Rules shape technology, just as much as technology shapes rules.
The law may be a step behind cybercriminals who continuously update their technologies in order to stay out of reach. It’s fair that the legislation in some cases has difficulties keeping up with new applications – air space regulation must now deal with drones; new designer drugs must be added to the lists kept by customs and police – so to what extent should the law be allowed to extract data from online services etc.? The problem is that this view is technocentric: technology arrives, the world changes, people and systems must adapt. As discussed in many places within the covers of this book, that’s not an accurate description of how technology evolves. In many cases, one can argue that law created technology and not the other way around. In fact, the most frequent examples of this myth are cases where law created the problem, more so than technology.
Take piracy: conventional wisdom would hold that the problem is so widespread that individual infringements in practice can never be enforced. Pirates come first, law after. Looking deeper, though, the current situation is the result of how intermediaries such as search engines and broadband carriers operate. They won’t police the network or its users, but they will (at least in some jurisdictions) respond to legal requests from rights-holders, the so-called notice-and-takedown procedure. If, for example, a film is uploaded to YouTube without the consent of the filmmaker, he or she can send a notice-and-takedown request to YouTube to have it removed. As long as the intermediary complies with the request, it is immune to prosecution – this is called ‘safe harbour’. If in the next minute the same film is uploaded again, the filmmaker (or their studio, or lawyer) must send a new request like a game of whack-a-mole. If the film is popular among pirates, it quickly becomes virtually impossible for the filmmaker to keep up. This may look like the law is one step behind. It may look like technology outruns the rules of society. But it’s really only a consequence of how US Congress decided to implement a World Intellectual Property Organisation treaty. With the Digital Millennium Copyright Act (DMCA) of 1998, the Clinton administration wanted to strike a balance between the interests of content rights-holders and network operators. This is when the system of notice- and-takedown and safe harbour was first put in place. Surely it must have been difficult to foresee the scale of the illegal distribution that was to follow. But if that particular law had been made different, say, requiring intermediaries to prevent re-upload of infringing content in order to qualify for safe harbour, the situation would have been dramatically different. In the example of YouTube, it would have had to manually monitor re-uploads or (more likely perhaps) develop a technology that identifies such uploads and stops them. Such a technology would have been the result of legislation, just as the technology we are familiar with is today.
We can call this related myth ‘The Myth of Getting Used to New Technologies’.
What about cases where new technologies arrive from elsewhere? We can call this related myth ‘The Myth of Getting Used to New Technologies’. This myth is about how new technologies are absorbed and included in our world. In a way, it’s technocentric because it looks at technology and its impact, as if new things arrive from outer space and have some kind of influence on our lives. Obviously, and as much discussed elsewhere in this book, this is a very limited view. Inventions can come from many different places and how they are normalized is a matter of ideology, demand, competition, chance, human factors and many other aspects. Look at the steam engine: in Fossil Capital (Verso, 2015), Andreas Malm discusses why it won over competing energy systems. One big advantage, argues Malm, was that it gave industrialists independence. Watermills were cheaper and, with the invention of automatic locks (constructed by one Robert Thom), just as reliable as steam. But water streams exist only in particular places and require the manufacturers to work together and make agreements to share the resource. Steam power, on the other hand, can be built anywhere and requires no shared facilities with competitors. It’s safe to say that many different factors outside the technology itself contributed to the adoption of steam power over the alternatives.
Steven Johnson is an American journalist and author whose work has meant a lot to me, both in my work life and on a personal level. Johnson’s Everything Bad Is Good for You (Riverhead, 2005) gave me the answer I was looking for in the early days of working for game developers in Sweden, where attitudes toward games were negative to say the least – one member was prosecuted by the Justice Chancellor for selling a game, but that’s another story (he was acquitted by the way and the law was later changed). Johnson argued that pop culture in fact is not dumbing us down, but making us smarter. One example was the increasing complexity of television drama; compare the linear structure of 1960s crime plots like those in Dragnet to the multi-plot and complex web of relationships and intrigue in a modern show like Game of Thrones. Or, for games, compare Pac-Man to the likes of World of Warcraft. Johnson went so far as to suggest that this was the missing link of the so-called Flynn effect, the phenomenon that the average IQ has risen steadily with every generation for the last century or so. That may be a bit too optimistic, but it worked for me at the time. Another book of Johnson’s was The Ghost Map (Riverhead, 2006) which looks at how the findings of Dr John Snow’s research into the causes of cholera changed how cities build fresh water supply systems and sewers, allowing cities to grow bigger than previously possible. It inspired me to seek out the pub in Soho named after him. It took some time walking those narrow streets with no correct address, but in the end we found it and its curiously low entrance door (must crouch to enter!) and I rewarded the patience of my company with a pint. When Steven Johnson spoke at a games conference I attended, I paid several hundred dollars extra to get the pass required for his talk. You get it; I have great admiration for the man (you should read his work too), which is why I was extra disappointed to read him in The Guardian (January 2nd, 2016) saying that with social media, we have to take the bad with the good and in the end society will adjust. Johnson wanted to make the case that no new rules are necessary, because we will get used to the new and everything will be fine. I had to ask myself if my old hero really meant that we have to accept the ISIS beheading videos, Putin propaganda, anti-vaccine and chemtrails conspiracy theories, rape threat campaigns and so on, and that it’s just a matter of getting used to it? Because my own opinion is that we should try to keep what’s good and get rid of or minimize what’s bad. Johnson describes a progress of information technology from scrolls to Gutenberg to now and says no one wants to turn back the clock to pre-printing press times.
It’s a good example of how The Myth of Getting Used to works, because Johnson falls into the trap of assuming that society evolved by getting used to the new things, by adjusting and embracing. That is simply not true. Each of these technologies also bred new institutions, laws, codes of ethics, certifications and so on. The printing press brought copyright, freedom of expression, press ethics and many other structures. Radio brought public service media, spectrum regulation and broadcasting licences. The combustion engine brought the traffic system: lights, lanes, signs, rules, driver’s licences, smog checks … you name it! The way society makes new technologies useful is not simply by getting used to them, but by introducing regulation systems. Checks and balances, if you will. There is no reason social media should be any different; it’s much too important to be left to a handful of companies to regulate. Society embraces new technologies by making rules for them. That we don’t need any rules because we’ll get used to them, is a myth!
Digital Myths is a series of posts published from the book 21 Digital Myths, Reality Distortion Antidote where Netopia editor Per Strömbäck takes a closer look at some of the concepts that have shaped the way we think, talk and make decisions about digital technology and the internet.