Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

EFF Doubles Down on Barlow Declaration

In December of 1775, the text of King George III’s October speech to parliament regarding rebellion in the American colonies arrived on this continent and was distributed among a people toying with idea of independence. Prior to this revelation, many citizens, members of Congress, and even Washington himself were not entirely sure that a new nation would or should be the desired outcome of hostilities that had begun in Massachusetts earlier that year. According to historian David McCullough, it was the paternalistic and heavy-handed tone of the king’s speech that galvanized American commitment to sever their colonies from England, write The Declaration of Independence, fight a long and bloody revolution, and then form a democratic republic unlike any nation that had ever existed.

221 years later, the Congress of that same nation passed a law called The Telecommunications Reform Act, and it was this law that supposedly inspired former Grateful Dead lyricist and co-founder of the Electronic Frontier Foundation John Perry Barlow to write and deliver his own Declaration of the Independence of Cyberspace at the World Economic Forum in Davos, Switzerland on February 8, 1996. The Declaration begins…

“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.”

To the cyber-utopian, Barlow’s declaration remains a seminal work — so much so that the Electronic Frontier Foundation earlier this month announced that the “Department of Records” has newly released a limited edition, vinyl recording of Barlow reciting his words. The album is beautifully packaged with a signed, printed copy of Barlow’s pronouncement, and is available to purchase for fifty bucks. I clicked on the link to the Department of Records, and near as I can tell, this “organization” consists of a three-page website boasting a stated mission to “preserve cultural artifacts for the collective memory in both the physical and digital worlds.” So far, the collection belonging to the DOR appears to comprise a single artifact, that being the limited edition, vinyl album of Barlow’s Declaration of the Independence of Cyberspace. And despite the fact that the Declaration implies a rejection of intellectual property…

“In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.”

I can’t help but notice that the acronym DOR on the site bears a registered trademark symbol, and there is an affirmation of copyright at the bottom of the page. Then, again both the hubris and the hypocrisy of the whole package are consistent with the Declaration itself. Barlow continues…

“We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”

Like a cybernetic Lorax, Barlow sows the seeds of ultra-libertarianism, which more honestly describes the ideology that connects both Silicon Valley’s wealthiest oligarchs and social media’s lowliest trolls. In fact, had Barlow borrowed from Dr. Seuss…

I’m JP Barlow, and I speak for the Tubes,
And I’m telling you folks that we are not Rubes!

I might actually buy the album. But possessing neither the moral authority nor the clarity nor the poetry of either Jefferson or Geisel, Barlow’s Declaration is more political stump speech than a work deserving white-glove custodianship. Like any rouser of rabble, the Declaration is typically vague as it strings together emotionally-charged phrases adding up to unfulfillable promises like the following:

“We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”

Unless of course you are a woman and a feminist, in which case, we are very likely to violate your privacy and your personal safety and to Photoshop your likeness as though it is being raped by an angry baboon. The gullibility of Barlow’s words and those who find inspiration in them proceeds from the premise that the rule of law itself is not the expression of an enlightened society but is rather the means by which our better angels are corrupted. This is a refutation of the Framers upon whose shoulders Barlow presumes to be standing.

Had this speech been a clear criticism of particular aspects of the Telecommunications Reform Act, then we could debate the merits of that criticism in context to what has transpired since that law’s passage, but to enter into such debate is to accept that law has any role to play at all, and that idea remains anathema to cyber-utopians swooning at the altar of Barlow. He doesn’t want to criticize a law, he wants to reject the notion of statehood in favor of mob rule while espousing an astonishing faith that mobs left to their own devices are ethical…

“Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge. Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule.”

Indeed. With Marxian naiveté, Barlow makes the case that the unfettered design of cyberspace fosters a natural, ethical order among people just as the removal of private property would foster peaceful coexistence in a communist society. He cynically implies that order is only established in the physical world through the threat of physical coercion, as though IRL, we are incapable of altruistic morality. Ask yourself whether you’ve experienced more rudeness in the physical world or in cyberspace; whether or not everyone who expresses ideas through social media is treated with respect; whether or not, prior to our networked world, some asshole with a keyboard could have done the kind of damage to free speech, privacy, and civil rights that the Sony hacker(s) managed to do this month. The Golden Rule? I don’t think so.

