an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[On March 23, 2011, I delivered the 20th annual Hugo L. Black lecture on freedom of expression at Wesleyan University. I'm publishing the prepared text of the lecture in installments this week on Balkinization. You can read Part One here.]
IV. The Infrastructure of Democratic Protests
My first example takes place where King Xerxes implemented his information policy thousands of years ago: In the Middle East, including King Xerxes’ own kingdom of Persia, part of which is now called Iran.
In 2009 following a disputed election, Iranian citizens took to the streets in massive protests, which took months for the government to subdue. The unrest has been called the Twitter Revolution, because social media like Twitter, Facebook, and YouTube played a prominent role. In late 2010, massive protests began in Tunisia, and in late January 2011, protests broke out in Egypt, and spread to about a dozen countries around the Middle East, including Iran.
The infrastructure of free expression—in this case, digital networks and software platforms—played an important role in these uprisings; so much so that Egypt shut down access to the Internet and cell phones for about five days. But by that point in the uprising, however, it was too late. Reporters were already in Egypt, mass media coverage by Al Jazeera and other broadcasters continued, and a few Egyptians still found ways to communicate with the outside world.
If anything, the protests merely got worse after the government tried to flip the Internet kill switch. Egyptians were outraged by the loss of communications. Business interests objected vehemently, and access was soon restored. Egypt’s long-time strong man, Hosni Mubarak, was forced out of office, and the Egyptian military took control of a caretaker government.
We don’t yet know whether the January revolution will lead to real democracy in Egypt. Nor do we know what will happen in the various other Middle Eastern countries where protests have sprung up. What we can ask is what role the infrastructure of free expression—and control over that infrastructure—have played.
People tend to think of democracy as a single thing, but it’s actually a set of interconnected activities: deliberating, debating, spreading information, organizing like-minded individuals, forming and maintaining political parties and civil society organizations, protesting, petitioning, picketing, voting in elections, and governing. Changes in technology and infrastructure make some of these activities of democracy harder or easier, more expensive or less expensive, easier to control or harder to control. To understand how the Internet affects democracy, always ask: how does technology affect specific or particular activities of democracy: does it make them more prominent or less prominent, easier or harder, less costly or more costly?
Since the 2009 Twitter Revolution there’s been almost continuous debate about whether the Internet or digital technologies “caused” the uprisings in the Middle East. It’s unhelpful to debate the question in these terms. At the risk of oversimplification, there are two basic ingredients to democratic revolutions. They are grievances and courage. First, people must have a felt sense that the regime has treated its citizens badly, and second, people must be willing to stand up to the regime and risk ostracism or punishment. These two factors interact: The grievances have to be bad enough that people feel it is worth taking action; courage is necessary because protests pose a problem of collective action. One lonely protester, or a small number of protesters will easily be crushed: they will quickly be arrested, severely punished, or never heard from again. People are more likely to take to the streets if they believe that others will do so as well. They are more likely to take risks if there is strength in numbers. Hence democratic protests, especially in unjust regimes, present a problem of collective action that needs to be solved.
These basic issues are as relevant to the uprising of 1776 as the uprisings of 2011. We should ask how digital technology affected the formation and the experience of grievance and courage, how it helped solve problems of collective action, how it could be employed in organizing and conveying information about popular uprisings; and, equally important, how governments in the future will likely react to these changes.
I just compared the problems faced by Egyptian protestors today with the problems faced by the colonists in 1776. But there is an important difference. In 1776, American colonists were armed with weapons almost as powerful as the government’s. They could form citizen militias. That’s not true today in most autocratic states. Often citizens can easily be plowed down by government troops if the rulers are truly determined to restore order. In fact, often what differentiates successful from unsuccessful protests is whether the protesters can manage to get the Army or the police force on their side, or at least persuade the government not to use force against them. If the government is sufficiently ruthless, however, and believes that the outside world isn’t paying attention or doesn’t care, then the protests will probably be crushed. To succeed, lots of people must know about the protests, and it is even better if there are pictures or video, making it difficult for the government to attack and suppress protestors. This is the media strategy of Mahatma Ghandi and Martin Luther King.
Mass media coverage, especially visual coverage, is crucial to the success of this strategy. If the government overreacts, media will broadcast the events around the country and around the world. The ultimate goal is to use the power of social norms and public opinion to put the army in a position where it will refuse to attack the citizens, so that the regime loses power. This is a dangerous strategy and not always successful. This is more or less what happened in Egypt in 2011, but it did not happen in China during the Tiananmen Square Massacre in 1989, and it did not happen in several of the other Middle Eastern states today.
How do the Internet and social media affect these considerations? How do they affect people’s framing of their grievances, and their courage? How do they solve collective action problems and publicize government misconduct and overreaction? The answer requires us to look at the entire media ecology: not just Facebook and Twitter and YouTube, which anyone can participate in, but also more traditional types of journalistic organizations like CNN and Al Jazeera.
First, Grievance requires knowledge plus framing: problems must be articulated in a way that people can understand and that motivate them to act. It is not enough that bad things happen. People must see these things as related to what the government is doing or failing to do. Access to the Internet allows political entrepreneurs to frame the situation; it also creates awareness of freer conditions elsewhere. This helps produce both grievance and envy.
Second, social media lower the costs of informing and organizing people quickly. Collective action requires trust—and especially collective action that might be punished. I won’t protest unless I know that other people will too. Social media allow political entrepreneurs to convey the message that many people feel upset at the government, and this helps create the belief that if ordinary citizens act others will too.
Third, social media allow individuals to report quickly and easily if government overreacts to protests or otherwise misbehaves. This provides additional sources of grievance and additional motivation. Protests of previous government actions—often at funerals and memorials—can become important drivers of continuing protest. Conversely, reports that the government has been unable to stop protests have a snowball effect; they bolster trust and courage and the belief that joining in is worth the effort and the risk.
