Week 6: Madisonian Mudslinging
October 8, 1998
| JZ: | I won’t be prosecutorial today. |
| __: | Operated by the state, right, and then you can basically say whatever you want, you can do whatever you want. I mean, I guess not whatever you want. And the only restrictions are like time-- |
| JZ: | Time, place and manner has some kind of cache, doesn’t it. |
| __: | Time, place and manner and it has to be content neutral. All restrictions ...(inaudible). |
| JZ: | That’s great. I’m glad the exam is still ...(inaudible). So, is this class a public forum? |
| __: | I don’t believe so, no. No because it’s on Harvard University’s property and so this is Harvard University’s stuff. |
| JZ: | So if we had styled this as an event free and open to the public would it be a public forum? |
| __: | No. |
| JZ: | It still wouldn’t be a public forum? |
| __: | No because it’s not state owned. I think all public forums are, for the most part, state owned or like sort of quasi-state owned or stuff like that. |
| JZ: | Another member of our quasi-state that wants to-- Molly, do you want to help him out? |
| Mollly: | I think he’s doing pretty well, actually. |
| __: | Yes, Molly. |
| JZ: | This is good cop, bad cop. |
| Molly: | We saw in the reading allusions to the shopping mall cases. Which were cases in which the theory that spaces that are not publicly owned but open to the public and used by the public traditionally, that those should be considered public forums. Has been rejected, at least to some extent, by the shopping mall cases. At least to the extent that petitioners asked that shopping malls be, in fact, treated like the government for constitutional purposes. And that the public forum ...(inaudible) be done that way. |
| JZ: | And I guess the end point, one of the few easy cases for somebody wanting a private actor to have to take on state-like responsibilities, say the burden the of the First Amendment and not censoring people in certain ways, would be Marsh, the Alabama-- |
| Molly: | Right. And the shopping mall cases were cases in which, as I argue people should do although the last, oh, fifty attempts have been fruitless, in which people have argued that places like shopping malls are like Marsh. Enough like a company owned town that they too should be subject to constitutional scrutiny, at least on First Amendment issues. |
| JZ: | Gotcha’. Other comments or thoughts on this much? How many people-- I saw in the actual answers-- Oh, go ahead, Andrew. |
| Andrew: | It might be useful-- Can I throw in a question here? |
| JZ: | Sure. You just did. |
| Andrew: | To ask why we have a public forum doctrine. Why do we need a public forum doctrine basically? Because as we-- I think the panelists here are going to try to evaluate the status of the public forum in a world in which many of our information encounters happen not face to face but via different communications media. Whether it’s the Internet or more traditional broadcast or print. The question arises what do we need a public forum for in the first place? And is the public forum only literal property, in the sense of real property, like street corners and sidewalks and parks and town squares and municipal theaters. Or could it apply to other spaces in which information is exchanged and people have experiences. |
| JZ: | So, start with the first question. Did people hear the National Anthem playing when they read the Cass Sunstein piece? I mean, were people feeling like yeah, right, exactly. We need a public that isn’t just watching Married With Children but is deeply involved with the issues of the day and also is subjected to, or at least allowed to see, varying points of view. And points of view are difficult to find that actually represent, at least from some utopian perspective, a failure in a system designed to work best when there are lots of different views and citizens have them. I mean, did that much out of Sunstein’s ring true? |
| __: | I think it’s more there is a concern, yes. But as far as his means were concerned, that kind of dampened the music for me. I like his utopian view but the way he had proposed to get there through a new deal for speech, kind of, chilled my enthusiasm a little. |
| JZ: | Now we have two distinct
issues that we’ll be talking about the whole session, which includes: first, when you
have the government and the government has property, say a park or something, and is
trying to decide how to use the park. Should people be allowed to say overnight in it as a
form of protest about housing conditions, which was a case in Washington DC, in Lafayette
Park. When it’s making decisions about that as a steward of the park it should Cass
Sunstein’s article beforehand and try to be mindful of it. So, that’s one thing.
Kind of do no harm as government, do what you can to encourage a multiplicity of
viewpoints. And then a step further than that may even be if you’re making policies-- If you’re the FCC and for whatever crazy reason you been given Constitutional control over large aspects of our communications system in the country, you have some means of establishing policies, like this Fairness Doctrine you saw in Red Lion, that is designed to actually serve the goal of a multiplicity of viewpoints. And from the Constitutional perspective that’s thought of as alright, maybe we should encourage that kind of thing. That already may be dampening the music for you, to imagine that being done. But at least we see some basis in it in the doctrine. So, having the government affirmatively require private actors, who in a sense are holding a public trust in their use of spectrum, holding them to certain standards designed to guarantee a multiplicity of viewpoints and even deep reflection on public issues-- That’s why in the middle of some Transformers episode on Saturday morning they have to suddenly have a digression about government. Then they go back to kind of zapping it out and changing into different objects. That might actually be thanks to the FCC looking over their shoulder and saying you need to have a socially meaningful show for our children. And then the final aspect is jumping to what government should or shouldn’t do when you have private actors ordering their affairs as between each other. And exactly what should happen there is another big question. I know that Stefan you’ve prepared, actually, kind of a nice statement that says what you’re about and what your issues are. This might be a good time, actually, to read the manifesto. |
| Stephan: | Okay. I don’t know if I
would necessarily call it a manifesto but. I find it quite symbolic that the first
American institution of higher learning to take an active interest in the subject of
electronic civil disobedience is Harvard. One hundred and fifty years ago it was a Harvard
graduate by the name of Henry David Thoreau who wrote about civil disobedience.
Interestingly, his acts of civil disobedience were directed against US involvement in a
war in Mexico. While today we, too, are opposed to a type of war in Mexico. I want to briefly share some of my thoughts regarding the theory and practice of electronic civil disobedience and the more encompassing term of hacktivism. In the end I hope that some of you will take an interest in our project and perhaps be intrigued enough to help us research and gather literature and case law that may prove useful in the event that we or our allies end up in court some day. As indicated already Thoreau’s writings are part of the history of electronic civil disobedience but it is the lived experience of US social movements in the last forty years that provides the source for theoretical and practical understandings of resistance Internet use, such as electronic civil disobedience. Since World War II quite a number of social movements have adopted tactics and strategies of non-violent civil disobedience and direct action. In the 1950s the civil rights movement, in the 1960s the anti-Vietnam War movement. Since the ‘70s feminist activism, environmental activism, AIDS activism, anti-nuclear activism, to name a few. A common understanding of civil disobedience is predicated on the notion that there are times when it become imperative to break a law or set of laws that appear unjust in comparison to what some might call a higher law. In the late 1950s civil rights activists broke laws in the South that prohibited African-Americans from sitting at the lunch counters of then white only establishments. Motivated by a higher law or set of moral codes. While this conception of civil disobedience is important and perhaps essential the literal meaning of civil disobedience there are aspects of civil disobedience that are more useful in our discussion. Like the actual tactics of civil disobedience and direct action. Here I want to interject another literary footnote. The phrase “electronic civil disobedience” was coined by a group of artists and theorists, the Critical Art Ensemble. In 1994 they published their first book that dealt with this subject, “The Electronic Disturbance”. And in 1996 CAE published “Electronic Civil Disobedience and Other Unpopular Ideas”. Both of these works are devoted to a theoretical exploration of how to move protests from the street on to the Internet. They examine the tactics of street protests, on the ground disruption and disturbance of urban infrastructure such as blockading building entranceways or takeovers of traffic arteries. And they hypothesized how such practices can be applied to the Internet infrastructure. Underlying our usage of the term “electronic civil disobedience” is a keen interest in continuing this exploration of moving protest tactics from the street to virtual or digital realms. At the beginning of this year we set about trying to put these hypothetical musings of the Critical Art Ensemble into practice. A group in Italy, the Anonymous Digital Coalition, offered us the first model. They had called for virtual sit ins on the Web sites of five Mexican financial institutions. Shortly thereafter a Mexican government Web site was hacked and plastered with anti-government messages. Knowing that Ricardo Domingez and I were paying close attention to these developments, we were invited to host a panel on these cyber protests for a Socialists Scholars Conference in March in New York City. We called it a panel on Electronic Civil Disobedience. At the same time Brett Stallbaum and Carol Fornier and Carmen Corask in Boston were working on the first version of Flood Net, a java applet that automatically reloads a Web site and acts as a distributed system, enabling mass political expression on the Internet. On April 10th, the Electronic Disturbance Theater emerged with its first dress rehearsal. A virtual sit in on the Web site of Mexican President Ernesto Zadillo. To date we have used Flood Net ten times, to varying degrees of success, primarily targeting President Zadillo’s Web site. But our actions have also been directed against the Web sites of the Clinton White House, the Department of Defense, and the Frankfurt Stock Exchange. Our high point so far was last month when we participated in the Oslo Electronics Festival on Info War, initiating an action on September 9th that resulted in some intriguing interactions with the Defense Information Systems Agency. Of this I’m told you have been informed. Over the course of the last eight months, as we have begun to popularize and to spread the mean of electronic civil disobedience, both through our own online networks but also through expanding our presence in the media sphere, we have begun to be a magnet. An attractor for information about other people engaged in similar forms of cyber protest or resistance Internet use. We now know of other online activists engaging in cyber protests and Internet direct action in Australia, Asia, Latin America, North America and Europe. It is safe to say this is a global phenomena and it also seems that electronic civil disobedience is an insufficient term to encompass this wider experience. For this, then, emerges perhaps the more applicable word “hacktivism”. Hacktivism evolves from the convergence of the computerized activists and the politicized hacker. Hacktivism becomes a more overarching category of cyber protests within which public and vocal mass-based electronic civil disobedience actions coexist with anonymous and silent individual based political hacks. Under this wider umbrella of hacktivism there is no hierarchy of value. Public mass-based actions are not seen as superior nor inferior to private individual anonymous acts. Finally, it is at our peril should we ignore who and what we are up against in developing the theory and practice of electronic civil disobedience and hacktivism. At the same time that the Critical Art Ensemble was working on the electronic disturbance the Rand Corporation came out with a piece by Ron ...