Blogging the NAMAC Panel: Public Enemy and Private Intermediaries

I’m blogging from Minneapolis, Minnesota, at the National Alliance for Media Arts and Culture (NAMAC) conference Leading Creatively 2012, where I’m representing the National Coalition Against Censorship (NCAC).

Earlier today I presented on a panel entitled Digital Frontiers: Copyright, Censorship, the Commons, and Privacy. The panel description read:

The panel was moderated by Nettrice Gaskins, President of NAMAC. Also on the panel were Chris Mitchell, Director of the Telecommunications as a Commons Initiative at the Institute of Local Self-Reliance, and Hank Shocklee, sonic architect, President of Shocklee Entertainment, and cofounder/producer of Public Enemy.

Nettrice presented our panel with five questions. Each of us had the opportunity to speak or pass on each. After 45 minutes, we broke out into small groups for in-depth discussions of each question.

The questions were:

Creation Question
What happens when technology democratizes the technique and the attitude and the method of creating? AND What happens when anybody can be an artist?

Copyright Question
Regarding remixing Lawrence Lessig implies here that attempts to regulate copyright online will kill creativity (innovation). What is your response to Lessig’s argument (explain why)?

The Commons Question
What impact do you think commons-based peer-production, driven by new and emerging technologies will have on independent media organizations?

Privacy Question
What measures do you think need to be taken to better guarantee anonymity?

Censorship Question
What is your compelling argument to legislators and big media corporations who embrace censorship and are willing to sacrifice peoples’ civil liberties in their attacks on free knowledge and an open Internet?

I spent most of my time on this last question, and I thought I’d share some what I had to say here.

One of the things that makes both studying (and fighting) censorship in the 21st century so interesting (and difficult) is the ways in which it confounds traditional regulatory frameworks.

For most of the 1900s, if you asked a civil libertarian to describe the evils of censorship, she would have likely told you about governments trying to restrict or obstruct free speech and the flow of information. The National Coalition Against Censorship, for example, was founded in the wake of Miller v California.

Battling government censorship is, in my opinion, a noble cause. It is also relatively straightforward.

The First Amendment provides a fairly robust framework for fighting government restrictions on speech. When viewed through the lens of the preclassical legal consciousness which dominated at the time of the Founding Fathers, the Amendment may be understood as being produced by, historian Elizabeth Mensch writes, “a Lockean model of the individual right holder confronting a potentially oppressive sovereign power.” The classical legal consciousness which followed only further developed the public/private dichotomy in law, conceiving of each as separate “spheres” properly kept separate, leading, eventually and perhaps inevitably, to a fetishization of contract and the Lochner era.

Without going too much further into an unnecessary analysis of legal history, the point is that our legal, political, and conceptual models all allow us to grasp what is at stake when a government censors speech. We may (and often do) disagree over the meaningful margins of the argument – when / if / what / how a government may intervene in expression – but it is an argument which is intellectually intelligible to anyone steeped in America’s brand of liberal theory.

Things become much murkier, however, when private intermediaries get in the game. The First Amendment doesn’t govern what companies do, and the American tradition of obeisance to contract tells us that when we use an information service we must take the bad with the good or take our business elsewhere.

This matters because there is a rapid expansion of privately owned speech intermediaries. Facebook, YouTube, Google: if you use it to communicate to an audience, then it is probably privately owned and administered.

Let me give a recent example. Josh Begley is a graduate student at the Integrated Technologies Program at NYU. Last month, Josh made an iPhone app called Drones+. Drones+ aggregated reports of drone strikes by the U.S. military and put them on a map, pushing notifications to its users whenever the American military bombed someone with an unmanned drone.

According to Wired, Apple has now rejected Josh’s app three times. First, because it was “not useful”; then, because of a misplaced logo; and finally (and most recently) because its content was “objectionable and crude.”

Imagine, for a moment, that this were a U.S. government agency trying to enjoin the distribution of a freely available computer application which did the same thing. People would go nuts. And they would go nuts because it would be seen as an unacceptable overreach of government authority in contravention of the First Amendment. But while Begley’s story certainly made news, he hasn’t been able to enjoin Apple, because Apple is under no obligation to publish his app.

This is the central struggle of anti-censorship activists in the digital age. Our speech is moving into private spaces, but the mental models which provided protection are unable to follow it there. The only thing activists can do to companies like Apple and Amazon is shame them by invoking and relying upon a generally distributed sense that people should be able to say what they want within poorly defined parameters. That’s a scary thought for people who believe in the free flow of information, but until we develop a framework which allows us to understand and respond to censorship within private intermediaries, it’s the only option we have.