Mackinnon’s “Consent of The Networked” Deconstruction (Part III)

SERIES INTRODUCTION

Rebecca MacKinnon’s “Consent of the Networked: The Worldwide Struggle for Internet Freedom” is an interesting read on free speech, on the internet, in the context of a world where corporations are challenging the sovereignty of governments. Having read the book, I will be familiarizing readers with some of the themes and ideas discussed in MacKinnon’s work.

In Part I, we discussed censorship in the context of authoritarian governments.

In Part II, we discussed the practices of democratic governments vis-à-vis online speech.

In Part III, we will discuss the influence of corporations on online speech.

Essentially, the discussion will revolve around the interactions between the three stakeholders: netizens, corporations providing internet-based products and governments (both autocratic and democratic). Each of the stakeholders have varied interests or agendas and work with or against in each other based on the situation.

Governments wish to control corporations’ online platforms to pursue political agendas and corporations wish to attract users and generating profits, while also having to acquiesce to government demands to access markets. The ensuing interactions, involving corporations and governments, affect netizens’ online civil liberties across the world.

CORPORATIONS

The relevance of corporations, in the context of online free speech, deserves considerable analysis.

First, corporations might be motivated to clandestinely breach customer’s trust to fulfil other aims. If customer is made aware about such occurrences, she might opt out of using the product. For instance, corporations might violate customer privacy through illegal collection of data.

But even without deceptive activities, the activities of corporations raise quite a few concerns.

The Power of Code

Activities on the cyberspace are within the boundaries of software programmes or code. The architecture of the platforms we use are far better influencers of activity than any law. In the real world, our inability to breathe underwater isn’t because any law prohibits us, but because the laws of science prevent us. Similarly, programmes are the laws of science in cyberspace. We have already learnt that corporations exercise immense influence over netizens. But programmers rarely consider inculcating protection of civil liberties into their design.

Consequences for Political Speech

Now, let us peruse a few incidents that highlight the issues with corporation programmers being oblivious to the value of free speech. The consequences are especially grave for political activists.

Political speech is intended to reach the masses. Therefore, activists necessarily publish content on platforms that are popular amongst the public. Often however, these platforms aren’t designed for activism and therefore, said platform’s policies aren’t consistent with the interests of activists. On such platforms, political content is liable to be blocked for reasons on the lines of “graphic violence” or “copyright violation”. For instance, Flickr had removed political content against the Egyptian regime because Flickr’s policy disallowed publication of content created by others, even if the original publishers have consented to re-publication. There wasn’t any deception involved and the corporation was merely enforcing its own guidelines, but the consequences were detrimental to the cause of Egyptian dissent.

Programmers in California, unaware of the various lived experiences across the world, are taking decisions that affect people worldwide. The values espoused by the decision makers aren’t always as significant in other contexts.  Mark Zuckerberg may wax eloquent about “radical transparency” and his belief that complete transparency will “make for a more tolerant society in which people eventually accept that everybody sometimes does bad or embarrassing things”, but a Chinese journalist publishing anonymous posts criticizing her government’s policies might differ.

Indeed, Facebook had promoted itself as an agent of political change and activism, but terminated a popular activist page on grounds of being managed by fake accounts (activists created accounts with details of fictional people to avoid incarceration by the authoritarian government), which was against its policy.

Digital Sovereigns, Accountability and Creative Commons

MacKinnon develops the discussion further by conceptualizing “Digital Sovereigns”. The term refers to corporations, such as Google and Facebook, which exercise influence over the cyberspace in a manner that resembles authoritarian sovereigns in the real space. For instance, Facebook has a set of policies and once users’ “consent” to its policies, Facebook exercises considerable influence without users having any tangible representation in the formulation and alteration of policies that users are governed by.

The existence of Digital Sovereigns raises the issue of legitimacy.

Corporations exercise considerable influence over netizens, but unlike democratic governments, aren’t accountable to them. Therefore, legitimacy is a concern as corporations, similar to authoritarian governments, are being allowed to exercise tremendous control without any accountability measures.  In MacKinnon’s words “political activists are increasingly hostage to the whims of corporate self-governance”.

Facebook and Google might have dedicated and competent departments to regulate content on their platforms, but it is fundamentally problematic that unelected and therefore, unaccountable entities (corporation employees) are acting as judge, jury and executioner and taking decisions that has considerable impact on online speech.

Further, even when corporations adopt policies that are beneficial to the values of free speech, users continue to remain at the mercy of the corporation. Parallels can be drawn to a dictatorial regime with a benevolent leader.

Therefore, MacKinnon suggests the passage of legislation requiring private entities to stick to baseline regulatory rules. Corporations shouldn’t be allowed to tweak their policies according their whims and fancies merely because users have consented. Further, consumers should pressurize corporations towards accountability just like activists have driven authoritarian governments towards accountability.

