John Palfrey

One of the great treats of co-teaching with David Weinberger is getting to be a student on the days that he leads discussion. Today, we’re taking up blogging, something he knows a thing or two about. You can also follow along with the class notes on The Web Difference class blog. A few of the issues that drew heat, and a bit of light:

- The early discussion has circled around the issue of whether news is tending toward the gossipy, whether on HuffPo or WaPo. The class members disagreed as to whether or not this trend is OK.

- David says that the HuffPo has two things that the printed version of the WaPo doesn’t have: 1) links and 2) people talking back, right there on the “paper,” in real-time. (I wonder whether the difference is so important on the second score, given that a) many papers have letters to the editor and op-eds, b) increasingly, most papers have web sites where one can post comments, and c) maybe some people prefer to have editors choose the letters to run rather than having to wade through 742 comments on the latest HuffPo story.) I agree with the follow-up insight that the difference is that people who read HuffPo and submit comments regularly feel more as though they are in a social setting, in a social network, while those who submit letters to the editors have this feeling less acutely, if at all.

- I’ve been looking forward to see if the students have any reactions to the Boston Globe’s article, by Irene Sege, on Saturday about girls and why they blog. One of the issues we took up earlier in the course, very briefly, is whether there’s a gender difference in terms of how people use the web.

Also: Some excellent students in the class have also created a meta-blog — a blog on blogging — for this class, yet another way to follow along.  The class bloggers pointed to a helpful video reference for those interested in the most basic question: “what is a weblog?“  One might also consider Dave Winer’s classic, “what makes a weblog a weblog?“

Brad Turcotte, known on the web as BradSucks, came to our Web Difference class today. The topic for class is his model for making, sharing, and getting paid for his music. He seems to do everything BUT the traditional label approach. He gives it away directly, with a tip jar; he’s big on Magnatune; you can find him on CDBaby, Amazon, iTunes, and so forth. He does some performing, but he tells us prefers to stay home and work on his computer. His view is that copyright is an obstacle, not an enabler, to making his music and his living.

The coolest thing he said: William Gibson blogged about how the tonality of his character Milgrim, in the totally wonderful new book Spook Country, is inspired by Brad’s music.

He performed last night in a lecture hall (not good sound; sorry, Brad!). Tonight he’s at the Middle East in Central Square, probably around 11:15 p.m. Amazing guy and great music; you should see him.

I’ve got the great pleasure of co-teaching with David Weinberger this semester. It’s his triumphant return to the classroom after a few decades of taking time off from formal university teaching. The core inquiry of the course is to explore whether or not the web is in fact “different” from that which came before. Then, for the lawyers among us, we’re asking what difference those differences make in terms of law and policy. The conceit, and the syllabus, are brand-new, at least for us. It’s already fun, two days in.

EZ’s blog is always worth reading, but I found today’s post about the SDP particularly touching and revealing. He writes:

“I will admit, I still find something a bit disorienting about trying to advise PhD students. It’s become increasingly clear to me that I won’t be able to convince myself to return to school and complete a degree any more advanced than my BA. I find myself wondering, as I sit down to offer suggestions to soon-to-be-doctorate-holders whether I should preface my comments with, ‘You probably shouldn’t listen to a word that I’m saying, as I’ve never attempted to get research past an advisory committee, never structured a dissertation, and have almost no academic publications to my name.’ I’m perpetually thankful that Berkman creates an academic environment where these issues almost never surface, but there’s nothing like a building filled with smart, young doctoral students to make one wonder about one’s own academic path not taken.”

SDPers, read EZ’s blog, but don’t be fooled by this paragraph. I can’t think of a more misleading preface to a group of (clearly wonderful) mid-stream graduate students in Internet-related studies; I trust he didn’t do it. If anything, I think we should all pay particular attention to EZ in the academic environment. His work, to me, is proof-positive that there’s little or no correlation between the number of years spent in graduate school and the quality of academic insight, at least in our field. It’s not to say that a doctorate of whatever flavor isn’t worth doing; it is, in many many cases. But EZ’s career is one to examine, and his path taken one to consider, if you have that kind of talent.

(I just wait with bated breath for that book you’re writing, Ethan.)

In preparation for the final class of the semester in Internet, Law and Politics 2007 at Harvard Law School, I am posting a draft of the core themes of the course to the class wiki. Comments, as always, most welcome.

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Internet Law and Politics, 2007: Themes of the Course

- The puzzle of this course is to figure out how information and communications technologies — including but not limited to Internet per se — are changing the way that democracies work, the way campaigns are run, and the manner in which citizens communicate with one another and interact with their states. What are the most important of the changes that the use of these technologies is bringing about? Do we consider these changes to be desirable or undesirable? If you accept the premise that the use of these technologies does matter in this context, what could be done to ensure that we maximize the desirable and mitigate the undesirable? Are the changes most fundamental from the viewpoint of participatory democracy; economic democracy; semiotic democracy; or some other viewpoint altogether?

