Marcelo Thompson

Awesomeness: Google in Search of a Value

MARCELO THOMPSON*

Google’s glove slap in the mainland reflects an ambiguity which is not atypical among Internet policies it normally champions. What has really prompted the Internet giant’s threat to move its search engine away from a regime it has, in the past, worked so closely with? It may have been an awakening to the importance of values it had arguably disregarded in agreeing to filter its search results. It may have been just business as usual, before its incapability to overtake Baidu in the Chinese market of general-purpose search.

Whatever the answer may be, we are left to try  to make sense of the evaluative cacophony in the air. Two things are clear, however, in the episode. On the one hand, an important and difficult political choice has been made and will be reflected by Google in the architecture of its technologies. On the other hand, such a choice will have far-reaching consequences for how the Internet will unfold. The way Google structures its engines tends, in effect, to determine how information flows through the net and around the globe. Google is vindicating its right to do so.

Though all this may seem obvious, one is left surprised when confronting Google’s policy-choosing posture with its traditional advocacy of evaluative restraint for other important actors on the Internet. Google has been indeed at the forefront of a movement for network neutrality – the idea that Internet Access Providers should not be allowed to discriminate packets of bits according to their source, content or destination. The natural though often unstated outcome of a principle of network neutrality is that, in the absence of choices being made at the network layer of the Internet, it is at the applications layer that such choices will be cast. Search engines are a fundamental part of the latter layer and it is extremely convenient for them to leave the burden of neutrality for the former while remaining unfettered to make their own decisions.

As political theorist Joseph Raz explains, neutrality is a doctrine of political restraint; of exclusion of ideals. It excludes action which is based on a distinction “between valid and invalid conceptions of the good”. Within such logic, neutral Internet Access Providers would be those that do not act upon their choices on the goodness of the things they route around, even when there may be valid, sound reasons for doing so. A principle of network neutrality circumvents the liberal logic by placing severe restraints on the possibilities of action of Internet Access Providers – and doing so with regard to the very core of their activities. Such is, understandably, a burden that no company sanely wants to embrace.

Though the year has started big with Google’s stance on China, it seems that Google’s advocacy of network neutrality is also undergoing a paradigmatic change. Google’s traditional Guide to “Net Neutrality”, which used to rank first whenever one googled the quoted term, can now only be found on the Internet Archive. In November last year, Google authored a joint blog post with Verizon calling for an open and user-centric Internet, with flexible rules and transparent practices on how traffic is managed. On Thursday last week, Google filed comments before the Federal Communications Commission on that agency’s Notice of Proposed Rule Making ensuing from the Comcast case. Google’s opening statement? A remark on their interest in the Internet being kept “awesome for everyone”. The word neutrality, however, made few and brief appearances in both the blog post and the 98-page comments – almost always in attribution to someone else. In its place, clear rules have been demanded.

In much of contemporary liberal political theory a principle of neutrality has been abandoned. It should not happen otherwise. Evaluative choices are always made and conceptions of the good will be pursued whenever practical decisions – decisions on how to act – are at stake. Values such as openness, user-centricity and, why not, awesomeness are as much part of technological discourses of our societies as they should be addressed in this regard through our political processes. One should watch as closely and as respectfully Hillary Clinton’s statement this week and the one which will ensue, by the Chinese government. Both sides are staking out the values that constitute the architecture of their different moral traditions – “hypergoods”, as Charles Taylor would call them.

Google’s ambiguous move is less helpful as a political affront than it is as a call for clarification of choices that governments and companies do make in pursuing their visions of the good. The year ahead, as it seems, will be marked more by discussions on which values will define the architecture of the Internet than on if they will.

*Marcelo Thompson teaches “Regulation of Cyberspace” at The University of Hong Kong

Law Tech Talk | Law and Technology Centre

Mr. Marcelo Thompson, Faculty of Law, The University of Hong Kong

Abstract: When the United States Federal Communications Commission released its Memorandum Opinion and Order on the Comcast case last year, more than the future of the Internet was at stake. What was at stake was the very future of law; of the law we want for our information environment. The Internet so far has developed based on a decentred model of rules, on a pluralist conception of law that is as much a cause of the Internet’s architecture as it is a reflex of such architecture. Rules have been found in many places on the Internet, in and with regard to all of its layers. Freedom to tinker has been entrenched in the Internet’s code, but also in its model of rules. As the FCC now promises to move the network neutrality debate further, a more in-depth questioning of its legal significance seems timely. Network neutrality is the idea that Internet Service Providers must not discriminate packages of bits on the Internet according to their source, content or destination. This presentation will suggest that network neutrality reverses the plural configurations that have so far characterized the Internet by prompting the Internet – in its code and in its law – to assume a monolithic structure. In this sense, it will argue, network neutrality puts legal pluralism under siege.

About the speaker: Mr. Marcelo Thompson is a Research Assistant Professor in Law & Information Technology at the Department of Law of The University of Hong Kong. He holds a Master of Laws (Law and Technology) from the University of Ottawa and is a Doctorate of Philosophy Candidate at the Oxford Internet Institute, University of Oxford.

Date: Tuesday, 6 October 2009
Time: 1:00 pm – 2:00 pm
Venue: Room 303, 3/F KK Leung Building, HKU
RSVP: Lydia Bute via email: lbute@hku.hk

So, here goes a Sci-Fi thought (or perhaps not quite).

If singularity theories turn out to be right, what to make of a principle of technological neutrality (in law and politics)?

