So, with that introduction, a few of us that attended have agreed to write "what we learned" posts, which I hope will both demonstrate the breadth of knowledge being exchanged at the conference and serve as a reference for me when I want to remember what we talked about. (I seem to be the only person that didn't take notes.) I will link the posts from my fellow conference attendees at the bottom of this post.
- Wireless Policy and White Space. The first panel I went to was about wireless policy, which the panelists described as a "wonky" issue, and incredibly important. Also, a lot of the day-to-day work of lawyers in the movement seems bound up in telecom policy, so this was a good glimpse of where I might fit in. Basically, the story goes like this: Back in the day, there was radio, and then TV, and that was about it. The FCC realized they had to regulate the use of broadcast spectrum so that stations in close proximity did not interfere with each other by broadcasting on the same frequencies. Because of that, they started giving away spectrum provided that the companies occupying it agreed to some public interest programming. Then came more tech, like satellites and cell phones that took up higher ends of the spectrum, and eventually it was all used up. And of course, the public interest programming never materialized because the FCC has never been vigilant about enforcement.
Technology used to be a lot worse than it is though, and companies were always greedy, so the way spectrum came to be divided makes no sense today. Older technologies could not as effectively pinpoint their spectrum usage, so the licenses granted incredibly wide ranges of spectrum. As a result, 90% of currently allotted television spectrum is never used. There is also a broad band of spectrum reserved for government uses (military mostly), which is also quite rarely used. A funny anecdote was relayed about a Congressperson who recoiled at the idea of allowing the military spectrum to be used for something else. He said something about when he was in 'Nam, the radios sometimes didn't work due to interference. Of course the most obvious of many possible responses is that technology has changed a bit on the last 40-odd years... This is the central point that seems to often escape the policymakers.
Anyway, this was all background. The panel was on what's being done now to reclaim some spectrum for the public good, how that good is being achieved, and why it matters. For brevity's sake, I'll stick with why it matters. If there's an area of spectrum that is owned, you need permission to broadcast at that frequency. That permission will often not be granted, or may cost a lot to get, and it is backed up by fines from the FCC. For one, we have no public interest programming - just major media giants showing crappy news and trying to sell us stuff constantly. More important even than that, though, innovation cannot happen in a permission situation - the transaction costs are too high to start up. We need to enable innovation, since so much of new technology is about, or at least involves communication networks; wifi was developed on unlicensed spectrum space, for example. We need to think about leaving enough so-called "white space" to allow new technology to be born, and it's not clear this is happening yet.
- Private Censorship. I was actually writing a paper on this before I switched topics last week. I was going to propose that in light of the fact that virtually all our communication is done in mediated spaces controlled by private companies, we need to reexamine state action doctrine. State action doctrine, for all the non-lawyers out there, is the idea in constitutional law that says only the state can violate the Constitution. So, if I kick you out of my house because I don't like what you're saying, there's no First Amendment violation, but if the cops kick you out of the park for the same reason, there's a problem. My point was that law currently sees online spaces as privately owned, so this blog post is more akin to me speaking in Google's house than passing out a leaflet in a park. However, as I have no way of reaching most of you save through this blog, through twitter, through our phones, or some other technology, the idea that I can communicate even if private actors don't want me to is problematic - at the very least, it can be made difficult. This is also not hypothetical - it's exactly what we saw happen with the attack on Wikileaks by Amazon, Paypal, Visa, Mastercard, and a few others. So, anyway, my idea - revising state action doctrine - is the kind of idea that makes sense to write about in academic law journals, and is unlikely to be adopted, especially by this Supreme Court. This panel was about more practical solutions.
Yochai Benkler echoed his new paper on Wikileaks by calling for a development in terms of service contracts and tort law that could handle these sorts of things. There was a similar development related to product liability in the 1960s and 70s. Customers could not sign away their rights because they could not possibly form informed consent, and strict liability for failures was often imposed on product sellers and manufacturers all the way down the chain. Benkler proposes something similar - that we develop a tort for shutting down controversial ideas because they're controversial, and that we recognize that no one can give informed consent on Terms of Service that can be changed on a whim. (Amazon changed theirs a day after pulling Wikileaks to reflect "suspected illegal activity"--and have since changed it back).
Jonathan Zittrain is all about using alegal (a-, not il-) means to avoid the problem. For his example, he said that Wikileaks hopped around different servers after Amazon killed it, and then when they eventually found a friendly host, people around the world mirrored it everywhere, making it nearly impossible to take down. As opposed to facebook, he says there it a program called diaspora that runs on independent networks and has no central server, and therefore, no top-down control.