- We should acknowledge at the outset that we’re inquiring into issues that are still playing themselves out; the terrain is unsettled. The scholarly field studying these topics is still emerging. Empirical evidence is awfully hard to come by. The fault lines in the relevant debates are becoming clear, but there’s no consensus as to likely outcome or impact. Our frame of reference should be skeptical, if hopeful.

- As with any neutral technology, Internet and other digital communications tools fundamentally can be used for good or for ill. It’s not about the technologies themselves; it’s about how people choose to use the technologies. A lot turns on who is making the decisions about how they can be used. Does the citizen decide, or does the state or the technology company or the market or her peers decide for her?

- As we study and participate in this breaking story, we need to keep asking: can people really use Internet in a way that affects democracies in a *meaningful* way, or is it just cool and edgy and marginal? We saw this debate in each segment of the course: in the participatory democracy context, if Howard Dean’s campaign is the paradigmatic “success” of online campaigning, but he didn’t make it past the first few primaries, how meaningful can it really be (isn’t it all about raising money, whether or not online, to run persuasive 30 second TV spots, really)? Does e-government really change anything, other than how efficiently you can get your driver’s license renewed? If every city provided lower-cost wifi, would we really be any better off in terms of civic engagement or bridging the digital divide or other social aims? Are enough people making mash-ups that it represents a shift in control over our cultures (and is it just elites in wealthy countries who have wifi and lovely Macs with too much time on their hands talking to one another)? Is von Hippel wrong that user-centric innovation is a big deal and here to stay, or does that only work when the example is kite-surfing or other fringe (also elite) activities?

- Sometimes the changes wrought by citizens’ use of these new technologies is troubling. For instance, Cass Sunstein’s Daily Me argument represents a worry worth monitoring. clay Shirky’s power law argument draws our attention to the extent to which we are recreating traditional power relationships from the offline world in the new ordering of the online world. Some scholars argue that this framing of the debate is totally missing the point (Dean, Lovink, Anderson, Rossiter, et al.).

- The fundamental, and most promising, change is about how people can use these tools to change the relationship between individuals and institutions.

- An individual can have more autonomy via Internet and related digital tools than ever before. This change has the power to change politics. It has already changed business in a democratizing fashion (see e.g., eBay; the open source movement; and perhaps more fundamentally, von Hippel & Benkler).

- Often the way this change is manifested is via quickly and easily formed groups. Lightweight collaboration is a critical part of what’s different here. We can become members of many different groups quickly and easily and can leverage our collective power more easily than before, with vastly lower transaction costs involved. (Facebook groups are a good example of this dynamic — almost instantly, groups can express and harness broad opinion; but shouldn’t we meanwhile worry about the “Herdict,” as Jonathan Zittrain does in his forthcoming book, “The Future of the Internet — and How to Stop It”? Are the crowds really so very wise? Can you get recourse if harmed by the crowd?)

- The ability for individual citizens and activists to tell the narrative of political events directly — whether using blogs, wikis, or SMS text messages blasted to zillions of cell phones — is a big part of the change. Intermediaries, whether the state or big corporations, still have a role and can still dominate the discourse if they try hard enough, but individuals, and groups of individuals that form around ideas or campaigns, are fast gaining influence and power. This change might map to a new kind of “semiotic democracy,” or might be seen in more classic terms as part of the participatory democracy story.

- States that do not wish for the individual to have more autonomy, or more power relative to the institution of the state, have ways to push back. Censorship and surveillance, including using private intermediaries, are the surest signs of this push-back. (See the work of the ONI, RSF, HRW, and others for elaboration.) Often, the state needs to rely upon private parties to carry out this push-back. Those private parties might well be based in another part of the world, bringing up complicated questions of international law and politics.

- Private parties sometimes do not like these changes either. Intellectual property, defamation law, computer security provisions are invoked to protect the power of private institutions.

- It may not be the case that we want the power to shift wholly away from institutions to individuals. We may seek a balance between autonomy of the individual and the power of institutions. The state and private corporations, for instance, serve important functions in modern society. Most of us would not choose to bring them down. But in the shifting sands of power that are taking place on the Internet, we should be aware that our decisions involve resetting this power balance.

- How much difference can the law make in the outcome of this narrative? If you adopt Lessig’s view of what counts as “law,” the answer is quite a bit. If you limit the frame to “East Coast Code,” (i.e., what legislators pass or regulators enforce), the answer is sometimes a lot and sometimes not much. In certain contexts, the law doesn’t have all that much impact; in others, the law is quite important.

