Course:Legal Constraints on Digital Creativity/Course Notes/12. Ethics
DIGITAL ETHICS – A Modest Redefinition
WHY ETHICS NOT LAW?
- In spaces of fundamental change, there is a need to go deeper then pouring new wine into old bottles. Ethics determines justice; that is why law (rightly) is always playing catch up.
- It’s the ethics (ethos) that changes & evolves first. It is the law that rudders stability. There is always a dialogue between the two, and the law inevitably changes sooner or later. Put another way, Ethics is more fundamental then law.
RATIONALES FOR CENSORSHIP & CONSTRAINT
- “We have met the enemy and he is us”.
- See:@techdirt: Judge Alex Kozinski Fears That People Share Too Much Info Online; But Does That Mean We Give Up All Privacy Rights? http://t.co/Q8fKAQSd
- This is a variation on what might be called the “Mrs. Smith theme”. Very common to the newsrooms I have worked with is the following phenomenon. Controversial story. Followed by phone-messages to the station switchboards that essentially say versions of: “I saw your completely inaccurate utterly biased report on [Insert name of radio or television station] tonight. I recognized it for the maliciously intended, lazy, superficial and completely wrong-headed propaganda for deeply seated evil it in fact was. However my concern is not myself. It is Mrs. Smith down the street who is too stupid/too innocent/too (something else) to see what is obvious and will actually believe your lies who I am concerned about”
- Protecting Societal Integrity: @techdirt: Kuwait Says Social Networks Must Be Regulated To ‘Safeguard The Cohesiveness Of Society’ http://t.co/9YuEoUgX
- Industry/Economy Will be Affected: @THREsq: “TV Broadcasters Warn of Huge Industry Shakeup If Barry Diller’s Aereo Isn’t Stopped”
- Cultural Nationalism:
- For example: “This country must be assured of complete Canadian control of broadcasting from Canadian sources, free from foreign interference or influence. Without such control radio broadcasting can never become a great agency for the communications of matters of national concern and for the diffusion of national thought and ideals, and without such control it can never be the agency by which national consciousness may be fostered and sustained and national unity still further strengthened.”
- Canadian Prime Minister R.B Bennett – 1932 – introducing the legislation that created public broadcasting.
- A personal story: Upon returning to private practice at a large firm after my first sojourns in the business world, I decided to give a weekly mini-course on media law in the early mornings for any of my colleagues might be interested. One of the classes was on the regulatory regime in Canada and I cited the above quote. A young colleague of mine who was of Teutonic extraction became visibly shaken on my reading the quote allowed. I asked her what was wrong and she asked me what date quote was from. I replied “1932” and immediately knew what the problem was. Then aloud she made the point that the language of the quote was plainly recognizable as National Socialism (Nazi) doctrine, which of course at that time had influences and currency well beyond European borders.
A LOGICAL ARGUMENT?
If IP protection diminishes free expression…
Then IP openness promotes free speech.
If free expression is more important to society then IP protections…
Then free speech must be prioritized IP conflict when there is a conflict.
If digital media and current technology have manifested an irreconcilable conflict by dramatically lowering the threshold point where IP protection is triggered…
Then free expression must be prioritized as an expressly superior right.
Conclusion: Free expression is naturally superior to and of greater importance then intellectual property rights.
WHAT ARE THE ETHICAL PRINCIPLES THAT FLOW FROM THE FUNDAMENTAL SHIFT FROM DOCUMENTS TO DATA?
- First what doesn’t change: Creation/creativity is the “elementary” particle:
- Taxonomy: Connection (presence/ built-in connection to the universe), Creativity, Communication – in that order.
- It is interesting that there are no metaphors for creation. There are only metaphors of creation. So creativity is an absolutely core human characteristic. Problem: Does spirituality cause creativity or do we create spirituality?
- Why is creativity the core personal force? Because it both desires and originates from connection. It is the intersection of creativity & communication that manifests meaning.
- Creativity is more core then communication. Therefore content trumps carriage.
- Creativity + Communication = (sense of) Completeness.
- Now what does change: Digital content is language.
- McLuhan “When any new form comes into the foreground of things, we naturally look at it through the old stereos. We can’t help that. This is normal, and we’re still trying to see how will our previous forms of political and educational patterns persist under television. We’re just trying to fit the old things into the new form, instead of asking what is the new form going to do to all the assumptions we had before.”
