference earlier this week, I promised during the chat session that I'd post my remarks online. So here they are.
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A right to connect, or freedom to connect, signals that we need permission -- rights only operate against someone who has the ability to say no. Freedom of speech, all of that -- all operates against the government. A digital bill of rights assumes that someone has the power to cut those rights off.
We're here to affirm that we don't need permission. We are more threatened by ourselves and our willingness to look to government for permission than by anything else.
The reality of the internet simply does not depend on the FCC, and the internet's health doesn't depend on the telecom act of 2006. We should thank the FCC for allowing competing modems, for which we're really very grateful, and slap a big gold star on their forehead -- and move on. Freeing carriage -- net neutrality rules -- and regulating media ownership don't go together.
It seems to me, in fact, that regulating media ownership is inconsistent with insisting on freeing carriage. And dinosaurs need to clump together to avoid the cold winds of change -- so consolidation may protect them while not harming us. All commercial regulation leads to the risk that government will be pushed by industries of various kinds to do their bidding.
We should not be sad. In fact, things are going rather well, without intelligent design.
As humans, we have this need for control and for planning -- we say "there can't be innovation without planning"; content lawyers say "what kind of innovation do we want to to foster?" All monopolists cry out for easily predictable regulation. But we can't reduce the future of connection to a science; we can't plan.
We're used to the world of scientific reductionism. We like dealing with subsystems. Look at all the panels we're having today and tomorrow -- attempting to parse the problem of connection in some intelligible way
It's our challenge to change the way we think, and to look constantly for context rather than subsystems. We also need to recognize that atoms are different from bits.
It is important to understand that in our dealings with bits we're no longer just seeking to be protected against the state. We're not looking for "freedom from." Instead, we're into a brand new set of questions about what new forms of organizations (and organizing) both lead to good results for people and have lives of their own.
Now, that's not to say that atoms don't matter. They do, and hierarchies are needed to deal with them. We need people to be put in jail when they kill others. We need real property law so that people don't shed blood over the length of their gardens.
But a larger and larger percentage of what matters assumes the existence of that atoms layer.
We need to tell our government: you're in charge of atoms -- you need to deal with food and chemicals and health care. But you are not in charge of our minds and our culture.
This separation plays out in very interesting ways in the connection debate. Connection involves both atoms and bits. There is certainly a role for government in ensuring connection. They need to ensure competition at that physical layer.
But the question for this conference is: What is the most minimal amount of involvement of government needed to allow our free bits lives to continue? At what level in the protocol stack are top down rules necessary to allow complexity -- self-organizing, interesting systems, novel and changing and evolving -- to emerge? Allowing this emergence will provide us with our own freedom to connect.
And a second question -- what inner demons are we as a world people confronting that may get in the way of connection?
Let's deal with the second question first.
Inner Demon One:
We are showing an alarming tendency to think that it's okay to have government design software and devices -- which is the same as designing thought -- for us. Our fears about spam and spyware and pornography are feeding into the longheld plans of three great industries: content (don't let unauthorized transmissions occur), telecom (don't let computing devices attach to the internet), and law enforcement (don't let applications unknown to us and not easily tappable by us be used online). We're writing legislation and rules that would require notices and agreements and all kinds of other requirements to be present before a new application or an interesting bit could even reach us.
This is particularly true in the spyware debate, which could set a precedent for all kinds of software design mandates that may be requested in the future.
The content guys' yearning for control has been made particularly clear in the Grokster case, in which they're looking for design mandates for software.
Telecom, for its part, sees a business model in returning to the smart network: Let's make all end user devices nonprogrammable. No one can connect to the Internet on a machine that creates code. Or, at the least, they're pushing for telco policies (like support for universal service, like CALEA, like lots of other things) to be moved over to the IP realm.
Law enforcement also is looking for control: let's require, as a condition of online access, that you be certified as adequately secure. Let's require, as a condition of allowing an application to be used online, that it be adequately tappable by us. We're in charge.
All three of these industries are hellbent on clinging to their archaic business models and dwindling earnings no matter what. And we're letting them. This very strong threat lies within ourselves.
Inner Demon Two:
We also have an alarming tendency to want to have government involved to require particular filters (or to require the absence of filters).
The issue of filters has come up in recent years before the supreme court, both in CIPA and COPA. The ACLU was right in the library filtering case and right in the COPA case. Mandatory, government-imposed filters are a bad idea, because they cut off lawful adult access to lawful material. Voluntary, client-side filters are a better idea. And the best idea of all is to make a wide variety of better, more flexible tools -- including filters -- available to people using the internet, so that we can all voluntarily manage our own online lives along whatever lines we care about.
A problem with the current debate about spam, spyware, and viruses is that it assumes that national or international laws -- mandating filtering and labeling -- are the right way to fix online problems. But the COPA Court had the right answer: User empowerment. Users should have the ability to choose with whom they will communicate, by using a wide variety of flexible tools.
In my view, this same "filter" issue is coming up in the debate over requiring all ISPs to open ports to Vonage. The power to require that a filter be removed carries with it the power to require additional filters. Be careful about asking for help with filters. They get in the way of the freedom to connect.
Running to the government to ask for filters to be taken off implies that they have the power to ask for filters (of various kinds, for various purposes) to be installed. If we're free, and I think that we are, then we shouldn't ask for help but should find other routes to do what we want to do.
A third inner demon -- related to the first two -- is our need for certainty and security. Security is driving many of the threats to connection. We're worried and we long for someone to be in charge of what seems to be a central resource. It's like water and air to us, the internet, and we're willing to allow government in to shield it. We're worried about attacks -- and so we might be willing to allow law enforcement to require permission before letting an application online.
Just three inner demons for today -- that's enough -- desire to allow control over software, for certain purposes we think will avoid badness, desire to allow control over filters, desire for security.
To be consistent, to really assert that we have connection without permission, we'll need as a global people to overcome all of those demons.
So back to the first question: at what level should government intervene to keep the atoms in place that allow the complexity of bits to emerge? For me, that's the question for this conference.
It's clear that we need antitrust law, because adequate competition is a predicate for a lot of this. But it's not at all clear that we need a specialized internet commission of any kind. It's not at all clear that we need an IP statute -- even a very short one. Because any bit can be overwhelmed by another, blocking bit, it's not clear that we need the government to protect us. We can protect ourselves. Bits don't kill people.
As Robert Rosen said, "Any question becomes unanswerable if we do not permit ourselves a universe large enough to deal with the question." We may be trying to solve problems in too limited a discourse. Rather than setting up some date for a cut over to new forms of regulation, it's better to work towards a future whereby all this regulation becomes irrelevant.
How do we do this? Perhaps we'll find some answers today and tomorrow.
The hope should be that market and technological realities will overcome what's left of this regulatory apparatus, rendering most of this regulation beside the point.. So you won't need to game the system -- the regulators -- taking advantage of regulatory arbitrage, or spend years litigating. You'll be free.