Correcting Cyberspace

Since its 1950s predecessors and the opening of the World Wide Web in 1984, the Internet has come a long way and truly revolutionized our world–likely in more ways than we can know. It has widened perspectives around the globe in ways totally unforeseen and unique from those of any other medium. In the words of Bill Gates, “The Internet is becoming the town square for the global village of tomorrow.” You’ve all heard this story and personally reaped some of the benefits of this amazing network (namely, of course, The Airspace).

But the Internet has always had a dark side, from the first spam email in 1978 to the 2010 WikiLeaks scandal [1]. Besides making our brains shallow [2], it has led to countless cases of identity theft, piracy violations, slandered businesses, defamed careers, suicides from bullying, the dissemination of child pornography, and cyberterrorism. But aren’t these harms unavoidable costs for the Internet to remain the global round table that it is today? Is regulating the internet the right solution? Is regulation even possible?

Adam Theirer, president of the technology think tank The Progress & Freedom Foundation, recently wrote on these questions in Forbes in an article titled “Do We Need a Ministry of Truth for the Internet?” [3]. Theirer answers his own question with a decisive “no” and cites many common objections to internet regulation:

It’s all too easy for academics and social critics to simply say: “Google should.” “Google should” get porn off the Net. “Google should” help content companies protect their copyrights. “Google should” do something about “hate speech.” And so on.

Which conspiracy theories or controversial search results get responses? There are hoards of pseudo-scientific dieting schemes and medical advice floating around the Net. Must Google help debunk all those claims and theories?

Should search providers block access to… works… or at least offer links to alternative perspectives? Which alternative perspectives? How many groups get outbound links?

It all comes back to the elusive questions: What is truth and who decides?

The best alternative to bad speech remains more and better speech. America’s strong free speech tradition has typically focused on encouraging vigorous dissent, counter-speech, and education to address harebrained and even hateful ideas. Crackpot theories have been published in books, pamphlets, and newsletters for centuries, yet our republic survives.

We don’t need a Ministry of Truth for the Internet.

According to many polls, Theirer’s view–that against any Internet regulation at all–is shared by a majority of Americans–57% in one case [4]. In my experience, especially among my fellow members of Generation Y, this is the “common sense” view to hold for anyone who is computer literate. As became clear on most blogs in the the heated debate over SOPA and PIPA just a few weeks ago, most internet-savvy and dependent folk think that believing in some form of government Internet regulation–they use the word censorship–makes you either a communist or a social conservative. And they don’t like those. As one commentator voiced the “common sense” view for Internet freedom, “This is not a battle of left versus right… it’s a battle of old versus new” [5].

I want only to destabilize this view, which is far from common sense. Author Evgeny Morozov calls it the view of “cybertopians”–great in theory, but ultimately unsatisfying and problematic. Some intellectual history is in order, then, and I want to suggest that the case for Internet freedom is less philosophically and constitutionally defensible than it seems. In this article, I’ll be going back ten years to one of the the first legal works defending internet regulation–Cass Sunstein’s 2001 book My next article will feature two other substantial works in this discourse: The Offensive Internet (2010) and The Net Delusion (2011), as well as some points from Sunstein’s later book 2.0 (2007).

What is more significant is that counting of heads compels prior recourse to methods of discussion, consultation, and persuasion, while the essence of appeal to force is to cut short resort to such methods. Majority, just as majority rule, is as foolish as its critics charge it with being. But it never is merely majority rule…. The important consideration is that opportunity be given ideas to speak and to become the possession of the multitude. The essential need is the improvement of the methods and constitution of debate, discussion and persuasion. That is the problem of the public.
John Dewey, The Public and its Problems, epigraph to

Cass Sunstein, then professor of law at the University of Chicago, wrote in 2001, a time when the world was just discovering the value of personalization. The Starbucks business model of mass customization was spreading beyond the world of coffee and The Wall Street Journal had just recently allowed online subscribers to personalize their newspapers so that they saw the content they wanted and didn’t have to pay for the rest. Years later, nearly every internet site is personalized for its viewer thanks to custom advertisements from companies like Google. We now set our Facebook News Feeds to exclude annoying friends, have built-in spam filters on our email accounts, use sites like StumbleUpon to surf the web, get custom music recommendations from Pandora and Apple iTunes’s Genius feature, and most recently get customized search results from Google based on our web history and location.

Sunstein picked up on this phenomenon–which he called “the growing power of consumers to filter what they see”–early and wondered about its implications for democracy. In expressing his concern, Sunstein cited John Stuart Mill: “It is hardly possible to overstate the value… of placing human beings in contact with other persons dissimilar to themselves, and with modes of thought and action unlike those with which they are familiar… Such communication has always been, and is peculiarly in the present age, one of the primary source of progress” (191). In a much-recommended discussion on bloggingheads, Sunstein describes his fear that “people will use the Internet solely to fortify their own convictions,” which is increasingly possible with new technologies filtering and personalization [6].

