Two central themes come to mind thinking about the sequence of four cases that I sketched in Institutional Secrets in a Time of "Smart Mobs".
Both derive from the Internet's ability to provide cheap, instant and global communication and its even more powerful ability to facilitate self-organization. Some thoughts follow.
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The Discipline of the Free Press
At the time of the Pentagon Papers, the Internet was an immature system used by a handful of rocket scientists; the World Wide Web did not exist. The ability to globally publish something like the Pentagon Papers resided in a few centrally managed institutions like the New York Times or the U.S. Government Printing Office. While the Constitution of the United States protects the freedom of the press, that protection has limits, and when the Times began publishing articles based upon the Papers, the government sought to assert those limits and stop the Times. The Times won that court battle, with minimal delay, thanks to the readiness of a majority of the Justices of the Supreme Court to take jurisdiction and make a decision.
What if it had lost? Would the publishers of the Times have chosen to defy the federal government, disregard a definitive decision of the United States Supreme Court, and proceed to publish information from documents labelled "Secret" by the United States Government?
Such a radical step would likely lead to an escalation of contempt citations, arrests of senior management, even seizure of the presses by federal marshals enforcing court orders. Not a choice likely to be supported by a board of directors responsible to public shareholders.
The University of California faced similar realities when considering its options with the Cigarette Papers. An arm of the state, the University had been preparing to publish the Papers on compact disk and over the Internet, but once sued by Brown & Williamson, shut off public access pending the decision of the courts. Like the Times, they were allowed to publish.
What if the ruling had gone the other way? Had the University's management any real choice to defy the court and publish the papers anyway?
If it had, one might expect a scenario like that of August 2003, when Alabama Chief Justice Roy Moore refused to comply with a federal court order to remove a stone monument of the Ten Commandments from the rotunda of the Alabama Supreme Court building. After a brief moment in the limelight, the Chief Justice was suspended and the court order was carried out by his successor.
In both cases, publication was dependent upon a centrally managed institution that was in turn dependent upon the tacit approval of the government. That dependency assured that the Times and the University (and others similarly situated) would act in a manner most would characterize as "disciplined and responsible to the rule of law."
De-Centralization of the Free Press
By the close of the Millenium, the publishing environment was rapidly changing in dramatic ways. Access to the World Wide Web was fast, cheap and ubiquitous, particularly among students using high-speed university connections. Those young people had grown up publishing and collaborating on the Web, through email, personal web pages, peer-to-peer "instant messaging," online bulletin boards and multi-player games. Despite stern warnings against piracy, they were making and sharing unauthorized copies of music, videos and software in increasing quantities, reciting the mantra that "information wants to be free."
This peer-to-peer publishing capacity and ubiquitous access combine to add a channel around the centrally managed institutions that were once necessary to achieve widespread global distribution of information. The DeCSS code, for example, could be quickly and easily spread through individual websites or peer-to-peer file exchanges, virtually free. Because there was no central institutional "choke point," shutting down continued publication became a much more difficult challenge for intellectual property rights holders and authorities.
In the case of institutional secrets, such as the elements of the CSS code, the peer-to-peer publishing capacity had especially powerful effects. The widespread publication of the information, by compromising the essential claim of "secrecy," damaged the holders' claim to trade secret protection, as Justice Moreno argued in his concurring opinion in the Bunner case.
This same fast, cheap and global publication capability was tapped by the students that came upon Diebold's compromising email records. However, they found that their publication ability was dependent upon the cooperation of the universities that operated the infrastructure. Presented with take down notices based upon the DMCA, the universities' reaction was predictable and just what the DMCA was designed to accomplish: the shut down of students websites that published the Diebold records.
Emergence of a Self-Organized Network
It was at this point another the other interesting thing happened: the emergence of a self-organized network that swiftly distributed copies of the resources to multiple servers faster than Diebold could discover and shut them down.
A pre-existing group of activist students centered at Swarthmore became a key hub of the network. The group called "Why War?" had been formed shortly after the United States invasion of Afghanistan in 2001 and focused upon distribution of information favoring non-violent efforts for peace and justice. It found appeal among various student and activists groups and developed a following among subscribers to its email list and RSS feed.
At their website, the founders of Why War? advocate applying the principles of swarming and "flash mobs" to political expression. An August 2003 essay by one of its founders, Micah White, "Swarming and the Future of Protesting," (2003) proposes practical implementations of the concepts in Howard Rheingold's "Smart Mobs" and RAND Corporation's John Arquilla and David Ronfeldt's studies of "Netwar" tactics. As they explored theoretical applications, an actual case study emerged on their doorstep.
In October of 2003, a few weeks after the Diebold Emails emerged onto the Internet, WhyWar? published them on its website. Its host, Swarthmore, was soon faced with DMCA take down notices from Diebold. Swarthmore decided to comply with the take down notices, even threatening Internet termination for students that included links to sites carrying the Diebold materials. WhyWar? and the Swarthmore Coalition for the Digital Commons responded by announcing a campaign of civil disobedience. Within hours, the story was picked up by Wired News: ("Students Fight E-Vote Firm," Oct. 21, 2003) and by Slashdot ("Swarthmore Students Keep Diebold Memos Online," Oct. 21, 2003).
The WhyWar? site was promptly "Slashdotted," or swamped with traffic from Slashdot readers. Some of those visitors copied Diebold files to their own local archives and passed word about the controversy in their own weblogs, discussion forums and email list servers. The resulting positive feedback loop raised the visibility of the controversy in traditional media and increased the number of copies of Diebold records loose on the Web. Such effects are a common result of a mention of a new online resource at Slashdot.org. See "Slashdotted: Surviving the Slashdot Effect," Geek.com, Oct. 17, 2002, and Stephen Adler, "The Slashdot Effect: An Analysis of Three Internet Publications," (undated, circa Feb. 1999).
An Organic Response to Threat
EFF's John Gilmore is credited with first saying that "the Internet interprets censorship as damage and routes around it." Gilmore appears to have been speaking about the Internet in the sense of its infrastructure of lines and routers. In the Diebold/WhyWar? conflict we observe an effect that is more organic, more like an immune response to a viral infection or the transplantation of foreign tissue.
In an organism's immune response, a foreign object or tissue is detected by individual cells at the locus of entry. Those local cells release chemical signals which migrate through the organism, triggering the release of a swarm of antibodies that find and counteract the threat.
In the case of Diebold and WhyWar?, the threat was an attempt to suppress the publication of certain information. Word of the attempt spread through the network, and other network users swarmed the locus of the threat, counteracting it by carrying off copies for preservation elsewhere. Although encouraged by WhyWar? people, this response emerged without central organization or direction, as the result of many individuals independently reacting to the threat.
As such, it appears to invoke a more complicated order of network response, higher than the physical infrastructure level of circuits and routers. These patterns of response, of emergent order, are the continuing subject of the evolving science of networks and complex, self-organizing systems. It is to these sciences that we may look for ideas on how holders of intellectual property or institutional secrets might (or might not) succeed in countering such global, decentralized and organic behaviors.