I gave this speech last July at the ACLU Biennial Conference in New Orleans. At the time, the news that major telcos and search engine companies were cooperating with the government by providing all kinds of personal infomration had not yet hit the press. I was just applying logic.
It seems useful to me to publish here as a reminder that the recent headlines are not an aberration or the work of a few evil or gready or misguided men. It is the inevitable result of a system that concentrates power and information in the hands of a few large coorprations with every interest keep those in government happy.
We don’t ask chain saws to distinguish between human beings and trees. They are inanimate tools. If you turn it on, it cuts through things. If you want to make it safer, you need to put on safety locks and other devices, or someone is likely to cut his or her own leg off by accident some day.
Similarly, it is ridiculous to depend on corporations to defend private information. They are designed to maximize revenue for shareholders. This does not make them good or bad, greedy or virtuous. It makes the corporation a tool. If we, as citizens of democracies, care about our civil liberties, then we need to install some safeties.
Stay tuned . . .
ACLU BIENIEL CONFERENCE 7-22-05
New Technologies for Freedom vs Outsourcing Big Brother
It is the paradox of our time that just as new technologies offer unlimited possibilities for freedom of speech, government “deregulation” creates new bottlenecks. It is a race between the new technologies for freedom and what I call “censorship by outsourcing.”
The increasing power of computer processors has driven down the cost of production of high quality video and audio content. Even better, we can make this content interactive. We can distribute it globally and locally. We can project it onto television screens and fill a 500 channel world. We should therefore find ourselves in a renaissance of free speech and civic dialog, cutting edge entertainment and thought provoking perspective should abound. And, to some degree, it does.
At the same time, however, the ability of a few corporations to control the creation and distribution of this speech has also grown. As a consequence of deliberate policies of deregulation and enhancement of intellectual property rights, the ability of a few companies that control distribution of content to block or marginalize content has also grown, and continues to grow.
This should raise the alarms for anyone who cares about freedom of speech. Large companies have no incentive to protect free speech, and every incentive to keep government happy. If those who have the power to grant tax benefits, relax ownership rules, or enact other favorable policies want certain favors, companies will comply. At the same time, government will turn a blind eye to corporate censorship that results from economic incentives, such as favoring one’s own content over independent content.
Welcome to the world of “censorship by outsourcing.” The government cannot block coverage of the Iraq War. But if only a few companies cover the news, the government can influence how the story is covered. The government cannot get search requests or spy on email without a warrant. But your ISP can get them under your terms of service, and voluntarily provide them to the government. As with so much else these days, Big Brother can be outsourced.
The result is exactly the same as government censorship, but under libertarian guise. By “deregulating” and removing ownership restrictions, government claims to serve the interests of free speech. Instead, it creates a cartel of conglomerates willing to respond to government requests in the name of national security and “responsible corporate policies.” Because these few large companies have so much to gain from keeping government happy, they will cheerfully spy on their customers. After all, even if the customers discover the censorship or spying, where can they go?
Consider the Internet. For the last decade, the Internet has created an unprecedented opportunity for people to speak and disseminate speech. In numerous court cases and testimonials, we have hailed the Internet as a true technology for freedom.
This nirvana of free speech did not arise spontaneously out of nature, or even as the result of technological determinism. The internet grew out of two important principles. The first was “common carriage,” the idea that the provider of the essential service (here, the phone lines that carried the original dial-up internet) must make that service available to everyone at the same rate and cannot interfere with anyone using the service. Mark Cooper has called this principle of common carriage “essential to the DNA of capitalism.” Historically, we have applied it to inns and tolls, so that goods could move freely. We applied it again to railroads, then public utilities like electricity and phones. This prevented the entity that controlled transport of goods or information from using control of this essential facility to extort monopoly prices or favor one type of goods or services over another.
The second principle was the right to interconnect. If I run a communications network, I have a right under US law to interconnect with any other communications network. This allows networks to compete. Without this principle, a rival network could never have a chance. The competing network would refuse to connect, and the few customers on the new network would not be able to reach the majority of people on the other network. (Economists call this phenomenom a “network effect.”)
The internet arose from this universe of common carriage and interconnection. It placed control of content and services in the hands of the people at the edges of the network, rather than under the control of the network operator.
But the FCC has eliminated both of these requirements, a decision affirmed by the Supreme Court in the Brand X case. This changes the nature of the internet.
Suddenly, only a very few networks – cable companies and telephone companies — control the bulk of subscribers. These companies can use their control of the network to block or degrade content or rival services. Or, through their user agreements, can access information and turn this information over to the government. What had been a technology of freedom now becomes a way to outsource censorship and spy on citizens without a warrant. Because the government that “deregulated” the broadband companies could reregulate them unless the companies play along.
