Jacques Ellul, 1964, The Technological Society:

 Justice is no longer conceived of as a practical requirement vis-à-vis individual problems, but rather as a mere idea, an abstract notion. Then it becomes simple to discard it entirely. Even so, men of law have certain scruples and are unable to eliminate justice from the law completely without twinges of conscience. But it is not possible to retain it because of the difficulties it involves, the uncertainty of operation and unpredictability it entails. In a word, judicial technique implies that bureaucracy cannot be burdened any longer with justice. (…) The schematism I have described is found over and over again behind the complexity of modern legal phenomena. Under such conditions the traditional equilibrium between the technical and human elements is lost. In affirming that there is no law without efficiency, we in fact announce the implicit sacrifice of justice and the human being to efficiency. With this lack of equilibrium, the door is wide open to further technical invasion. We are witnessing the result — the takeover of law by technique…

Google, 2010, Comments before the US Federal Communications Commission:

“To be clear, Google submits that network practices such as paid prioritization or other acts that degrade, impair or throttle Internet content and applications are unlawful and discriminatory, regardless of whether the FCC uses a standard of general nondiscrimination or a standard of “unjust,” “unreasonable,” or “undue” preference or discrimination. Adopting an “unjust and unreasonable discrimination” standard and reasonable network management exception would establish a more murky, complex, and likely ineffectual legal standard”. (…) Google urges the FCC to establish a clear but narrow set of reasonable network management practices, limited solely to engineering practices legitimately related to network congestion”.

More on Google’s comments here.

Schmidt is absolutely right: any distinction between “search” and other “products and services” is inaccurate. “Search” is not a distinctive relevant market.

Search is an existential experience.

What we now call search is but a topical, contingent[*] form of procuring access (on this, see section III.b here). Competition law is the wrong avenue to address the problem that the U.S. Senate seeks to address — Google’s perhaps excessive concentration of power in the information environment. Ironically, however, such a problem is caused by the same convergence between Google’s various product and service offerings that Schmidt refers to.

Thus, to say that competition law is not the correct avenue does not mean that Google’s information power should not itself be measured and regulated. It just means that it should be regulated for other reasons.

These reasons have to do with the ways in which our personal autonomy is at the same time enabled and constrained by the infrastructure of the information environment. As Benkler notes in the Wealth of Networks, “a concern with autonomy provides a distinct justification for the policy concern with media concentration”.

Such a justification, as I discuss in my recent paper, moves us beyond considering the limits of competitive markets.

…………………..

[*]

“‘It will be included in people’s brains,’ said Page. ‘When you think about something and don’t really know much about it, you will automatically get information.’

‘That’s true, said Brin. ‘Ultimately I view Google as a way to augment your brain with the knowledge of the world. Right now you go into your computer and type a phrase, but you can imagine that it could be easier in the future, that you can have just devices you talk into, or you can have computers that pay attention to what’s going on around them….’

…Page said, ‘Eventually you’ll have the implant, where if you think about a fact, it will just tell you the answer.’”

– Steven Levy, In the Plex

Technological neutrality has been resorted to before the World Trade Organization by a number of Western countries, in particular the United States, as a means of preventing China from carrying out specific regulatory initiatives for its territorial Internet.

The paper, which you can download here, discusses such an attempt, in the light of a much wider normative inquiry.

It claims that technological neutrality is incompatible with the dominant politico-philosophical traditions of our time: the Liberal and the Confucian.

And it argues that the idea of neutrality ultimately undermines any attempts of reconciling both traditions.

Any comments, suggestions and criticisms are most welcome.

“In Search of Alterity” inquires into that which has been the archetypal voice in network neutrality discourses: Google’s.

In doing so, the paper reveals as much about Google’s views on network neutrality as it does about the normative context and regulatory implications of Google’s own activities.

You can download it here.

The article is by now a bit dated on the part related to WIPO’s Development Agenda, but I still subscribe to all of its points. And though the article refers to an earlier process of copyright reform in Canada (that of Bill C-60), I believe its ideas may still be timely and useful in the context of the other, ongoing process — that of Bill C-32.

The article comes in the just released 1st volume of the Communications Law Review, a new Thomson, RT bilingual publication whose future volumes I would strongly encourage colleagues to send their contributions to.

The most emergent provision is that which renders Online Service Providers invulnerable for the conscious hosting of illicit content. That is to say, unless OSPs host illegal content in disobedience of a court order, OSPs would not be subject to civil (or criminal) liability even if:

i) OSPs have been made aware that they host such content; and
ii) such content results in serious violation of fundamental rights — such as privacy rights, children’s rights (except with regard to child pornography) or libel in its most extreme forms.

