Month: September 2019

Google handles 88 percent of search traffic in the United States. Facebook has more than 2.4 billion active monthly users worldwide. Half of all U.S. online retail is projected to go through Amazon by 2021.

Both Democrats and Republicans have called for breaking up the tech giants, holding them legally liable for what others say on their platforms, and imposing new regulations that would stop them from misusing their customers’ personal information. But there’s also a growing movement, which includes some of the web’s early pioneers, to come up with technological ways to counter Facebook, Amazon, Twitter, and Google.

The goal is to build a better, more decentralized web.

“There are so many different possible ways of decentralizing the internet, and what’s lacking is the legal right to interoperate and the legal support to stop dirty tricks from preventing you from exercising that legal right,” says Cory Doctorow, a science fiction author and tech journalist who’s been thinking and writing about the web since Tim Berners-Lee introduced it to the public in the early 1990s.

Berners-Lee and other web pioneers intended for their creation to be decentralized and open-source. “The cyber-utopian view was not merely that seizing the means of information would make you free, but that failing to do so would put you in perpetual chains,” says Doctorow.

There are many theories about why the web became centralized. Doctorow largely blames the abuse of intellectual property law to defeat the decentralized “free software” movement championed by the programmer and activist Richard Stallman. Stallman helped create the popular open-source operating system Linux after freely modifying Unix, Bell Labs’ proprietary system.

But the Digital Millennium Copyright Act, passed in 1998, became an impediment to the open and permissionless approach to software development. The law was intended to prevent duplication of copryrighted works and was eventually applied to all software. Breaking “digital locks” to learn from, interact with, and improve upon the code of dominant web platforms became a federal crime. It’s standard practice for today’s tech companies to shield their proprietary code from would-be competitors by wielding the power of an increasingly expansive intellectual property regime.

“And so this thicket of exclusive rights around products that can be invoked to prevent new entrants for making add-ons, compatible products, or even competing products is a really important change in the landscape,” says Doctorow. “One that has made it very hard for new entrants to emerge and I think is in large part responsible for the concentration in the industry.”

Despite these legal and political challenges, innovators are attempting to create new decentralized ecosystems of web services.

Mitra Ardon is the head of decentralization at the Internet Archive, a digital repository of more than 50 petabytes of images, movies, and texts—including more than 330 billion webpages.

“The archive’s mission is to make all of mankind’s knowledge available online forever to everyone for free, which is a pretty big vision, right?” says Ardon.

He says the history of the web is too important to be held in custody by a single organization. So he’s overseeing a plan to migrate the Internet Archive’s more than 50 million gigabytes of data to a distributed network maintained by users.

A beta version of this peer-to-peer network is already operating and publicly accessible.

“I think what [a more decentralized web] would look like is a world where servers were everywhere, that your internet router at home would also be a server,” says Ardon.

Doctorow doesn’t think the decentralized web can take off without government intervention. He agrees with Sen. Elizabeth Warren (D-Mass.) and Josh Hawley (R–Mo.) that the Federal Trade Commission should break up the tech giants.

“[The tech giants] got giant doing what we used to ban and that we stopped banning right when the tech industry started,” says Doctorow, who argues that Ronald Reagan and the federal courts undermined the original intent of the Sherman Antitrust Act during the 1980s using the legal theories of former federal judge Robert Bork:

Every president since Reagan has expanded Bork’s doctrine, allowing for even more aggressive market concentration, producing a country (and a world) where a handful of firms dominate virtually every industry, from telcoms to talent agencies, wrestling to eyewear, to Big Tech. 

But in the October 2019 issue of Reason magazine, economist Thomas Hazlett argues that sweeping antitrust action has often entrenched existing players, largely due to the phenomenon of regulatory capture:

The late Nobel laureate George Stigler started as a “bust ’em up” guy: In 1952 he wrote an article in Fortune stating the “case against Big Business” and calling for the dissolution of General Motors. But through observation and analysis, Stigler’s view progressed until he arrived at an antitrust policy that gave dynamic forces their due and put consumer interests at the center. He came to see government institutions as imperfect, and he posited in a 1971 paper the theory of “regulatory capture,” whereby “regulation is acquired by the industry and is designed and operated primarily for its benefit.”

Arguments about antitrust aside, the technological tools needed to bring about a more decentralized web may already exist, though they’re not yet widely implemented.

“Web 3.0 has this wonderful set of trust baked into the Internet itself,” says Molly Mackinlay, a former Google programmer and a current project lead of the InterPlanetary File System (IPFS), a communications protocol that’s meant to replace the hypertext transfer protocol (HTTP) that most of us use to access the web now. While HTTP connects your computer to a particular server, IPFS scours the network for a piece of content, which gets assigned a unique ID marker and connects you to whomever happens to be hosting it.

Mackinlay wants a decentralized web that relies less on centralized servers and more on distributed storage networks—such as Filecoin, a cryptographic token that rewards users for storing data. This, she says, would be an effective way to sidestep the dangers of censorship and overregulation.

“That’s a better, safer, more resilient world, which doesn’t end up…susceptible to authoritarian manipulation and control,” says Mackinlay.

Produced by Zach Weissmueller. Camera by Alexis Garcia, John Osterhoudt, and Weissmueller. Opening graphic by Lex Villena. Additional graphics by Meredith Bragg.