(inaudible) called “Cyber War Is Coming”. Soon thereafter appeared Schwarto’s “Information War”. Since there have been a number of works produced in this genre. A rhetorical thread running through this literature centers on the framing of cyber-terrorism. What we might call a political hack or an example of hacktivism information warfare theorists, like those at Rand, the National Defense University or, for that matter, the Defense Information Systems Agency, might define pejoratively as a sub-category of cyber terrorism. I want to conclude by saying that I think that one of the most important battlefields within this so-called information warfare is at this conceptual level and in the area of definition. We need to seriously question and abandon some of the language that the state uses to demonize genuine political protests and expression. If I leave you with anything when I walk away from here today, I hope that I leave you to recast and reframe some of the ways in which you may thinking about political action on the Internet. As we believe, I hope that you can see that our actions and the online actions of our allies are part of a long tradition of political dissent and resistance. Thank you. |
| JZ: | So, Carmen, let’s make sure we understand the tech. How does Flood Net actually work? What does it do? |
| Carmen: | Okay. Flood Net is a Web
site. It’s a Web site that has the java applet in it, that does an automatic reload
of a Web site or more that we choose to target for our particular political action. The
way that it works is that we send out an announcement via email to thousands and thousands
of people. And they, in turn, send it to others. And our announcement has a time for
participating and a link to the Web site. So that when you get this and it says maybe from
ten to four, whatever, we’re targeting President Zadillo’s Web site. If you
click that link, you will go to what’s called the Flood Net Foyer, which will give
you some background information and ask you to set up your computer so that it works
properly with Flood Net. And then you can go to the bottom on these pages-- It also has some history type stuff in there too. You enter Flood Net and at that point you come to a Web page that’s a frame based page, that has text content in the middle of it. But more importantly as soon as you get to that page, on the bottom of that page there’s a bottom frame. In that bottom frame begins the automatic reload of whatever Web site or Web sites we have targeted for that particular action. And there’s a little more to it. It uses what we call 404 error spanning and that, in my opinion, is pretty much conceptual art. Because what happens is we will send an error message to a host server and the error message will be something like the word justice-- Well, what happens is we’ll send something like the word “justice” and that server doesn’t have a Web site called “justice”. So, an error message is written to that host server and it says “Justice is not found on this server”. So that’s our art piece. That happens automatically. If you click, there’s an image in the upper left, if you click the image you’re doing it consciously but you’re taking whatever message we have in there. Sometimes we put the names of dead people, who’ve been massacred in some of the uprisings. In that case it will have a particular name or multiple names and it will say “These people are not found on this server”. |
| JZ: | So let me make sure I
understand the technology. It sounds like it’s as if I could participate in phone
Flood Net, something I’m trying to see if it resembles what you’re talking
about, with my telephone. If, thanks to a java applet, some piece of software or some
device I could attach to my phone, it will now automatically redial a number of the phones
or the person you put on the device, of their choice. And the phone will repeatedly call
the number and hang up when the other side answers or maybe it will be a busy signal or
something. The idea, I guess, is that thanks to this applet, which is to say little application, being on your computer now, your computer meaning somebody here that might go to the Foyer of Flood Net, their computer is now under instructions downloaded from Flood Net, asking for the same page over and over again from a designated Web site and one that’s likely not to be found. And has the 404 error? |
| Carmen: | No, no. |
| John: | No, it’s two different elements on the site. At the bottom frame is the reload, which is the public button on any browser. |
| JZ: | So, it just holds down the button for you? |
| John: | It just holds down-- |
| JZ: | It’s like holding down redial on your phone for you? |
| Carmen: | Yes. |
| John: | It’s a public function, it’s on every browser that I know of. You always want to refresh your page. So basically this refreshes your page automatically for you. So, it’s like the redial or-- I mean, easiest would be if it’s a knocking, they open the door, nobody is there, they shut the door. And then knocking again, they open the door, nobody is there, they shut the door. And it just keeps knocking until the machine gets tired of opening the door and it says I’m sorry, I don’t want to open the door any more right now, come back later. |
| JZ: | It goes on my ...(inaudible), doesn’t it? |
| John: | Yeah, I’m sorry. |
| JZ: | Go ahead, Andrew. |
| Andrew: | This may be jumping ahead a little bit but I’ll go for it. Which is the more I think about it, and John’s process of analogizing to another medium helps with this, I’m concerned about the absence of public fora, by which I mean-- And before when I asked what’s the purpose of the public forum, I think one controversial answer that one might give is if the purpose of the public forum is to dislodge individuals from their privatized worlds, basically. It’s to prevent the privatization of experience and to allow for accidental encounters, where one citizen can engage another and by doing so create democratic discourse. |
| JZ: | You have to use an airport. When you’re there at the airport you see somebody holding the sign and that’s what makes the airport an important public forum. |
| Andrew: | That’s what makes the
airport a valuable public space. And one of the problems with the public forum today is
that literally because of patterns, social dispersal, suburbanization for one, we
don’t have the vibrant urban spaces where people congregate for functions like buying
tomatoes in the middle of the day that we once had. Where we have shopping malls now that
are private. I mean, when Molly refers to the shopping mall cases it’s not just that
you can’t go into a shopping mall and take it or make a stink. It’s that this is
the locus of commerce, which was once a public space that was open to this kind of-- The
possibilities for these encounters. It’s just the opportunities that are really
important. Now what strikes me is that although electronic disturbance theater is using the Internet in a way to bring attention to social causes that might not be getting substantial or sufficient attention in the mainstream media, perhaps you’re going about doing so in the wrong way. Because all you’re doing is essentially annoying, in this case President Zadillo, the President of Mexico, who’s the opponent of the Zapatistas. But you’re not actually informing-- What you want to be doing is informing all of the masses of people out there. You want to spam email to the masses. |
| JZ: | So stop right there for a
moment because one distinction I think you’re pointing out is a distinction between
speech and action. We all know that in the middle there’s this gray area where is it
speech or action and the answer is yes. But in the midst of Cambridge Common somebody
holds up a sign, with some particular message-- Your complaint just a moment ago was
nobody goes to Cambridge Common any more. I don’t mean the restaurant, by the way. I
don’t know anybody who goes there either. But I mean the actual common that you may
or may not have heard of or ever walked there. That previously would have been a place
where people sell tomatoes and now is bereft because of this individualization that
you’re talking about. Now what I take you to be saying here is alright, what they’re doing isn’t what Andrew Shapiro was talking about in his article about street corners in cyberspace. Because it’s not about being able to get your sign and position it in a way that people have to go to special trouble to avert eyeballs, that were naturally pointed in that general direction, to avoid the message. You’re saying what they’re doing is okay, it’s not even necessarily speech. It’s action. It’s like, I don’t know, taking a bucket of paint and throwing it on to the-- |
| Andrew: | Well, I’m not trying to
make a claim about whether it’s speech or action. What I’m saying is that-- I
originally when I heard about this did think that this was an attempt to recreate a public
forum online. But now the more that I think about it, the more it strikes me that
you’re just harassing one individual. Which if you want to harass that individual for
political reasons and are willing to take the consequences of it, fine. But the function
of essentially putting what is-- I mean, I’m interested in the balance of power
between the dissident speaker and the unwilling listener. And my reading of the free
speech tradition in this country is that there’s always been a sort of-- Although
it’s never been well articulated, a careful balance between that. And it’s the
Public Forum Doctrine that protects that balance between the dissident speaker and the
unwilling listener. Essentially what’s happened over the last few decades and what I think is going to continue happening, as interactive media becomes prominent, is that balance is going to become completely unraveled. The dissident speaker is going to be completely lost in cyberspace. |
| JZ: | So do you grant that they’re dissident speakers? |
| Andrew: | I think that they’re dissident speakers but they’re actually-- They’re as lost in cyberspace as they were prior to Flood Net. Unless the mainstream media picks this up and plasters it on the front pages or not the front pages but somewhere in the newspaper. Frankly, the fact that the New York Times, CyberTimes, wrote about you guys is the best thing that’s happened so far in my mind. Right? Because you’re getting the word out to people about-- |