- Idea at beginning of my law courses was to articulate the question of why 12 (or so) different screens which had 12 different input sources but which all showed the exact same movie at the exact same time had different laws and regulations to one another. In 2012 that example shifted dramatically. Instead we moved from 12 screens to 1 screen, but with 12 different inputs. That said I realize now with the benefit of hindsight that the fundamental shift is not from many to one, but from receiver to creator. The shift is in fact not in the form at all, but in the very fundamentals of content becoming a new language. The old form assumed content was created and delivered – it did not assume it would be the language of further creation. E.g. Twitter.
- Everything received is then transformed and “created” – even if discarded.
- Information is good, more information is better.
- Marketplace of Ideas – Milton.
- More information also corrects & contextualizes information.
- Picture of young girls crying in memory of Kim Jong Il – Why? Not enough information.
- All the Syrian Internet censorship steps. Point is the info is now out and there is a butterfly effect…
- Kony example
- Statistical analysis of Weibo/China censorship by Carnegie Mellon research team bit.ly/zKUcc9
- @medialab: RT @catherinecronin: #MLTalks @hrheingold on online data persistence: “You can’t remove bad stuff, you can only dilute it with good stuff.”
- Original Message:
- http://twitter.com/medialab/status/200677316861509633
- “Google shifts policy toward state-sponsored intrusion”
- By Cale Guthrie Weissman | June 8th, 2012 |
- “Google has announced, via their security blog, that they will now alert Gmail users if the company believes that a state-sanctioned cyber attack is being directed against them. Google explains that they believe it is their duty “to be proactive in notifying users about attacks or potential attacks so that they can take action to protect their information.” When suspicious activity arises, Google will notify users with a pink band at the top of the Gmail window that states: “We believe state-sponsored attackers may be attempting to compromise your account or computer. Protect yourself now.”
- http://blogs.law.harvard.edu/herdict/2012/06/08/google-shifts-policy-toward-state-sponsored-intrusion/
- “Transparency is the new objectivity“: @dweinberger said this back at #PdF09 #truthicon
- Trajectory of journalistic ethos/regulation/ethic: “Balance”(“Fairness Doctrine” U.S. FCC – resulting in “news from nowhere”), to “Objectivity” (not psychologically or sociologically defensible as even remotely realistic, even if potentially attainable through moral philosophy), to “Truth” (see NPR recent Code), to “Transparency” (Way of the future? Consistent with data model, not document model).
- Evolving past notions of mere objectivity & artificial balance? – “Why newspapers need to lose the ‘view from nowhere’” | Tech News and Analysis
- “Don’t think of it as content, think of it as information” – John Borthwick of Betaworks | paidContent – meaning the age of con-tent/contained entertainment is over. As data trumps documents, so too does information supersede what we currently think of as content. Information is uncontained and controlled by the user. Content is controlled and contained by the “rightsholder.”
- Borthwick said: “The language drives the way you think about things, and since we’re dealing with a new media landscape, we need to redefine some of the words. For me, the moment you start thinking about it as information, you start to think less about the package and more about the users.”
- Don’t punish the tools.
- “Guns don’t kill people, people kill people”. Don’t prohibit technology. Betamax case (Sony v. Paramount) etc. See “Kaleidescape Sued: Movie Industry Uses DMCA to Veto New Technology” ow.ly/9IIaB
- See also “Watch Out, White Hats! European Union Moves to Criminalize ‘Hacking Tools”
- Moreover, if indeed “The Medium is the Message” (Marshall McLuhan) then freedom of expression/speech must apply to the medium as it is properly understood as well, as an extension of our creative capacities. There is little doubt that over the course of history creative content has almost naturally and inevitably subsumed its delivery mechanisms and rendered them part of the expression conveyed. That is no less true, likely even more true when we look at digital technologies.
- {For confirmation that this is indeed the correct understanding of the phrase, see “What is the Meaning of The Medium is the Message?” by Mark Federman,
Chief Strategist McLuhan Program in Culture and Technology where he says:
- “Of all the Internet searches that end up at the McLuhan Program website and weblog, the search for the meaning of the famous “McLuhan Equation” is the most frequent. Many people presume the conventional meaning for “medium” that refers to the mass-media of communications – radio, television, the press, the Internet. And most apply our conventional understanding of “message” as content or information. Putting the two together allows people to jump to the mistaken conclusion that, somehow, the channel supersedes the content in importance, or that McLuhan was saying that the information content should be ignored as inconsequential. Often people will triumphantly hail that the medium is “no longer the message,” or flip it around to proclaim that the “message is the medium,” or some other such nonsense. McLuhan meant what he said; unfortunately, his meaning is not at all obvious, and that is where we begin our journey to understanding…….Thus we have the meaning of “the medium is the message:” We can know the nature and characteristics of anything we conceive or create (medium) by virtue of the changes – often unnoticed and non-obvious changes – that they effect (message.) McLuhan warns us that we are often distracted by the content of a medium (which, in almost all cases, is another distinct medium in itself.) He writes, “it is only too typical that the “content” of any medium blinds us to the character of the medium.” (McLuhan 9) And it is the character of the medium that is its potency or effect – its message. In other words, “This is merely to say that the personal and social consequences of any medium – that is, of any extension of ourselves – result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology.” “
- http://individual.utoronto.ca/markfederman/article_mediumisthemessage.htm }
- @suffolkmedialaw: RT @SPLC: NYC Latest to Ban Teachers from Messaging Students Thru Social Media: Blaming the Technology? | NY Times http://t.co/FaAguoyq
- Copyright is unnatural.
