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5 December 2016 - A Pre-event on Other in Guadalajara, Mexico

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(Session cancelled and then reinstated.  Meeting already in progress when captioner joined.)

Do you think that technology advancement will take more steps to advance that approach as China and Russia are trying to do now?
Good question.  So, mostly I'm approaching it ‑‑ this tremendous creativity and potential of global communication.  And that, you know, we basically spread information to the entire world for that period in which it was globalized.  And we altered communications, regulation in many countries in a much more liberal connection, mostly alignment, you see an authoritarian states and I see the internet that should be considered as a whole.  You are a part of my community now, if you are not internet, I can communicate with you, I can share information with you, I want that unrestricted open globalized access to be preserved and maintained.  I see alignment as a huge threat to that.  

Now, the question whether technology makes it more likely or easier for alignment to happen, it's kind of a mixed bag.  It's the technological progress sort of puts so much information technology in people's hands so cheaply that it does become harder to control in certain ways, but on the other hand, the mechanisms of control become more sophisticated and powerful, too.  It's like a ‑‑ measures and countermeasures.  It's a cat and mouse game and you really don't know I think how it goes is not by technology, but more by economics and politics.  They want to become bigger players in the digital economy will become more open and the economies that concerned about protecting themselves will become more closed.  I think they will put an economic and social price for that.

I think the issue about ‑‑ the important part is also, it's a ‑‑ it should be okay, it's like a private, try to put pressure, the problem is, many countries, the judicial system is bad. Like you live in the country that had the really good legal system, that should be okay.  But I don't know, does any comment on that issue?
Yeah, the arbitrary exercise of power where there is no independent judiciary, that's ‑‑ you can say you have freedom of expression, and it still doesn't work, because the government can intervene and even private actors can kill you for saying something that they don't want you to say.  And if the court system doesn't punish that or stop it, it really doesn't matter what policy you have, are you thinking of a particular country?  Thailand?  Yeah.  Yeah.  I shouldn't laugh, but you do have some ‑‑ issues regarding freedom of expression in Thailand.

Yeah.  Yeah.  It's just so ‑‑ it's not just the king, it's kind of people use the king to justify a more repressive stance because there's a lot of political tensions, live coups for many years.  So, yeah, practically, I have no idea what to tell people in Thailand as to how to get out of this situation.  Really, it's so fundamental to the political system there, it goes beyond the communication policy issue.  It's an issue of political development and social movement, really.  Yeah.

Yeah, please, go ahead.
The practice of ‑‑ to completely turn off internet or actually turn off certain on‑line services for a limited period of time, this is becoming more frequent.  I just read that this year alone, there have been more than 50 stances exercising the ‑‑ reduction.  How does that measure in the freedom of expression, and there are sometimes situations like elections, public exams, in which say in India ‑‑ national level, for a few hours, they have switched off all Web access.  Now, is this under any circumstances justified?
That's a very interesting question.  So, in classic freedom of expression theory, the kill switch is almost never justified because it's a disproportionate response.  It affects everybody, regardless, so, you may be concerned about a few people, you know, inciting a riot, or creating problems, but this is not a proportionate response.  Any court that was dealing, that was objectively accessing a kill switch will find that it is a disproportionate and therefore unjustified and illegal response to any kind of a problem.  Now, there are forms of media regulations that are designed to protect the integrity of elections or courts by sheltering certain things from public discussion.

I think that's an area in which technology is making those kinds of things obsolete, and it may be just really kind of silly and counterproductive to try to maintain those kinds of things, for example, with the elections in the State government of India, you know, people have phones, people have all kinds of information technologies and they are able to do things to communicate that you may or may not be able to control, and if you are talking about just completely shutting down every form of communication, simply to stop a few people from shouting, you know, vote for so and so, I think that's very disproportionate and probably a, you know, think of the various kinds of Bluetooth, wireless kinds of communication that might take place.  It just seems like it's fool hardly kind of a strategy.

And I think the other question about it, do you want the government to even have that power?  You know?  It's like if there is a legitimate capability to simply flip a switch and turn off entire sections of the internet in a country, then even if you think that power is legitimate, it would have to be extremely carefully guarded and regulated.  But it's probably better for the government just to not have that kind of power.  And then again, that's a political view based on the idea that the population is supreme, not the government.  Okay?  It's the government ‑‑ the government is there to protect the rights of the people. The people are not there to kind of make life better for the government.  So, if you believe that, you know, sort of popular sovereignty, which is what most democracies are supposed to be based on, then you shouldn't want the government to be able to essential disable all forms of communication at the flick of a button.
It's a bit of clarity question as well.  So, what you were saying, actually, we have for now private actors, we have people, we have companies that have a quasi-state actor power, so they are like states because they have a power that is very big because of them being a Monopoly, like Google or Facebook.  And since they have this power, as far as ‑‑ I try to understand where you are to lead, you seem to insinuate they should have special obligations because they have this monopoly position?
I'm saying that's where things are going, I'm not saying I want that to happen.  First of all, I think it's a mistake to ‑‑ no matter how powerful Google or Facebook becomes economically, to call them a state is a misapplication of the category.  They don't have policemen and guns and Monopoly and violence in whatever are territories they operate in.  Of course, it's great for TV shows and movies to pause at these evil corporate actors that are manipulating everything behind the scenes, but fundamentally in my world view, there is a very important distinction between states and the power of the state and the company that even if it has a lot of economic power, even if it's a monopoly, unless they are hiring Armies and shooting people to get their way, you don't classify them as a state.  

