Jul 22, 1999
It is easy and even fun to sit back and carp about Ziff-Davis's new standard for internet commerce, or about Third Voice's data collection efforts. Moreover, it is, it seems, an endless task as new initiatives, products and services populate the world wide web.
The last twelve months have been turbulent, not so much because of efforts to censor the web or violate personal property (though these continue, as we see with the proposed internet blockade of Serbia, or the new regulations governing content in Australia), but because of the commercialization of the internet and the commodification of information.
Now don't get me wrong: it is reasonable and natural that business and commerce will be conducted on the internet, just as in the case of any meeting place or commons, and their interest and endeavours are welcomed with open arms. Much that is good about the internet has also been commercial: the Yahoo indices and chat rooms, Geocities home pages, ICQ, and even the Microsoft Gaming Center.
But increased population, trade and commerce have made the internet a more complex place to govern. And make no mistake about it, the internet is being governed, though that said, this government is constituted of an anarchy of national governments, international organizations, standards bodies, corporate policies and procedures, and terms of service regulations.
Such anarchy has spread uncertainty. The citizens of the WELL or homesteaders of Geocities know what I mean, as their rights and freedoms shift and stutter through corporate takeovers and new terms of service. What was once theirs, Geocities homesteaders are told, now belongs to Yahoo. And though that corporate entity recanted, there seems no natural limit on the ebb and flow of internet policies and politics.
A free and democratic society is preferred because it is stable. Our democratic rights and personal freedoms were created in the first instance to protect citizens from the whims of policy The maintenance of a free and democratic society is the first duty and responsibility of its citizens. Or in the words of Junius, "The subject who is truly loyal to the Chief Magistrate will neither advise nor submit to arbitrary measures."
Before people will invest their time, energy and resources in Cyberspace, law must extend into Cyberspace. People must be secure in the knowledge that their rights and freedoms will be respected, that their personal liberties will not of a sudden be infringed, that their personal and private information shall not be compromised. No mass movement of people, money or enterprise will flow into this new territory without such security, and if Cyberspace has been populated by those who may make their own laws, so much the good for them, but now the time has come for laws which apply to all, equally, without prejudice.
Hence, below, I have drafted a document titled The Cyberspace Charter of Rights (the link will take you to an uncommented version):
The Cyberspace Charter of Rights
As individuals, corporations and nations inhabit cyberspace, new laws, protocols and practises have demonstrated a potential for new limitations on the rights and liberties enjoyed by free citizens around the world.
It is reasonable and prudent, therefore, to declare those rights we consider essential to the maintenance of a free and open society in Cyberspace.
Having set out the document, let me take some time to discuss and elaborate upon some of the stipulations:
Access has to be the first and primary right of CyberCitizens. I have tried to define this generally, as the nature and shape of online communications is likely to change in the future. Thus access refers to the electronic sphere generally, and is not restricted to an existing entity such as the internet.
I have also defined access as a right of citizens, with two thoughts in mind. First, I wanted to convey the idea that the rights and liberties which should be defined in Cyberspace are an extension of those which exist for the citizens of democratic nations; just as a person should have freedom of speech or freedom of the press in a democratic society, so also should those freedoms extend to Cyberspace.
Second, I wanted to convey the idea that these rights and freedoms are not universal. We do not convey them to dogs or other animals, we do not convey them (automatically) to children, and that there are cases where citizenship, or at least the rights of citizenship, may be legitimately revoked, just as we would revoke the freedoms of persons convicted under the Criminal Code.
The principle which stipulates that all citizens shall have the right to access is the first and most fundamental freedom of Cyberspace; it defines Cyberspace as an open society. There are no immigration restrictions or quotas, nor are there any barriers to membership on the basis of race, nationality, gender, or any other personal characteristic.
The right to access may be construed - and is even to this day construed in some territories - as a positive right, that is, as right to have a certain service provided. Nations like Canada have stated and begun to implement as a national policy the idea that all citizens, regardless of means or income, shall have the capacity to access the internet; this policy is being implemented through such programs as the Community Access Project (CAP), Canada's Schoolnet, and so on.
I applaud and support such projects, but not all nations would interpret this provision as a positive right - in the United States, for example, access to the internet is likely to depend on financial means. In environments such as this, the right to access becomes somewhat equivalent to the right to ride the bus, or the right to buy a home - those who have the means may do so, and provided they have the means, no restriction shall be placed on their doing so.
Either policy is consistent with the Charter of Internet Rights; what is essential, is that the means of access, are open equally to everyone.
The second provision of the access clause is the online equivalent to freedom of mobility. Once a person has access the internet, then no policy should prohibit that person from accessing any point on the internet. Thus a person from the United States could access a Cuban website, or a person from China could access a Taiwanese website.