Photo credits: Preston Ehrler/ZUMA Press/Newscom, Stefani Reynolds/CNP/Polaris/Newscom, ITU Pictures (under CC Attribution 2.0 License), Jeremy Hogan/Polaris/Newscom. 

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The sticker appears to be a version of this:

But of course this is constitutionally protected, given the Court’s decision in Cohen v. California (1971) that a jacket bearing the words “Fuck the Draft” was constitutionally protected. Indeed, it’s not even barred by the relevant Tennessee statute (Tenn. Code § 55-8-187), which reads,

To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene and patently offensive movies, bumper stickers, window signs or other markings on or in a motor vehicle that are visible to other drivers is prohibited and display of such materials shall subject the owner of the vehicle on which they are displayed, upon conviction, to a fine of not less than two dollars ($2.00) nor more than fifty dollars ($50.00). “Obscene” or “patently offensive” has the meaning specified in § 39-17-901 [which restates the First Amendment test for obscenity, and defines “patently offensive” as “that which goes substantially beyond customary limits of candor in describing or representing such matters,” apparently referring to sexual matters.

The word “fuck” in this context doesn’t fall within the First Amendment obscenity test, as the Court recognized in Cohen:

This is not … an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.

The same logic applies here; indeed, the Tennessee Attorney General’s office has acknowledged (Tenn. Op. Atty. Gen. No. 88-44) that

The [statute] will not reach bumper stickers that are in extremely poor taste but are not obscene [under the Supreme Court’s obscenity precedents]. For example, bumper stickers such as “s..t happens,” although unquestionably in poor taste, do not meet the constitutional or statutory standards for obscenity because they do not appeal to the purient interest. Consequently, they cannot be banned as obscene.

See also Cunningham v. State (Ga. 1991) (“Shit Happens” bumper sticker constitutionally protected).

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Footage went viral this week of a woman, apparently from the United States, telling off some Hong Kong protesters for desecrating their city with protest posters and graffiti.

“Is this OK? Is this respectful?” she asks, pointedly gesturing to a defaced nearby wall, before trailing off with a tone-deaf trump card, “If my mother saw me write this…”

Do you really feel safe living under a police state.

— EdwinLau (@EdwinLa81362329) September 23, 2019

The woman then questions Hongkongers about the aims of their protests, which are now in their 16th week. The protests started over an extradition bill that would have allowed suspected criminals to be sent to mainland China, but they have expanded to embrace broader demands for more liberty and self-government.

Hong Kong is technically part of China, but the city’s citizens are allowed far more freedom—including freedom of the press and the right to elect some of their legislators—under the “one country, two systems” policy, which will be sunsetted in 2047. Many Hongkongers fear being placed under authoritarian Chinese rule, knowing that on the mainland censorship is the norm, the Communist Party must be appeased at every twist and turn, and political opponents get disappeared (often before showing up on state-run TV with a tearful coerced confession or histrionic display of remorse).

“Find me one case where violence led to a solution,” the woman in the video challenges the Hongkongers. “What a waste of time for everybody,” she says of the demonstrations. In fact, the protests have had at least one significant, if tentative, success: Hong Kong’s chief executive, Carrie Lam, conceded one of the movement’s five demands three weeks ago by withdrawing the bill that set off the protests.

“You guys value freedom more than safety. Do you agree? I think safety is more important than freedom,” the American says. “If you have a safe environment, you can communicate.”

But it’s freedom of speech that lets people be free of legal retribution for the words they say. It’s freedom of speech that allows people wide latitude in how they express themselves, and where, and to whom. A “safety” enforced and ensured by an authoritarian police force is a fickle promise if you piss off the people in charge, and it doesn’t necessarily mean safety for everyone. Sometimes one person’s feeling of safety comes at the expense of other people’s freedoms. Hongkongers, attempting to keep Beijing’s influence at bay, are keenly aware of this.

“China’s thinking is safety is more important than freedom,” the woman claims, before beginning to chip away at posters with her nail. “We shouldn’t do this! This is my city, too!”

At one point she speaks something that sounds like Cantonese. So she could be an expat living in Hong Kong, concerned about the degree to which the city’s been torn apart by civil unrest. But her safetysplaining makes it clear that she either doesn’t understand or just doesn’t care about how high the stakes are. One gets the impression that she hasn’t had her freedom seized for the sake of someone else’s safety.

Under full Chinese rule, Hongkongers will get neither freedom nor safety. An authoritarian regime that forces subservience to the party cannot be trusted to provide either one.

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I much enjoyed participating in this podcast, which was taped in front of a student audience Wednesday here at UCLA; here is IJ’s summary of the three cases my UCLA colleague Richard Re, Robert Everett Johnson (Jones Day), and I discussed:

After a student newspaper at the University of California, San Diego published a piece satirizing safe spaces and trigger warning, the student newspaper pulled funding for all print media. A First Amendment violation? And…

When doling out federal grant money for community policing efforts, the DOJ gives preference to local departments that promise to cooperate with federal immigration efforts. Which, says Los Angeles, would actually undermine community trust in police. Did the DOJ exceed the powers delegated to it by Congress? And …

Religious organizations need not comply with some aspects of the Americans with Disabilities Act. But does the so-called “ministerial exception” extend to a Catholic school that fired a fifth grade teacher who needed time off for chemotherapy?

 

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