Lawyering in the Internet Society

-- By JuanPaoloFajardo? - 30 Dec 2015

After the first few weeks of attending class in Law and the Internet Society, I was initially cynical. I dismissed Professor Eben Moglen’s (“Prof. Moglen”) discussions on proprietary software and the hand it plays in the commodification, and ultimately the manipulation, of human behavior by a few profit-driven entities, as “first world” problems. I had doubts whether these ideas would gain any social traction in the Philippines, much less start a revolution, where the poverty line remains high and any opportunity to receive free access to the internet from these entities, regardless of their data-gathering motives, is freely embraced. However, my cynicism was nothing more than a misperception of the role the Free Software Movement plays in the greater context of what Prof. Moglen views as the ongoing practical revolution.

Drawing from his discussions on the Free Software Movement, I realized that Prof. Moglen’s idea of social change is clearly distinct from my own utopic view of the struggle for economic equality. On the one hand, I gauged the viability of any social revolution from the lens of a perfect world, an abstraction of an ideal scenario, the contours of which I have no concrete idea. Thus, when faced with the realities of poverty and economic inequality in the Philippines, I struggled to understand, much less accept, thoughts of social change which did not fit neatly within this amorphous paradigm.

On the other hand, Prof. Moglen’s revolution emanates from a recognition of two notions: a) that human equality and freedom of knowledge go hand and hand; and b) that the tools for intellectual liberation are presently available. For him, the revolution is already ongoing. Our generation’s present technology where human beings are connected as part of an “overall constellation of activities” allows for the propagation of knowledge at rates, volumes, and distances sufficient to nurture a return to a culture of self-realization and creativity independent of any form of social control. The struggle, however, is to protect this “unleashed creativity” from those who seek to contain it and coopt it for profit. The practical revolution sees as its outcome, human equality, not in the form of some envisioned future, but in the form of individual possibility and the acceptance of whatever social implications it may bring.

From these realizations, I became less cynical and more apologetic as a lawyer. For the five short years I’ve been practicing law, I’ve approached my profession with the unwavering belief that justice, equality and freedom are always inherently intertwined with the law so much so that a commitment to uphold one equates to a commitment to uphold the other. However, when you view these values based on noble aspirations without any concept of a realizable outcome, one tends to seek refuge under a concrete proxy, namely the practice of law, to fulfill the insatiable desire of reaching utopia, “nowhere”. This comes at the risk of false logic, i.e. what is legal, must be just and vice versa, of which I am utterly guilty.

By viewing justice, equality and freedom, not as lofty outcomes, but intellectual liberation attainable here and now, lawyers are presented with the opportunity of seeing the law not as an approximation of an ideal society, but rather a system of rules that can either stifle or uphold freedom of knowledge. Where the law functions to deprive individual possibility, one immediately discovers that what is deemed lawful can be unjust and vice versa. Under these conditions, lawyers become aware of a social movement greater and developing faster than the law can fathom. This awareness opens a stream of possibilities for a lawyer who now has more choices on how to approach the profession. I spent two years working for one of the largest telecommunications companies in the Philippines, as a dedicated counsel for its Information Systems Group. I drafted contracts and memoranda all responding to the same question: how can we protect our intellectual property rights over software developed by our employees. I also spent half a year justifying a merger before the National Telecommunications Commission combining the spectrum rights of two of the country’s largest telecommunications companies. Normally, I would consider these outcomes reasonable insofar as they are lawful. However, viewing these outcomes as products of a set of rules affecting a greater social movement, one that leads to intellectual freedom, I began to see that a) the law itself can be used by those in power to effect greater social control over intellectual liberation; and b) to the extent that this deprives individuals the opportunity to be all that they can be, the law can be unjust and itself an obstacle to human equality.

In our last few sessions, Prof. Moglen posed this question: what does it mean for the law to attempt and support freedom and autonomy in the circumstances we're currently living in. At the start of the semester, I would’ve vaguely answered that lawyers must have the “perseverance to spread the word and the inventiveness to make the necessary structural changes to the legal order”. Now, however, I agree with Prof. Moglen that “one takes forever and the other never happens at all”. We are at the singular moment in human history when we are technologically capable of achieving intellectual liberation. As lawyers, supporting freedom and autonomy in this lifetime, means knowing that the law is capable of intellectual injustice. Second, it also means understanding where the law works in promoting freedom of knowledge and where it fails. And third, it entails accepting that the law exists within a greater context of social change and therefore cannot be expected to develop as rapidly. Thus, we must explore extralegal alternatives to bridge this gap.

John: Thank you so much Prof. Moglen and Lizzie for the inputs. I'll give it another go, but I'm considering changing my approach. I hope my next attempt will make more sense.