We see the same thing happen with the mass media. As fewer companies own more radio stations, television stations, and cable subscribers, they have an ever greater interest in behaving “responsibly.” The fewer the companies providing news coverage, the fewer companies need persuasion. The increasingly fewer media companies willing to defy the “powers that be” on important issues grow smaller, while those that toe the government’s line receive rewards in the form of merger approvals, further deregulation, and enhanced copyright controls. Defiant companies are marginalized and pushed off the 500 channel cable or DBS universe controlled by the handful of “responsible” companies that own these distribution mechanisms. While news may remain “discoverable,” it is drowned out by the much larger chorus of voices all controlled by the same handful of “responsible” media companies.
It was once thought that the internet would make this sort of censorship impossible. But remember that for most subscribers, internet access is controlled by the same “responsible” media and telecom companies. Once again, outsourcing Big Brother lets the government infringe free speech, while encouraging corporations to censor speech for their own ends.
This is grim news, but there are still some technologies for freedom. If we cannot save the broadband wires, we can still take to the airwaves. Unlicensed spectrum, uncontrolled by government and not subject to monopolization by a few companies, can provide us with a new avenue for free speech. This does not eliminate the need to restore the old rules of common carriage and interconnection – lest these unlicensed spectrum networks become islands in a “responsibly managed” national network – but it does provide a way to slow down the outsourcing of Big Brother and remind people what real freedom of speech is about.
We have relied on licensed use of spectrum for so long, unlicensed spectrum seems impossible to imagine on a large scale. Since the 1920s, we have accepted as true that the government must limit access to public airwaves to a few licensees. Otherwise, everyone would interfere with each other and the end result would be static.
But interference is not a product of physics, but of technology. When we depended on blasting signal to dumb receivers, licensing made sense. But we no longer have to do that. We can now build “smart radios” capable of sending and receiving signals at low power, and avoiding interference with other users. “Wifi” is one popular example of unlicensed spectrum that works like this.
When we add together the capacities of the new smart radios, the increasing power of microprocessors to decode more information from signals, and the internet protocols for streaming video, audio and voice over IP, unlicensed spectrum access provides a work around for media concentration. Suddenly, I am a television station, a radio station, and my own phone company. Using a technology called “mesh,” I can send to my neighbors, and they can send to their neighbors, until we cover a neighborhood or even a city. At last, no more gatekeepers! I am empowered as never before to engage in all kinds of speech, as well as educational and economic opportunities. A true technology for freedom not subject to corporate control.
But, of course, it is not so easy or so simple. In the first place, government rules limit the availability of unlicensed spectrum. The rules limit what bands I can use, what power I can use, and how smart I can make my radios. As a result, the ever increasing demand for unlicensed spectrum is jammed into the same small “space” on the electromagnetic spectrum. No matter how good my radio at avoiding interference, it reaches a limit under the current rules.
Also, unless I can get common carriage and interconnection on a wholesale basis, I can’t move traffic outside my local unlicensed “cloud.” The refusal of larger networks to carry my traffic or allow people to reach me can isolate me as effectively as exiling me to a Pacific island and expecting me to communicate with the outside world by tossing messages in bottles into the sea.
I do not suggest that we can or should give up on the fight to save either mainstream media or broadband wires. For the foreseeable future, the majority of Americans will continue to get their news from newspapers, local radio and television, and cable news networks. The majority will continue to subscribe to broadband offered by cable companies or telephone comanies, and get news from website maintained by the major media companies. For this reason, the fight to prevent further consolidation and deregulation must continue.
But if we wish to create true technologies of freedom, not merely prevent the outsourcing of Big Brother, we have two fights on our hands. First, we need to improve the rules for unlicensed spectrum access. That means getting access to more bands of spectrum and removing artificial restrictions on smart radios.
It also means getting access to better quality spectrum. For reasons of physics, the bands occupied by radio and television are the “beachfront property” of spectrum. The signals can penetrate solid objects (like tree foliage), and require little energy to go long distances. Because broadcasting is a very inefficient and high-power form of spectrum use, it is possible to have low power unlicensed devices operate in the broadcast bands without interfering with television or radio viewing.
Congress and the FCC are considering these issues. Tech companies are lobbying hard for unlicensed spectrum. It is a very winnable fight. But it faces the stiff resistance of broadcasters, cell phone operators, and others who make their living from keeping access to the public airwaves a scarce, rationed commodity.
And, as I said, we need to fight to restore common carriage and interconnection. It will do no good to have developed the most free and most compelling speech in the world, yet remain unable to share it. I can already keep a diary. It is useful, but it is not a technology of freedom.
In conclusion, I know it seems odd to some here, even contrary to common sense, to lobby the government to protect free speech. Shouldn’t the government just get out of the way? But this too is the paradox of our time. It is an old adage that a sword cuts both ways, and so it is with modern mass media and the internet. We must chose between government regulation that protects the technologies of freedom, or deregulation that allows the government to outsource Big Brother. We must chose between the reality of free speech, or censorship in the guise of Libertarianism . If free speech is to remain free speech in fact, rather than free speech in name, we must not hesitate to demand that the government impose necessary safeguards on our right to speak and hear through the electronic media.