At This Point We Have to ask Ourselves: is Google Opposed to Article 13 or the Nation State Itself? PT 2

In Part I I outlined a basic history of internet exceptionalism, and then noted that when this pernicious notion is combined with techno-determinism you end up with something I call “internet imperialism.”  Fundamentally internet imperialism challenges the legitimacy of representative governments and tries to unwind 400 years of the liberal democratic order, by removing vast swaths of human social and commercial activity from purview of institutions legitimized by the consent of the governed.

I presented the choice we face as this:

  • Do technology companies and their allies sit at the apex of power and determine what sort of world we live in? The boundaries and limits of our government, our commerce and our liberties defined by their algorithms and business models?  Government is simply a janitorial service that cleans up the negative externalities.
  • Or do democratic institutions sit at that apex?

This is evolving as I write this, I’m honestly not exactly sure where this is going.  Over the next few blogs I want to examine the current battle between tech companies (predominantly Google), and the European Union over the proposed Copyright Directive. This policy conflict is the perfect laboratory to study methodologies used by technology companies and their proxies as they attempt to undermine the ability of representative governments to impose such laws within their own borders. Specifically they do this by:

  • cynically pushing a fiction that “cyberspace” has its own geographical space that is outside national geographic boundaries;
  • Intimidating democratically elected officials by activating online mobs, sometimes real but largely artificial (“cyberturfing”);
  • Spreading disinformation using proxies while simultaneously denying use of such proxies (“little green men“); and
  • questioning the legitimacy of (non-pliant) governments by openly courting centrifugal forces that threaten those governments, including separatists, far right nationalist parties and extreme voices on right/left;

All of these together reduce a government’s will to enforce national laws in “cyberspace,” effectively reducing the power of that national government and allows tech companies (especially Google) to gobble up virtual territory that was once the domain of a representative governments.  This is a terrible prospect.

But in order to do this I have to first explain how we got here. How this ideology was baked into the commercial internet from the very beginning.

A Declaration of Independence of Cyberspace 

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This is the Ur document.  Published in 1996 by John Perry Barlow (Grateful Dead second string lyricist) and the founder of the Electronic Frontier Foundation. He presented this declaration from that cradle of hippy populism, Davos Switzerland as part of the 24 Hours in Cyberspace project.  As Wikipedia notes it explicitly rejects the applicability of government, all government to the internet.  Many people at the time (probably myself included) thought this was a “neat idea,” but largely a rhetorical exercise. I’m fairly certain only the glassy eyed true believers thought this was a serious idea at the time.

Non-serious, because it specifically declares that there is no consent of the governed in cyberspace nor is there likely to be one. Most serious people give up their anarcho-capitalist fixations once they get out of college or go someplace ungoverned like Somalia or tribal regions of Pakistan.

John Perry Barlow Osama Shirt
John Perry Barlow in OBL shirt. Photo Joi Ito Creative Commons license

“We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks…”


“Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.”

I’m gonna dismiss the accidental(?) pre Hobbesian reference as a mistake (“act of nature”) and unpack the two marginally more serious notions put forth here.

  • Cyberspace is a place, and
  • Liberty itself replaces institutions of governance for they are incompatible in cyberspace.

 Is Cyberspace a place?  No.

Senator Ted Steven (R, Alaska) was roundly mocked when he described the internet as a “series of tubes.”  Public Knowledge a Google funded NGO that for all practical purposes is a public policy arm of Google, led the mocking of Senator Stevens.  According to wikipedia: “On June 28, 2006, Public Knowledge government affairs manager Alex Curtis wrote a brief blog entry introducing the senator’s speech and posted an MP3 recording.” This later became an early internet meme reaching its peak when John Stewart of the Daily Show sarcastically adopted the language. Google later buried “easter eggs” in various products referencing the “series of tubes” statement.  In the framework of semiotics, “series of tubes” became a second order signifier of technological illiteracy. Or in pseudo-religious terms: Heathens.

