Sunday, March 6, 2011

The new gatekeepers- internet freedom has a price but no way to pay

Much has been made of the internet being the great 'leveler'. Citizen journalists and bloggers have challenged the model of traditional publishing, file-sharing has challenged the business models of the music and movie industry (and here, I mean not just file-sharing that infringes copyright but file-sharing as a distribution mechanism) and open source software has challenged the models of software development and distribution. Each of these mechanisms have removed, to some extent, the gatekeepers of content production and distribution, allowing an expansion of the sharing of ideas, content and culture. In the post-wikileaks world, the removal of the traditional gatekeepers of media and government has thrown the spotlight on government practices and the ability of the internet to spread information, culture and ideas has led to significant pressures being placed upon government (including, some would argue, the fall of several governments).

The reaction of government has predictably been to attempt to crack down on the internet through both censorship laws and the expansion of laws that further empower the private sector to move against the leveling influence of the internet (such as expanded copyright laws and domain seizure laws). In this case, at least citizens have the nominal right to reject these laws by excercising their rights at the ballot-box (and yes, practically this  is more difficult due to entrenched interests and money politics, but that's a rant for another day) and rejecting the government's intrusions.

However, more worryingly, a new danger to internet freedom has raised its ugly head and begun to exert its influence.  Another set of gatekeepers, ones that have not yet succumbed to the leveling influence of the internet, have begun to flex their muscle as gatekeepers of content and information and as these are private entities citizens have no way to counter their power.

I am referring to the financial gatekeepers of the internet. The duopoly of Visa and Mastercard (along with PayPal to a lesser extent) have begun to exert their power over the financial flows to entities and websites that they deem to be undesirable - and governments, recognising this power, have sought to use these gateways to censor and undermine websites and entities that threaten their power.

The most obvious recent case is that of PayPal, MasterCard and Visa halting payments to Wikileaks under the spurious auspice of 'violating their terms and conditions', something which the KKK or NAMBLA somehow don't do. It is quite obvious why the payments were halted - 'pressure' from the US government. There was no actual legal power upon which the government could rely, so they turned to the gatekeepers to block finances and attempt to hamstring Wikileaks. It was a frightening display of State power combined with the power of the gatekeepers brought to bear on an organisation which, to date, has not been shown to break any laws.

The UK government has also discovered that using the gatekeepers is easier than having  to pass legislation - since legislation has to go through that pesky transparency process known as parliamentary scrutiny.

In this case, the content industries, through their industry group IFPI, have bypassed the legislative step entirely and gone straight to enforcement - using  the police to protect their private interests through the police's "economic crime directive" which is ostensibly to combat fraud rather than copyright infringement. Basically, the police verify that the site appears to offer unlicensed copyrighted material and hand the details to Visa and MasterCard to effectively cut of the finances of these sites. There is no recourse, no appeal and no judicial oversight. Whether the accused have violated Visa or MasterCard's 'terms and conditions' is a matter for Visa and MasterCard and not for the courts.

It is not difficult to see this model being extended to other types of activities that either governments or big business find undesirable - they've already done it to Wikileaks. It is in a way similar to the corporate strategic lawsuit against public participation (SLAPP) suit - a legal threat to close down criticism - but at least with a SLAPP suit there is a way to fight it in court. A financial SLAPP from Visa and MasterCard is almost impossible to defeat - it is their terms and conditions and as private entity they can choose who to do business with, or not.

The dominance of these financial gatekeepers represents a dangerous bottleneck to internet freedom. Although we still may be able to publish and distribute information - the ability to finance this distribution also forms an important part of this freedom.

It is often said that "freedom has a price", the problem is that it may become increasingly difficult to find a place to pay.