So, but what I'm saying is that people are using the market power of Facebook and Googles to say they should be subject to regulations which kind of presumed that they are a state actor and there's that merging of the ‑‑ so that these big corporations could become instrumentalities of the state which is what I see as dangerous, you get the worst of both worlds, you get the power of the state, the economic capabilities of the big act or in a monopolies tic context and I think that's a dangerous way to go.  You want these things to be clearly separated from the State, you want them to have this freedom of expression orientation, which means that they can still exercise their autonomy as a filterer or manipulator of expression.  That's what I would like to see, but I see more and more pressure being placed with this concept of, you know, intermediary responsibility.

The second part of the question, I see is the same search warrant many types of regulations that they are attending right now to ‑‑ regulation from the systematic and the public realm to sort of regulate governments and the power and restrain power ‑‑ you now being implied in the civil sector.  So to regulate ‑‑ interactions between private actors, meaning companies and meaning individuals.  But my second question to this is, I do agree 'we have this situation, but what would be the solution?  

What would the solution meaning sort of changing the monopoly precision at which I think is difficult?  Or would it be the solution, trying to change the systematic ‑‑ that we are using right now?  Because I don't see that trend.  I see for instance the right to go forgotten in Europe, leading Google to regulate what is being visible and being made visible in the internet or not, or as in Germany, for instance, the ministry of justice has not decided that on hate speech, effect needs to do more, they have less work because they don't have to sort of change the freedom of expression regulation that we have in Germany, but just, they just give the responsibility to Facebook to create policies.

So, I think that's a bad trend and I think the way to push back against it is to reassert this distinction between the state actor and a private actor and to point out the market discipline that still exists in certain forms of private actors and to also emphasize the dangers of continuing down this path.  So a lot of ‑‑ maybe digital rights activists who they are very pro expression, but they want to impose these form of regulation.  Via the State.  I think they are very naive in the sense that ‑‑ they think the State is just going to regulate Google and Facebook to make them more open and free.  That's not been the historical record of how states approach large media operators.  

And you can certainly see that they would be very interested in maybe exploiting some of the surveillance power of the entities, we saw that with the NSA, they were getting the information through Prism and ‑‑ they were getting the information from the intermediaries and they would regulate encryption, they would say we have to use an encryption that we can break into.  The political system will put the pressure on them to push the speech regulation or the content regulation in any direction this they want.  If we live in Donald Trump's America and they decide to regulate certain kinds of expression about immigration, for example, we might get that.  We have a very strong protection in terms of the constitution, so it would be difficult, but in Germany or other certain European countries, or many other countries, you don't have that constitutional protection.  So it would be very easy, this regulation to go in all kind of directions that you don't anticipate.

Hi.  So, I have specific question about Russia, as you certainly know, Russian government is blocking international services, service by service.  So they started with ‑‑ right now they are blocking YouTube and obviously the targets are Facebook and Google.  So, I have a general question:  What kind of strategy, what is the best way to protest this kind of huge ‑‑ society, what can Russians decide to do about that?

MODERATOR:  Yeah, I think it is good to be intellectually equipped, that's about the best I can do for you, is to give you the principles, so in an advocacy context, you can be prepared to mobilize public support for not having these kind of regulations.  In terms of the political strategy, you know, that is so local and specific and you need to understand how these societies operate.  So I would be a very bad person to ask how to transform Russian, the Russian society or the Russian ‑‑ I do think that you can talk about certain kinds of coalitions.  I think one of the essential parts, and this is going to sound suspicious to some people, but civil society on itself can easily be defeated, right?  So where we see rights being gained is when there is an alliance between civil society and business, the private sector.  
So with the encryption fights in the US, it wasn't just digital rights advocates, people wanting privacy, it was the fact that businesses knew that their products, if they included a back door, could not be sold around the world.  And also they just didn't like being regulated in that way.  They thought it constrained their innovation and so on.  If you can get private sector civil society alliance going, I don't know if that would work in Russia the way it does in the US, but most of the victory occur when that align is present, most of the defeat is when it's the government and business aligning against business society or society.  So, I think that's ‑‑ I don't know what the private sector is like.  I read the Web and it sounded like there was a systematic abandonment of kind of certain kinds of principles and rights by the Russian private sector in the 2,000's, I don't know how that works.  You would have to work that out for yourself.