The problem is that Senator Stevens was more right than those who mocked him.  The notion that Cyberspace is a place is the sort of idea that brings to mind the George Orwell quote:

“Some ideas are so stupid that only intellectuals believe them.”

Cyberspace can not exist without physical infrastructure.  And where is that infrastructure?  Further as deliniated by Barlow, Cyberspace can not exist without the human mind which obviously requires humans.  Where do those humans live? The notion that someone is not subject to national laws and authority of the state when “in cyberspace” is not just a bad idea but when embraced by federal courts has led to horrible things like sex trafficking of minors with impunity.  (See SESTA/FOSTA legislative debate).

The technology industry billionaire’s obsession with sea-steading (platforms in international waters) and data havens is telling.  Many technologists see the storage of data beyond the reach of national governments as a key to the kabuki that “Cyberspace does not lie within your borders.”

A barge built with four levels of shipping containers is seen at Pier 1 at Treasure Island in San Francisco, Photograph: Stephen Lam /Reuters

Google went so far as to build what appears to be floating data barges for some such purpose. As CNET reported in 2013

“It looks like Google has been working on an oversize secret project on San Francisco’s Treasure Island. A water-based data center? Could well be.  “

I was not inclined to believe the wilder conspiracy theories about Google’s data barges. Data centers require enormous amounts of cooling.  Seawater is generally cool.  Then Google came up with an implausible cover story for the barges: floating Apple Store like mobile exhibition space for Google Glass.  Shortly after floating (no pun intended) this explanation Google scrapped and sold off  the barges.  Every time I think I’m an idiot for putting on a tin foil hat when examining Google motives it turns out I needed two. As a result I think it is plausible that those barges really were an attempt at “geeking around the nation state” in order to remove certain operations of the internet giant from purview of national governments.

Is Iceland Cyberspace and why was Lawrence Lessig there?

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Screenshot from Julian Assange’s proposal for data haven 2009 Chaos Communications Congress. Iceland was the preferred location for the Pirate Utopia. 

Then there is Iceland.  Don’t get me wrong. I like Iceland. Icelandic people are pretty much still Vikings.  My last Icelandair pilot insisted on trying to land in Reykjavik despite the weather.  He/she did three (?) “go-arounds” before finally landing the plane in a gale.  After go-around two, most non-viking passengers would have happily gone back to BWI.

Then again, Icelanders eat whales and a slim majority of the population still believe in elves. It’s therefore a pretty trippy place and if there were one country that could be the real world location of Cyberspace this could be it. The government wants to be “The Switzerland of Privacy” as if being Swiss in the secret banking/money laundering sense is a good thing. This is of course what Julian Assange proposed in 2009 after Iceland’s currency collapsed. Now that’s a guy you want to listen to when trying to rebuild your country! The country now has some of the toughest “data privacy” laws in the world. 2016 elections put the Pirate Party in a position to form a governing coalition (they declined). But as a result Iceland is essentially now a piracy/dark web haven. Or a Temporary Autonomous Zone (TAZ for short) if you prefer the terminology of the hacker underground. Though sadly most hackers don’t realize TAZ is an idea developed by anarchist and pedophilia advocate (yes you read that right) Peter Lamborn Wilson. (We will come back to that later for illegal pornography apologists appear semi frequently in internet history.)

Iceland is now a place where certain technology companies services sit outside the reach of the national government.  Which is probably fine if you work at one of Iceland’s data centers. Not so much if you are a victim of cybercrime (or real crime) perpetrated by organizations using these data centers.

Lately Silicon Valley’s favorite professor (and presidential candidate) Lawrence Lessig has been mucking about in Iceland claiming to “help” the citizens create a new constitution that among other things would essentially permanently cede the internet to private companies. It’s a very weird situation. It’s not clear that anyone (especially Lessig) really has a right to force a new constitution on the Icelandic parliament (they rejected it once). It is no wonder Silicon Valley libertarian and seasteading proponent Peter Thiel gave the ostensibly “progressive” Lessig $500,000 for his US super PAC.  This is  Sealand all over again.  Right down to the data havens. Instead of pirate radio, Iceland hosts pirate websites.