| Carmen: | There’s a lot more media coverage than that. |
| Andrew: | Okay. Well, it’s the only one that saw linked to the site. |
| John: | No, there’s much more and there will be a front page New York Times article coming out soon. |
| Carmen: | It was on the BBC. |
| John: | But, I mean, that’s one
of the things that perhaps-- The Flood Net itself is one aspect of the entire work. Below
that is a series of communities that are interconnected. One is the Digital Zapatista
Movement, which is quite large. Also involved in that is the artistic communities that
have emerged out of new media, who are interested in it as a conceptual work. So
there’s political activist groups involved in the discussion. Is this civil
disobedience, is this good, is this different. There’s groups internationally
dealing, is this art, is this not art. Then there’s also large international critical
theory networks, is this a correct road for political action, does this achieve Albert
Moss’ theory of public sphere. So each of these spheres communicate with each other during an action. And we send out these emails to them. They respond to us and say I’ve participated in your action; I didn’t like it, I did like it. And we enter into a general discourse. But what has happened is that as this strange attractor, let us say, of ...(inaudible) on Flood Net have emerged in, I don’t know, since the CyberTimes article, it’s now emerging to this level of where Wired.com has articles quite often. The New York Times, the San Francisco Examiner, the BBC. So now a whole new level of individuals in the media sphere are discussing ...(inaudible), are discussing the situation in Chiapas. We are here. If we had not done this knocking nobody would have answered. Because people said well, why are you doing this. Why not just continue the information warfare, posting stuff online, having your Zapatista Web sites. And I said that’s fine but to a certain extent after the Octel massacre most people I spoke to said well, I thought the Zapatistas were dead, weren’t they killed. So, all of a sudden, they have to recognize the situation. They have to speak to us once more. And just sending email out and posting out on a Web site did not seem enough to create the community discourse, not only within the infrastructure of resistance but on a wider network. |
| JZ: | So you’re basically the equivalent, if I can just go with this for a second, the equivalent of the guy in the street corner who’s like shrieking and holding his hand up like this. Saying pay attention to me, I’ve got something really important to say. |
| John: | Yeah. And I don’t have to ask the New York Times in order to do it. I don’t have to ask the public space of the mall to put up my sign or to paste something up. I can take my computer and create a network. And, in a certain sense, what’s happening now is that networks are ascending over nations. And that’s what creates such a disturbance among the Department of Defense and the Department of Justice. Because networks are both supra and sub-national. They don’t require a “Is it okay for my code to go across the ocean. Is it okay for my code to be received by a woman in Hong Kong.” They can engender a global community of discussion and I don’t need to ask anybody in order to start that discussion. |
| JZ: | So let me ask, just to be sure again that we’re understanding the technical interplay between an action, as you’ve been calling it, and a what follows from it. After this knocking, door answering, knocking, door answering, if it were a human having to answer the door each time you could see that it would be having an effect, right? The human is getting tired answering the door. Presumably the machine doesn’t actually get tired. Are there other technological ramifications of an action that make it something to which one has to pay attention? That makes it actually shrieking rather than just sort of doing something that’s not making-- |
| John: | Well, I mean, I would say that at first it is just a way to gather people together and everybody hold up a sign. And people can say well, what just holding up a sign create. Is anybody paying attention. Well, what has happened is that even this very small symbolic act gets a direct technological response, not only from Zadillo’s Web site, where we had an actual java script war, right online. A browser war where they were trying to counter our java script as we were countering theirs. But recently, as Stefan said, when the DOD during the action, about an hour and a half into it, we started noticing a hostile java applet. Started to shut down Flood Net. |
| JZ: | Just hang on. How is it-- |
| John: | Yeah. Well, what happens is, say, that our reload function is like a wheel that goes ta-dum, ta-dum. It goes fast enough, it creates a ...(inaudible) effect because it’s like this. Their hostile java applet was like a stick in the wheel. All of a sudden the wheel goes aaaah, aaaah, aaaah. |
| JZ: | But how does their java applet do that? |
| John: | Well, it spawns to-- It quickly spawned until the reload applet could not function. Enough sticks will-- |
| JZ: | Alright. So, let me just try to-- I want to make sure-- |
| Carmen: | Are these the technical questions? |
| __: | Visually we saw many small squares with a little java applets. |
| __: | The java copied logo suddenly appear across the ...(inaudible) screen. |
| JZ: | And the way that’s happening-- |
| John: | And then Flood Net just shut down and stopped working. |
| JZ: | I see. |
| __: | Are you talking about June 10th? |
| __: | No, we’re thinking about September-- |
| John: | So what happened was we were getting three sites at one time, which we had never done before. We were hitting the Pentagon or the Department of Defense, we were hitting President Zadillo and the Frankfurt Stock Exchange. Because it was important for us, for the Zapatismo critique of neo-liberalism, to come into effect. The three sites that are involved with this. We didn’t know from where of the three sites this was happening. It could have been hackers on site during this. But about two hours later Wired confirmed that it was the Department of Defense, who had set off these hostile applets. |
| JZ: | Now, again, I’m just trying-- When you think of the anthropomorphism of hostile applets-- |
| John: | Well, we didn’t call it that, Wired called it that. |
| __: | Yeah, that gave it that name. |
| John: | They gave it the hostile applet. |
| JZ: | That’s Wired for you. |
| John: | Yeah. So, that screaming on the streets-- |
| JZ: | But at a technical level-- Again, I’m just trying to get the-- I want to understand the code before we get into the bigger stuff. You knock on the door, it sounds like what happens is they answered it. And they quickly shoved out a little bomb with a thing on it-- |
| [Laughter] | |
| John: | In other words, you want justice, I’ll give you justice. |
| [Laughter] | |
| John: | Right. So there you have a public response. Even if it’s there or on the street corner, a small network of four people was able to-- Even if it’s only a symbolic gesture. It’s a symbolic gesture that the powers that be, who believe that data is above all things now, that bandwidth is holy, and that meet space is for the dead. No matter how many people are in meet space data is what is of value. So, if you disturb data they are willing to hit back and hit back hard, even if it’s not an effective tool in the end. |
| JZ: | So let me just try to
summarize and see if I have us where we are so far. You have a set of idea that you think
are important and underappreciated in the world, is what makes it kind of a minority,
dissenting view. The rest of the world is oblivious to these particular problems that are
very important. And you can create Web sites to talk about the problem but the only people
who tend to go to the Web sites are people who are already into the problem. It’s a
bunch of choir coming to visit the preacher. You want to reach people who aren’t
choir. Now, one way to do it is to do something newsworthy, right? That’s the tried and true method. Forget the Internet. A monk can immolate himself. I mean, you can pick any number of things, that are some derivative of Andrew’s stand up and shriek, that says I’m going to get attention for my cause. And people will ask why this particular thing happened and then they will know. Now, another thing you can do is actually-- I don’t know. You can tell me in a moment if you think the word attack is too strong. But you do this door knocking that you’ve been talking about. Maybe it will turn out to be important as to whether this is or is not an attack. With the door knocking what happens is it’s almost like Alice’s Restaurant syndrome. How many people have been to Alice’s Restaurant, have heard it? |
| __: | A great place. |
| JZ: | Yes, thank you. Alice’s
Restaurant says if enough people do “x” and then more people do “x”,
then all of a sudden everybody will notice and you will have a movement with power greater
than just the symbolism of saying “x”. In this sense you have a lot of people
knocking on the door of the Web site and saying “hi”. This is of the character
of please drop the following postcard into the mail to your Congressman or your Senator
and they’ll know that there’s a bunch of people out there that care about this
issue. Now, there’s a further aspect too because Congresspeople don’t say that they’re attacked by their mail, most of the time. And that is that if enough people are knocking on the door, eventually the machine does get tired. It actually isn’t able to service all of the requests at once. If the requests are going to a page that maybe it doesn’t even exist, they may not be requests for information the server has to give, they’re just trying to busy the server with saying “no”. If that’s the case then others trying to reach the server will find it slower or-- |
| John: | Right. The site will just scroll down very slowly. |
| __: | But what happened when the Department of Defense threw back to ...(inaudible) the Flood Net. Did that affect non-Flood Net users? |
| John: | Did that affect non-- No, it was specifically-- Yeah, because I mean we’re very public about it. It’s all very transparent. And this is perhaps where we can get into different issues about hacktivism, electronic civil disobedience, and some of the definitions we play. At least the way that I feel that we’ve approached it is to be very transparent. We make the announcement as soon as we can about this is what we’re going to do, this is how long we’re going to do it. We request everybody to come and join us for this action. So, whoever we’re hitting knows that we’re coming. |
| __: | Does that identify itself with the request as agents-- |
| John: | Well, by now they know. Because Flood Net sits on the thing’s server, which is an ...(inaudible) Web site. |
| __: | Okay, so this is not-- See, the impression I got was each individual’s computer was going to hit the reload button. |
| John: | No, no, no. What happens is that everybody gathers in a specific URL, which is the Flood Net URL, which resides on the thing’s server. |
| JZ: | But that’s an important question. |
| Carmen: | I think it’s more of-- |
| JZ: | It’s programming a lot of individual phones and saying while you’re on hold, on your behalf, we’ll call a bunch of people repeatedly. |
