We celebrate America on July 4th because that is the day in 1776 when the Declaration of Independence was adopted by the Second Continental Congress. The Declaration of Independence is one of the most important documents in history. Even though the brilliant men who wrote it and signed it were largely hypocrites who couldn’t see the self-evident truth that women and blacks were endowed with the same inalienable rights as white male landowners, the fact that they bothered to write them down is a starting gun for the modern march of freedom that even today topples tyranny and oppression.
Nobody will ever write the above paragraph about the “Declaration of Internet Freedom” that is making the rounds this week. In fact, most likely nobody will write anything at all about the Internet Declaration two weeks from now because the document is devoid of anything approaching a coherent articulation of the rights of “the internet” or anybody else.
Apparently, 85 organizations and many people have signed this thing, which looks to capitalize on the grassroots effort to stop SOPA legislation. I’m not sure if anybody involved with the project ran this by a lawyer, because this doesn’t appear to be a serious effort to promote a legal construct that will protect the freedom of anything….
By way of context, let’s take a look at this thing. Don’t worry it’s short and written in big letters:
Where to begin? Oh, I know, who the f*** is “we.” The Declaration of Independence tells you in the title who the “we” is: “The unanimous Declaration of the thirteen United States of America.” In contrast, this net freedom document leaves it to the reader to determine if they are part of the “we,” or part of some other force that may or may not be opposed to the “we.”
I hate to get pedantic about things involving the internet — it’s the internet, not a Ken Burns documentary — but defining your terms is crucially important when you are trying to advocate for “freedom” of any kind. It’s all well and good to walk around saying “give us free” if you are in chains, but freedom means different things to different people. I’d like to be “free” to make money off the internet, for instance. Can I still be part of the “we”? The fact that so many different people use the internet for so many different purposes is exactly why we struggle to come up with broad-based consensus on how the internet should be regulated (if at all) in the first place. Defining the “we” is half the battle! “WE” are Americans. “THEY” are followers of a inbred crazy person with a fancy hat. Let’s play our game.
Because of the terms that aren’t defined, the whole document falls apart in the second sentence:
“We support transparent and participatory processes for making internet policy and the establishment of five basic principles.”
Here are some problems with the above sentence, in no particular order:
- What is “internet policy”? Are they talking about intellectual property, First Amendment issues (speech), Fourth Amendment issues (privacy), or Eighth Amendment issues (the cruel and unusual punishment of commenters)? Are we talking about phishing? Are we talking about practice? I can haz internet policies?
- Who makes internet policy, according to “we”?
- If it’s the government, then can I just remind people that it’s a pretty transparent process to those paying attention, and if you want to participate in it, all you have to do is VOTE, which I suspect most of “we” don’t do nearly often enough.
- Basic principles, if they are truly basic, don’t need to be “established,” they need to be articulated.
That last point bears repeating. It is the articulation of things that are inherently true and obvious that makes documents like this useful. Gravity was already established, smacking Newton upside the head with apples and everything else it could throw at him. Newton’s skill was describing it. How does the upright internet freedom brigade do at articulating fundamental truths about the internet?
These aren’t basic principles so much as one possible version of internet freedom among many. Who says that the internet has to be “open.” Apple is closed-source, and it does fantastic work. Who says the internet has to be private? Maybe if it was more public, it wouldn’t be so goddamn disgusting? And speaking of disgusting, I really hope the free expression of pornographic hotness continues on the internet, but I don’t think most of us would have a problem is there was a new technology that magically prevented little kids from getting a cascade of blow job pictures if they happened to Google “hot classroom” while sitting in summer school.
Or maybe we would disagree. That’s kind of the point. How does this document help us think about a real issue like porn for minors? Are all these basic principles equally important? Is this an enumerated list of internet principles, or can I make up some more?
See, unlike some conservatives who abhor nearly any creation of “new” rights that weren’t enumerated by slaveholders over 200 years ago, I’m a big fan of rights: I like new rights, I like old rights being extended to new groups of people and kinds of activities, I even think that good government involves protecting our rights (instead of getting out of the way and letting us shoot those who interfere with our rights).
The internet is new. I don’t think legal scholars and judges should spend all their time trying to explain how the internet is just like books or libraries or town squares or a series of tubes. It’s a new thing that should be governed by new laws and maybe even new definitions of the rights and responsibilities for internet users, consumers, and content producers.
But the principles upon which this new medium is governed should be really, really old. Towards that end, Life, Liberty, and the Pursuit of Happiness seems like the only declaration of freedom anybody should ever need.
If somebody wants to get into the hard work of writing some sort of internet constitution that talks about how those high ideals might be expressed in a working legal document that allows us to apply the Declaration to the internet — as the the framers struggled to apply the Declaration to our system of government, twice — that would be a useful enterprise. Americans have written a bunch of constitutions, but only one Declaration.
Just remember to define your terms. Remember, the Constitution tells us who the “we” is in the first line.