Monday, November 21, 2011

If Money Equals Speech, Both Must Be Distributed

Given the recent Occupation evictions (and returns!) and the associated reports of police brutality (UC Davis, I'm looking at you), a few thoughts about rights and liberal democracy have been steeping in my mind. There is some symbolic merit in the rights to religious freedom, free speech, a free press, and free associated being collected at the beginning of the Bill of Rights. While I'm no Constitutional scholar, I cannot readily explain the historical reasons behind the composition and ordering of the first ten amendments to the US Constitution. I do recall that the Bill of Rights formed a package of compromises, things that the colonies demanded be added to the Constitution before ratifying it. As that is the case, one could be forgiven for thinking that the Bill of Rights consists of some non-organizational necessary conditions for a liberal democracy. Let me give an example using the First Amendment rights.

The freedom from state religion or “religious tests” is crucial for any liberal democratic government. Religious freedom establishes a principle of liberty of conscience, the ability for every citizen to decide religious or spiritual matters for his/herself. Where there is no requirement to profess any particular religion as a condition for holding public office, there is no danger of interference between the church and the state. As such, public offices are essentially open to anyone, and religious matters, matters in which authorities can hold an irrational sway over their subjects, are excluded from much of public debate. Of course, none of this is to say that we can't find ourselves in the unenlightened position where public opinion about religion does what law is not allowed to do, as it has in the US. Nevertheless, the only thing stopping us there is ignorance and sheer bloody-mindedness. We don't have any Test Acts to repeal.

Free speech, the free press, and free assembly are all ways of keeping the government accountable to the people. When a citizen disagrees with a politician or a policy, he or she can make that disagreement known, in the tavern, in the papers, and in the streets. The speech act is the most basic form of political communication, but the free press and the free assembly allow for wider distributions and recirculation of ideas, opinions, and suspicions. First and foremost, these rights are the very stuff of liberty, the tools that allow us to denounce an administration, an official, or a law, and to do so publicly. Public political discussion is key because only by making our views known can we find out that we are not alone. Other people sometimes agree with us and think that there needs to be a change. Political leaders learn of public discontent and learn that they must adjust their decision-making or risk defeat in an election. Notice something here: voting is not enough in the way of political communication. The vote is a communicative act in a fixed system; it allows for only a binary expression (this guy or that guy, yes or no). Political discourse takes more nuanced forms and must be free and flexible enough to match the flow of ideas and opinions in the individual mind. No voting system can do that alone, so communicative acts must be a key political right.

These three rights (speech, press, assembly) are crucial for a liberal democracy just because they allow unmediated communication between the citizens and those whom the citizens elect to govern. Notice that these are also the first three freedoms to suffer as a liberal democratic government slips toward the police state. No movement away from liberty of speech, press, and assembly can be tolerated. The free press becomes the corporate media, the free assembly must have a permit from the police, and free speech becomes relegated to “free speech zones” well away from the targets of the speech. The Occupy evictions and the associated police brutality are chilling and clear reminders of these principles. In a country founded by revolutionaries on revolutionary principles, it is also a disturbing one. Still, once power is entrenched, those key rights to dissent and to discuss among ourselves and with our “elected representatives” dissolve like sugar in the rain.

To my mind, the final irony is that these communicative acts have been obviated by the prevalence of corporate influence. Where winning an election depends more on funds and less on popularity, the elected do not need to pay attention to the electorate. The only meaningful political strategy has become soliciting donations and funding by appeasing the most moneyed of people, and since Citizens United the most moneyed people are corporations. Of course, the problem predates that ruling. It begins in lobbyists and the gradual takeover of public space by private interests. Even before Citizens United, money bought air time and advertising space, and corporations were still more able to purchase those things than private citizens. Most importantly, where speech is a commodity to be bought and sold, the right of individuals to make their views known is essentially neutered. Corporate ownership of media is one example. Astroturfing is another.

For those not in the know, astroturfing refers to purchasing speech acts so as to generate the appearance of a grassroots movement. A private interest, or consortium of interests, pays agents to appear at rallies, post on internet forums and social media sites, and otherwise spread the ideas that they are paid to spread. An agent can maintain multiple online personas to swell the apparent ranks of the movement, and through those personas they can co-opt political discussions to flood out any speech or discussion contrary to the ideas of the employer. In information theory terms, astroturfing inserts a great deal of interference into any communication. The signal-to-noise ratio becomes problematic, and no one knows who is really saying what anymore. The Tea Party began in just this way, and they have astroturfers trolling the internet now.

