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Law in the Internet Society
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An internet society: what kind do we have and what can we do to change it?I started version one of this post by expressing ‘my confusion’ about working out what an internet society means to me. In the iterative process of writing and learning through class discussions, I am no longer as confused about this question and my thinking has evolved. I will not reiterate what I have said in previous versions about one aspect of my learning; namely the distinction between seeing the internet as market (a descriptive and normative position many hold) and the internet as a society (which has been the driving theme of our course). Suffice to say that I support the premise and call to action that has underlain Professor Moglen’s discussions: that the internet society furnishes an opportunity for monumental societal change. It can create the conditions for information to be free, and to be shared with people in all countries, of all levels of income and education. However, the subsequent challenge for me, which I am attempting to accept, is twofold. The first part of the challenge is to say something about the power distribution that informs how the internet operates and how this political dynamic hampers freedom. The consequent challenge is to say something about what lawyers can do to militate against the negative effects of an internet promoting unfreedom and, ideally, to positively assist in creating freedom. I don’t think I can say anything particularly new about the first part of this challenge. However, I can articulate how I conceive the problem. Although the internet is capable of being a source and perpetrator of education, free speech, social interaction and entrepreneurialism, it is also a place where these things have and can continue to be suppressed. (Any new freedom creates new opportunities for repression). These things are actively suppressed in the name of proprietary interests in ideas (vaguely dressed up as expression) and through interests in access. The state creates the tools for this suppression. This state sanction is informed by an ongoing belief that such protection is a necessary corollary of innovation and exists because these corporate interests exercise significant power in the political process. Furthermore, the power of information for commercial gain—how it can be collated, parsed and distributed for myriad purposes—is the brave frontier of 21st century commerce. The positive vision of a free internet society is also suppressed by individuals themselves. We could be using free software, we could use a wide range of social networks, we could encrypt our email and not hand over vast amounts of information to Google. Most of us do otherwise, and become subject to the ever growing appetite for more information about us and our toothpaste brand. Meanwhile, governments of all stripes see big opportunities and risks in how the internet runs. The opportunities of co-opting the private sector to access all of that information for surveillance purposes, as well as the laudable goal of providing government services in a more efficient and timely manner, appear greater or more achievable in an internet world which is controlled by the few (governments and private interests). While the risks—including all kinds of crimes which can be more readily perpetuated on the net and, less optimistically, the risks to corporate interests that are intimately connected with their political success—appear much higher if people can use the net in an anonymous and free way. Consequently, the realization of a free internet society faces unwieldy road-blocks. Commercial and government interests in perpetuating an unfree internet are aligned and it is difficult to convince individuals that this is concerning, as we normalize our lives as privacy-free zones. This leads to the second part of the challenge: what is the role for lawyers in holding back the tide of an unfree world and even positively assisting in making it free? Lawyers come in all shapes and sizes and I don’t think there is simply one role for us all to play in responding to this challenge, or that there is any silver bullet. However, in thinking about the kinds of things that lawyers can do to advance freedom, it is helpful to consider lawyers’ strengths and weaknesses. A key strength is our education. For all its possible faults, legal education makes us good problem identifiers and passable problem-solvers. It emphasizes communication. More fundamentally, the study of law gives us an appreciation of power, how power unchecked by law can be abused and how law itself can perpetuate power and inequality. Furthermore, lawyers are imbued (though many lose it) with their professional responsibility. It is a calling higher than client interests; justice is its guiding force. These strengths mean that lawyers are well placed publicly to explain the ways in which politics is dictating the terms of our internet society and the problems that result. In addition, we have a specific tool set and language that we can use to lobby governments. Many lawyers can also represent clients (pro bono or cheaply) who are seeking to further freedom through new innovations and disseminating information. However, lawyers will also need to overcome weaknesses. Like other information, it is our responsibility to make more legal information and products accessible and free and we will need to think in less proprietary terms to do so. It is increasingly obvious that bread and butter legal work can no longer be protected anyway, as it is being outsourced or automated. Additionally, lawyers tend to specialize: we shirk being even legal generalists, and in particular working with other disciplines. The free software movement is a good example of how lawyers and technologists can work across the aisle on technical solutions to unfreedom. Lawyers will have to do better at this kind of cooperation in the fields of advocacy, policy advice and litigation. I think many of us can work as champions, advocates and educators of a free internet society if we exploit our strengths and respond to our weaknesses.This seems to me both responsive to the points I raised last time, and much stronger for the responses. I agree with you that your thinking here has evolved, to your advantage in all your further thinking. On your concluding point about lawyers' specialization, I would add a couple of notes. In the first place, you might want to consider the ways in which the collaboration of lawyers and technical experts that seems unusual to you in connection with the free software movement is actually the norm in a variety of settings, from environmental law organizations like the Environmental Defense Fund to, say, IBM or Qualcomm. More important even than such collaboration is the personal development of multiple professional expertises: lawyers who are also technical experts. In societies where law is an undergraduate study, lawyers rarely have fully-developed scientific or technical expertise. But in the US—where law is a graduate study so that everyone has a prior tertiary education, and where personal self-reinvention is a cultural given, so that highly intelligent people may have several sequential or simultaneous careers in utterly different fields—it is possible for lawyers to combine other forms of expert domain knowledge with the actual specialization of lawyers, which is not law but lawyering, the discipline of making things happen in society using words. The fullness of perspective is the background of strategic as opposed to tactical thinking. The tactician's power is focus: creative determination to achieve the designated objective with the assigned resources, come what may. Focus is a weakness in the strategist, whose concern it is to allocate resources among objectives, and who must have the entire battlefield in view. You might want to ask of your argument concerning specialization whether it doesn't make the lawyer a tactician, working for a strategist who is possessed of another range of available cognitive approaches. If that's right, some other interesting thoughtways would open.
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