Cyberspace, like physical space, is a world in which people act like people; and unfortunately, this includes criminal, morally depraved, or just plain dumb behaviors, some of which were not possible prior to the opening of this new frontier. Human trafficking, identity theft, intellectual property theft, cyberstalking, the expansion of yellow journalism, terrorist propaganda, and child abuse are all beneficiaries of Barlow’s sacred “home of Mind.” We have to accept that and deal with it; and absent our participation in society through government, I am at a loss to know what realistic alternative might exist. Letting the six guys who own the most popular sites make all the decisions? Because that’s what’s happening now. Governance of cyberspace exists; it’s written in the Terms of Service, and you didn’t vote for anyone who wrote those terms.

In truth, I think Barlow’s too hip, too vague, and too naive speech ought to be titled The Declaration of Indyness. Because indyness is kind of like independence, but would be an appropriately fuzzy neologism that expresses the attitude of the individual narcissist, rather than the sovereignty of a society that must construct systems in an imperfect attempt to achieve prosperity for as many citizens as possible. Still, I imagine the record jacket is just as useful as any for separating the seeds from the stems, and with Christmas just around the corner, it might be the perfect gift for someone you know.

In response to Caitlin Dewey re. TPB

Photo by GlobalIP
Photo by GlobalIP

Dear Caitlin Dewey:

I have read some really dumb, cloying, and earnestly written ideological gibberish in the past three years,  but you have reset the bar with your recent love letter to online piracy.  To be clear, I am confident that piracy itself is a serious problem for both culture and the economy, but this particular disease is nothing compared to the metastasized cancer that has scrambled brains like yours into believing that piracy is actually about something.  You write, “See, the Pirate Bay is as much an idea and an orientation to entrainment media as it is/was a torrent-tracking site.”  Really?  Are you so culturally illiterate that you don’t know a cheap sales pitch when you hear one?  The boys of TPB are not the first thieves in history to justify their crimes by claiming to be leading the world toward some New Jerusalem.  And being a sucker for that message is more socially toxic than the piracy itself.  If you’re going to pirate media, then have the intellectual honesty to say “I’m stealing and I don’t care.”  And then shut up about it.

Piracy isn’t an idea or an ideology or a principle.  It’s a cheap, tawdry, and frankly sexist (note the ads) enterprise of lazy opportunists who profit from other people’s hard and real work.  Profit is why the Pirate Bay and sites like it have existed; and consuming media for free is why people use these sites.  It doesn’t take a degree in psychology to understand either the “buy” or the “sell” side of these transactions, which make pirate sites profitable; but if pundits like you would at least spare us your banner-waving social revolutionary horse shit, then perhaps actual thought might survive this digital slaughter bench of reason that seems to flip your proverbial kilt.

Again, you write:  “But even if TPB doesn’t return, the politics and the conventions it advanced — that content should be free, and if you torrent, they can be! — will be very difficult to eradicate.”

That’s positively adorable, like something a child might write, especially the way your ebullience almost masks the lack of subject/verb agreement.*  But that’s the thing, Caitlin, writing is work, and good writing is hard work.  And so is making music, television shows, and motion pictures.  And it is not in fact the Internet “created by The Pirate Bay” that enables you to jump on this facile bandwagon and spill out a few hundred words for The Washington Post.  In truth, you are able to get up in the morning, buy yourself a latte, and have at it with your keyboard because you live in a society in which free people are rewarded for their labor by compensation.  And that fundamental, economic principle has a hell of a lot more to do with the freedom you claim to love than does your petulant desire to watch Game of Thrones without bloody well paying for it.

 *NOTE:  To be fair, Dewey’s error is a singular antecedent with plural pronoun, which sounds like subject/verb disagreement but isn’t quite.  See, good writing is hard work.  Thanks to one reader for noticing.