If speech can be purchased in this way, the only way to restore something like liberal democratic free speech is a redistribution of wealth so that all citizens have the same purchasing power. Sound incoherent? Good, then let's get rid of corporate personhood and get some rights back.

Friday, November 18, 2011

The Intellectual Property Arms Race

Among the many hot news items is this week is Congress's consideration of the Stop Online Piracy Act, a bill that would give private copyright holders sweeping enforcement powers. The details of the bill can be found in a variety of places (Wikipedia, as usual, has an excellent summary: ). Since I've written a dissertation around the argument for copyright reform in exactly the opposite direction of current trends in Intellectual Property law, I thought long and hard about exactly how to weigh in on this issue. Before providing my own opinion, let's be clear about some of the more problematic provisions of the bill.

For one, SOPA would make websites responsible for enforcing copyright infringements on user-uploaded content. In effect, social websites would then be liable for failure to enforce, so those sites that have become the backbone of the internet for many people will either have to institute draconian content-regulation or risk being shut down, having their financial services suspended, etc. Any website suspected of or found to be hosting copyrighted content or links to copyrighted content could be shut down. While the most obvious targets here are torrent sites such as the immortal Pirate Bay (long live the internet pirates!), any site linking to copyrighted content is a potential target. Given that news agencies such as the Associated Press have become fairly vigorous in enforcing copyright claims on their content, news aggregating sites, such as Reddit, are also in the crosshairs.

What does all of this mean for the internet as know it? Search engines will have to filter their results and DNS servers will have to remove these sites. The links from one site to another that make the internet so addictive, time-consuming, and powerful will become more and more broken and unreliable as infringement claims roll out. As the EFF, and other Free Culture supporters have pointed out, these powers make it possible for content-owners to “break the internet” by interfering too heavily with traffic routing. Clearly, I'm not happy about any of this, and I don't think anyone should be.

So what do we do? The Occupy movement has provided an excellent demonstration of the major hurdle: the United States government does not care about its citizens, what they need, or what they think. The major content-owners have a great deal of money, and since the Citizens United decision, they have a great deal of latitude to use that money to drown out the speech of anyone else through legal channels, not to mention the latitude they've always had to do so through illicit channels (let's just call them what they are, guys: bribes). As a result, intellectual property law shows no signs of reforming until the rest of government is reformed.

In the meantime, I honestly think the solution is skillful piracy as civil disobedience. Civil disobedience is a noble protest practice, defying the law in the name of a deeper moral right. In this case, we must also introduce the notion of skillful civil disobedience. We must be skillful because if we are ham-fisted and make the practice overly obvious to anyone, we will be shut down under the terms of this act. Instead, we have to employ the tactics used by internet pirates all along, strong encryption, TOR-style traffic routing, private torrent trackers, and hosting sites on foreign data havens.

Since the introduction of the DMCA and the Digital Rights Management it made possible, intellectual property has been marked by a kind of arms race. DRM technologies lock down content so that it can only be used as the content-owner desires. Nevertheless, it must be usable, or consumers will simply abandon digital content. As such, any DRM technology must leave a way to access the content. If the it can be protected, the protected can be broken. Every lock must have a key. The more restrictive the DRM gets, the more innovative the strategy for breaking it. Until intellectual property is reformed, this arms race will continue. Law will turn individuals sharing and discussing media into criminals, trespassers, and thieves. In turn, the community will abandon respect for law in favor of adhering to rational and fair standards. Hopefully, the government will figure this out before too long. I think it is high time for a full-scale review of our social institutions and how we can make them serve the public at large and not the advantaged few.

Friday, November 4, 2011

New Orleans: Occupied

Today, I spent my lunch hour at the local Occupy New Orleans encampment. The movement has established their tent city, perhaps more like a village, at Duncan Plaza, across the street from city hall. As a political philosopher and a sympathizer, I wanted to finally make way out to the front line as it has manifested here, to talk to some folks, find out what has motivated them, what they are doing, and talk about what challenges they are facing.

