Fretting about the future, lost liberty

CNET News.com's Declan McCullagh reports back after a week of hanging with cyberprivacy advocates who contemplate the prospect of life with Big Brother.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
4 min read
NEW YORK--About 250 activists gathered here last week to mourn lost Internet liberty and worry about what the future may hold.

At the 13th annual Computers, Freedom and Privacy (CFP) conference, attendees fretted about shrinking privacy, growing online censorship, and their reduced ability to make "fair use" of music, video and software girded with anticopying technologies. Events included panels with titles such as "Terrorizing Rights" and enthusiastic condemnations of corporate miscreants. Anger and alarm characterized the mood.

What many CFPers failed to recognize, however, is the tremendous difference between actions by governments and those undertaken by corporations. I've seen this view among other technologists as well, and it's based on a misconception that's commonplace.

We should be most worried about government infringements of our civil liberties. Especially in wartime, freedom suffers. I've written about Attorney General John Ashcroft's new plans for Internet surveillance and the Pentagon's dream of a Total Information Awareness system to conduct data-mining on Americans. In a sign of the times, National Guard troops flanked the entrance to the commuter Long Island Railroad a block from the CFP hotel.

You sure wouldn't know it from Privacy International's "Big Brother" award ceremony last week at CFP, but corporate privacy invasions are far less threatening. (Remember that companies typically are trying to sell you something--irksome at times, perhaps, but not all that heinous an activity.)

I'm sure I'll get hate mail for writing this, but if Amazon.com decides to start selling information about its customers to the highest bidder, visitors can always turn to BarnesAndNoble.com or to other competitors. If Congress decides to restrict privacy-protecting encryption products--which Sen. Judd Gregg, R-N.H., suggested after Sept. 11, 2001--you'd have two options: Comply or go to prison.

If Yahoo wants to start claiming ownership of information stored on its Geocities member sites, its customers have a choice. They can, for instance, move their Web site to one of Yahoo's many rivals. That's exactly what happened a few years ago when Yahoo quietly changed its terms of service agreement, and then backed down after Geocities users began to flee. As economists like to say, competition keeps prices down and quality high. Consumers provide a check on corporate missteps.

Yes, companies can create technology, like Microsoft's Palladium, that bears close scrutiny. And there is often an uncomfortably close relationship between industry lobbyists and politicians, which leads to unwholesome outcomes like more extensive copyright laws.

Give me liberty...
One CFP panel was devoted to applauding European-style regulations of information collection without adequate discussion of their tremendous negative economic impact. It's no accident that the Internet has flourished the most in the United States, a country that has limited regulation when compared with European states and that has certainly nothing as invasive as the European Data Directive, which imposes strict limits on individual data collection and reuse.

Thanks in no small part to technology, culture is flourishing, not flagging.

This well-intentioned rule has led to unexpected side effects that have hurt activists, consumers, and the less powerful. Jacob Palme, a full professor at Stockholm University, has documented how Sweden's implementation of the directive has imperiled free speech. Swedish regulators prevented American Airlines from transferring customer information from Europe to its SABRE reservation system in the United States.

Regulators also prosecuted an activist who set up a Web page critical of a large bank and who named bank directors; and an animal-rights activist who published a list of fur producers. Concludes Palme: "Looking at the way the law is used, one can see that unpopular or controversial opinions are suppressed."

The closest thing CFPers have to an opinion leader is Larry Lessig, the law professor at Stanford University who gave a closing keynote address, which was punctuated with darkling warnings of impending cultural doom at the hands of media conglomerates. "We basically have a world where six companies control everything," Lessig warned. "This concentration destroys the opportunity for free culture to flourish."

Not only did Lessig's big-is-bad rhetoric go out of style back in the 1970s, but also, it's not even right. Compare the entertainment choices we have today with those of three decades ago, when it was mostly movie theaters, radio and three major TV networks. Now we have satellite TV, satellite radio, DVDs, CDs, video-on-demand, hundreds of cable channels, movie rentals and, of course, the Internet. Thanks in no small part to technology, culture is flourishing, not flagging.

Not only did Lessig's big-is-bad rhetoric go out of style back in the 1970s, but also, it's not even right.

The claim of "greatly diminished and less free culture so completely flies in the face of lived reality in 21st century America vs. 1970 America," says Reason magazine editor Nick Gillespie, who sparred with Lessig during a question-and-answer period. "In terms of television and movies, there's no question that people can watch more entertainment of a more broadly diverse, fascinating multilingual character than they could in 1970...I think that holds true in every other cultural form with few exceptions."

Gillespie does make a reasonable point. There's certainly room for criticizing media concentration and corporate intrusions into privacy--but remember not to lose perspective when doing it.