Lawyering in the Internet Society

-- By JuanPaoloFajardo? - 30 Dec 2015

After the first few weeks of attending class in Law and the Internet Society, I was initially cynical. I dismissed Professor Eben Moglen’s (“Prof. Moglen”) discussions on proprietary software and the hand it plays in the commodification, and ultimately the manipulation, of human behavior by a few profit-driven entities, as “first world” problems. I had doubts whether these ideas would gain any social traction in the Philippines, much less start a revolution, where the poverty line remains high and any opportunity to receive free access to the internet from these entities, regardless of their data-gathering motives, is freely embraced. However, my cynicism was nothing more than a misperception of the role the Free Software Movement plays in the greater context of what Prof. Moglen views as the ongoing practical revolution.

Drawing from his discussions on the Free Software Movement, I realized that Prof. Moglen’s idea of social change is clearly distinct from my own utopic view of the struggle for economic equality. On the one hand, I gauged the viability of any social revolution from the lens of a perfect world, an abstraction of an ideal scenario, the contours of which I have no concrete idea. Thus, when faced with the realities of poverty and economic inequality in the Philippines, I struggled to understand, much less accept, thoughts of social change which did not fit neatly within this amorphous paradigm.

On the other hand, Prof. Moglen’s revolution emanates from a recognition of two notions: a) that human equality and freedom of knowledge go hand and hand; and b) that the tools for intellectual liberation are presently available. For him, the revolution is already ongoing. Our generation’s present technology where human beings are connected as part of an “overall constellation of activities” allows for the propagation of knowledge at rates, volumes, and distances sufficient to nurture a return to a culture of self-realization and creativity independent of any form of social control. The struggle, however, is to protect this “unleashed creativity” from those who seek to contain it and coopt it for profit. The practical revolution sees as its outcome, human equality, not in the form of some envisioned future, but in the form of individual possibility and the acceptance of whatever social implications it may bring.

From these realizations, I became less cynical and more apologetic as a lawyer. For the five short years I’ve been practicing law, I’ve approached my profession with the unwavering belief that justice, equality and freedom are always inherently intertwined with the law so much so that a commitment to uphold one equates to a commitment to uphold the other. However, when you view these values based on noble aspirations without any concept of a realizable outcome, one tends to seek refuge under a concrete proxy, namely the practice of law, to fulfill the insatiable desire of reaching utopia, “nowhere”. This comes at the risk of false logic, i.e. what is legal, must be just and vice versa, of which I am utterly guilty.

By viewing justice, equality and freedom, not as lofty outcomes, but intellectual liberation attainable here and now, lawyers are presented with the opportunity of seeing the law not as an approximation of an ideal society, but rather a system of rules that can either stifle or uphold freedom of knowledge. Where the law functions to deprive individual possibility, one immediately discovers that what is deemed lawful can be unjust and vice versa. Under these conditions, lawyers become aware of a social movement greater and developing faster than the law can fathom. This awareness opens a stream of possibilities for a lawyer who now has more choices on how to approach the profession. I spent two years working for one of the largest telecommunications companies in the Philippines, as a dedicated counsel for its Information Systems Group. I drafted contracts and memoranda all responding to the same question: how can we protect our intellectual property rights over software developed by our employees. I also spent half a year justifying a merger before the National Telecommunications Commission combining the spectrum rights of two of the country’s largest telecommunications companies. Normally, I would consider these outcomes reasonable insofar as they are lawful. However, viewing these outcomes as products of a set of rules affecting a greater social movement, one that leads to intellectual freedom, I began to see that a) the law itself can be used by those in power to effect greater social control over intellectual liberation; and b) to the extent that this deprives individuals the opportunity to be all that they can be, the law can be unjust and itself an obstacle to human equality.

In our last few sessions, Prof. Moglen posed this question: what does it mean for the law to attempt and support freedom and autonomy in the circumstances we're currently living in. At the start of the semester, I would’ve vaguely answered that lawyers must have the “perseverance to spread the word and the inventiveness to make the necessary structural changes to the legal order”. Now, however, I agree with Prof. Moglen that “one takes forever and the other never happens at all”. We are at the singular moment in human history when we are technologically capable of achieving intellectual liberation. As lawyers, supporting freedom and autonomy in this lifetime, means knowing that the law is capable of intellectual injustice. Second, it also means understanding where the law works in promoting freedom of knowledge and where it fails. And third, it entails accepting that the law exists within a greater context of social change and therefore cannot be expected to develop as rapidly. Thus, we must explore extralegal alternatives to bridge this gap.