| Carmen: | Because Flood Net is loading on that client. |
| John: | Or on that individual’s machine. |
| Carmen: | Right. And that’s what you’re saying, right? |
| JZ_: | So, the bombs that may be handed back through the door-- |
| __: | When I’m a server, say the Department of Defense, and I get a request, a Flood Net request, how do I identify that as Flood Net? Is it the agents? I mean, the IP address obviously could be anyone’s IP address. The part that I would usually use would be an agent tag. Is it just going to identify itself as whatever browser I’m using or will it identify itself as Flood Net? |
| John: | Well, what I’ve come to understand is that in the same way that when you march on the street and police take your picture, they will know your IP. They will mark it. So yeah, the specific IP will be-- |
| JZ: | Without getting too far into the tech stuff, I suppose you could easily say anybody who knocks on the door ten times in about ten seconds is part of this movement and we’ll hand them the bomb. And anybody else we will show here’s where you can get a tour of the DOD. Yeah, Greg? |
| Greg: | I might just be really naive and maybe this questions, in a way, I had of where we’re going. |
| John: | That’s for you to decide. |
| Greg: | One thing is that I don’t see this as like shirking or shrieking at all. Maybe I’m just hopelessly stuck in whatever the opposite of cyberspace is, just real world space. But I see this more as of the ten year old kid who rings the doorbell and runs. And what we do at my house is we call the police and we say go get that ten year old kid. And, in this case, we know who the ten year old kid is. It’s you guys. |
| [Laughter] | |
| JZ: | You mean it with all respect. |
| Greg: | I have that you have a cause and I understand you believe in it but it just seems to me that this is these people’s private property and you just can’t do it. You don’t go and just leave things-- Or you don’t go and knock on people’s doors and run. |
| John: | Well, we’re not doing that on private individuals, we’re doing it on symbolic sites. We’re protesting-- |
| Greg: | Who owns the sites? |
| John: | No, President Zadillo owns-- It’s like the White House. Who owns the White House? |
| __: | The German Stock Exchange, I mean-- |
| JZ: | Well, it actually is worth
going in to. We should address for a few moments whether we think, under existing
statutes, this is in fact legal. And then beyond that you could say ought it to be. Ought
there to be a law about this, given what we’re starting to come to about what the
ramifications are of this particular mode of call it expression, call it attack. An
action, I guess, is what it’s been called here. And that’s definitely worth
doing. That’s why I’m trying really hard to get us to understand exactly what’s going on technically and what the ramifications are. So we can see how we’re viewing it. And, at that point, we may be able to form judgments about, first, whether it’s legal or not. And then, secondly, to get an idea about presuming that there are lots of people with axes to grind on a variety of subjects, depending on who you are they are valid or not, is this one way that there is to grind them. I guess the question I would leave with, because I guess we have to break in a moment but I’ll let Paul get in before we do, is in the utopian world of speech, that Sunstein keeps referring to, would there be no need for civil disobedience. Civil disobedience is premised on the idea that it is disobedience. It wouldn’t be fun if it turned out you weren’t breaking the law. If you get the permit for the parade and then you throw it, no matter what you say it’s hard to say that it’s civil disobedience. It’s civil obedience. You know, I got my permit, I had it, and now people know more. And we would think that a civil society would allow ample legal avenues of protest, of petitioning the government for redress, however you want to put it, for which you don’t need to have something-- You don’t need to have civil disobedience. That’s a hypothesis that would be good to look at. And one question, I think, for you guys when we come back would be is there anything that you could imagine changing on the order of parade regulations in the real world, are there rules about cyberspace that you could see coming about for which you would not be doing something that is civilly disobedient. You would either (a) abandon the Flood Net method of getting attention or (b) maybe your claim would be this ought to be legal. We ought to be able to gather people around and use these means to effectively slow down or even shut off a site that we have deemed to be inappropriate. So with that said, Paul I’ll let you get in and then we should break. |
| Paul: | Well now that you’ve said all of those grand predictions of the things that are going to come in the future my problem is going is to be almost meaningless. But I’d like to just-- |
| JZ: | Great, please go ahead. |
| Paul: | I’d just like to try and increase the strength of his objection and say not only you infringe on their property rights, you’ve brought out the example of the sit ins in segregated diners back in the ‘60s. I would compare what you’re doing to sit ins at the newspapers that supported the segregated diners. You’re not merely attacking people who commit things or do things that you think are morally wrong, you’re attacking their source of communication to the outside world. In a sense you’re not only standing on a street corner and shouting, you’re standing at their television station, breaking in, and drowning out their announcers. It seems that you can’t have a claim of speech that destroys the other person’s speech. |
| JZ: | So why don’t we-- It doesn’t sound that meaningless to me as a comment. Why don’t we leave it hanging and we’ll take our traditional seven minute break and reconvene. |
| [Everyone talking at once] | |
| JZ: | Let me ask an appropriately immaterial question given that people aren’t all settled yet. It’s been pointed out to me that a number of 2Ls, who are going out for fly out week, are flying out on Wednesday of next week, extra early. How many people are in that plane? The week before fly out week, whenever that is. So, several people are doing that. And it just seems if you want to be able to-- It’s a shame you’ll be missing a class. If you want to be able to respond to the responses, as long as you can pull up a Netscape browser, wherever you are, do it at the business center of the ritzy hotel you’re being put up in, charge it to the firm, and buy a laptop and charge it to the firm, I don’t care. |
| [Laughter] | |
| JZ: | You can actually just pull up a browser window and log in. I don’t think there’s any firewall that says you’re coming from Davis Polk, we won’t let you in. Any questions on that? |
| __: | We’ll tell them you said it was okay. |
| JZ: | Absolutely not. Alright, so there was enough sentiment, verbally and along here, we’ve been talking enough up front, that I just want to open it up for a bit. Yeah, go ahead. |
| __: | Yeah, I was just trying to think about this because I have a tough time really seeing it as a protest or civil disobedience in the sense that when I, as a third party who is not participating in the protest of the site, that I experience a slow down or I don’t have the access to the site but I have no idea as to what was the cause. And it’s only through the media coverage that you might be able to obtain, that I might find later on what was causing it. |
| JZ: | So to you it would be a purer form of disobedience if they actually hacked into the root of the site and substituted their own protest file for the file that’s normally there? |
| __: | I don’t know. To me it just-- It feels more-- The question that comes to me is it feels a little more close to, even though the impact may not be the same, to the terrorist activity. And the question to me is about the legality of accessing and reloading a Web page. I was talking with a couple of others here about there’s a statute, 10-30, which is about unauthorized access to computer systems. If you work under the assumption that people will only have the ability to access a Web site, to the extent that they don’t cause it to go down, so you don’t have the server up any more-- I mean, is there a potential here then for a violation of 10-30 or a conspiracy to violate 10-30? |
| JZ: | So, let’s pull up the statute. |
| John: | Go to the EECD page. |
| JZ: | We’re not going to Flood Net; www.-- |
| John: | No, it’s www.thing.net\~rdom\ecd\ecd.html. You can just go through ~rdom but this gives you-- Now go to Flood Net. What did you want to see? Now go to carmen, go in, and Carmen, where is it here? |
| Carmen: | Scrapbook. |
| John: | Go to scrapbook. |
| Carmen: | Then click Cyber Times, over to the far left. Yes, Cyber Times. Then scroll the bottom of this thing. |
| JZ: | Oh, look who’s there. |
| Carmen: | This is the first article that was in the New York Times about us. |
| John: | Right there. |
| JZ: | Mark ...(inaudible), Internet consultant and former head of the Justice Department’s efforts to prosecute computer crime, said in an interview the participants like ...(inaudible) run a risk of violating a Federal law, 18-USC1030-A5a. |
| Carmen: | Which I think is maybe different than the one that you’re student was-- |
| John: | No, this is it. |
| JZ: | And we have here if we print
down the ...(inaudible), blah, blah, blah, “through means of a computer used in
interstate commerce ...(inaudible), knowingly cause through the transmission of a program,
information, code or command of a computer or computer system if: (I) which can cause the
transmission and such transmission (I) damage or cause damage to a computer, (II) withhold
or deny or cause the withholding or denial of the use of the computer, computer services
system, or network, information, data or program.” So that sounds like it might be the clause that he was referring to, right? |
| __: | Right. |
| JZ: | Now, again, this is an unscientific poll of non-lawyers, no less, for the most part in this room. How many people would say that, as you understand it, this falls under the purview of that statute? |
| __: | Whether it does or whether it should? |
| JZ: | Say whether it does. |
| __: | There’s another statute, the one that the guy who wrote the ...(inaudible) was busted under. It was an attempt to deny service causing greater than $50,000 worth of-- |
| JZ: | And what he did was simply write a program that replicated. He was doing it, he said, either for fun or just for the heck of it-- |
| __: | To expose some security flaws. |
| JZ: | And then, sure enough, it did and he got in trouble. |
| __: | It’s a crime to attempt that? Not just to-- |
| __: | Yeah, there’s a crime to deny people use of their computers, particularly when they’re government computers. So, I guess if the Department of Defense was stupid enough to put some sort of mission critical files on that machine, if the machine was using too much processing power doing its Web serving and it caused-- There’s a threshold amount of damage. |
| JZ: | So let’s parse it
through for just a moment under this statute. To withhold or deny or cause the withholding
or denial of the use of a computer, blah, blah, blah. Now it’s not the thing.net
server that’s repeatedly reloading. Now I suppose you could do that too, right? That
could be your civil disobedience. You could ask thing.net to open any number of
simultaneous streams. In other words, you could spawn as many little things as you like.