- Copyright is not property. Semantics of “intellectual property” have created a distortion of true nature.
- Copyright makes sense for documents, not for data. In the digital world of 1′s & 0′s everything MUST be copied by nature.
- Copyright protections are not expressive freedoms (when looked at clearly and simply, without political/semantic cuteness).
- Free Speech trumps anti-piracy.
- Key principle that is defensible | White House IP czar: anti-piracy laws should not block free speech: arst.ch/t5d by @MatthewLasar
- It’s all “fan fiction”.
- Empower & Expand the Legal Freedom of Ideas/Define the Legal Protections of Expression.
- The “4 i’s”:
- Inspiration – connect
- Idea – create
- Incarnation – fixation
- Interactivity – relate/contextualize
- By not having IP in an “idea”, we get it mostly right. Today when ideas are so easily expressed as a result of digital technology, we need to rebalance in favor of the creative by raising the threshold at which intellectual property protection and restrictions on creative expression activate.
- Which is to say that we must analyze and understand the legal Idea/Expression dichotomy in terms of the impact of digital tools and evolving idioms of creative expression.
- The “4 i’s”:
- Instead of copyright: the “Creatoright”.
- Moral rights, credit requirements and notice provisions is all copyright needs be, even where artists commercially exploit. Personal to the creator. Also encompasses the expressive rights to create (including the “Right to Mod”).
- “A right to not have your data rise up and attack you.”
- Not “privacy” or “the right to be forgotten”.
- Digital profiling is the equivalent of (and significantly more that) subliminal advertising.
- Internet privacy is an oxymoron: “In this world, [Internet privacy] is an oxymoron. But, if we could build an identity layer into the Internet, we could actually recreate the idea of Internet privacy, so there would be both more privacy and more security. The problem is the extremists in this debate, both the privacy extremists and the government security people, aren’t even willing to even engage to have the conversation necessary to give us both.” – Lawrence Lessig http://mashable.com/2012/05/21/lessig-internet-privacy/
- The Internet needs to be Neutral.
- Net Neutrality and Economic Equality Are Intertwined – NYTimes.com
- Netherlands: First country in Europe with net neutrality – Global Voices Advocacy
- http://advocacy.globalvoicesonline.org/2012/05/09/netherlands-net-neutrality/
- @arstechnica: Netherlands becomes world’s second “net neutrality” country. http://t.co/WRVBQs5n by @iljitsch (Chile was the first).
- Because of the specter of ISP censorship- accidental or otherwise: @Techmeme: “The Rise of Europe’s Private Internet Police” (@rmack / Foreign Policy) http://t.co/3K3L4bpd http://t.co/EzcToyAL
- Also see “How mobile networks are policing the web — badly” | European technology news
- @Techmeme: “FCC wants to know if Verizon is warehousing spectrum” (@kfitchard / GigaOM) http://t.co/R3V1nFDC http://t.co/RgXgb
- “The Netherlands Passes Net Neutrality Legislation | Electronic Frontier Foundation” – First European country to do so.
- @Techmeme: “Next steps on Net Neutrality – making sure you get champagne service if that’s what you’re paying for” – Blog entry by Neelie Kroes, Vice-Chair European Cpmmission
E. FITTING CLASSICAL PHILOSOPHY INTO DIGITAL ETHICS
The following inquiry attempts to take the measure of various classical ethical philosophical approaches in the context the realities of the digital age. This is done most diffidently because of my own distinct lack of training in the discipline of philosophy. Worse still is the seeming arrogance of even asking which philosopher’s approach fits best with the particular problems and nuances of digital ethics. A defense may be found in the limited purpose at stake. It is merely to try and figure out which philosophical positions are of assistance in addressing the ethical problems the digital revolution has brought, accelerated and created. Accordingly the following sections will look at the views of various philosophers and focus on helpful and fitting perspectives.