A Wall Street Journal article concerning Lessig’s political ambitions and strange bedfellows noted the odd company Lessig keeps:

Mr. Lessig’s quixotic approach reflects a common viewpoint in Silicon Valley: that the political system is broken. But while some libertarians in Silicon Valley want to work outside of institutions, Mr. Lessig is aiming to reform the government from within.

WTF does “work outside of institutions” mean.  Presuming these institutions are our democratic governments?  Don’t dictators and autocrats “work outside of institutions.”.  Why would anyone say this shit out loud?  I guess if you are rich enough you can live outside these institutions. It just sounds crazy to those of us who can’t and don’t want to.

The fact that Lessig is funded by many folks who don’t believe in “the system” and want to “work outside” the system, by which they mean liberal democracies, led me to brand him the “Manchurian Candidate” in his 2016 run for the US presidency.

Privacy Absolutism

This all considered, privacy arguments are simultaneously the best and worst arguments for an independent cyberspace beyond the reach of national institutions.  Who wants the NSA reading their mail? Unencrypted internet traffic has helped the PRC tighten control of the Chinese population.  I get it. Believe me.

But on the other hand, absolutist data privacy permanently beyond the reach of government also allows all sorts of cybercrime and terror to permanently thrive and stay beyond the reach of the nation state.  There are very real negative externalities associated with this notion. We’ve had quite a bit of experience with this already. It’s called the dark web.  It is likely few (if any) Silicon Valley and Harvard elites advocating for absolutist privacy have ever confronted these negative externalities in real life. Yes in an abstract statistical manner they may have read about the negatives of dark web drug sales. They may be aware of the negative. But unlikely they have experienced it.  I’,m not  trying to be dramatic her but I have.  And after personally being faced with the deaths of two young men (still in their teens) at least partially because of substances they bought on the dark web it’s no longer abstract to me.  The tangible grief of the parents, brothers, sisters and friends is something every internet freedom and privacy absolutist should be forced to confront.  As a nation we’ve always balanced personal privacy with the need to prosecute criminal gangs involved in these enterprises. What is so different about the internet age that forces us to throw that balance away?  I mean aside from cynical techno-determinist ideology?

Absolute privacy is a hard position to defend if you believe in protections that nations states provide. If you don’t believe in nation states and the protections they provide to victims it’s really easy to stake out an absolutist position on privacy.

What is liberty?

“We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks…”

This just doesn’t mean anything.  It’s pseudo intellectual bullshit that sounds like it means something.  I’ve gotten up from my desk a dozen times cause it pains me to explain this notion. Stupid.  But I must push on.  For this particular piece of stupidity is taken seriously by thousands of folks in the technology industry, academia and public policy world.

First, I don’t want to get into a debate about political anarchism. (And yes that is what this is). I’ve already indicated I think anarchism is a completely childish notion. You will never convert me. And this blog is directed at those who (I’m pretty sure) think it’s a stupid idea, but didn’t know that when they signed up for “free internet ideology” they also signed up for some sort of corporate anarcho-capitalist hippy bullshit. (Or worse freaky Julian Assange/Peter Lamborn Wilson “Temporary Autonomous Zones.”)

If you do argue with me about anarchism I will only respond with grammatically incorrect AnCap memes.

Like this:

Anarcho cap when there

Fundamentally Barlow and his ilk are proposing not a “free” cyberspace but an ungoverned cyberspace.  These are not the same thing.  We’ve spent the last 400 years trying to define freedom and the free society.  We still haven’t perfected it but the consensus is that free societies also provide protections for individual rights.  People doing whatever they want is not freedom.