Even if we assume the internal coherence of such a principle. Even if we assume that there is a sound legal theoretical way of explaining it. Even if we assume it now makes sense from the standpoint of some pallatable theories of justice — all that which I believe we cannot do.

40 years gone by, will it make us safe? Will it make us free? Or will it rather be a theory of justice *for machines*?

Two commentators put it well: “technological neutrality is a quite particular anti-discriminatory rule as it protects technologies … instead of legal subjects“.

I may be wrong, but, technological neutrality following its course, we are likely to see the rise of a monumental tidal bore if singularity comes true.

Download in PDF

Below you will find some notes I wrote last month upon request of the British Council, on the occasion of the Sergio Vieira de Mello Annual Lecure, given by Professor Fernando Henrique Cardoso, Former President of Brazil. A webcast of the event can be found here.

The views conveyed in these notes express my own interpretation of the lecture and do not reflect any institutional position of the British Council or Former President Cardoso.

The post is evidently titled after Professor Samantha Power’s formidable book.

Continue reading ‘Chasing the Flame in a Networked World: Notes on Fernando Henrique Cardoso’s 2008 Oxford Lecture’

Some very significant bodies of the Brazilian Government and government-owned corporations have just signed an agreement to adopt Open Document Format as their standard format for the exchange of electronic documents. While the agreement merely conveys their intention of adopting ODF, it also firms up their commitment to “plan, organize, and enable such policy in the federal government”, one official said.

The announcement happened during the “Electronic Government and Society International Congress (CONSEGI)“, which is taking place in Brasilia until tomorrow. It follows ISO and IEC’s final decision to reject the appeals from Brazil, India, South Africa and Venezuela, and adopt Microsoft’s OOXML as an ISO/IEC International Standard.

**Update** Andrew Updegrove brings us a perceptive analysis about the so-called ”CONSEGI Declaration”, which was signed by Brazil, Cuba, Ecuador, Paraguay, South Africa and Venezuela by the end of the event, in response to ISO/IEC’s decision mentioned above. As Upgrove notes, “[w]hat happened in the course of the OOXML adoption process has left such governments shaken by the realization that the type of democratic involvement and protection from undue vendor influence that should accompany the development of such standards, and ensure their free, unfettered use, cannot be delivered by the same systems that they have relied on in the past”.

Groklaw also has interesting inputs on the Declaration, and was particularly impressed — as so am I — with the following statement:

“Given the organisation’s inability to follow its own rules we are no longer confident that ISO/IEC will be capable of transforming itself into the open and vendor-neutral standards setting organisation which is such an urgent requirement. What is now clear is that we will have to, albeit reluctantly, re-evaluate our assessment of ISO/IEC, particularly in its relevance to our various national government interoperability frameworks. Whereas in the past it has been assumed that an ISO/IEC standard should automatically be considered for use within government, clearly this position no longer stands”.

You may also be interested in the first-hand impressions of Mr Jomar Silva, a member of the Brazilian Delegation who was present at the Ballot Resolution Meeting that took place in March. If so, follow this earlier Groklaw post, or Mr Silva’s own blog.

Many think of the Internet Governance Forum as being nothing but a multi-stakeholders monumental talk shop. Even if so, that would not be so hopeless for an area in which customs play a decisive role; an area to whose build-up the showcase of state practices and formalization of diferent levels of opinio juris very widely contribute: the area of international human rights law. Though derided as a talk shop, and in spite of its notorious shortcomings, the IGF has had precisely that goal, adding up to the commitments already assumed in the World Summit of the Information Society. Continue reading ‘So Secure Hyderabad: the Demise of a Rights-Based Discourse in the IGF?’

Brazilian Sunday TV news program “Fantástico” showed in its last edition that a gang of supposed fraudsters would be offering their services to Brazilian politicians. The services in question would involve the manipulation of electronic voting systems to elect illegitimate candidates in the upcoming municipal suffrage.

Continue reading ‘Charlatans, FLOSS, and the Brazilian Supreme Court’

O Documento Nacional de Identidade Eletrônico

Na terça-feira passada o Presidente da República em exercício anunciou a adoção de um novo documento nacional de identidade para os cidadãos brasileiros. O documento será armazenado em um cartão inteligente, que provavelmente conterá um certificado digital emitido no âmbito da Infra-estrutura de Chaves Públicas Brasileira — a ICP-Brasil, um vasto sistema regulatório que atribui efeitos jurídicos preponderantes a tecnologias de autenticação e identificação oferecidas por prestadores de serviços credenciados pelo Estado.

Continue reading ‘Identidade, Capacidade e Totalidade: Repensando as Fronteiras da Personalidade no Brasil’

My last post discussed the vagueness-precision dichotomy in light of Canadian copyright reform. Ironically, the matter resurfaces today, now in the UK.

IPKat brings news on the Higgs case, in which Neil Higgs, also known as “MrModchips“, escaped conviction arguably because of the complexities of English copyright law.

Continue reading ‘MrModchips and the Maze’

Osgoode Hall Prof Pina D’Agostino has published a sensible column on Bill C-61 in the Toronto Star. Much unlike Bill C-61, her message was clear — we need to police our tone to offer a sober academic perspective on Canadian copyright reform — as she advocated legal intervention to balance the interests of users, owners, and the normally forgotten creators in Canadian copyright law.

But the most interesting part in D’Agostino’s article was the implied idea of another balance: the balance between objectivity and indeterminacy; between precision and vagueness, which is not only a problem of Canadian copyright law, but of contemporary laws and policies as a whole.

Continue reading ‘The Place of Neutrality in the Canadian Copyright Maze’