Have them all simultaneously knocking and try to basically duplicate the effect of people
across the Net doing the same thing. The only disadvantage being, maybe, it’s easier
to shut off because they’re all coming from the same place. But in this case it’s the collective action of a bunch of distributed parties that is, let us assume the worst case, preventing access to the server because so much door knocking is going on. In that instance are there more prosecutorial minded here saying that anybody who visits a Flood Net page and clicks is in the same boat? |
| __: | Yes. |
| JZ: | Yes? |
| __: | No. |
| JZ: | What’s the “no” argument? |
| __: | The “no” argument would be like trying to prosecute a group of individuals who happened to be organized in one group and attempting to enter a public building at the same time. The sheer fact that so many people are trying to enter the building at the same time is what’s blocking the access. That’s really all that’s happening here. So, unless you’re going to prosecute the group as a whole, because it’s the whole of the action that’s causing the violation, you’d have to prosecute everyone. Because it’s all the sum of the whole that’s causing it, not each individual. |
| JZ: | Yeah, Tim? |
| Tim: | Well, it’s also a question of intent. I mean, do they know-- Do people who enter on the site, are they told about the possible legal ramifications of their actions. |
| John: | Yes. |
| Jim: | If you’re talking about prosecutorial effect, do the people have the intent to actually create to cause a crime. And then can you go after them on that. |
| JZ: | Of course, you’d think
that one of the corollaries to civil disobedience is that civil disobedience loves
company. The more people you can have together implicating themselves and the harder it is
to arrest all of them, the more likely it is that there’s some kind of plea bargain
struck by which the entity that’s being challenged says okay, if you just quietly
leave then maybe we’ll do X, Y, or Z. Interestingly, in this case, it’s not as if you all are making demands, right? You don’t say we will not engage in this conduct if you were to do X, Y, or Z, right? |
| __: | Can I ask a question. If we’re targeting the Mexican government who would press charges in this case? |
| JZ: | Alright, so we’ve jumped for the moment to a-- It’s funny. Here are all these people willing to like close the door and lock the key and everything, throw it away. And now the client says, putative client that is, what about ...(inaudible) here. I mean, this is a Mexican server that’s under attack. Would this fall under Federal law. Yeah? |
| __: | They could probably get you because they can say you’re subject to the jurisdiction of New York or wherever. |
| __: | But who? |
| __: | In a civil action-- |
| John: | But say, for instance, in our last action the greatest amount of hits came from corporations. Participants at work in corporate America. And below that were Danish people. And below that were Japanese, and below that Malaysians. So, does that mean that-- I find myself, in my computer, doing Flood Net would do absolutely nothing. But four of us on our computers would do absolutely nothing. But 300,000 corporate people, across corporate America, thousands of Danes, would then we go arrest them? |
| JZ: | You might take away their computers first. |
| __: | They’d just arrest you and call everybody else an unindicted co-conspirator. It’s a separate conspiracy charge because you can’t-- I mean, as a class, you may think about a conspiracy charge is that the individuals alone can be prosecuted. But together their agreement to commit an act in concert ...(inaudible). So they could come after you for conspiracy, basically, and just forget everybody else in the other jurisdictions. |
| John: | Is this only at the point when it actually becomes effective and a critical mass is reached? It does block the site but if it only-- At what point, then, does it become illegal? |
| JZ: | Well, if you use a computer to cause a transmission of something and you intend that it will withhold or deny or cause a withholding or denial, then you’re in trouble. So-- |
| Carmen: | Well, I think that what we’re doing is we’re creating a disturbance that is asking people for-- Looking for an opportunity to-- You know, before when you were saying look at me, I have something to say. We’re really creating a gesture that is begging people to ask us why we’re doing it. And that is what we believe is more likely to happen than that we actually deny access to those Web sites. |
| JZ: | So let me ask you this,
then. Let’s assume for the sake of argument only that this does fall under the law.
Or if it doesn’t somebody will hastily pass one to say this kind of behavior is
behavior we don’t want to contemplate. Because once you guys get into it and others
get into it, all of a sudden everybody’s being denied all over the place because
maybe even a single person doesn’t like them. And may not even have the concept that
you do of waiting for a critical mass of others to do this click. But instead just spawn
those repeats and do it. So, you can imagine this behavior easily being criminally prescribable. I guess I would ask is there any failing in our system of speech and counter-speech, given that the reason you’re doing it isn’t primarily, from what you’ve said, to knock out Zadillo. It’s not-- |
| Carmen: | If we wanted to do that we could do that. |
| JZ: | Really? |
| [Laughter] | |
| Carmen: | No, no, I mean his Web site. |
| John: | Not him, his Web site. |
| Carmen: | I’m just saying the technology to crash his server or to disable a Web site, that’s-- You can do that. So, if we wanted to do that, clearly we would do that. So, obviously, that’s not our intent. |
| JZ: | So, one way for you not to do this would be for Zadillo to change his policies in a way that you like? |
| John: | Yes. |
| JZ: | Alright, then no problem. But let’s just suppose that the actual policy dispute is not readily changed. Zadillo is going to do what he does. Is there any change to what we’ve thought of as this kind of marketplace of ideas, any change to the structure of speech on the Net, for which you would think it’s no longer necessary to resort to something that we’re all agreeing is likely to be prescribed, or is already, in order to feel like you’ve gotten a fair crack at getting your message out to the something beyond just the choir we’ve been talking about? |
| John: | Well, I think to a certain extent the information warfare has been won by the Zapatistas up to this point. |
| JZ: | By the way, information warfare we take to mean a battle of words, literally. Is that right? A propaganda war? |
| John: | Yeah. And the Zapatistas have been at the forefront and have won that battle, readily and continually. First of all, just by email and posting information. But what has happened is that there is now a growing new gated community, so on and so forth, which disallow that kind of information from moving beyond the choir. And because of the tension that has increased in Chiapas, especially with the Octel Massacre, we felt it was necessary to go a little bit further than just posting information on the site and sending email. Because that was not getting a response from the New York Times. It was not getting a response for Wired. It was not getting a response from a more general, global community. |
| JZ: | So do we think, and I ask this collectively of everybody here, do we think that at least the Net of today, as it is in September/October 1998, is one in which it’s easier or harder to get your message out as a determined but perhaps unpopular or unknown speaker? Than it was in a non-Net environment? Do you think it’s easier or harder? |
| __: | I have sort of an answer to that question. I kind of wanted to bring this in because I think it might tie into what Andrew Shapiro’s article is about. And that is it seems that you’re relying upon big, mainstream, corporate media to get your message across. |
| John: | Yeah, we are. |
| __: | Ultimately you’d have to rely on them, right? |
| John: | Yes. But in order for them to start speaking to us and start putting the information out, we have to knock on their shoulders and have them come here, come speak to us. |
| JZ: | So that’s an interesting point though from Greg. Saying that you’re already conceding the idea that the real way to get your message heard on the Internet is to do something that will get the New York Times notice it and publish something about it. |
| John: | I know. But you have a
better chance using the Internet, the way it is right now, because it is such a hot issue.
And the market believes that data is much more important than you or I sitting here in
meet space. That if you can disturb that data, they will like seek it out as a swarm and
go here’s a hot issue, here’s a strange attractor, here I can make a whole book
about this and get my Pulitzer or whatever happens to be the underlying need. Because
it’s a hot issue. If we had not done this the idea would have dispersed. So yes, we are hitting a new level of the media sphere. |
| JZ: | Scott? |
| Scott: | So then does it follow from what you just said that the more mainstream the Internet becomes, ...(inaudible) novel ...(inaudible), you can do everything you could do before over the Internet and that’s a news story. So, as it becomes more accepted then you’re going to have to find another avenue of like, say, ...(inaudible) and go rape kids or something. |
| John: | I started life as an actor.