In, Sunstein puts forth two distinct requirements for a functioning system of free expression:

“First, people should be exposed to materials that they would not have chosen in advance. Unplanned, unanticipated encounters are central to democracy itself. Such encounters often involve topics and points of view that people have not sought out and perhaps find quite irritating. They are important partly to ensure against fragmentation and extremism, which are predictable outcomes of any situation in which like-minded people speak only with themselves” (8).

“Second, many or most citizens should have a range of common experiences. Without shared experiences, a heterogenous society will have a much more difficult time in addressing social problems. People may even find it hard to understand one another. Common experiences, emphatically including the common experiences made possible by media, provide a form of social glue” (9).

Sunstein makes an important point on free expression that we will see in the other legal works as well: “A system of free expression [such as the internet] should not be seen in terms of consumers and consumption at all. In a free republic, such a system is designed to maintain the conditions for democratic self-government–to serve citizens, not consumers” (195). At a time when government acts like SOPA and PIPA were shot down primarily because they discourage Internet innovation, it’s important to remember that the United States came before the Internet in considering our allegiances. Rather than government censorship, Sunstein is concerned with individuals and private websites censoring the internet for themselves and isolating themselves in what he refers to as “echo chambers” and “information cocoons.”

For Sunstein, a system of unlimited filtering would 1) fragment democracy, 2) limit shared experiences, and 3) compromise democratic freedom. American politics in the post-9/11 world is divided at a historically unprecedented level, and this parallels a trend in an increasingly polemicized Internet and media more broadly. In hopes of widening individuals’ perspectives, Sunstein outlines six specific policy reforms to improve exposure to a diversity of ideas on the Internet:

  1. Creation of “deliberative domains” where diverse exchange of views can occur online
  2. Disclosure of relevant conduct by Web producers
  3. Voluntary self-regulation by Web producers
  4. Publicly subsidized programming and Web sites
  5. Government-imposed rules that would require the most popular Web sites to provide links to sites with diverse views
  6. 6) Government-imposed rules that would require highly partisan Web sites to provide links to sites with opposing views [7]

Just as the Supreme Court has ruled that public streets and spaces must be kept open for public expression, so too must communication pathways. But this doesn’t necessarily mean unlimited filtering and no Internet regulation. Sunstein seriously critiques the widespread but unfounded notion that the Internet should go on forever unregulated by quoting Hayek, a notorious critic of government regulation, who concedes that, “In no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continually adjusted legal framework as much as any other” (138).

Sunstein compares the internet to other cases of property law that affect the public such as disclosure laws for pollution and the ratings system of the FCC. He notes that the institution of the Toxic Release Inventory, which required firms and individuals to report the quantity of toxic chemicals they released into the environment, itself reduced the quantity of pollution by mere red-flagging and public knowledge. Quoting Justice Louis Brandeis, Sunstein suggests that “sunlight is the best of disinfectants” (174).

These policies aren’t just talk. For example, Google agreed to do something about one case of defamation in 2004. When you search “Jew” in Google, the second hit (after only Wikipedia) is a site called Jew Watch. Jew Watch proclaims itself “The Internet’s Largest Scholarly Collection of Articles on Zionist History” and that appears to be true from its site description on Google:

Once you navigate to the site, however, it becomes clear that the site is merely a source of hate speech with sections such as “Jewish Supremacists Lists & The Associations They Dominate” and “Jewish Mind Control Mechanisms.” So why is this the number two hit on Google after Wikipedia? According to the owner of Jew Watch:

Well, that’s clearly false. But the caption and data the site presents are not entirely wrong. According to the Anti-Defamation League:

This site is run by [antisemitist] Frank Weltner… “Jewwatch” has been in existence since 1997. The longevity of ownership, the way articles are posted to it, the links to and from the site, and the structure of the site itself all increase the ranking of “Jewwatch” within the Google formula&nbsp:[9].

Google now has its own page entitled “An explanation of our search results,” that it posted in response to the “Jew” incident and repeated requests from users to alter its search content [10]. According to a response letter to the ADL from Google President Sergey Brin, the site uses algorithms that maintain neutrality (except when a site’s legality is questioned), and they certainly have the right to do so [11]. Yet, notice that in the advertisement spot on the search clip above, Google has inserted a warning message with an explanation for the controversial search results.

This isn’t a one-time phenomenon. According to Theirer’s article, “Google (and other online operators, now including Twitter) also censor Nazi-related search results in Europe at the request of various governments.” Though Google has instituted this policy on only a few occasions, Sunstein’s hope is for an Internet-wide system like the self-monitoring one of Wikipedia, in which users can flag content as “disputed” without need to remove them entirely [12]. Is this so much to ask?

This article was an overview of the current debate on Internet freedom with partial reviews of three influential books on the topic:
By Cass Sunstein
Princeton University Press, 2001

The Offensive Internet: Speech, Privacy, and Safety
Edited by Saul Levmore and Martha C. Nussbaum
Harvard University Press, 2010

The Net Delusion: The Dark Side of Internet Freedom
By Evgeny Morozov
PublicAffairs, 2011



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