Meanwhile, In The Land Of The Free... (Someone Just May Be Listening In)
May 7, 2012 by Columbia Journalism Review
Meanwhile, in the Land of the Free…
In the US, you can still say almost anything, but someone just may be listening in
by Dan Gillmor
In December 2010, the major payment systems used to buy goods and services online decided that Wikileaks was no longer an acceptable customer. Mastercard, Visa, and PayPal summarily cut off service, putting Wikileaks into deep financial trouble and further marginalizing an organization that had become an object of fear and loathing inside the US government and other centers of wealth and power.(Photo: Tumblr via @TyphonMind
While many in the new media world sounded an alarm, the response of journalists from legacy news organizations was mostly silence, except to take note of what had happened. By ignoring the implications of what had happened—a financial blockade of an organization engaged in recognizably journalistic pursuits—traditional media people demonstrated how little they understood or appreciated the information ecosystem in which they also exist. And by failing to object, loudly, they gave tacit assent to tactics that should chill people who genuinely believe in free speech.
It was not the first time traditional journalists failed to grasp a fundamental reality: Governments and businesses are creating choke points inside that emerging ecosystem—points of control where interests unfriendly to journalism can create not just speed bumps on the fabled information highway, but outright barricades.
This is not just an issue for journalists in places like China or Saudi Arabia or Russia, where governments are creating more and more stringent restrictions on what people can say and do online. It is an American matter as well. In the developed world, Hollywood and other corporate interests have taken the lead in threatening the Internet’s freewheeling nature—and they’ve had plenty of help from government.Coupled with increasingly controlling activities by government, often in concert with corporate interests, the new choke points threaten to re-centralize media, or at least return control to a few dominant parties.
The Obama administration has pushed gratifyingly hard to open up speech for dissidents in dictatorships, and decried censorship elsewhere. Yet the US government has also acted to curb online communications it deems objectionable. While this clampdown is often in service of the copyright lobby, the tactics have sometimes smacked more of authoritarian regimes than of the American tradition. The administration’s campaign against Wikileaks and prosecutions of journalists’ sources highlight the vulnerability of journalism, and the public’s right to know, in this networked age, what government is doing in our names and with our money. Years ago, when mass media had achieved economies of scale that created significant barriers to entry, media critics worried about consolidation of a different kind. A small number of giant companies increasingly owned the media most Americans read, watched, and listened to each day. This was a legitimate fear, and while Congress allowed significant concentration it didn’t allow utter dominance by any single corporate entity. Even so, journalism was dominated by newspaper monopolists at the local level and a cozy oligopoly nationally.
In theory and, so far, mostly in practice, the Internet broke things open. We all came to own a printing press, we believed, and we could make what we created available to a potentially global audience.
But a new kind of corporate oligopoly is emerging. Coupled with increasingly controlling activities by government, often in concert with corporate interests, the new choke points threaten to re-centralize media, or at least return control to a few dominant parties. Who are they?
Start with telecommunications carriers. There are two main kinds: wired-line and mobile. Among the former, in most American communities there are, at most, two “broadband” service providers: the cable and phone companies. Keep in mind that both were at one time monopolies established with government protection. (Also keep in mind that cable is vastly superior in bandwidth in most places, in part due to the lack of fiber investment by the phone industry, and is rapidly becoming the de facto broadband provider where it’s available.) These wired-line carriers believe that they should be able to decide what bits of information get delivered in what order and at what speed, if they get delivered at all. Think about what that means: the ability to play favorites in content. Most broadband carriers have instituted bandwidth caps; Comcast has even canceled the service of those who’ve used too much. Carriers are also becoming content providers themselves, as Comcast did when it bought NBC Universal, creating a plain conflict of interest.
This is why a principle called “network neutrality” has emerged in recent years. It essentially says that the carriers should not favor one kind of content, or conversation, over another. The carriers have challenged the Federal Communications Commission’s tiny moves toward network neutrality, and it’s not hard to see why. If they can have a duopoly, with little incentive to truly compete, they can use that dominance to cut deals with big content companies at the expense of smaller players, including what startup media operations might want to provide. And as the carriers become content providers themselves, the incentive to make these choices grows. Comcast says that its own streaming video service won’t count against its bandwidth cap, unlike streaming video services it doesn’t own; a loophole in the FCC’s already-weak regulations may give the cable giant cover. (Note: I own a small number of shares in Netflix, which offers a video streaming service that does count against the cap.)
The serious potential for problems with wired-line broadband is nothing next to the actual situation with mobile carriers. They’ve already won the FCC’s approval to discriminate in their network practices, and they have bandwidth limits a fraction the size of wired-line carriers’ limits. Clearly they cannot handle the kind of traffic that a cable or DSL line can bear, given network limitations, but they’re using relative scarcity to create customer-controlling business models. Recently, AT&T’s mobile arm declared its interest in charging some application developers for preferred connections to their customers. Who could afford that? Companies like Facebook, certainly, but smaller players would be hard-pressed to compete in such an environment.