I was only there for an hour, but I walked through the entire camp. Being New Orleans, a city that we locals know for its apathy and cynicism, I didn't find myself surprised at the low turnout. In addition to the ones directly involved in the action, many homeless have camped out there since the NOPD cleared the homeless encampment from their camp under the overpass at Oretha Castle Haley and Calliope. I spoke to a few groups of people, some making signs, some picking up stakes to join the occupation on Wall Street, and some digging in and looking to stick it out here.

Thankfully, the consensus at the camp indicated little to no problems with the police. The dominant concern was actually internal dissent. For those who don't know or haven't been able to keep track, Occupy NOLA's online services were recently hijacked by an unscrupulous character looking to funnel donations into his personal account. Aspects of the argument are documented in comments at the now-fraudulent site here and at the new official site here.The latter site also contains listings of upcoming events and minutes from the General Assembly, so those interested in getting involved can get the relevant information there. The stage mentioned at what is still the top of the blog (the entry on November 3) was still under construction when I arrived, though word was moving through the camp that the police had informed them that the stage was illegal since they have no building permit. When I left, there was still discussion of how much to resist when or if the police followed through on a threat to tear down the stage if the occupiers did not take it down themselves.

Interestingly, media blackouts work in both directions. The local (mainstream) news sources here have essentially neglected any coverage of the occupation, and since other localities have followed suit, some of the occupiers had only scattered information about the situation elsewhere. I listened to some rumors and passed on some of my own. In addition to wanting news, the occupiers were very interested in learning from the larger and more successful movements. Those folks determined to go to New York expressed a wish to come back after a couple of weeks, in hopes of finding out how to make the local movement better organized and more successful.

One major concern was security. As I understand it, the police have essentially forbidden the occupiers from working security within the camp and handling problems internally. In essence, they have been told that they cannot kick anyone out of the camp or tell anyone to leave, even if the person has threatened or done violence. By the same token, the police are not especially interested in enforcing civil authority within the camp, so problematic individuals are essentially problems waiting to happen. Of course, the occupiers have organized security anyway in an effort to keep the peace. One of the guys who covers a night shift told me that a few fights were broken up the previous night, and he is essentially waiting for someone to be seriously injured or killed since that would provide the police with an excuse to clear the camp. These folks have been placed in a classic Catch-22, and I supposed it's only a matter of time before we find out how that dilemma plays out. Of course, I'd like to see Occupy NOLA slip right through the horns of that dilemma somehow, but only time will tell on that front.

The camp had an information booth, but the gentleman running it, whom some of the campers seemed to identify as a key organizer, was engaged in conversation, so I didn't speak to him directly. Among the booth's pamphlets and tracts was a dry-erase board with a list of needed items for the occupation. Not on that list was one essential thing: bodies. There really are not that many folks there, and they need more presence to fuel more activity, I urge locals to drop by and at least talk to some people, see what the movement is all about, and take an honest look at our economy, our government, and the things that drive them. One person expressed a wish to raise the profile of the camp. Being downtown, at the heard of the Central Business District, cars, bikes, and pedestrians pass by the camp all day and much of the night, yet many people just pass by and ignore the camp or honestly have no idea what is happening there. He thought the occupation needed some people to take positions and address people walking by, raise awareness, hand out information packets, and just get people's attention.

By and large, folks were working hard to encourage others to come by with a tent and at least spend a night at the encampment themselves. Here, I have to confront the hard economic realities. It is easy to do that when one is at the point of desperation that some people had reached. I, on the other hand, am working hard to make ends meet. I can't afford a tent, and I certainly can't drop out to join the movement without giving up what ground I do have. Nevertheless, I think this occupation, and the others, can be helped a great deal by people willing to show up, bring what they have, serve some function for a couple of hours, and then go back out to continue spreading the word. As an academic philosopher, I'm in the position to participate in scholarship, to address the demands and arguments of the movement in writing and spread the word that way. I can inform my students about the movement and encourage them to make their own decisions about involvement, as I have already done. There is a role for everyone to play, whether they are holding ground in a tent city, scraping by with a time-consuming job, or positioned within one of our society's many institutions (law, university, medicine). I honestly hope that something comes of this movement because things need to change for the better, and I mean soon.