Hysteria over freewheeling Net blinds people to the beauty of truly free expression

Jon Katz
First Amendment Center scholar

05.26.00

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It speaks powerfully to the state of media and politics that few people in the country understand how much is at stake when it comes to the architecture of the Net, and the political, cultural and economic issues involved that relate so directly to this uniquely free environment.

"The architecture of the Internet, as it is right now," writes Lawrence Lessig, a constitutional scholar at Harvard University, "is perhaps the most important model of free speech since the founding [of the American republic]. This model has implications far beyond e-mail and Web pages. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. If we take this meaning seriously, then the First Amendment will require a fairly radical restructuring of the architectures of speech off the Net as well."

We see, read and hear all the stories about copyright, patent, music downloading online and piracy. But few Americans seem aware that the decisions we are making about the Internet and its architecture reach far beyond technology and into the most elemental American ideas of free speech and thought.

As any number of legal and constitutional scholars have written, the first-generation Internet has broken down many of the walls built around information, ideas and intellectual property. It has also become clear in recent years that the Net has brought into being some of the most impassioned ideas of people like Thomas Jefferson and Thomas Paine. The Net has created a new kind of First Amendment that is, in many ways, more vivid and powerful than the non-virtual one. Increasingly, society has become absorbed, even obsessed by the rise of the Internet as a force in business and information, but the nuts-and-bolts ideological source of the Internet's remarkable rise — its breathtaking atmosphere of freedom, innovation, diversity of thought and growth — is often overlooked.

More than politics or even idealism, perhaps the primary reason the Net has been so free is its architecture, the greatest protector of free speech online and the reason issues relating to the distribution of software and hardware are taken so seriously in cyberspace. If politicians and journalists have grown alarmed to the point of hysteria because of the Net's wall-busting capabilities, digital design has been freedom's best pal and the reason we are all freer than our off-line counterparts.

The relative anonymity, the tools of encryption, decentralized distribution, multiple points of access, the irrelevance of traditional geographical boundaries, the challenges to conventional policing, the lack of systems to identify content — those features designed by the far-sighted wizards who built the Net three decades ago have made it difficult, if not impossible, to control speech in cyberspace.

Not that people haven't tried. Congress passed not one but two Communications Decency Acts to curb unfettered speech online, and millions of copies of blocking, filtering and censoring programs have been sold to schools, businesses and parents. Nor is there reason to believe that this architecture will remain in place. The next generation of Net architects — more and more likely to work for corporations, with radically different interests than the Net's original designers — may well build in more controls over the movement of content and information.

"We can already see the beginnings of this reconstruction," writes Lessig in his new book Code, and Other Laws of Cyberspace. "Already the Net is changing from free to controlled."

This seems as true as it is grievously sad. We are clearly passing from one phase to another, though it's far from clear exactly how free the Net will or won't remain. Nearly everyone reading this is well aware of the growing number of lawsuits, patent and copyright issues cropping up online. One primary instrument of legal architecture being deployed to control the Net is the Digital Millennium Copyright Act (DMCA), little mentioned up until a few months ago, but by now familiar to almost everyone who goes online regularly.

The resolution of the issues relating to freedom and architecture on the Net will take time to resolve, and a lot more discussion and thought than has been evident so far either in journalism or politics. And the outcome will be complex and controversial, far beyond the consciousness of the existing public debates over speech and copyright: "You're-a-thief. No-I'm-not." In a way, technology and copyright have always been at war with one another. Before the printing press, the idea of copyright was almost incomprehensible, since copying was so cumbersome and expensive that nature itself protected an author or creator. Copying isn't difficult any longer. Each generation has constructed technologies better than the last, and the ability of the copyright holder to protect his or her intellectual property has eroded to the point where copyright either has to be re-defined or abandoned. This has brought the Net to a distinct fork in the road.

There are really only two choices when it comes to defining and enforcing free speech and the ownership of ideas and intellectual property. As a society, we can try and make cyberspace the same as literal space. Or we invest cyberspace with laws and values and properties that are fundamentally different.

Before the Internet, copyright law and the means to enforce it were relatively simple. Cyberspace changes not only the technology of copying but also the power of law and legislators to protect against illegal copying. In a sense, the Net is a giant copying machine, cranking out digital copies at almost no cost at all and in staggering quantities to incalculable numbers of people with unbelievable speed. Pity the police whose job it is to enforce existing copyright — tracing and punishing violators — online. This has enormous implications for free speech and intellectual property. Technologies that work have always been used, whether they should be or not. People who can download music and software will do so, because they can, if for no other reason. People who can use technology to comment freely, distribute code, challenge authority, criticize powerful corporate interests will do so, not only because they have the right but because they are able. This is the immutable reality of cyberspace, the new political consciousness emanating off the Internet.

This new reality has sparked enormous legal, social and cultural changes and conflicts, as has the nature of the Net and the emergence of programming code as a new kind of content all of its own. All across the Internet edge, legal and political conflicts are worsening over the ownership of music, patents, programs, code, content and ideas. This battle has enormous political implications for a system that hasn't come to grips with these new realities. The libertarian ethic that has always defined much of the Internet has always associated government with threats to liberty. Traditionally, the libertarian is concerned about reducing the power of government. But threats to liberty change. In our time, they are increasingly coming from corporate, not governmental power. And there is no political movement that primarily concerns itself with that, in part because corporations are now the primary funding mechanism behind the political system.

There is no broad consensus or general answer about which choice should be made regarding the Internet — to make it conform to existing laws and values, or to recognize it as a new kind of space. Nor is there anything like broad agreement about what changes might be made, if there are to be any. But the issue is becoming clearer and more distinct every day. Computer users, members of Web communities, software developers and Web site operators are increasingly confronted with lawyers, arguments and new kinds of questions about the movement of information and ideas. The Net is, as a result, clearly in grave danger of losing at least some of the freedom to think, speak and access information that characterized its first few decades.

The United States has always been a country that self-righteously espoused the notion of individual liberty, even as many Americans and institutions have almost from the first — from the Puritans to moral guardians to the sponsors of the CDA — continuously tried to take it away.

The Net gave America a freer culture than it had ever had, or even quite imagined. It's hard to believe that the founders of the American republic — people who helped create notions of individual freedom — wouldn't see many of these ideals realized online more fully than they dared hope. Or that they wouldn't have wanted to fight to keep it that way.