The telecommunications industry is hardly the only choke point looming in our future. The copyright industries have every intention of being another. Hollywood and its allies have some rational worries, in particular the possibility that file-sharing sites beyond the reach of the law will destroy their businesses by making unstoppable infringement the rule rather than the exception. But it’s worth noting that the major film studios have a longstanding loathing of technology they can’t control—at least until it makes them money, as with videotape, once Hollywood’s top object of paranoia. In the Internet era, copyright holders have gotten Congress to write increasingly restrictive laws designed to prevent infringement but which have dramatic side effects; you are not legally allowed to back up the DVD you purchased, for example, nor can you quote from it by “ripping” a small segment to another file. The copyright lobby didn’t pull off its most brazen attempted coup early in 2012, when Internet users and companies rose up against the House of Representatives’ “Stop Online Piracy Act” and companion Senate legislation. These laws would have created outright Internet censorship in some cases, and a long-range effect, venture capitalists warned, would have been to slow innovation in any area where the entertainment industry felt threatened. Distressingly, if not surprisingly, these issues have received scant coverage from the major television news channels, whose corporate parents have huge entertainment interests and have overwhelmingly supported harsh copyright laws.
We should never underestimate Congress’ talent for getting cyber-issues wrong. Even as lawmakers backed away from the dangerous SOPA legislation, they took up “cyber-security” bills that would be even more of a threat to the Internet, legislation that would give government vast new powers and all but compel telecommunications companies to spy on their customers. As I write this, support was building for a draconian bill, but its fate is unclear.
As it turns out, Hollywood has persuaded the Obama administration on a number of occasions to use (or misuse) existing law against services it deems to be infringing. In a case that journalists did cover, the administration confiscated the domain name of hip-hop website dajaz1.com in November 2010—and then stonewalled requests for information and redress, the site’s attorney told reporters. Not until a year later did the government return the domain name, with no serious explanation and a minimal expression of regret for an act of outright censorship. It’s difficult to imagine the American government taking a newspaper’s website offline, or preventing it from delivering its print copies; yet something like that happened in this case. (Disclosure: The First Amendment Coalition, a nonprofit organization of which I am a member of the board, has taken an interest in this case.)
Entertainment companies aren’t the only corporate interests that threaten journalists’ ability to do their jobs. Private companies are creating their own ecosystems, with minimal regulatory interference, that news organizations find tantalizingly useful but which may turn out to be a mixed blessing.
Consider Apple. The news industry’s longstanding love affair with what has become the most valuable company on Earth expanded with the death of Steve Jobs. But Apple has a long history of controlling behavior. If you create a journalism app to be sold in the iPhone or iPad marketplace, you explicitly give Apple the right to decide whether your journalism content is acceptable under the company’s vague guidelines. Apple has used this to block material it considers improper, including (until the company came under fire for this) refusing for a time to allow Mark Fiore, who has won a Pulitzer Prize for his cartoons, to sell his own app. Given the dominance Apple now enjoys in the tablet market, journalists should have a Plan B. Apple’s paranoia (not too strong a word) and secretive ways have led it to attack journalism itself. In 2004 the company tried to force several websites to disclose their sources in their Apple coverage; the case was a direct challenge to fundamental business-journalism practices. (Note: I played a small role in that case, filing declarations on behalf of the websites that they were engaged in protected journalism.)
It has taken news people too long to understand this, but the Obama administration may have been the least friendly to journalism of any, regardless of party, in recent times—notably in its zeal to prosecute leakers and penchant for secrecy.
Facebook is another potential threat to independent journalism. Most journalists feel they have no choice but to use the social networking service, which has become by far the most dominant site online. But Facebook’s walled-garden approach—it is creating what amounts to an alternative Internet—brings risks. Moreover, Facebook and a small number of other technology companies are capturing the bulk of online advertising. Amazingly, more and more news organizations are outsourcing their online commenting to Facebook, further solidifying the position of a company that gains vastly more from these arrangements—namely detailed information on users’ browsing habits—than it gives up. To the extent that journalists participate in their ecosystems, they are fueling their top competitors.
That competition clearly includes search engines. Google, for example, has enormous power to decide who is visible, and has collected staggering amounts of data on our individual preferences and how we use the Internet. So far, the company has behaved in mostly benign ways. But it may not always be in the hands of people who take seriously the “don’t be evil” mantra the founders established at the beginning.
Government regulators are taking closer looks at the technology companies. This is potentially an important brake on abuse. But as we’ve seen repeatedly, Republican presidents tend not to enforce antitrust laws with anywhere near the effort—such as it is—that Democrats bring.
It has taken news people too long to understand this, but the Obama administration may have been the least friendly to journalism of any, regardless of party, in recent times—notably in its zeal to prosecute leakers and penchant for secrecy. It’s impossible to know to what extent the government has used post-2001 authority to keep an eye on journalists’ communications with sources, or at least to find out who the sources were after the fact. What is clear is that prosecutions of sources have expanded dramatically, and that journalists need to upgrade their own techniques and technology when it comes to protecting sources. (See this sidebar(LINK.) Despite a number of worthy initiatives to open up some government data, moreover, the administration has by many accounts been more secretive than its predecessors on matters of vital public interest. And as noted earlier, the administration’s pursuit of Wikileaks and Julian Assange, with some unfortunate cheerleading from journalists who should know better, ultimately is a threat to all journalism and free speech.
The promise of the Internet was profound: a radically decentralized, democratized medium where anyone could publish and anyone could be heard. The reaction from industries and governments that feel threatened by the Net is to re-centralize. This may simply be the nature of modern capitalism and government, and the forces of control are getting more powerful every day. They are a direct threat to journalism and innovation. Journalists are at long last starting to take note—and we can only hope it’s not too late.
You don't have a soul. You are a Soul. You have a body. ~C.S. Lewis