This provision is intended to address both political measures and technological measures. Politically, it amounts to the urging that no law out to hinder access. Technologically, it amounts to the urging that no barriers be placed in the way of access. The shut-down of internet to Serbia by shutting down satellite services, for example, would violate the latter provision.
Freedom of speech has been a much-discussed issue on the internet. CyberCitizens first rose to the defense of this freedom in the 1996 web black-out: the background colour of a significant number of web pages (my own included) was changed to the colour black on February 8 of that year. The protests continued with the 24 Hours of Freedom Web Ring and the Blue Ribbon campaign. The primary object of these protests - the Communications Decency Act - was defeated, but the move to restrict freedom of speech did not abate with that setback.
But freedom of speech has been recognized for centuries as a fundamental principle of a free and democratic society; indeed, it is arguable that without freedom of speech, a society is essentially undemocratic, no matter how many other freedoms are granted. In a similar fashion, were the content of online communications subject to censure and prohibition, the online environment would cease to be a free society.
Freedom of speech is even more important in a global environment because there are no international standards or agreement governing what constitutes acceptable speech. As I said in my 24 Hours of Democracy essay, some people (such as myself) would want to ban subversive advertising and programming, as offered by (say) Walt Disney or McDonalds, while others would choose to ban violent imagery, while others would ban sex (or even discussions of safe sex), while others would want to see the Pork Marketing Council website shut down.
The essence of censorship is that it is one person telling another person what he or she may read or write; and in all cases of censorship it is the values of the first person - however reasonable or rational they may seem - which prevail. The censor, therefore, becomes the arbiter of values. But in a global society, there can be no arbiter of values, because there is no common value system, and hence, any arbitration of values becomes an instrument of repression. This means we all must live with the existence of content which is objectionable, for it is the only way in which we all may be equal members of the online society.
The right to express these ideas extends to the right to transmit them; this is why there is a second provision under 'Freedom of Expression'. The second provision is the online equivalent of freedom of the press; it allows for ideas to be communicated to a mass audience. The stipulation here is that members of that mass audience must want to hear the message being transmitted; freedom of expression is not a right which allows a person to force his or her views on an unwilling audience, or to drown out with static or noise the attempts of other people to communicate with each other.
In the end, these two provisions boil down to the assertion that no third person shall abridge the communications of two people, where those two people have freely entered into this exchange.
In the pre-electronic age, personal privacy meant being able to keep your personal proclivities in the closet, and being sure that nobody was peering through your bedroom drapes. It did not necessarily protect the gathering and use of people's names, addresses, phone numbers, or other personal data, mainly because not much could be done with such collections of information.
In the electronic age, however, the potential for the misuse of personal information is large, from the theft of credit card data, to the malicious assumption of anothers' identity. Additionally, because personal information may be amassed in databases, it has become a commodity, an item of value, for which individuals and corporations are willing to pay considerable sums of money.
The production and origin of personal information in every case lies with the person themselves. A person does not assume an address unless he moves there, does not have a name unless she consents to be recognized by it, does not have a shoe size unless he has feet. Without the person, there is no personal information; therefore, the ownership of personal information must lie in the domain of the person who created it.
Where the ownership of one's personal information impacts on the practises of Cyberspace is, first, in the collection of personal information, and second, in the use of personal information. The principles in the Cyberspace Charter of Rights stipulate that one cannot, first, collect personal information without that person's consent, and second, use personal information without that person's consent.
Security of communication is the flip side of freedom of speech. While the latter the the right of a person to be heard by all he or she want to hear, the former is the right of a person to be hear by only those he or she wants to hear.
Security of communication is the online equivalent to freedom of assembly. It is the right of a person to meet in public or private with other persons, without hinderance or disturbance. In pre-electronic times, the right to assembly ensured privacy, because one could meet in a back room; online, however, there is no such thing as a back room, and to a certain degree, all communications pass through the public sphere.
Thus there needs to be in an online environment a particular set of protections securing a person's right to assemble with a particular set of others. These provisions break down into three major categories:
First, the right to secure communication, that is, communication which will not be intercepted, redirected, or otherwise diverted or duplicated. This is the embodiment of the idea that private conversations should remain private; it is the online equivalent of an anti-bugging or anti-eavesdropping provision.
The second point - communicating in a language of one's choice - is intended to adress the issue of cryptography. It is essentially an assertion fo the right of a person to use whatever encryption technology he or she deems necessary. I have couched it in terms of language, first, because encryptions are variant languages, and second, to convey the idea that a person has a right to determine the style, as well as the content, of their speech.