There is a quote attributed to many people generally phrased as such:

“Your right to swing your fist ends at the tip of my nose”

Someone or something has to be there to stop that fist or to discourage the violation of your right to not be randomly punched in the nose.  And you will get punched in the nose (Hobbes) and the authority that prevents the violation of your rights should have the consent of the governed (Hobbes and Locke). If there is no such authority you have an ungoverned cyberspace. Not a free cyberspace. Why do we have to re-learn what we already learned in the enlightenment? Fucking internet freedom stupidity.

Now, given a serious amount money, weaponry and a loyal armed militia I could probably go into an ungoverned area like Somalia or desert regions of Anbar province Iraq live a pretty good life and do whatever the fuck I want. Is this liberty?  Am I free?  Are the other denizens of this ungoverned space free?  I don’t think so. Certainly the folks with the rifles pointed at them are not free. This is Barlow’s Cyberspace.  it’s also the pre Hobbesian state of nature. And the way much of the internet operates.  Barlow can be forgiven (barely) for spreading this hogwash twenty years ago. Before we knew what we know now.  But current attempts to push this ridiculous notion should be seen for what it is:

A cynical attempt to pawn off the negative externalities of ungoverned computer/social networks onto the public.  Privatized gains for those operating the networks. Socialized losses for the rest of us.

Fake news, cybercrime, copyright infringement and data breaches like Cambridge Analytics etc were baked in from the very beginning. We (the public) were always gonna pay the price.  Silicon Valley was always gonna reap the profits.

Negative Externalities and the of role of government

Suppose that a factory or other such enterprise moves to town and begins producing pollution that causes respiratory problems among the town’s citizens.  The costs of treating those respiratory problems are a negative externality.  The factory does not pay those costs.  Those costs do not appear on the company balance sheet or P&L statements.  Instead those costs are borne by the public.  Thus duly constituted local, regional or national governments impose regulations or taxes on companies that produce pollution. In a sense they put the cost of those negative externalities back onto the business. This seems fair and prudent. There are often debates as to the extent of regulation, specificity of those regulations,  and the fees and taxes imposed, but generally it is accepted principle of modern democracies that  governments have a right to impose this sort of regulation.

Except in Cyberspace.  The embrace of “cyberspace independence” as an ideology by tech companies and their acolytes is not just starry-eyed utopianism.  It is also commercially convenient.  For if the government has no authority to regulate cyberspace, it also can not force those companies to carry the burden of their negative externalities. That might be fine if the negative externalities remained in cyberspace (or Iceland).  But they don’t. Musicians have their music stolen. Human traffickers traffic real people. Real fentanyl is sold on the dark web (maybe even YouTube)  and kids in your neighborhood sometimes die.  The public carries the cost. Not the internet companies. And thus technology companies fight tooth and nail to make sure they get to keep what is in effect a massive subsidy from the public.

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Tech company funded EFF hysterical warning about “internet censorship.” In reality the bill was a minor change that allowed prosecutors to go after platforms like Backpage that were clearly involved in sex trafficking.  

This was clearly illustrated in the the SESTA/FOSTA fight in the US Senate.  What started as a bipartisan bill to plug a hole in the 230 safe harbor so that sites that knowingly enabled sex traffickers could be more easily prosecuted, turned into a titanic battle between “internet freedom” dead-enders and normal folks. By normal folks I mean those who believe the people through their representative governments have a right to prevent sex trafficking. Even if it occurs “in cyberspace.”  Judging by the hysterical headlines from the EFF (or as I prefer Google’s sock puppet), you’d think we were about to become North Korea. Look at the headline above!  Talk about fake news.  The bill does no such thing! This is propaganda worthy of a foreign adversary attempting to undermine faith in your government.  Ahem.

