21 February 2018

Cyberspace has always been about more than just freedom

By Mike Godwin

What are the real values of cyberspace? Some pundits have raised this question, mostly but not always by implication, in the wake of John Perry Barlow’s death on February 7. Barlow, a Grateful Dead lyricist and co-founder of the Electronic Frontier Foundation, is frequently characterised as having been a Republican and/or a libertarian, although as I knew him his politics were not so easily reducible to any standard labels.

Barlow wasn’t the only founder of EFF, after all. Together with the software developer Mitch Kapor and open-source pioneer John Gilmore, Barlow co-founded EFF, which quickly became and arguably still is the most prominent organisational advocate of civil liberties and individual freedom and empowerment in cyberspace. Each of these three founders was more complex than any traditional label (like “libertarian” or “Republican” or “Democrat”), and each had an political vision that informed the choices EFF made early on when it came to championing cases, causes, law, and reform.

Nevertheless, Barlow’s death has led some commentators to characterise Barlow, EFF, and cyberspace activists in general in reductive terms that are both unfair to Barlow and unfair to the larger “cyberliberties” movement, history, and traditions. I was EFF employee number one, so I’m someone who, if not quite present at the Big Bang moment of the founding of EFF, can claim to have come along in the “first three minutes” afterwards. My own experience of the early days of EFF, of cyberliberties, and the early advocates of what we now think of as cyberspace law and policy, compels me say that this advocacy was always far broader in scope and ambition than current pundits – including both those who have eulogised Barlow and those who have criticised him – may allow.

Let’s first consider what the criticisms are. I’ve seen several, but I find that they’re well-encapsulated in April Glaser’s piece in Slate, published the day after Barlow’s death. Glaser frankly takes Barlow to task for having given EFF an “incomplete” mission that focused on personal rights but not justice. She writes: “I can’t help but ask what might have happened had the pioneers of the open web given us a different vision – one that paired the insistence that we must defend cyberspace with a concern for justice, human rights, and open creativity, and not primarily personal liberty. What kind of internet would we have today?”

Glaser’s theme – which is that today’s internet is “often deleteriously corporatised” – is that Barlow’s lack of vision somehow led EFF to overlook that there are other values besides liberty in cyberspace. These included issues like building access through expanded internet infrastructure, shaping intellectual-property laws in humane ways, and promoting empowerment of underrepresented individuals and groups. Glaser thinks other issues like these, and maybe a lot more of them, should have been part of EFF’s mission too.

But Glaser missed or elided the early history of EFF, which did in fact include broader issues than “personal liberty.” She also missed the fact that Barlow wasn’t the only shaper of EFF’s agenda. Kapor (a progressive Democrat) and Gilmore (a far more committed libertarian than Barlow) also shaped EFF’s agenda in those formative years. And while their respective political views could be very different at times, what united them, and EFF, was a broad agenda rather than a narrow one.

Here’s the thing: what Glaser calls “concern for justice, human rights, and open creativity” were always part of EFF’s mission in those early years. To find proof of that, you need only read the first five years or so of EFF’s newsletter (first called “EFF News” and later “The EFFector”). Those archives can be found here.

From the first year on, there was a focus on justice – notably in the frequent discussion and advocacy surrounding some of the early cases of what Bruce Sterling later documented in The Hacker Crackdown. In those cases, the issue was less one of “personal liberty” than of a culture clash between hacker culture and law-enforcement culture, but they also raised important civil-liberties issues. For example, in more than one case a so-called “hacker” was prosecuted primarily for publishing or sharing information – which might have been someone else’s information or might have included how-to articles on computer intrusion – and not for direct computer intrusion.

That was a straight-up First Amendment issue, as we understood it then. But at the same time we saw cases arising from the actions and policies of then-dominant platform providers (in those days they included the highly-moderated Prodigy, plus the somewhat less moderated CompuServe and AOL). Because these companies hosting digital forums were not bound by the First Amendment, we at EFF believed it was important to establish that allowing freedom of expression and (especially important for disenfranchised groups) freedom of association – as well as a high degree of privacy – was the better policy for these companies. The First Amendment is a limitation on government action but, we argued, private companies ought to value freedom and privacy too.