1. Derek Parfit
Parfit deals with reasons, rationality, and norms. He believes strongly that ethics are not and should not be understood to be purely subjective, notwithstanding whether that subjectivity may be grounded in individual choice, culture or society. He hopes and believes with great conviction that we are capable of agreeing that there are in fact right answers to moral questions. Accordingly Parfit defends objectivism in ethics. He reviews Bentham’s utilitarianism, Kantian ethics, and the social-contract tradition (Hobbes, Locke, Rawls, Rousseau, Scanlon). In the end Parfit attempts to mediate between utilitarianism, Kantian Ethics, and the social-contract tradition, elucidating his own version of consequentialism (a type of utilitarianism). Ultimately, he sees reconciliation among the various schools stating that they are “climbing the same mountain on different sides.”
In On What Matters, Parfit strongly defends the perspective that rational interpretation of objective facts can favor particular actions, and exist irrespective of our personal needs and wishes. He fusses endlessly on the relationship between rationality and reasons. “We are the animals that can both understand and respond to reasons,” Parfit says right up front in On What Matters. Contrast this with the subjectivist views that Parfit seems to find so appallingly lazy and shallow. Parfit is merciless in criticizing the sundry skeptical moralities that endure.
Though his philosophical antecedents are Kant and Sidgwick and despite being an unrepentant rationalist, ultimately Parfit manifests as positively warm and glowing, feeling that we humans can make progress on the morality front. In the end Parfit finds that personal identity is hardly is what matters – a particularly Buddhist perspective on ourselves. This view in its own way seems to help propel his corollary belief that there must be such a thing as objective moral truth. Perhaps this is simply the psychology of it. Those who believe in an objectively existing and everlasting self have a natural and necessary subjectivism complimenting their beliefs. Those who see identity as ephemeral need the grounding of objective truth.
Parfit at one point wonders whether given the choice of surviving without psychological continuity and connectedness, or dying but preserving continuity and connectedness through the future existence of someone else, which would people choose? His own answer (in Reasons and Persons, 1983) becomes obvious in the following: “My life seemed like a glass tunnel, through which I was moving faster every year, and at the end of which there was darkness… When I changed my view, the walls of my glass tunnel disappeared. I now live in the open air. There is still a difference between my life and the lives of other people. But the difference is less. Other people are closer. I am less concerned about the rest of my own life, and more concerned about the lives of others.”
Applying Parfit’s perspective to the digital world, there are several points of resonance. First, to start with the quote immediately above, the Internet itself metaphorically appears as a glass tunnel without walls that interconnects lives and brings its own continuity through space and time. Second, the notion of non-subjective ethics may, at least at this stage, appear most appealing when mediating digital ethics across the broad spectrum of vastly different cultures, norms and values permeating the net and all digital content. Whether there is in fact an objective digital ethical truth may at this stage of development be less important than the search for one. A search in good faith across multiple boundaries could well be the only way to reconcile human endeavor across the vastness of this new form. Perhaps hopelessly optimistic, what choice do we really have except to try. Whatever is discovered will surely bring us one step closer to making each other better and the world an improved place, then simply staying moored in our subjective bays. In this way, Parfit’s ethos seems to perfectly match the challenges we face in reconciling the facts of digital creativity and communication with the meaning of ethics.
2. John Rawls
In “A Theory of Justice” (1971) the legal philosopher John Rawls addresses the issue of just distribution of goods in society. Using a form of the concept of the social contract, Rawls’ theorizes “Justice as Fairness” and makes inequality the prime enemy of the concept of Justice. Simply, he considers what is “right” to be superior to what is “good”, thus rejecting utilitarianism. In doing so, Rawls articulates his two principles of Justice:
- Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
- Social and economic inequalities are to be arranged so that they are of the greatest benefit to the least-advantaged in society, with offices and positions open to all under conditions of fair equality of opportunity.
Rawls also created a theoretical test where everyone in society decides principles of justice shrouded behind a “veil of ignorance.” This serves to blind citizens to facts that might impact their notion of justice: “No one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance.” In the end Rawls subscribes to the social contract school of thought. His variation is that a theoretical veil of impartiality leads to principles fair to all.
Similarly, the Internet itself appears as though shrouded behind a veil. Perhaps not a veil of ignorance but rather a veil of incompleteness – a series of digital, geographic, demographic and psychographic avatars which manifest as barriers to accurate identification and recognition. From this perspective, we may see the positive implications of Rawls assumption that making choices without seeing who we are making choices about (including ourselves) can, at least in theory, result in greater fairness, equality and justice. Indeed it appears that in this age those governments who assert concepts of the “public good” in the attempt to apply top- doctrines of supervision regulation and law to digital communications of the half-shrouded citizens of the net increasingly appear out of touch and even repressive.