But this second point also addresses a wider set of rights: the right to the use of one's national tongue, for example, or the right to define alternative communications protocols. It embodies the essence of communication as a freely chosen set of protocols between sender and receiver; it enshrines the idea that there shall be no determination of how communications are condcted over the internet except by the free agreement of those people doing the communicating, and therefore ensures that there are no barriers, by language or technology, between those people.
The third right guarantees a person the right to choose his or her identity, and indeed, whether to have an identity at all. This is a new right; in the physical world it is not possible to abandon one's body, and therefore, one's physical identity, but in cyberspace, identities may be worn as easily as a new suit or a pair of shoes.
This right follows naturally from the right to freedom of speech, and also, from the idea that one owns ones personal information. It is tantemount to the freedom to create one's personal information, to the idea that you - and nobody else - has the right to determine who you are. The right to anonymous communication is roughly equivently to the right to freedom of the press: it is the right that protects the posterer or pamphleteer.
The protections for intellectual property have a two-fold purpose: first, it ensures that something created by a person is owned by a person, and therefore, cannot be appropriated by some third party. This protects the people who send email messages, post to discussion boards, or publish web pages: they have the assurance that what they create, remains their own.
This does not mean that these rights cannot be transferred; when Jon Katz writes a column for SlashDot, he may freely assign all copyright to that company. But what it does mean is that SlashDot cannot, without prior notice, assume sole ownership or copyright of messages posted to their online discussion boards; or that if a new idea or concept is presented in such a public forum, that a third person cannot run to the trademark office and relieve the author of ownership over that idea.
Placing the ownership of ideas and beliefs in the hands of their creator also serves to protect the freedom of cyberspace by removing from service providers responsibility over that content. Just as the city that builds a road is not responsible for what drivers do on that road, and just as the telephone company is not responsible for the conversations people have, so also a service provider is not responsible for the content of a user's email or web site.
Keeping ownership and responsibility in the hands of the crator is essential to the maintenance of a free Cyberspace. If a third party becomes accountable for the ideas and opinions of a first party, that that third party is obligated to violate the first person's privacy, to monitor his email communications and web sites, and sometimes, to act as censor over the contents of those communications.
Inherent in the idea of the freedom of speech is the idea of fair comment or criticism of another person's ideas. This right manifests itself differently in Cyberspace because pointing works differently in an online environment and is therefore not covered explicitly under freedom of speech.
The first and essential principle of reference is the right to refer. By the creation of a piece of intellectual property, one does not acquire the right to govern all discussion about that property. Thus people may send emails or establish websites about Star Trek, or they may express opinions for or against a politician's platform, and indeed, may parody or satire another work.
The restriction on this right is that imposed by the intellectual property provision: a person may not take another person's intellictual property and use it without permission. Thus, a web site may talk about Star Trek, but it cannot purport to be Star Trek; a web site may criticize Coca Cola, but it cannot use images or artwork produced by Coca Cola.
There is to be sure a fuzzy line here: Coca Cola may own its own logo, but the use of the logo could in some cases be a refernce to that company, and not a use of their ideas. Moreover, it is not clear to what degree a company may control variants on their words or artwork; and in some cases a corporation may use some word or artwork over which it should claim no ownership at all (as for example when Bell Canada tried to trademark the term, "The Net").
But in practise the line is relatively clear: it is crossed when a reasonable person might come to believe that the work in question is the work of the person or company to which it refers - thus G.W. Bush has a legitimate complaint if readers of www.gwbush.com would believe that this parody site was Bush's real home page.
Another aspect of reference falls under the area of linking - companies and individuals have from time to time attempted to prevent persons from creatiung links to their sites. But a link is nothing more than a way of pointing: and just as my pointing at Bill Clinton in no way implies that I endorse him (or that he endorses me), so also the posting of a link carries no such connotations.
The final provision, that of quiet enjoyment, points to a person's right to use the internet without interference from others.
The first and most obvious target of the quiet enjoyment provision is unwanted email (or 'spam'). This provision stipulates essentially that users of the internet have the right to be spam-free. The offline equivalent of the anti-spam provision is the security of one's property: just as no person has the right to make harassing phone calls, enter one's place of residence, or incur unauthorized expenses, so also senders of email cannot target unwilling recipients, place unwanted data into their computers, nor make them pay for the download.
The 'quiet enjoyment' provision expresses the sanctity of one's computer; this is seen by the second provision, which prohibits arbitrary search and seizure. On the internet, a person's computer is his or her home; there should be a reaosnable expectation of security and privacy.
This provision is intended to conver both physical search and seizure, as when the Feds come to your door and demand that you dump your hard drive, and also 'soft' search and seizure, as would be performed by software agents, viruses, or other online intrusions.
References and Resources
Cybotage (In German)
PeaceFire, Youth Alliance Against Internet Censorship