It was interesting seeing a few different approaches to the problem of private censorship, and it's good to know that people are thinking about it in earnest.
- Copps Is a Badass, Clyburn's a Politician, and Genachowski's a Spineless Wimp. In any movement, it's important to know your allies in the halls of power. FCC Commissioners Michael Copps and Mignon Clyburn did a town hall on the first day of the conference. Copps gave an impassioned speech after a crazily glowing introduction by Bob McChesney, and he also shined in the Q&A. Clyburn dodged a few questions in the Q&A and seemed to want to avoid any actual statements that weren't talking points. She's clearly an ally of the movement, but she showed her roots in elected office. The last part, about Julius Genachowski, is apparently one of Marvin Ammori's favorite things to say (and he's said it in print, so nothing new or scandalous here). It certainly explained a lot about the incredibly weak net neutrality rules, which Copps and Clyburn grudgingly agreed were the "best" we could do.
- Online Fan Communities Are the Future of Organizing. This was probably the best panel I went to, with Crissy Spivey from the human rights organization Breakthrough, which does its campaigning partially through video games, Andrew Slack of the Harry Potter Alliance, a non-profit doing great social justice work and finding its energy in Harry Potter fan communities, reddit's community manager Erik Martin (hueypriest), and Eddie Geller, who started the Open Source Democracy Foundation with a post to reddit. The gist of the panel was that there are real communities online, with personality, that care about things. Many of us spend so much time online in these communities that we feel quite attached to them and have made real friends that we have never met. More and more, these virtual communities, just like the traditional localized ones, can be used to for organizing and raising money for causes. See, for example, reddit raising over $650,000 for Donors Choose (and $150,000 in the first day) in order to get Stephen Colbert to come do an interview. Additionally, others are recognizing the significance of these million member communities. For example, Anthony Weiner and other Congresspeople have come to reddit to do interviews, and Eddie Geller was meeting with Mignon Clyburn about net neutrality only six
monthsweeks after forming OSDF on reddit.
One of the most amazing things was the older people in the crowd taking the younger panelists seriously and recognizing that they're doing real good. There were some very serious and great questions about how it all works (both community-wise and technology-wise), and how to get people to participate. It was a fantastic moment to see.
- Europe Does Telecom Infrastructure Much Better Than We Do. During the closing plenary, Rick Karr gave a preview of his research for his new documentary on this subject. Apparently, the fiberoptic networks in the Netherlands allow a standard guy he interviewed to run to HDTVs, a perfectly smooth five way conference call, his wife on another five way conference call, crazy fast uploads and downloads, and kids playing video games, all with bandwidth to spare, and for about $75/mo.
In Britain, the government has taken a very active role, bringing prices down 75% and speeds up 100% in a short amount of time. Also, there is a private board partnering with government to enforce more competition, causing such variety as speeds and cost just inferior to the Netherlands, or a slower, bare-bones connecting for $6/mo! Strangely, two companies promoting competition there? Verizon and AT&T, who are doing everything in their power to create duopolies here. Karr hasn't gotten a chance to ask them WTF is up with that, but he plans to.
We're All Part of a Larger Movement. The sheer variety of people that are doing different things here is amazing. People are talking about new journalism business models and debating journalism ethics. Others are starting up Low Power FM Radio stations meant for smaller communities. Many social justice types are striving to serve underrepresented communities in various ways, and to get the internet into the hands of those that don't have it. I met a guy who ran his local Sierra Club chapter, but needs media reform to get his message out. This is truly a grassroots movement. I don't remember who said it, but the important theme for everyone was this: "Whatever your first issue is, keep that issue. But make media reform your second issue, because that touches everything." This idea is why the movement can be so broad and encompass so many different people in different careers, with different hobbies.
Seeing that movement made me recognize something about myself. I know I will never be an entrepreneur or an artist. Those people will be doing their part, and I have mine to do as a lawyer. Seeing all this actually made me realize it's ok to narrow my career focus, because there are a lot of people doing this work, and we each have our role. It also made me realize more than ever, that I have to be one of them.
All the panels and speeches were filmed by Free Speech TV, and Free Press is working on posting them all. I'll post the links here as soon as they do. The links to individual sessions I mentioned are included above, and there was another panel I want to highlight on Wikileaks, Journalism, and Modern Day Muckraking to which Glenn Greenwald has posted video.
As soon as I get links from other "what I learned" posts I will be putting them here.