Fourth, social media and broadcast media are directed to both to fellow citizens and to the world in general. They help people recognize that protests are possible, they lower the costs of collective action, and they create a model for others to follow. Social media can inspire copycat behavior in other regions of the country and in other countries.
Fifth, one of the most important functions of media in protest movements is to express emotion. Facebook and Twitter are well-designed to convey short, emotionally charged messages. Like broadcast television, YouTube is particularly important, because it allows sound and video. This makes experience vivid, emotional, and more present. It personalizes story telling. It makes violence and tragedy seem more real than mere textual depictions, no matter how eloquent or elaborate.
Sixth, in contrast to traditional broadcasters, digital networks are decentralized media. Decentralization means that it is more difficult for the government to control what citizens hear or see. A single state operated broadcasting network can easily be co-opted or controlled. International coverage complicates matters, but one can keep the reporters out of the country. But if media is truly decentralized, then everyone in the country is a reporter. Cell phone cameras and cheap video cameras become part of the infrastructure of free expression.
Moreover, decentralized media supplement what centralized media can do. You don’t need Al Jazeera or CNN to cover your protest to get other people to see it. You can put it on YouTube. Traditional broadcast media like the BBC and CNN can repeat these broadcasts, reinforcing the work of participatory social media.
There was no YouTube during the civil rights protests of the 1950s and 1960s in the United States. Civil rights protesters depended heavily on national mass media to describe what was happening in the South. Without extensive coverage by sympathetic media organizations, they would probably have been crushed. Instead, mass media made Rosa Parks and Martin Luther King into national (and international) icons. The civil rights movement succeeded in part because protestors were able to obtain widespread national and international sympathy after Southern law enforcement and defenders of Jim Crow overreacted: Two famous examples are Sheriff Bull Connor’s decision to set firehoses and attack dogs on civil rights protestors, and the police riot on the Edmund Pettus bridge that led to the passage of the 1965 Voting Rights Act.
Seventh, Egypt’s closing down of the Internet delegitimated the government. The reasons why are complicated.
(A) When Internet access becomes sufficiently widespread in a country, it becomes a utility like electricity. More interestingly, it becomes seen more and more like a human right. In this way the infrastructure becomes part of the background assumptions of what it means to be free.
(B) Internet access is a sign of a civilized, developed nation even if it is secretly filtered. Countries sign human rights treaties even if they violate human rights, because it signifies that they are civilized nation. Internet access has the same symbolic meaning. Cutting off Internet access completely has the opposite effect; it makes a country a pariah.
(C) Shutting down the Internet disrupts commerce. Even though Egypt kept access open for certain institutions like banks and stock exchanges, a wide range of other commerce—including tourism—was halted. This delegitimates the nation in the eyes of other countries and businesses that operate in many countries.
So far, I’ve described how digital infrastructure lowered the costs of democratic activities of organization, spreading information, dissent and protest. That’s only half the story, however. Having foreseen the potential of social networks, authoritarian states will surely redesign their telecommunications facilities to head off future protest, facilitate surveillance, and promote propaganda and misinformation. Most autocratic governments are not stupid; they will respond to strategic changes generated by information technology in much the same way they respond to changes in military technology. And not only autocratic governments: As I’ll describe later on in this lecture, our own country is facing pressures to subtly reshape our information infrastructures out of fear of future cyberattacks and terrorist plots and out of to pressure by the content industries to prevent the unauthorized use of intellectual property.
Here’s the basic idea: Governments and protesters are in an arms race or an innovation cycle.
New innovations in using digital technologies in protest lead to new government innovations designed to deter protest in advance and prevent future uprisings.
Because successful protest requires trust and overcoming the costs of organization, Authoritarian governments can use the Internet to destroy trust and make organization more costly. They can block access to certain sites or platforms. They can track and spy on protesters. They can seek to undermine trust and sow fear and social discord through surveillance, propaganda, and misinformation. They can hinder—or even launch cyberattacks—against outside organizations that are trying to help protesters. Finally, governments can use the same social media as the protestors to organize their own allies; they can get pro-government thugs in the public square to attack demonstrators, create civil unrest, and then justify the use of military force to stop the rioting and restore order.
Each new innovation that protesters develop with digital technologies prompts governments to consider it in advance and check what protesters might do. After the Tiannamen Square protests China designed the Internet to make censorship easier and less obtrusive. Put differently, China got into the game of digital censorship much earlier and more pervasively than Egypt did.
If you design your telecommunications systems in advance to facilitate an authoritarian information state, you don’t need to close them down and lose legitimacy. You can keep the Internet operating, spread misinformation, engage in surveillance and block or filter dissenting voices. Control over conduits is built into Internet access in those states that have the most successful censorship regimes. All other things being equal, the earlier you begin to design the conduits to serve state functions, the more effective you can be. Later technological advances can allow you to layer new surveillance and filtering technologies over old ones. But some decisions are best made at the beginning, for example, ensuring that only a small number of telecommunications providers control access into the country. That way the government has very few points of control that it has to worry about.
Egypt tried to shut down the Internet; China built its Internet so it doesn’t have to shut it down. It has operated at the hardware, protocol, application, and social levels. It limited permissible telecommunications access into the country. It built devices for surveillance and blocking at the hardware levels; it has put pressure on the operators of search engines to block sites and share data about users. It monitors cybercafés.
The Chinese government cannot prevent all disfavored information from leaking into or out of the country. But it does not have to. It only has to shape access for the vast majority of its population, so that only a few elites and very technically proficient members of society can get information that the government wants to block.