Does the Truth Matter?

-- By JuanPaoloFajardo? - 02 Nov 2015


“I know this steak doesn't exist. I know that when I put it in my mouth, the Matrix is telling my brain that it is juicy and delicious. After nine years, you know what I realize? Ignorance is bliss.” Cypher’s words reflect an alarmingly skeptical attitude towards the concept of truth even after discovering that his perceived world was a manufactured reality and that his freedom within it illusory. Ultimately, he was willing to ignore the truth in exchange for a virtual existence that was preprogrammed to meet his standard of an ideal life and his notion of acceptable freedom. And if anyone had again presented him with the choice to learn the glass-shattering truth, he would rather “…shove that red pill right up your ass”.

The allusion to Cypher’s character aptly describes the societal obstacle facing the free software movement and its objective of uncovering the truth behind the current state of human social interaction.

I have two problems with this approach. The first is that it is very wasteful: you have used 125 words on what is at best an "apt" metaphor that doesn't actually bring you to your own idea. It would be better to start the essay with the idea you have. If you need a metaphor to convey it, you can use one that's more economical, without digressing at the very outset from the line you want to help the reader's mind follow.

My second problem is that your imputed objective of the movement isn't accurate, so your analysis is unlikely to further understanding. This isn't a religious movement whose purpose it is to reveal a truth to humanity. It's an engineering activity, designed to create a zone of social possibility that politics and ethics can then occupy. The political theory of this approach, and its distinction from "utopian" political movements that suffer from the problems you describe, is the subject of Die Gedanken Sind Frei, delivered in Berlin in 2004.

To elaborate, the movement aims to expose the following truths: (a) human beings are connected as part of an “overall constellation of activities”, a “nervous system” of interconnected networks and computers; (b) this nervous system is currently driven by proprietary software controlled by a few and commodifies aspects of human behavior into commercially viable resources; and (c) to perpetuate this dynamic, proprietors deliberately design software that conceals from users how it works and what information it takes from them and predicts/controls their consumption. By unravelling these truths, the movement hopes to restore “freedom of the mind” and instill within society a genuine sense of choi ce. However, looking back at Cypher’s rejection of the “truth”, one wonders whether human beings, when faced with perception-changing reality, are always ready to trade the status quo with whatever realizations a free mind carries? Sometimes and to some people, ignorance can mean bliss.

At best, even if this were an accurate interpretation of the free software movement (rather than being a summary of ideas of mine, contextually relevant o but by no means coextensive with the objectives of the free software movement, which is one subject of this course), the only objection it supports is that people don't always act realistically. This is as close to tautology as a proposition can get. Either every social activity ever devised involving teaching falls to this objection, or none does.

So people don't always act according to what they learn? And?

Cost-Benefit Analysis

An individual’s willingness to accept the truth and embrace free will depends on the socio-economic cost of choice and how it affects one’s perception of personal well-being. Normally, a person engages in a cost-benefit analysis between two choices when they are incompatible and where one choice precludes the other. Decisions are ultimately made based on where personal benefit can best be maximized. However, how an individual values a choice is highly subjective and is rarely confined within precise standards. For example, between two functionally identical devices, one individual may give a higher value to form over function, while another may prioritize brand loyalty.

Choosing to accept the truth behind proprietary software means sacrificing its perceived benefits or internalizing the perceived costs of adopting nonproprietary software. The standards of choice could be endless. On the one hand, one consumer may value the data security and high levels of privacy offered by nonproprietary software over the intuitiveness and functionality of a proprietary software’s graphical user interface. On the other hand, a user may be willing to surrender undisclosed amounts of personal data in exchange for the latest Apple operating system. At the end of the day, even free will is beholden to the concept of utility maximization.