On the one hand, we relied to some degree on moral suasion. As I wrote in an (unsigned) editorial in EFF News (volume 1, number 0): “We at EFF do not dispute that Prodigy is acting within its rights as a private concern when it dictates restrictions on how its system is used. We do think, however, that the Prodigy experience has a bearing on EFF interests in a couple of ways. First, it demonstrates that there is a market – a perceived public need – for services that provide electronic mail and public conferencing. Second, it illustrates the fallacy that ‘pure’ market forces always can be relied upon to move manufacturers and service providers in the direction of open communications. A better solution, we believe, is a national network-access policy that, at the very least, encourages private providers to generate the kind of open and unrestricted network and mail services that the growing computer-literate public clearly wants.”

On the other hand, we knew early on that in order to liberate the platform and service providers, so as to give breathing space to free expression and privacy, it was critical that neither statute, regulation nor caselaw compelled providers to move in the opposite, more restrictive, direction. There was some promising caselaw developing in the early 1990s, notably a case called Cubby Inc. v. CompuServe (1991) that, drawing upon Supreme Court precedent, suggested that the best way to classify online platforms was as something not quite like a common carrier (eg, a postal service or telephone company) and not quite like a publisher (Penguin or the New York Times) either.

The proper metaphor, a federal judge concluded in Cubby, was the bookstore – which, under American law, is a constitutionally protected space for hosting other people’s expression. When that case was misinterpreted by a later decision (Stratton Oakmont v. Prodigy, 1995), lawyers and policy advocates pushed to include platform protections in the Telecommunications Reform Act of 1996. Those protections allowed platform providers to engage in certain kinds of editorial intervention and selection without becoming transformed by their actions into “publishers” of users’ content (and thus legally liable for what users say).

In short, we at EFF wanted platform providers to be free to create humane digital spaces without necessarily acquiring legal liability for everything their users said and did, and with no legal compulsion to invade users’ privacy. That wasn’t just a question of what Glaser calls “primarily personal liberty” – it was also of what she calls “justice, human rights, and open creativity.” Many of the early cyberspace cases involved claims of criminal activity, so we necessarily had to talk about liberty as opposed to government coercion. But we were also talking, from the very beginning, about the need for service providers to be just, to support human rights even when they didn’t have to, and to provide space and platforms for open creativity. The rules we worked to put into place later gave full bloom to the World Wide Web, to new communities on platforms like Facebook and Twitter, and to collaborative collective enterprises like Wikipedia and open-source software.

The early EFF agenda wasn’t primarily, or even particularly, a libertarian agenda based on limiting regulation, or promoting personal liberty at the expense of collective well-being. Indeed, the most libertarian of the co-founders, John Gilmore, was also a champion, productive contributor, and advocate for the collective enterprise of free and open-source software like Linux. The most traditionally progressive of EFF’s founders, Mitch Kapor (the primary funder of EFF in its early years) was a Democrat who imagined a world in which creators, separated by vast geographic distances, might compose and perform a creative work in real time, together.

And all three founders knew that some expansive versions of intellectual-property rights might inhibit both individual expression and collective creativity. Yes, Barlow wrote most about these intellectual-property issues, but the tenor of his arguments was not essentially anti-government. Instead, he spoke as a writer and lyricist, whose prominence as a cyberspace advocate derived most directly from his prominence as part of the collaborative creative enterprise known as the Grateful Dead. The open creativity Glaser invokes was always present in EFF’s DNA.

And so was the idea of pro-active government policy. Early issues of EFF News and the EFFector focus on the organisation’s efforts to push for activist-friendly telecom policies (often against the wishes of telecom providers, who’d have preferred not to host controversial services), as well as on public and private investment in the then-limited internet infrastructure. EFF opened a Washington, DC, office in 1991 that focused on public-policy issues. Jerry Berman, an early EFF board member and a veteran of the first federal law-making frenzy in DC in the mid-1980s, headed the DC office and later became EFF’s executive director.

No libertarian, Berman was a Democrat who’d migrated from a DC law firm to become legislative counsel for the American Civil Liberties Union. His tenure as policy director and executive director at EFF (1991-1994) was precisely one of direct engagement on issues of law and regulation, not a flat dismissal of the idea that proactive legal engagement could do something good. Together with Kapor, Berman influenced Barlow’s thinking as much as anyone, so that, as Glaser puts it in her Slate article, “in starting EFF, he showed he understood the utility of needing to work with the government, even if he didn’t like it very much.”

Glaser acknowledges that EFF was involved in government policy from its 1990 beginnings (she does not seem to be aware that EFF was also advocating that companies promote humane, pro-user policies). Still, it’s important for her thesis – that Barlow’s vision was “incomplete” and that this somehow resulted in skewed public policy in ways that lead to today’s “corporatised” internet – that she skip quickly past EFF’s first five years of existence and focus on Barlow’s 1996 Declaration of the Independence of Cyberspace. Here she echoes a narrative line that is common nowadays both in activist circles (EFF was too libertarian and didn’t care about broader human rights and justice) and in an anti-activist circles (most commonly advocates for copyright protection and other intellectual-property interests). That narrative is basically this: Barlow published his Declaration, and somehow shaped all cyberspace activism thereafter, both for good and for ill.