- How and when is this all going down? This story is playing out right now, all around us, on a global basis. There will be no single constitutional moment for cyberspace. These are decisions being made constantly, all the time, by very many actors — including each of us. In the readings by Goldsmith and Wu, as well as the final chapter of Benkler, these institutional battles are described differently, but with the same core premise: there’s a quiet battle going on right now, between institutional players as well as individuals, for who will control the Internet and how it is used now and in future.

- There are many ways to get it wrong: too much autonomy for too many individuals or loosely formed groups could result in tyranny of a majority or chaos; too much power retained in the hands of institutions could thwart the innovation and other positive changes afoot online. If we can figure out how to get it right, the net effect could be a very good thing for democracies.

- So, where do you come down? For me, in a grand sense, the potential benefits in terms of strengthening democracies outweigh the potential harms. The clearest example of this promise, to me, is Global Voices. People can use the Internet to empower themselves and others, and to empower loosely organized groups, to have greater voice — and, in turn, relative impact — in political and cultural contexts than ever before. In the cyberlaw literature, the arguments for why this matters are set out most explicitly in Benkler, Wealth of Networks; Lessig, Free Culture; and in the work of Jack Balkin and Terry Fisher (broadly, the literature of semiotic democracy and the Net).

The executive director of The Center for Computer-Assisted Legal Instruction (CALI), John Mayer, is a totally wonderful guy. He’s funny and smart and cares about cool technologies and access to justice — all good things. That’s especially good news for us, since he’s giving the Berkman Center luncheon series talk today. If you’re familiar with CALI, you know what an amazing resource he and his colleagues have created for law students and those who teach them. If you’re not, it’s well worth a look.

In their own words: “CALI is a U.S. 501(c)(3) non-profit consortium of law schools that researches and develops computer-mediated legal instruction and supports institutions and individuals using technology and distance learning in legal education. CALI was incorporated in 1982 and welcomes membership from law schools, paralegal programs, law firms and individuals wishing to learn more about the law.”

One of the things they are up to is eLangdell. The idea is to make the legal casebook of the future. Rather than buying a $120 casebook that comes out every four years on Evidence, say, eLangdell will let all of us collect the cases that we teach in our respective courses and rip-mix-burn our syllabi and teaching materials. His vision: these casebooks could serve a law professor and her students at a fraction of the cost of traditional casebooks and fund ongoing development of the system and the course-materials. The parallels to H20 Playlists is obvious. (One thing I wonder: why hasn’t someone set up a wiki server that lets people create syllabi for courses we teach in every high school in America?)

Not everything they do at CALI is about legal education in the strict sense. One of the ideas that he’s talking about is legal aid case management systems, an important concept for the provision of legal services to the poor.

I think some of the most interesting things he’s talking about has to do with taxonomies. Fortunately, The Man on taxonomies, David Weinberger, is right here next to me, tap-tapping away on his little ThinkPad — hopefully, for the rest of us, he is blogging away. Look to him for insights on this score, as always.

In response to questions, John says he’s very big on “legal literacy.” He points to a CALI service called Learn the Law that lets anyone get access to CALI lessons if they want to learn more on a given topic of law. He notes that in some areas, like intellectual property, we all need to know something about the law, whether we’re lawyers or not.

I’m with a group of 20 wonderful educators talking about technology in the classroom at a NYSAIS workshop. It’s taking place at The School at Columbia University, a totally beautiful, wired school built three years ago. We’re looking now at the debates on a wiki format right now.

We’re talking also about what tags are. (David Weinberger has a book coming out in May, Everything is Miscellaneous, that will answer it for you!)

Students in the HLS course Internet, Law and Politics are staging a debate today. The two sides of the argument are posted to the course wiki. The overall debate page is here, including today’s resolution: “Resolved: The Internet enables citizens to have a greater voice in politics and is, on balance, already a tremendous force for strengthening participatory democracies around the world.” The affirmative argument is here; the negative argument is here. The required reading this week was to follow the news from a single region of the world on Global Voices. We’re blessed to have Ethan Zuckerman sitting in for the class as a special guest, as well.

My notes from class are here.

Today, in Internet, Law, and Politics at Harvard Law School, we’re taking up some counter-arguments to the strong form of the argument that Internet can transform politics. I’m building a short outline of some of the key concerns, here, as I prepare for class. It occurs to me to point out that there’s a wonderful and challenging book out, called Reformatting Politics, that Routledge published in 2006, which has a number of essays that prompt hard thought, two of which are assigned for today (my chapter, much later in the book, is plainly the last of the reasons to read the book!).  I am such a total fan of Yochai Benkler’s The Wealth of Networks as the key text in this field, on which I rely very heavily in my own thinking and teaching; and/but I am indebted to Jon Anderson, Jodi Dean, and Geert Lovink, the editors of Reformatting Politics, for presenting a number of counter-points to the Benkler line of reasoning.