So you have to make gestures and you have to make those gestures readable to a large
public and that public can empathize with your gestures. And you also have to, a la
Brecht, do it in a transparent manner. At this point in time that’s the way we are
working. But by the end of the year, 1999, January 1st, at least as a group we will stop
Flood Net. Because if you look at the site there’s a schedule of when we’re
doing things. Because perhaps right now speed is the dominant factor, above all things. Above data, above content, above provider is speed. And everybody wants to conquer speed but speed conquers everything. So now most communities who are interested in Flood Net are now tired of it. That is, we’ve done it, what’s new. It’s only-- Not even what? Eight months old? Not even eight months old-- |
| JZ: | These are the committed protesters? |
| John: | Yeah. Well, as art we’re tired of it. As activism we’re tired of it. But this is the speed community. Right now it’s just filtering down to the meet space communities. And they’ll start reading about it and go oh wow, activism, what’s that. But to the speed communities it’s already over. It’s not even really worth discussing. So is worth discussing is what is next. |
| JZ: | So let me give you a
hypothesis of what might be next. And this won’t sound particularly novel but maybe
you haven’t tried it yet. Which is you go along the Net and you scoop up email
accounts from wherever you can find them. In fact, there are programs, one known as Flood
Gate of all things, that will let you scoop up email addresses. For instance, it might
crawl over cyber.law or harvard.edu and pick up any email address it finds on a public Web
page there. Add it to a big list and then, at that point, simply send out an email to
everybody you found that alerts the people to what’s going on in Mexico most
recently. And urging them to action. Now you’re clearly reaching more than choir there. Would you consider that as something to do? |
| John: | Well, I think it might be something that an affinity group might want to do. I don’t have anything personally against it. But, again, I’m approaching this as a performer and an artist. |
| JZ: | It seems banal to do ...(inaudible). |
| [Laughter] | |
| John: | Yeah, I mean, businesses do that. And the Intercontinental Network of Resistance already has a-- |
| JZ: | AOL doesn’t bring down your computer to show why you need AOL. |
| John: | Yeah, that sort of thing. I think most of the speed communities wouldn’t find that very interesting. Corporations gather data bodies all the time and they sell it back and forth to each other. |
| JZ: | But here’s the thing. It’s good enough for them, they have an important message to get out. Buy this soap now. They want to get that message out. They have found that to be possibly an effective way of doing it. And you’re saying you don’t want to do it because they do it. |
| John: | Well, I think the Zapatista, Digital Zapatismo and the networks, have already basically done that. And probably for us would be if you really want to subscribe to the list. I mean, there’s a lot of replication. |
| JZ: | You hate junk mail, don’t you? |
| John: | Yeah. I get so much email on a daily basis-- |
| JZ: | The shoe is on the other foot. |
| John: | Yes. |
| JZ: | Unintended. |
| John: | No, no, not at all. But,
then again, I think there’s much more important work to be done and this is where
research and development takes place. That is, the military, industrial and entertainment
community has millions and millions of dollars, hundreds of thousands of people, and years
and years to research and develop weapons of mass destruction or how to stop people from
doing all sorts of things. We’re only four individuals who have done this small
amount of research. So, I think what will happen in the future is other affinity groups, such as the Cult of the Dead Cow or the Hong Kong Blondes that we were discussing earlier, who are moving into deeper modes of-- |
| JZ: | Yeah, I missed that part of the discussion. |
| John: | Well, there are hacktivist groups and one of the most important groups, for all their strange name, is the Cult of the Dead Cow who are very important and created the Back Office, which is a system that if you download it they will take remote control of your system. |
| JZ: | And you’re supposed to want to have this happen? |
| John: | No, no. I’m just saying
there are affinity groups who are developing-- For instance, the Hong Kong Blondes what
they do is they break into Communist Chinese servers and they get lists of people who are
going to be arrested. Then they contact those individuals and tell them on Thursday
you’re going to get arrested for your work, get out of town. And I think you’ll
probably find other groups doing research that will move far beyond anything that
we’ve done. Whether it has political content and intent of some sort of higher ethical level, at least we can hope that that’s what they do. But speed communities don’t have very much patience for anything that lasts longer than a week. It’s boring. |
| JZ: | So let me just get a quick sense of the class again as to-- Assume that somebody wants to take up the mantle of spam as a means of getting a message out. And they want it be a political message, we’re not talking commercial spam, you know make money fast, buy my algae kind of thing. How many people would want to see that proscribed in cyberspace? You’re not allowed to bombard a bunch of email addresses with an identical message, not knowing who you’re sending them to. How many people want to prevent that from happening by law? One, two, three, and a maybe. |
| __: | How would you get the information, I guess, is-- |
| JZ: | You’d get it in a way that wouldn’t make Tony Levin particularly upset. You crawl over the Web and you grab it of the Web site. |
| John: | You use your card at the shopping mall. I mean, they’ve gather all that stuff up. You can buy CD-ROMs with millions of addresses that you didn’t particularly sign on to be on. |
| JZ: | Yeah. |
| __: | Well, I think you have to really listen to Mr. Domingo who was saying that he would do that only it’s old. He’s not going to get the right type of attention. I think to bring this back to Shapiro’s point of wanting to give everyone some attention, there’s a real issue about quality of attention. Frankly, I’m scared. I’m also living in, say, the speed community but I don’t have the style that the people up there have. For me to get my message across it’s going to be a lot harder. I just don’t have that type of style. I’m not as artistic as they are. |
| JZ: | Do you have that type of message? |
| __: | Well, what I wonder-- Does Mr. Shapiro’s article pledge to be able to give me more style so that I can compete with all of these other stylish-- |
| JZ: | A level playing field of style is-- |
| __: | And education and resources and-- |
| John: | Well, you have to imagine that all this started in a community that has no access. They have no electricity but yet they started what the military intelligence community calls Info War. And it annoys them to a great degree that this community that’s been bombarded to death for now 500 years has accomplished this. So, it’s not a matter of access but a matter of tactics and strategy. |
| __: | But your point is that it is. I mean, am I right? That the Net is robbing people of access? |
| John: | Well, but here is this community that doesn’t have a computer-- |
| __: | Yeah, I agree. I love it-- I mean, you’re like the best example I have against Mr. Shapiro. |
| [Laughter] | |
| JZ: | Andrew? |
| Andrew: | I’m not sure I could
accept Alex’s depiction of my argument. But anyway, I guess the question I would ask,
in maybe the last fifteen minutes because I need to think about it, it would take away
from today’s-- Is does the First Amendment-- Or forget the First Amendment since
that’s a local ordinance, as ...(inaudible) likes to say, in cyberspace. Do free
speech principles imply that individuals have a right to be heard? We have a right to
speak. The difference in the architecture of the digital world is that with the end of
scarcity of bandwidth, of channel space, spectrum, whatever you want to call it, everybody
is pretty much going to be able to speak. And with the plummeting price of processors and
advent of things like Web TV and the integration of the Internet into television, I really
actually think that the digital divide as we know it is going to change. And the real challenge is not going to be the ability of, let’s say, the Zapatistas to send an email to another supporter halfway around the globe. The question is really going to be do individuals have a right to be heard. And it’s a question which sort of echoes throughout the free speech jurisprudence, even though it’s never really identified as a question. If you go back to the case-- Well, even beyond Marsh v. Alabama, which you read for this session, but Martin v. Strowbridge, which was another famous Jehovah’s Witness case. Where the government basically tried to pass a law that said that the Jehovah’s Witnesses could not go around and knock on people’s door. And the reason that the Supreme Court struck that down is it basically says look-- I mean, this is the way I would interpret it. Citizens have-- They get one bite at the apple. That’s the deal, that’s the balance between the dissenting speaker and the unwilling listener. You get one chance basically. You get to knock on the door. Then people can say get out of my face, get off my property. |
| JZ: | Of course, to what extent is
that based on the fact that the only people who are going to go around a neighborhood and
knock on a door, when it’s not Halloween, are people who are especially motivated.
They have a message that’s very important to them and a style that says this is
almost a style passed on by tradition, this is the way we’re going to do it. Not like
this is the mode du jour of getting our message across. Then they can do that and you say
alright, it doesn’t mean the end of the Republic. Okay, a Jehovah’s Witness
comes to your door. But suppose you had a situation where everybody takes it upon themselves, when they’re not at home being knocked upon, to be out knocking. Now that’s actually the problem you’re identifying. That when so many people knock on your door your answer is no longer meaningful because you don’t even care any more who it is. And you want to make sure that any given speaker still gets a meaningful knock. Now how do you do that? |
| __: | I don’t know and that’s my actual ...(inaudible) this class. I would say actually your Web site-- It occurred to me just this morning, provides a very good example of it, right? If I understand the Web site for this class it has a code structure where you put in a question, the question gets sent to one other member of the class. Now imagine if that had been set up so-- If it had been set up the way you’re just saying, everyone would have asked one question and it would have gotten spammed to the 70 people in this class. |
| JZ: | Yeah, that was our first idea. |
| __: | That would have useless,
right? What you’ve done is brilliant because you’ve taken the ...(inaudible)
question and the ...(inaudible) answer and you’ve linked them. Now they happen to be
two members of the class. Essentially what I’m saying is we haven’t yet figured
out what the architecture is in cyberspace that will essentially allow the same thing to
happen. Now, in this article that I wrote three years ago, which in Internet years is
thirty years ago, what I was essentially saying is that public gateways could do that.