I'm from the center for international ‑‑ think tank.  One of the things I thought was interesting that you were talking about, how part of the right of media organization is to not publish things as part of their freedom of expression.  And kind of along those lines, I'm wondering what your thought is about what platforms like Facebook and Google, do you think that we should treat these as media companies?  I hear your push back, they should be treated like states, but how to you feel about this issue that seems to be a question for many people about whether or not social media, platforms are media companies and should be regulated as such?
I'm totally against that.  I think the, calling media companies is a code work for ‑‑ regulated broadcasters, essentially.  And that's precisely the road I don't want to go down.  So this thing about the, in effect, they are saying that a platform that allows me to put up a bunch of pictures about myself and comments about what I'm doing and share that information with a bunch of other people is a media company.  Well, in a technical sense, in terms of as a communication scholar who has a PhD from a communications department, of course it's a media company.  It's an intermediating platform.  It involves the use and dissemination of media.  This, when they call it a media company, what they are saying is all of the regulations regarding content and market structure and so on should be applied to Facebook that we apply to broadcasters and cable companies, and I think that's really a bad thing to do.
Well, we have already discussed that.  Once, you know, the whole ‑‑ media regulations, the classical, in a pre‑digital analog age is predicated on artificial scarcity, on centralized licensing, and on forms of collective restriction on expression that are meant to make the licensee conform to the wishes of a politically defined public.

And I think the great thing about the internet, is that the public that was there dissolves and becomes a multiplicity of publics and groups and individuals or bilateral communication links that, you know, are different than the traditional ones.  So for me, this whole media regulation push is an extension of this alignment trend, which you already know I don't like in which my new book is about.  So I think that's why, I don't know if I can go on longer about that or you want?

No.  I think it was clear.  I just wanted to make this point clear for everyone.  Because we have a lot of journalists here in the room, so I think it's interesting for them to know these points.
That's an interesting distinction.  So when they say media company, so, a newspaper is a classic media company, right?  A newspaper, in terms of their content, because, again, of history and were highly unregulated.  If you want to call them newspapers, yeah, do that.  That will be great.  That will mean the first amendment, at least in the US, applies across the board.  And they won't be confused with broadcasters who are highly regulated.
Well, we are already a bit over the time, if I'm not wrong.  Are there any other questions?  If so, I would say please be brief.  Otherwise ‑‑ oh, yes?  Okay.  The last one.
One more.  Why do you think, what do you think of the growing algorithms where ‑‑ basically ‑‑ information about what our likes and dislikes and increasingly customizing that information and what is that doing to our information ‑‑ and ‑‑ freedom of expression?
Pretty superficial view in the time we have.  Basically I think that the filter bubble comes up that we are all going to be, like, floating around in our bubbles is not really that valid.  I don't think there's that big of a difference between what's happening now with the social media and what started happening with direct mail marketing in the US, you know, 50 years ago.  That is commercial entities have a very strong incentive to research their markets and that's what they will do.  I don't see that it's a fundamental departure ‑‑ I mean, the technology is more pervasive now, it's true.  

We are doing more online, so there's more information about us.  But I just think that compare this to somebody who sat down in 1962 and turned on, you know, ABC, CBS, or NBC in the US.  I don't know what networks you had in India 50 years ago, probably had one or two.  You know, so the question is sort of who does the filtering, and how multiple are the sources of the filtering and the algorithmic ‑‑ if there was one company doing this, I would be more concerned but this is happening with every website you visit, with every service you subscribe to as well as these broad platforms and ultimately you can opt out, and the technology is making it, you know, there are innovations in this market where people are discovering new ways to remove ads or to filter things, I don't view this ‑‑ this is not something that keeps me awake at night.  Let's put it that way.

Well, there is those are helpful words, do not worry about the filter bubble.  Milton, thank you very much for spending your time with us and for the conversations here.  I think it raised many thoughts, I think.  It's still going to be in the heads of many today and we will probable ‑‑ our conversations when we talk about that on Friday and the, just what we did the whole week.

I think we could have ‑‑ couldn't have had anyone better to talk about that, and it was a pleasure.  We don't keep you more busy.  I guess you are having a lot of panels here.  What are you doing and is there any panel that people should certainly come to visit you where you think it might be interesting for them?

Well, I'm doing the internet governance project which ‑‑ and I work on, is doing two ‑‑ pants, one of them is about TPP, the Trans‑Pacific Partnership, it's about trade and information trade and information services, and we are talking about the wreckage of that trade agreement, what was gain and lost by that.  And basically since it's pretty much dead, we will be talking about the broader concept of the freedom of trade and information services and where that should go, and also about the relationship to intellectual property, putting that into the trade agreements, whether that makes sense or not.  

And then we have another panel on Friday, I think it is, on DNS fragmentation.  We are talking about various ways in which DNS and ultimate roots might form or certain kinds of name collisions might take place and whether this is a real threat or a fake threat and whether such fragmentation is maybe potentially a good thing if it means technical innovations can take root that would require people to migrate to a new technology.

The last one is going to be a disputed session, internet fragmentation is very much a ‑‑ this year, I think this is one highlight probably.  Thank you very much for being here.

(Applause).

So we have a 15-minute break.  And at noon, we are, we will continue with the newcomer session, that's the session where all the newcomers come in, and that is facilitated by whom?
By ‑‑
Make sure you be back here.  Same room, here, yeah.