Thursday, March 15, 2012

The Past As Prologue

I've devoted a fair amount of blog real estate this week to the PayPal censorship issue, even though it does not directly target my work. I have never written about incest or bestiality, two of the three topics banned by PayPal, and have seldom included the subject of rape in my oeuvre. But any attempt to limit free expression concerns me, because once it is established, the boundaries can change. Today, the forbidden topics may be bestiality, incest, and rape. Tomorrow, they may add contraception and abortion. In a decade, the list may be several pages long.

As an author, I cannot wait until the censors come for my work. Martin Niemöller, a Protestant pastor and social activist, explained why it was necessary to speak out against those who threaten freedom: “In Germany, first they came for the communists, and I did not speak out, because I was not a communist. Then they came for the socialists, and I did not speak out, because I was not a socialist. Then they came for the trade unionists, and I did not speak out, because I was not a trade unionist. Then they came for the Jews, and I did not speak out, because I was not a Jew. Then they came for me — and by that time no one was left to speak out.

Freedom is a word encompassing many rights, the most important being freedom of expression – the right to speak or write one’s thoughts. Freedom of expression can be repressed by those in a position of power. Sometimes that power comes from government and other times it comes from market dominance, an unequal playing field where one entity or a handful of parties call the shots.

This is not new. In the 19th century, we saw the rise of industrialism and corporations. Alas, Mitt Romney, corporations are not people, but they are owned by a very few, very wealthy group of people. William Hearst, Joseph Pulitzer, Andrew Carnegie, J.P. Morgan, Henry Flagler, Cornelius Vanderbilt, and John D. Rockefeller, to name a few of what the Gilded Age dubbed the Robber Barons. Teddy Roosevelt led the charge, not merely up San Juan Hill, but against the Robber Barons. The trust-busters targeted  Rockefeller’s Standard Oil and other monopolies and oligopolies, and laws like the Sherman Anti-Trust Act placed limits on growth of corporations within the country. Stymied, corporations in the 20th century acquired other businesses up and down the supply chain, moving from horizontal integration to vertical integration. This led to the formation of enormous conglomerates and presaged the rise of multinational corporations in the mid-to-late 20th century, enabling them to turn outside their geographical limits. Faced with prohibitions on advertising cigarettes in the U.S., corporations realized America was merely a division of a much larger corporate enterprise. As multinational conglomerates, they simply focused their marketing on other countries, especially third world nations lacking such restrictions. The “over-regulation” by the U.S. government decried by pro-corporate Republicans could be sidestepped in the name of ever increasing profitability by targeting less developed, less protected international markets.

Ever stop to think why a multinational corporation, BP – British Petroleum – was drilling for oil on American shores in the first place? Despite the public relations campaign about “the cleanup”, the oil spill did irrevocable damage to the ocean floor, the coast, the wetlands, and the indigenous species that will have lasting, negative repercussions for the next 200 years, having destroyed an entire ecosystem. That’s right, the British did more harm to our country during the three months of unabated oil spillage in the Deepwater Horizon disaster of 2010 then when they invaded Washington, DC in 1814 and burned the Capitol to the ground. Didn’t we fight two wars to keep them out of our country? But history is soon forgotten and replaced by Orwellian  public relations. British Petroleum, to put a less threatening face on the visage of a multinational corporation, changed its name to Beyond Petroleum. There, that’s better then, isn’t it?

By erasing geographic borders, the  20th century multinational corporation has been enabled to transform yet again, into a more powerful entity, unshackled from its geographical restraints. The rules and taxes of its home country are easily avoided by doing business in other nations and banking the profits in offshore banks. Environmental catastrophes  –  collateral damage in the blind pursuit of greed in the name of corporate profits and maximization of shareholder wealth  –  result in limited backlash when a policy of NIMBY – Not In My Back Yard – is adhered to. If someone else’s coastline is devastated, if someone else’s babies die because a multinational corporation used exploitative and deceptive tactics to foist its baby formula on third world mothers to boost its profitability by 72 percent, if someone else’s citizens in the third world die of lung cancer because they are marketed cigarettes in ways that are illegal in this country, so what? Corporations can get away with murder – literally – as long as they don’t defecate in their own backyards.

In my book, Issues In Internet Law, I discuss the borderless nature of the Internet, which transcends geographic boundaries, and the rise of the new nation-states. The 21st century entities, powerful as they may be, are yet a harbinger of the new nation-states of the 22nd century. Perhaps the boundaries are being redrawn and the nation-states of the 22nd century will not be America, France, and China, but rather Google, Yahoo! and eBay — for the Internet giants have created fiefdoms that transcend nationality and function under their own rules. Certain companies have emerged as “first among equals” in discreet categories online. While they are other auction sites, eBay is the one most associate with online auctions, and hence provides the largest congregation of buyers and sellers. There are many search engines, but only one constantly has to protect its trademark from being used as a verb synonymous with Web searching, as in “Did you Google it?” Sites like Amazon, YouTube, eBay, Google, Yahoo!, and PayPal are ubiquitous in their reach — Iranians and Israelis meet on eBay to sell items, and Greeks and Turks upload their videos to YouTube.

Citizens of different countries, while physically present in those countries, have joined together to become citizens of online communities. But each online community, like the YouTube community for example, establishes and enforces its own rules for membership and participation within that community. From ISPs to social networks, private companies — not governments — through their Terms of Use agreements and by their internal policies dictate their own rules for worldwide users. Just as PayPal has this past week with its censorship edict.

The rules are not always clearly stated, if at all; enforcement is inconsistent and may vary based on the specific service representative interpreting her company’s policies or invoking her own personal biases — leading to arbitrary and capricious outcomes. Unlike democratic government, there is no guarantee of due process or equal protection, and no one to whom to appeal decisions made by the private company. Uploaded user content can be removed without notice and accounts terminated without a hearing. “Justice” becomes a commodity dispensed at the discretion of the private firm. Disputes are adjudicated behind closed doors by nameless individuals, who function as judge, jury, and executioner. They can delete user content they find “objectionable” or “controversial” regardless of its legality. Or, as in PayPal’s case, prevent what it deems objectionable content from even appearing in the marketplace.

One consequence of private businesses controlling public forums in cyberspace is the First Amendment limitations on government infringements on free expression do not apply to them, as Joe Konrath has pointed out. An ISP or Web site’s Terms of Use agreement grants it sole discretion to refuse or remove any content, without due process safeguards of notice, hearings, and a right of appeal. Should these private companies be vested with so much unchecked power? Will they use it wisely and fairly? Or will they be guided by the corporate profit motive and the whims of whomever sits in the plush leather chair of the corporate boardroom?

If history is any guide – and it usually is – then we should be concerned. We should speak out. I have. Now it’s your turn.

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