The harmful potential of such provision to the protection of fundamental rights is evident. It was thus very surprising to see important stakeholders such as the Committee to Protect Journalists and Globo Organizations defending its introduction in the Civil Framework.

And even more surprising to see the Brazilian Ministry of Justice surrendering to the power of such biased criticisms and introducing the provision.

I would like to thank IP Osgoode, the Osgoode Hall Intellectual Property Law & Technology Centre, for featuring an article I wrote on the issue and helping me to raise awareness of this important matter.

A full draft version of the article, which will soon be uploaded to the SSRN, can be accessed at http://www.iposgoode.ca/2010/05/the-insensitive-internet-brazil-and-the-judicialization-of-pain.

P.S.: For those looking for a Comments box, they will not find one here. Though I normally enable comments in this log of essays, I will here offer the Brazilian Ministry of Justice the same channels for redress they are now setting out to offer to seriously grieved persons:

the Courts system.

…

Below, some excerpts of my article, as reproduced by the IP Osgoode [Note: the consultation process is now being extended until 30 May 2010]:

Without the usual diatribes of the political process; without the bickering and finger-pointing, earmarks and pork barrel provisions, a new Bill is being introduced in Brazil. The lawmakers are not the usual suspects. They are the suspecters. The Civil [Rights] Framework for the Internet in Brazil is a project initiated by the Brazilian Ministry of Justice together with a famous Law School in Rio de Janeiro – but ultimately it is a project being undertaken by society at large.

During 45 days, until the upcoming 23 May, every citizen in Brazil has been having the possibility of contributing to define how the Civil Framework, as it is nicknamed, will be written; to give their two cents on how normative expectations regarding the Brazilian information environment will be stabilized. Which criteria will be adopted to choose amongst contributions, how truly democratic the process will be remains to be seen. The fact that the Ministry of Justice of Brazil is ahead of this project, however, already invites us to take its current content extremely seriously. Such content, originally worded under the auspices of an organ of such stature as the Ministry, provides us with a detailed picture of the Brazilian Government’s understanding about issues that are deeply related to the protection of fundamental rights and the development of the democratic process in Brazil.

Though there is much to laud the Civil Framework for, in spirit and scope, there are provisions in it that should definitely not prosper. One of these, which will be discussed at greater length, came as a result of two infelicitously partial reactions by the press – one from Globo Organizations; the other, from the Committee to Protect Journalists. Such a pressing contribution is, interestingly, the only one to which the organizers have acquiesced so far. The headline above is named after it. Besides such provision, the article will tackle two other major ones. There is a reason for the three of them having been singled out: their pervasive impact on the sort of political structure, on the sort of liberal principle to be embraced by Brazilian society. The choice is between a liberal model that genuinely enables each actor in the information environment to pursue his own conception of the good within the wider web of convictions of his community and another, only supposedly liberal model that, per principle, neutralizes the scope of reasons that a certain suspected actor – Governments, Internet Access Providers, Online Service Providers – may choose to act upon.

The provisions criticized in this article embrace the latter model. Altogether, they create a complex system of restraint for such actors. Conversely, they also work as a mechanism for the expansion of an unencumbered, anti-social, technologized conception of a self whose liberty, it is thought, should not face any effective form of autonomous resistance – even when more urgent values are at stake. Each of these provisions, in its own way, reflects an ideal of neutrality; each excludes the possibility of action by those actors even when there are sound reasons for action or, at the very least, severely reduces the incentives for actions for sound reasons being undertaken. Though the Bill does embrace other deeply valuable principles, the image that comes out of the provisions discussed in this article is that of an insensitive Internet: one that disregards not only that agents in the information environment, in choosing their reasons for action, do pursue certain conceptions of the good; it also disregards that they should be expected to do so – if only in face of the horror.

I. The Judicialization of Pain

If there is an iniquitous provision in the proposed Bill it is the one that renders Online Service Providers liable for third parties’ content only if such content is not taken down by the OSP after it receives a court ordercommanding it to do so (see Art. 20 of the new text, in a hasty translation). On the one hand, it is fair to say that such provision does not prevent an OSP from taking down content it understands to be infringing of the OSP’s Terms of Service or violating the law in general. On the other hand, however, it is imperative to notice that such provision does not oblige an OSP to remove content even of the most conspicuously illegal nature. The OSP ‘can’, but nothing says it ‘ought to’. Abhorrent violations of the most fundamental human rights are thus allowed to remain online until the person whose rights are being violated manages to find a lawyer (or to obtain assistance from a small claims tribunal), file a lawsuit and obtain a Court order determining that such violating content be taken down. There are a number of problems with that.

Click here to continue reading the full article (PDF).

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

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

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.