Where you have a random sampling of issues that would come up, basically. And as you would
enter your subsidized public gateway, and that would be the attractive element that would
bring you there, there would, not unlike the street corner, be a variety of issues that
would just sort of be in your interface essentially. There would be people complaining about this over here, there’s a guy saying vote for this candidate over here. All these things are happening. And just like a pedestrian on the real sidewalk you can ignore it. But what happens there is there’s a right of confrontation for the speaker. And the speaker knows that there is a real opportunity for him or her to be heard. |
| JZ: | Yes, up here. |
| __: | One of the things I see is
it’s not so much-- I mean, yes there’s the importance of being heard and
that’s definitely important. I mean, that’s crucial but for each individual. But
one of the things that I think the Internet-- One way in which it’s different from
real space is that-- I mean, on a given viewpoint. I don’t really have a problem so
much with if you have a viewpoint and it has to be heard by everyone. But, like an
example, let me just give you a concrete example. If you have like a Hate speech site, in the real world if they’re going to organize like an big enough sort of Hate speech ...(inaudible), you’re going to have people protesting. The problem on the Internet is you can sort of build a large enough community with this really weird thought that the real space sort of has a way of like working against. You can build that large community and there’s no-- And that’s when that opposing viewpoint becomes very important. And the Internet allows people to build-- Anyone who was at the Internet and Society conference, where one of the guys showed this like really crazy Hate speech site, at that point-- You know, to give the opposing viewpoint, that’s when it’s really important. |
| JZ: | So how do you frame that in a content neutral way? Because I’ll bet, as you’re saying this, people are filling in the blanks with viewpoints that are typically stifled in the physical space. And yet now find camaraderie conceptually, enough to have some kind of critical mass that then worries you, in virtual space. But that could represent either the concept of freedom in a repressive country, it could represent “Hi, I’m gay” in a Midwestern town, or it could represent hate speech and skinheads. |
| __: | Well, I mean, I think-- It’s obviously hard to ...(inaudible) sort of within the First Amendment doctrine. But, I mean, one way is just like-- If you have, for example, like what the Fairness Doctrine. I mean, it doesn’t necessarily have to be-- |
| JZ: | For every person who says that the Holocaust happened do we need somebody to say it didn’t? Or do we just go with the prevailing view and it’s only if you have a dissenting view do we want to make sure the prevailing view gets a chance to say the other side? |
| __: | Well, if there’s a dissenting view out there. If no one has a dissenting view that’s fine. |
| JZ: | Somebody has a dissenting view, right? |
| __: | Well, I mean, I’m just saying that like-- You know, it’s sort of the idea of if you go to that President’s site, if you have like whatever, a mandate. Again, there are all kinds of problems in implementation that I haven’t worked out but you have a link to their site or whatever, that has all this protest material. So that when you go to this Web site you can’t be oblivious to the other view. |
| JZ: | Do you cure a scarcity of attention, you also want to cure a scarcity of counter-attention. That’s what you’re saying. |
| __: | I hope that’s what I’m saying. |
| JZ: | That’s what you’re saying. |
| __: | As we talk this interface sounds a lot like Usenet Newsgroups where people formed affinity groups in the alt or other domains and then those groups would be infiltrated by people of the other opinions. So-- |
| JZ: | Oh, religion.scientology. |
| __: | Scientology would get the anti-Scientologists, along with the people who wanted to discuss Scientology doctrine. And that was part of the reason that people started abandoning those groups and moving on to their own private lists or setting up the anti-spam filters so that they didn’t have-- Because they saw that and then that started to be just junk in the discussion. |
| __: | So, if I wanted to create an architecture that is neither abusive toward the limitation on counter-attention, which is essentially what you’re saying. Which is you either are inundated with speech or, on the other hand, fail to essentially allow speakers to have their speech be effective at all. I mean, another line of doctrine in the Supreme Court jurisprudence on the First Amendment stuff talks about how speech can be made ineffective without actually censoring it. Like, actually, the Million Youth March thing in New York was essentially about that. Giuliani wanted to take that parade and move it to Randalls Island and that’s why they sued. |
| JZ: | He wanted to actually move it to Long Island Sound. |
| __: | Yeah. But that’s the question and this is a great space, given the level of technical expertise in which to gets some answers. So that creating the interface that has the right balance-- |
| __: | Which says a ...(inaudible) solution rather than-- |
| JZ: | Yeah. |
| __: | One interesting way would be to put something on an entry page to a site such that people would see the first time they went to the site and then after they got through or learned their way around they could bookmark the pieces they wanted to see. And wouldn’t have to see the protesters every time but might see them the first time they went through. |
| JZ: | It’s kind of like when they tell you you’ve won a free ...(inaudible) and then you go and you have to hear about why you should visit this resort. Then they give you the-- |
| __: | You could walk away too without looking at any of the headlines that flashed on your screen. |
| JZ: | Right. Yeah. I’m sorry, I didn’t mean to go away from you so readily. |
| __: | I mean, I guess I was just going to point out-- I mean, Wendy gave the usegroup example. I mean, one of the problems with the way the Net sort of evolved is that-- I mean, a lot of people use it more-- I mean, hey it’s just a Web page based thing where you don’t really have a chance to post a response to that. So, like if you have a bunch of teenagers, neo-Nazi teenagers, all running to this one hate speech site, I mean they read their thing and go this is great. There are all these people out there. They find all these ...(inaudible), great. Like all these people think just like me. But if you don’t have a chance to post there and say “You know what, this is really disturbing”. You don’t have a chance to counter that. And, as you pointed out-- I mean, people instead of using the newsgroups in sort of the way most people started using the Internet, in the early part of the decade, now people sort of look at-- Go to Web pages and/or you can go off and form your own little-- |
| JZ: | Do you start from the assumption-- This is what I meant before when I said content neutral. That the fringe view is, pound for pound, likely to be worse, bad, relative to the majority view? |
| __: | Well, no. I’m only
giving an example just to show where I think it can be really dangerous, fostering that
kind of community. But theoretically there are ...(inaudible), it can be on anything. Even
on something very ...(inaudible) like abortion or whatever. You have a pro-life site, you
can have-- I mean, if you have a link. Again, it’s hard to actually think of all the
implementation. But if you have a link on the pro-life site, at least it’s there.
Okay, here’s an opposing view, go here. And vice versa. So you can do that with
virtually any sort of opposition. Again, it would only have to be if someone actually
wanted to. I mean, if everyone agreed with what you guys are saying. If it’s just, you know, a summary of last night’s ballgame you don’t really need what the ...(inaudible). |
| JZ: | But we were robbed. |
| __: | It occurred to me at this point, I’m not sure that we’ve found solution for the lack of public forum problem in meet space yet. |
| JZ: | Absolutely. That’s all the more reason if you think aspirationally about the Internet, that the Internet is an advancement for humankind, that we have to do better. I mean, it’s in fact the lack of a-- Sorry to cut the question off. |
| __: | No, that’s fine. I would suggest, and it’s funny you should mention this because this year I’ve decided that I was really tired of Cambridge and I moved out to the beach, which is probably part of the problem from your perspective-- |
| JZ: | Because you don’t see the pamphleteers in the Square any more? |
| __: | No, no. I don’t care. |
| JZ: | You’re missing out on the opportunity for cheaper CDS at Newbury Comics. |
| __: | I think that points you toward a solution. The experience of living in an urban environment is for many of us, we’re young and like that sort of thing, were ...(inaudible) to make us want to go into a public forum, even when there are viewpoints that-- You know, even when there are skaters with neck scarves jeering at people in suits in the Harvard ...(inaudible). And if you can create spaces, informational spaces on the Net that are rich enough and have the variety, that everyone wants to come there because there’s something interesting there for them. Then that’s a place where people will voluntarily, and I suspect that’s the only way you can create this. |
| JZ: | Do you think the market would create it on its own or does it need a little pushing form a government wanting to see that happen? |
| __: | I don’t know that the government is good at creating those kinds of spaces to begin with. And I think that’s particularly true in places that aren’t the United States or aren’t places where there is a tradition of free speech and some cultural respect for dissent. |
| JZ: | Kim? |
| Kim: | I actually have a couple of concerns with this. First, who do we want deciding what even needs to be responded to. I mean, on my page I have a place where I just write random thoughts and I complain whatever I feel like complaining about. Should someone then be able to come to my page and link to-- Oh, no, no, she’s wrong, come to our page and see why she’s wrong. And also to what extent-- Who decides what we link to? I mean, for every hate speech group out there there are a million different groups that oppose them, that all kind of have a slightly different skewed take on it. Do we want to privilege one of them over to the other by linking it? Do we want to say okay, we’re going to make you the official anti-hate speech group and we’re going to make you the official hate speech group and set the two of you up against each other. I don’t know, I don’t like the idea of especially a government doing this. |
| JZ: | Do you relate to the problem? I’m disturbed that, particularly the way you characterize the solution, makes it doesn’t sound ...(inaudible) you don’t. But do you agree with the problem? |
| Kim: | I do agree with the problem but to a certain extent I think there are people already out there on the Web trying to do this themselves. There are groups that have point/counterpoint sites out there, who put out-- They’ll say okay, this week’s forum topic is racial discrimination. For/against, chat boards, message boards, links to a bunch of sites. Why-- I don’t know. In a way I feel like if you want that and if you’re interested in seeing both sides you can. But I personally don’t want to be forced to see-- |
| JZ: | But that’s rejected Sunstein’s formula. That says the populous is subjected to the debate. |
| Kim: | Yeah, I really don’t like that. I’m for gay rights, I don’t want to be forced to go read the Family Research Council. I just don’t. It would just upset me, anger me, make my day really bad. |