The Central Nervous System and Valuing the Truth

Given the utility-maximizing behavior of individuals, the problem lies in its susceptibility to influence in a social environment where human behavior is a commercially viable resource, the profitability of which requires continued human dependence on the false sense of choice such environment generates. Simply put, the central nervous system which connects human experience, also generates profit. As society moves from a production-based economy to one that is consumption-oriented, there is a greater need to predict/influence/control human consumption and any information that enhances such grasp over consumption in itself becomes a highly tradable commodity. To mine consumers of information concerning their lifestyle choices, dietary habits, health concerns, and automobile preferences, software proprietors create the perception that their product is indispensable and its utility outweighs any concerns over personal privacy. In this manner, they greatly influence an individual’s system of valuation so much so that the latter is willing to trade off free will to feed this dependence resulting in the undervaluation of the truth in one’s hierarchy of values. In this case, the consumer is not only blind to the underlying functions of proprietary software, he is also indifferent to its existence so long as his dependence is satiated.

In the Philippines, for example, where the poverty line remains high and access to the central “nervous system” remains low, the average citizen would consider exposure to privacy concerns and data mining issues a “First World” concern in the face of grossly limited internet access. Filipinos would welcome zero-rated partnerships between mobile service providers and app developers and freely surrender personal data if it meant receiving free access to the internet. Business Intelligence units in major Philippine telecommunications and banking companies are robust given the amount of data they can freely obtain from the public which undervalues privacy.

Doubtless. As I have pointed out in class, this issue---which has little or nothing to do with the free software movement specifically---is ecological rather than transactional. It is, once again, tautological to say that people suffering a subsistence crisis are indifferent to ecological concerns: subsistence crisis is defined as the overwhelming threat to short term survival that nullifies the priority of all long-term concerns. The issue is not whether people without resources to choose would accept something ecologically and morally unacceptable; as we said in India on the same subject, this is no more to say than that slavery is better than starvation in the eyes of many starving people.

But preventing ongoing environmental devastation requires measures that are nothing like "the perseverance to spread the word and the inventiveness to make the necessary structural changes to the legal order." The one takes forever and the other never happens at all. My whole point in this class has been to explain at least one alternative approach that has the advantage of actually working. One component of that approach is the thing called the free software movement, which I have tried to place in the larger perspective of a meaningful technical, legal, and political approach. My ideas may very well be wrong. But you should at least consider them.


The consumer’s cycle of dependence upon proprietary software is a major obstacle to the free software movement in that it renders the truth, to a certain degree, seemingly meaningless. Although there are a good number of advocates of transparency in proprietary software design, the prevalence of the problem makes one wonder whether the critical mass necessary for a genuine social revolution can be achieved. The glass-shattering truth has already been shared and yet many individuals choose to remain connected to the Matrix, like Cypher.

Nevertheless, one should never loss hope. As future lawyers, we possess the distinct opportunity to help change the social/legal arrangements that keep the true nature of proprietary software hidden from the public. The solution requires the perseverance to spread the word and the inventiveness to make the necessary structural changes to the legal order. In time, someone else will be ready to take the blue pill.

I don't think this conclusion follows from the argument advanced, for the reasons I stated above. I don't think the argument advanced rests on an accurate portrayal of the position it is discussing, for the reasons stated further above. But I think it's a good place to start, and if we can clarify further the relationship of your idea to the ones with which it interacts, I think what you are trying to say will become much more clear.

Lizzie: Juan, for what it is worth, I'm happy to talk further with you about this here or elsewhere. I do think this has somewhere to go (ie, I wouldn't junk it!). I think you raise a very serious issue worthy of consideration - if I have it correctly: why do people act against their own interests in relation to how they interact with the internet? Undeniably, free software is cheaper and it is safer and more transparent for the user. But people seem to like convenience, and choose that instead. And they pay a price for it. But more troubling than this, in the example you raise in the Philippines, under our current system, the choice may be no such thing at all. Proprietary interests in the internet 'bargain' with people by offering them subsistence in exchange for co-optation into their system.

Basically, the privatised internet is expensive, dangerous and mean. Doesn't seem worth it for convenience but how do we convince people of this?

The problem as I see it with your piece at this point is that you attribute the objective of convincing/understanding/remedying this to the free software movement. I think the free software movement facilitates people asking this question, and it is essential to any answer, but I don't think its objective it to ask the question itself.

I think it's reasonable to just ask the question in the name of humanity (indeed, it's essential). Couldn't you re-draft it as a general question facing us all, rather than the free software movement?

So don't give up, I say, just have another go.

John: Thank you so much Prof. Moglen and Lizzie for the inputs. I'll give it another go, but I'm considering changing my approach. I hope my next attempt will make more sense.

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