Today I was presenting on the FSCONS track of the GoOpen conference in Oslo and the topic for my talk was Limiting the Open Society: Regulation by proxy

To set the stage for my talk I began by asking the question why free speech was important. This was closely followed by a secondary question asking whether or not anyone was listening.

The point for beginning with this question was to re-kindle the listeners interest in free speech and also to wake the idea that the concept of free speech maybe is something which belongs in the past a remnant of a lost analog age which should be seen as a quaint time – but not relevant today.

Naturally it was not possible to present a full set of articles on the reasons for why free speech is important during a 20 minute presentation but I could not help picking up three arguments (with a side comment asking whether anyone could imagine a politician saying free speech was unimportant).

The main arguments were
John Stuart Mill’s truth argument presented in On Liberty (1869) from which this quote is central:

“However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth”

Basically Mill’s argument can be broken down into four parts:

1. The oppressed may represent the truth
2. Without criticism we are left with dead dogma
3. Opinion without debate meaningless
4. Deviant opinions may be unaccepted truth

The second argument I presented was from Lee Bollinger’s The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986)

Bollinger argues that the urge to suppress disagreeable speech is part of a need to suppress all ideas and behavior that threaten social stability. While Mill argues that it is important to support speech because it maybe right Bollinger argues that habits of tolerance in all its forms (including speech) are important to combat paternalism.

“…the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters.”

The final argument I presented was one of positive law – free speech is important because the law says it is important. The high point of this argument can be seen as the Universal Declaration of Human Rights which created an international understanding of the importance of rights (including speech).

After this introduction I presented the concepts in an historical background. Again I needed to be brief so I could not really go into detail. I jumped straight into the period 300 years ago when the discussion on the rights of man in Europe was at a high point. The fear of censorship in advance (imprimatur) or punishment after the fact was of great interest. The results of these discussions were documents like The Rights of Man and the Citizen presented after the French revolution, the United States Declaration of Independence and the Swedish Freedom of the Press Act of 1766.

The problems with these documents and the regulatory acts which followed where that they presented potential rights but did nothing to ensure access to communications media. In fact the communications media became ever more centralized and access was granted to a more and more limited group of (similarly minded) people. The negative aspect of this situation were (1) centralized media can easily be controlled and (2) allowing small group access means that the individual members have to conform to remain in the in-group.

To re-enforce the concept of in-group and out-group I showed an image of the speaker’s corner in London where any individual may speak without being harassed its not a legal right even if it seems to be an established practice. Speaker’s corner is sometimes seen as an example of openness but in reality it is proof of the failure of our ability to speak openly anywhere.

Then we moved quickly along to the Internet as an example of where a technology was developed that made personal mass communication available to a wider audience.

The exciting thing about the Internet is that it carries within it freedom as a side effect of its creation. This freedom was developed by common agreement (of a homogeneous group) into the open end-to-end, packet switching “liberal” ideology that we experienced in the early days of technology.

Naturally the problem with any idea that is developed under a consensus is that any use, concept, idea or speech which falls outside the consensus is easily suppressed and lost. But more on this later.

In the early days we were overly optimistic and believed texts such as John Perry Barlow’s A Declaration of the Independence of Cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

But naturally this was not going to last since the freedom we relied on was in reality a bi-product of corporate activity.

Our reliance on technology is a reliance on services created and provided mainly by corporate actors. And corporate actors have different priorities. It’s not about individual goodwill but it is about profit. Milton Friedman wrote in Capitalism and Freedom (1962)

There is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits…

It is not evil for companies to be all about profit but if there ever is a clash between individual freedom and profit then the corporation has an obligation to focus on profit at the cost of freedom.

At this stage at the lecture I shifted on to the problem of censorship. First I addressed the issue of self-censorship and used a quote by George Orwell on the topic.

Circus dogs jump when the trainer cracks his whip, but the really well-trained dog is the one that turns his somersault when there is no whip.

It is very difficult for us to know that we are censoring ourselves.

The next problem is the fact that even if we have something to say this does not mean that there is anyone who will (or can) listen. Basically we are lost in crowds.

These first two hindrances to communication are inevitable but they also create a bias against speech and the spread of ideas. From this point I began to address issues that can be (and should be) addressed.

The first issue was affordances. I showed the image of by Yumiko Hayakawa of the ‘Anti-Homeless’ park bench. And as I always do I asked the audience to spot the ethical problem in the image. The problem is that the bench discriminates among users by allowing only certain types of use. People with weak legs (old people?) struggle to use this bench, no people will loiter on this bench, and naturally no homeless people can sleep on this bench.

image from Yumiko Hayakawa essay Public Benches Turn ‘Anti-Homeless’ (also recommend Design with Intent)

Without engaging in a wider discussion the park authority can implement regulation without rules. No law expelling homeless people is necessary and therefore no legal review is ever carried out.

On the topic of affordances I brought up the German engineer problem. Here is the story behind the creation of SMS messaging (LA Times)

Alone in a room in his home in Bonn, Germany, Friedhelm Hillebrand sat at his typewriter, tapping out random sentences and questions on a sheet of paper.

As he went along, Hillebrand counted the number of letters, numbers, punctuation marks and spaces on the page. Each blurb ran on for a line or two and nearly always clocked in under 160 characters.

That became Hillebrand’s magic number — and set the standard for one of today’s most popular forms of digital communication: text messaging.

“This is perfectly sufficient,” he recalled thinking during that epiphany of 1985, when he was 45 years old. “Perfectly sufficient.”

Since then Twitter was developed from SMS and therefore we see how a engineer speaking German is today controlling the way in which we communicate today.

Another form of censorship is the whole problem of the chilling effect of law when it’s law is applied in situations where it has the effect of limiting speech – even if the purpose of the law was something completely different.

As a final form of censorship I spoke about the negative effects of End-User License Agreements (EULA). Many of the platforms upon which we depend for our communication have demanded of us that we agree to terms of use which we may not understand or which may have changed dramatically since we last read them. The result is that users are stuck in a perpetually weak situation.

So what’s really going on? Why doesn’t the state act or react to the erosion of our rights. These rights which are apparently so fundamental and important.

Well in part its lack of knowledge. Many states do not know the problems we are facing. The second part is that these are contractual agreements and the state is concerned about intervening in agreements (between consenting parties) and finally – and more ominously – the state benefits from the system.

States are able to stand tall and use words like rights, democracy, speech without limiting or censoring. They don’t have to. What the state does is they require acts (like data retention or surveillance) carried out by our service providers. If the state needs anything it can then collect it from the providers. The good news is that the state can claim to have clean hands. This is regulation by proxy.

So what can be done? Here I presented three strategies:

First, keep focused; remember what free speech is for. A second quote from George Orwell, this time from his preface of Animal Farm:

If liberty means anything at all, it means the right to tell people what they do not want to hear.

Second a demand that the state should end regulation by proxy and return to its own purpose. And the protection of citizen’s rights should include limiting the rights of actors. Speech on any medium should be protected – not only from the acts of the state.

Thirdly. The third was not really a new suggestion but more of an alternative. If the state cannot protect our speech then it should declare free speech as a thing of the past a remnant of a bygone analog age. This will not help much – but at least it will stop the hypocrisy.