But regardless of who’s advancing that narrative, it’s false. EFF’s early focus on individual rights as against government (which, in nearly every developed nation, wants to be able to be able to fight crime and prevent security threats) occurred because that’s where the first and most immediate threats to internet freedom came from. Barlow’s Declaration, by its own terms and considered in context, is a specific response to the passage of the 1996 omnibus telecom bill in the United States, which included broad criminalisation and censorship provisions that would have vastly limited freedom of expression – not just for individuals but also for marginalised and oppressed groups.

(To get an idea of the range of those interests, take a look at all the parties that joined the lawsuit ACLU v. Reno in 1996. They included Human Rights Watch, Stop Prisoner Rape, Inc, Queer Resources Directory, Critical Path AIDS Project, Inc – as well as, incidentally, Prodigy, AOL, and CompuServe, corporate platforms that had come to believe they had a stake in their users’ rights.) The federal-district court case ACLU v. Reno quickly became the Supreme Court case Reno v. ACLU (1997), in which all nine justices voted that censorship-enabling provisions of the Communications Decency Act (which had been incorporated in the larger telecom bill) were unconstitutional.

Notably, CDA’s section 230 (which, broadly, provides immunity for providers for content they didn’t originate) was left intact by the Reno decision. Section 230 was a provision that attempted to recreate in statutory law something like the “bookstore” protections of Cubby v. CompuServe. Here the goal was not to discourage platforms from curating their services, but in fact to allow them to do so (even though sometimes they may do so in ways that users may rightfully object to). But it was precisely in the interests of justice, human rights, and creativity that, as EFF then argued and still argues, that platforms should have the right to curate without being held to a legal obligation to be a content policeman. We believed that a world in which corporations had less reason to censor speech would be less “corporatist” than one in which they faced legal hazards if they didn’t censor.

Yes, we do live in a world in which corporate giants are operating some currently dominant platforms. And that may require us to think hard about where we strike the balances between corporate obligations and personal liberty. But we also live in a world in which we can agitate for those corporate platform owners to make just decisions. In the United States, at least, it’s a world in which those platform providers can make those decisions without feeling a legal compulsion to shut down disturbing minority viewpoints or disenfranchised community voices.

We do know already that the internet marketplace is like earlier information marketplaces (as discussed in Tim Wu’s The Master Switch). Sometimes, no matter how much competition you see in one decade, the market shakes out to favour only a few players in a subsequent decade. (Wu documents how often market dominance is abruptly disrupted by technological advance or other factors.) That’s a reasonable thing to be concerned about, and Glaser and other activists (as well as corporate activists like the copyright lobby) may have reasonable arguments that the internet companies need some kind of further regulation or change.

But it’s important we remember that today’s internet, which is rich enough in opportunities and central enough to our ordinary living that most of us would be loathe to do without it, were shaped by decisions made by Barlow, by EFF, and other cyberactivists back in the 1990s. You may not love everything about today’s internet, but the odds are that you love a lot about it, and that’s due in no small degree to positions cyberactivists took regarding issues like encryption, freedom of expression, and open-source creativity a couple of decades ago.

As I noted earlier, the early years of cyberspace activism were not grounded primarily in libertarianism or, for that matter, in Democratic party progressivism. Instead they were rooted in values that are bigger, broader, and more widely shared than any particular political party or faction can claim. These include belief not only in personal liberty but also in the idea that personal liberty serves justice, and community, and creativity. That’s one of the reasons you see early in the EFF archives the idea that opening up the internet for everyone – not just scientists and government contractors and students – would be a central move in enabling democratic engagement in 21st century.

There may be disagreements about how to implement this pluralistic vision – some believe network neutrality is a primary value, while others think that any policy that increases access for underserved populations is more central. But whatever the disagreements are as to today’s policies, they’re all informed by a broader, multipartisan democratic vision that critics who got distracted by Barlow’s Declaration have failed to recognise. I can testify that our earliest decisions in those years were grounded not in ignoring justice or creativity or personal autonomy but instead on thinking as hard as we possibly could about them and trying to guess at the full range of internet issues for the future we live in now.

Mike Godwin is a Distinguished Senior Fellow at the R Street Institute.