Sony Hack Should Give Us Pause

No matter who or what is behind the hack on Sony Pictures, it’s really bad.  The lead theory, though it begs many questions, is that the North Korean government initiated the attack and subsequent mass data dump of sensitive information along with five unreleased feature films.  The rationale I heard proposed this morning on NPR is that the attack might be retaliation against Sony for the premise of a Seth Rogan vehicle called The Interview, in which a pair of hapless reporters who’ve gained access to Kim Jong-un are asked by the CIA to assassinate the North Korean leader.  Not known for their taste in screwball comedy, the North Koreans issued a statement calling the film itself an act of terrorism, and then Sony got hacked.

Some of the data released by the hacker(s) is of dubious value.  Like the email exchange between Sony Pictures co-chairman Amy Pascal and the CEO Kazuo Hirai of Sony Corporation about the manner in which Kim Jong-un’s head is depicted exploding at the end of the film.  The exchange, thanks to Rogen’s responses, is a little bit funny, though I don’t think Sony Corp weighing in on this one project is a particularly intriguing revelation from the leak.  No doubt, the headline is worth a few thousand clicks, so what the hell.

Other data released by the hacker(s) is not so innocuous.  A lot of it was highly sensitive material, including emails, marketing plans, and payment processing information pertaining to both famous and not-so-famous people who have worked for the studio.  According to multiple reports, sensitive information such as social security numbers may have been compromised for individuals who have worked for the studio anytime in the last ten years, thus creating a bait ball that would be attractive to any sharks out there looking for opportunities to conduct identity theft.  And just in time for holiday shopping!

The Sony hack ought to be disconcerting to, well, anybody who has ever worked for any company either as an employee or a contractor.  If that’s not you, no worries. While this attack may indeed have come from North Korea, it as admittedly hard to say whether that scenario is better or worse than if it were committed by an entity like Wikileaks or just some highly-skilled teenager with a random beef against Sony.  It’s a bit like trying to parse the difference between an act of terrorism in the name of Islamic jihad and an act of terrorism in the name of just being the local sociopath. After all, the digital age has spawned quite a few home-grown anarchists who like to arbitrarily vent their self-righteousness on large corporations. They’re smart enough to encode a major security breech, but too stupid to realize they’re jeopardizing the security of regular folks like freelance contractors who’ve done jobs like build sets or haul cables for Sony projects. If this same kind of hack, for instance, had targeted GM, I suspect it would be the lead story on cable news.

What concerns me about this story is that, whether the perpetrator of a hack like this is a rogue state like North Korea or a lone hacktivist, the real casualty of all this remote-control retaliation might be free speech.  Consider this:  the likelihood that any movie producers, especially major ones, are going to produce any films mocking the prophet Mohammed is actually very low.  I’m not saying we’re in need of such a thing, but I bring it up because the calculus applied in considering a lampoon of Mohammed includes serious consideration that one might incite real violence perpetrated by extremists who’ve proven they posses nothing we call humanity.  And that’s not good for free speech in a pure sense, though such assessments are made all the time with regard to potentially hazardous material.  Still, the Sony attack reveals that in our increasingly interconnected world, we are all potentially vulnerable to forces that would silence one form of criticism or another.  After all, it’s almost de rigueur now that if a woman publicly expresses a feminist thought, she’s going to receive death and rape threats through social media; and some of these incidents have included release of information that has led to real-world stalking and physical assaults.

If the investigation proves that Sony’s attacker really was the government of North Korea in retaliation for the film The Interview, that’s a fairly impressive amount of damage being done by an otherwise largely impotent state.  Will it make producers and executives skittish about green-lighting certain material in the future that might garner a similar attack?  If so, where does that logic lead when some of the most skilled code-writers in the world live right here in the U.S., some of them working in very large, very wealthy corporations?  What if Seth Rogen’s next picture shows Mark Zuckerberg’s head exploding?  (Really, Seth, what if?)  Because my personal gut feel is that this was not the work of North Korea but was more likely someone with a personal gripe or a generalized love of vandalism.  Is it farfetched, therefore, to imagine someone within, say, Zuck’s world exposing Rogen and/or his colleagues to a similar retaliatory assault on their privacy and, by extension, their security?  Maybe.  But a great deal of evidence suggests that the moral barriers which prevent people from committing violence or vandalism or classic forms of extortion appear to break down somewhat when the weapons are a keyboard a few lines of code.