| JZ: | But Sunstein isn’t looking to provide good days for everybody. |
| Kim: | Why should I be forced to do this? I mean sure, there are governments in Europe that forces everyone to vote. But we’ve decided it’s something that-- It’s kind of meaningless if you’re forced to do it. If you’re forced to do something then what are you really accomplishing. Versus doing it if you want to. |
| JZ: | So it’s a redux of the privacy/accountability contradiction or tension. In that you’re saying you want the right to be able to freely associate with whomever you please and to have your site uninterrupted every moment by the counterview that is being made by whomever or just in there. And at the same time should there be a certain view out there that is prevalent and you see systematic, either intentional or unintentional, ways in which the other view has a hard time coming to the fore. You may sympathize, at least if your view is the minority view, with the idea of wanting a structure that doesn’t have you relegated to Randalls Island to try to get people’s attention and show them the error of their way. Glenn? |
| Glenn: | I wanted to comment-- There’s one part in Andrew’s article where you talk about how the government should do something more than establish the equivalent of a PBS or NPR, kind of online. I just wanted to ask why you thought it would be a greater step to establish these street corners in cyberspace when I think that-- Let’s see if I can try to state it clearly, I guess. If you establish kind of an NPR, PBS online wouldn’t that be already be a kind of street corner in cyberspace? If it were interactive? Not just purely a space, it’s not purely broadcast, it’s not Central Park and it’s not NPR. It’s something in between or it’s a combination of the two. |
| __: | It’s NPR in Central Park. |
| Glenn: | Right, something like that. |
| __: | The one thing that
doesn’t account for-- This is responsive to ...(inaudible)’s earlier point as
well, which is I’m all for the equivalent of PBS, NPR, that’s great. High
quality content, subsidized by government, etc. The problem is the scarcity of attention
problem. We have laws that regulate cable access, the PEG laws, the Public Educational and
Government Access, for the very reason that basically there’s spectrum scarcity and
it would be impossible for them to get on it. But there’s essentially the same
problem in the Internet environment. Which is that even if you have the best content in
the world-- I mean, we all know about this because of Microsoft lawsuit. The desktop is
controlled by Microsoft, the spots in active desktop are sold basically, equivalently to
Time-Warner, Disney, and the other big media players. And you’re not going to be able
to get your message essentially on to the front screen. So, the question is what do we do. And I’m not sure that I advocate, frankly, public gateways or whatever it is. But something needs to be done to make sure that the vibrancy of speech is available in terms of allowing people to know about the different good content opportunities. Whether they’re privately provided, government provided, whatever. |
| JZ: | We know as a Constitutional
matter, at least in the Turner case that was part of our reading, those PEG channels were
briefly mentioned. But there was even an aspect to the FCC Must Carry Rules, rules that
say if you’re a cable station you have to carry broadcasters that don’t want--
That you don’t want to carry, that are in your area, whether you like it or not. By
the way, if you do want to carry them, they have the right to withhold it until you
...(inaudible) price with them to buy it. You actually get it both ways if you’re a
broadcaster. Part of the rule said not only do you have to carry them but you have to carry them either on the actual channel number that they go out over the air or, at their election, at the channel number they were most recently in if ever they were carried, as they were since there was ...(inaudible) before this, when you were just a little baby cable system. You had eleven channels, I’ve obviously got number one through eleven, they’re allowed to hang on to the-- That was prime real estate in the channel dial, in order to make sure that not only they got carried but they get seen. Because in between NBC and CBS, they don’t even have to get a moment of breath of that school board meeting where somebody is “I’d like to raise another”-- You know. “May it please the chair.” Yes, Diana? |
| Diana: | I was thinking about-- The thing about street corners is that it’s a feature, it’s an architectural feature of the real world. Clearly it’s not the same as the architecture of cyberspace. I guess what I’m saying is I don’t-- That’s where I see the problem. I don’t actually agree with the premise that you need to have some kind of street corner built into cyberspace. Because I do think it’s a fundamentally different thing. Because even using the analogy of the front page on cyberspace isn’t a great fit, I think. Because you have, presumably, unlimited portals that everybody could go to. Granted, there’s-- You need information and some amount of money, a relatively small amount, to get on to the Net. But you have a place, you’ve done it before, you have a soapbox that you can get up on. |
| JZ: | But now let’s relate
this to Neil Postman. Postman says this is a disaster, this is exactly what I did not want
to have happen. He says you go on, every space looks, from a technical standpoint, like
every other place. Everything is just a URL. The information is just a big jumble. I
can’t make sense of it. I have no sense of locality any more, with respect to what
I’m doing. And, in a sense, I’m overwhelmed that I don’t have any of the
institutions I’ve traditionally relied upon to help me filter stuff out, to do that. And you end up with this weird thing where you either have unlimited differentiation, such a big mess you can’t make any sense of it. Or Andrew’s way, continued monopolization, where you have very few choices. You either have to choose between jumping into the abyss of complete differentiation or sticking with the narrow channels that are laid down for you by, say, your browser. I don’t know if that seems a fair characterization to you of what Postman was saying or-- |
| Diana: | Yeah. I guess, I don’t know. In a way, it just seems-- This is very anti-intellectual, I guess. But it just seems very controlling that-- I mean-- |
| JZ: | Paternalistic is the word Sunstein uses. |
| Diana: | Yeah. I mean it’s just, you know-- The fact is is that we all have-- I mean, it seems to me that a more appropriate role if you’re going to-- If you want-- It’s an appropriate concern. You want everyone to sort of be able to be heard. Why not then do something like provide equal access to Internet education. Or have-- Let people get on the system and sort of sort it out. As opposed to impose a structure from the top down, assuming all this stuff is going to happen. |
| __: | I’m actually not really for imposing a structure. I don’t know where that came-- I don’t think that’s really the case. And the other thing is that the street corner is a metaphor. |
| Diana: | Yeah. |
| __: | But basically I’d put it this way. Let’s say we have a speaker in Harvard Square. All I’m saying is that that speaker should have the ability to speak without a huge glass container coming down from the sky and-- |
| JZ: | You’ll find-- |
| __: | What’s that? No, I mean, that’s essentially the equivalent, right. That the speech is only speech when it has the opportunity to be heard. And part of the problem of an environment of endless bandwidth and scarcity of attention is that dissident speakers won’t be heard. And it’s actually filtering technologies like PEGS and others that allow people to absolutely control their speech environments in a way that’s completely unprecedented. |
| JZ: | The thing that Emily was saying is it’s generally a good thing. Not having to suffer intrusion from-- |
| __: | And it’s easy, of course, to come up with examples like isn’t it good for gay teenagers to be able to caucus. Of course it’s good. But, I mean, there are counter examples too. When you’re walking through Harvard Square and there’s a diner there, there are four people outside picketing, saying “These guys are racists, they won’t hire anybody who’s not white to work as a dishwasher.” That’s information you, as a consumer, might want to know. But when you go to a Web site there’s no equivalent, basically-- I mean, AOL Sucks is not on the AOL home page, right? Right. |
| JZ: | And is this a problem? Do you think there are bunches of people who would love to see AOL Sucks? |
| __: | Yeah. I actually think that this is a problem that has to do with speech that’s directed toward certain localities. |
| JZ: | Yeah. We do have the reception outside afterwards. Molly, anything we’re missing? |
| Molly: | Well, I think one reason
that some of the solutions that we imagine to the problems we imagine seem so
uncomfortable is that the Web right now actually is, I think, a comfortable amount of
serendipitous. You enter AOL into your search engine and you might actually get AOL Sucks.
But we’ve already read about in this class domain name structures that are envisioned
that would make that different. Because maybe Netscape sold the AOL keyword to AOL and it
would never let AOL Sucks get into that response. Or you’re an AOL member and AOL has imposed a filter that filters out AOL Sucks from your Internet browser and doesn’t tell you that that’s how it operates. So I think, thinking not just about affirmative solutions but also being skeptical about technologies that are on the horizon that will make the Web a lot less serendipitous than it is is what I’m worried about. As well as thinking about other solutions for the future. I think one of the most interesting and challenging points, I think to that view, that I think Paul brought up, is the idea-- And the key case to think about is Kovaks, which is the Sound Truck case. The idea that your public forum gets screwed up for everyone when someone pulls in and is so loud and disruptive that it not only makes people not visit the business or makes them scratch their head and think what’s going on here. But makes it impossible for them to have an effective picket outside the diner because everyone has left the Square and no one can hear what they’re saying. And I think that’s the tension that the Cyberpromotions cases and the spam issues raises potentially. You could make the argument that if you’re inbox is filled with spam, so much that it’s broken, that that keeps you from being an effective speaker in what otherwise is a pretty helpful, little guy promoting speech medium. |
| __: | So that’s why I said your one to one speech question environment for this class is maybe the perfect example of a free speech environment in which the balance is struck. |
| JZ: | That’s a wonderful note to end on. Speaking on that I had a chance to look at a lot of the initial answers to the first question, not the abstract question but the question on this subject. They’re great and hopefully a lot of what went on today will help inform the responses to the responses. I’d like to, if at all possible-- ...(inaudible) is that what’s happening tonight? For those who don’t, again part of the payment is the food that awaits outside. If you can take a moment and let’s do just a quick feedback memo. It’s been several weeks. It’s just a simple piece of paper. I don’t have a thing to hand out but I’m sure you’ve come equipped or your neighbor has. Your biggest thought, if any, coming out of today. Any question you have lingering and anything you want to say to me directly would be great. And then we can meet the guests for dinner. Please join me in thanking them for coming all this way. |
| [Applause] | |