While certain corporations exercise considerable control, the rise of the “Digital Commons” has limited the influence of corporations. The Digital Commons covers a set of platforms that allow people to share and develop open source software. Such platforms allow netizens to develop software that suits their needs. Thereby, the netizens’ dependence on corporations is reduced. Examples of such initiatives include the Linux software, the General Public License programme and the “Creative Commons”.

The corporations’ coders/programmers produce influential software, but there also exist netizens who code (as in the case of the Digital Commons) and consequently, provide alternate platforms. Therefore, control is exercised by different sets of programmers and the corporations influence over its customers is indirectly proportional to the popularity of the netizen produced software.

Corporations & Governments

Now, let us look at corporations’ activities under governmental pressure.

Given that the internet empowers the citizenry by providing a platform to express themselves, governments seek to control it. Facebook and Google provide a global network for the people to voice their concerns against the government and even take action. Hence, especially in the context of authoritarian regimes, governments value control over such platforms to quell dissent.

Corporations are interested in the requirements of customers to further their business. But at the same time, corporations need to comply with the requirements of governments (especially, authoritarian governments) to access the market under the said government’s control. For instance, Google wasn’t able to function in China without the Chinese government’s patronage. Even though the Chinese government denied involvement, Google had to exit China due to computer attacks that were of a military grade.

Further, the users of the corporations’ products may suffer if the relationship between the government and the corporation is opaque. Essentially, the issue with customers being unaware of the details pertaining to the relationship between the government and the corporations could lead to greater restrictions (through manipulation of products) over the customers’ freedoms than she had consented to. We have already analysed the same in the context of Chinese censorship.

Here, let us look at examples of responses from corporations to government pressure.

Even if corporation policies are attuned to protecting user privacy, the effect of government influence can’t be underestimated. Research In Motion, the manufacturer of BlackBerry cell-phones, was known for its messaging platform. The platform was designed to be inaccessible even by BlackBerry itself, but U.A.E, Saudi Arabia and India have been pressing relentlessly. The corporation hasn’t been responsive regarding whether it acceded to the demands.

In China, Yahoo, under pressure from the Chinese government, aided in the imprisonment of a Chinese critic of the government. Shi Tao had sent documents criticizing the Chinese government via Yahoo’s email services and Yahoo revealed details essential for his conviction. After all, the journalist had “agreed” to Yahoo’s Terms & Conditions, which allowed Yahoo to disclose data when required by law.  Also, if Yahoo resisted, its employees would have had to risk arrest.

MacKinnon suggests raising awareness amongst users of the significance of civil liberties in order to improve the situation. Once users recognize the importance of online speech, it is expected that users will pressurize corporations to restrain from acceding to such government “requests” and being more transparent with their activities vis-à-vis the government.

To Regulate or Not to Regulate

Keeping these issues in mind, can programmers be made to be sensitive to civil liberties through legislation?

In this regard, corporations argue that regulation of software will lead to stifling of innovation. For instance, if there was a legislation to protect consumer privacy that prohibited use of user data, programmers would be restricted from designing solutions that are tailored for individual consumer needs. Programmers wouldn’t be able to use location for finding restaurants in the vicinity. Advertisements wouldn’t reach their intended audience and thereby, cause inefficiencies.

Further, corporations argue that legislators aren’t suited to deal with the complexities of technological innovation. Corporations contend that legislator’s lack of expertise in technology would likely lead to decisions that would be counterproductive to all stakeholders involved.

Notwithstanding the corporations’ contentions and the fact that democratic governments aren’t devoid of blemishes in the realm of online speech regulation, at least, there exist accountability measures to bring them to task. While I have attempted to provide a brief overview of the debates surrounding regulation, the jury is still out on the question of regulation.

Again, MacKinnon suggests an alternate route of raising public awareness around civil liberties as a possible solution. When the market doesn’t inherently value civil liberties and legislators aren’t suited for intervening, awakening consciousness in consumers would push corporations to respect civil liberties and build protections into the design of their products.

Even in status quo, $3 trillion of the $25 trillion U.S. market is sourced from socially responsible investors and with greater awareness, investors might place greater value upon protection of civil liberties.

Conclusion

Here, we have attempted to (a) understand the extent of influence that corporations, through code, exercise over netizens, (b) comprehend the consequences of foreign corporations exercising as much influence (c) analyse the concerns of legitimacy surrounding “Digital Sovereigns” and (d) understand the debate surrounding governmental cyberspace regulation.

MacKinnon discussed Net Neutrality as well, but I have dealt with the same themes here.

 

Image taken from here.