Then again it’s not clear all of our duly elected representatives aren’t in on the scam. Google and many other Silicon Valley companies have large server farms in Eastern Oregon and have thus developed a reliable ally in Senator Ron Wyden.  Not only does his position on the energy committee guarantee that cheap hydro electricity from the Columbia river keeps flowing to the server farms, the Senator is apparently willing to get up and dance for his supper. Wyden put a hold on SESTA  before it ever went up for a vote. A hold by a single Senator requires the Senate to go through a much more complex and time consuming process to get a bill passed.  Once it appeared the bill was going to pass, Wyden put on a rather dramatic show.  Like some sort of techno-determinist millerite Wyden made an epic speech claiming that the bill would kill innovation! So stupid. It passed 98-2 and innovation proceeds.

Now Wyden could be forgiven for this stupidity… except that earlier Senate testimony featured a grieving mother whose teenage daughter was forced into sex trafficking and murdered. So think about that ugly bit of context as Wyden zealously defends his techno determinist belief.  Wyden is in effect justifying the sacrifice of few young women for the innovation volcano gods. Icky right?

In the end SESTA/FOSTA was signed into law and Internet companies have more responsibility to monitor their own platforms for sex trafficking.  This is a good thing.  It makes these companies at least partially responsible for the negative externalities they force on the rest of us. But you would never know it from the propaganda they spread.

The EU Copyright Directive, GDPR and rejection of an independent cyberspace

In 2016 the EU debated and passed the General Data Protection Privacy Regulation.  This law is intended to create uniform privacy protections across the EU. However from the perspective of US tech companies the bill was controversial because  it put restrictions on the “export” and handling of EU users private data.  Many US critics of the bill claimed that the law would require EU users’ data to be warehoused in the EU.  While this turned out to not be true, it’s telling that the complaint centered on geography.

US internet companies and their allies chafed at what they saw as an assertion national authority into “independent” cyberspace.  In actuality it was the other way around. The lack of effective regulation of internet companies and thus users private data had created virtual colonies within the EU for private US companies.  Companies like Google and Facebook were conducting extensive commercial activities within the territorial boundaries of the  EU without any effective oversight from democratically elective governments.  The GDPR was an effort by the EU governments to reclaim lost virtual territory, and to put these activities under their authority.  Silicon Valley hated this idea.

Similarly the EU proposed Copyright Directive ran into a wall of opposition from the same technology companies, affiliated NGOs, trade bodies and lobbyists.  Like a broken record out came the exact same talking points used in the GDPR/SESTA/FOSTA debates and earlier attempts to reform safe harbors on copyright infringement.

“It will break the internet”

“It’s censorship”

“It will stifle innovation”

Once again we see the quasi religious appeal to techno-determinism.  Any attempt by government to regulate internet platforms will make the innovation volcano gods angry! Infidels! Stone them!  Spam them with robotically generated emails! However if you zoom out and look at this from the 36,000 ft level you still have the fundamental conflict.  A duly constituted elected/representative government attempts to impose regulation and rules on internet companies.  The response is essentially the opening paragraph of the Declaration of the Independence of Cyberspace

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

— John Perry Barlow, “A Declaration of the Independence of Cyberspace”

But as I will show in Pt III, this time the response from US technology companies, especially Google went beyond the usual rhetoric and attempts to lobby the government. The tech giants, especially Google, crossed the rubicon.  Google used its own platforms (especially YouTube), trade groups, lobbyists and pet NGOs to actively undermine the democratic process in the EU.  The FAZ newspaper in Germany compared the avalanche of automatically generated, emails, tweets and phone calls to a DDoS attack on the European Parliament.  This combined with blatant disinformation distributed and amplified by anonymous social media accounts made the whole shameful episode eerily similar to what military strategists would term a hybrid information warfare attack.   I wrote an entire blog on it earlier this year.  Read it here.

Was this the first offensive “active measures” campaign by Silicon Valley against a Nation State?

I’ll pick it up here with “Active Measures” in part III.  Stay tuned.