The Wealth of Networks:
How Social Production Transforms Markets and Freedom
by Yochai Benkler, Yale University Press

Copyright 2006, Yochai Benkler.

Chapter 5
Individual Freedom: Autonomy, Information, and Law

This online version has been created under a Creative Commons Attribution Noncommercial ShareAlike license - see www.benkler.org - and has been reformatted and designated as recommended reading for the NGO Committee on Education of CONGO - the Conference Of Non-Governmental Organizations in Consultative Relationship with the United Nations - in conjunction with the Committee's commitment to the United Nations Decade of Education for Sustainable Development, the International Decade for a Culture of Peace and Non-violence for the Children of the World and related international Decades, agreements, conventions and treaties.

Epigraph

"Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing."

"Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable."

John Stuart Mill, On Liberty (1859)

Chapter 5
Individual Freedom: Autonomy, Information, and Law

The emergence of the networked information economy has the potential to increase individual autonomy.

Freedom to Do More For Oneself, by Oneself, and With Others

Rory Cejas was a twenty-six-year-old firefighter/paramedic with the Miami Fire Department in 2003, when he enlisted the help of his brother, wife, and a friend to make a Star Wars - like fan film.

Jedi Saga will not be a blockbuster.

Perhaps no single entertainment product better symbolizes the shift that the networked information economy makes possible from television culture than the massive multiplayer online game.

Second Life and Jedi Saga are merely examples, perhaps trivial ones, within the entertainment domain.

Our conception of autonomy has not only been forged in the context of the rise of the democratic, civil rights-respecting state over its major competitors as a political system.

In the industrial economy and its information adjunct, most people live most of their lives within hierarchical relations of production, and within relatively tightly scripted possibilities after work, as consumers.

The emergence of radically decentralized nonmarket production in general and of peer production in particular as feasible forms of action opens new classes of behaviors to individuals.

This new practical individual freedom, made feasible by the digital environment, is at the root of the improvements I describe here for political participation, for justice and human development, for the creation of a more critical culture, and for the emergence of the networked individual as a more fluid member of community.

Treating these new practical opportunities for action as improvements in autonomy is not a theoretically unproblematic proposition.

While the fear of an overbearing bureaucracy benevolently guiding us through life toward becoming more autonomous is justifiable, the formal conception of autonomy pays a high price in its bluntness as a tool to diagnose the autonomy implications of policy.

If we take our question to be one concerned with diagnosing the condition of freedom of individuals, we must observe the conditions of life from a first-person, practical perspective - that is, from the perspective of the person whose autonomy we are considering.

From the perspective of the implications of autonomy for how people act in the digital environment, and therefore how they are changing the conditions of freedom and justice along the various dimensions explored in these chapters, this kind of freedom to act is central.

Autonomy, Property, and Commons

The first legal framework whose role is altered by the emergence of the networked information economy is the property-like regulatory structure of patents, copyrights, and similar exclusion mechanisms applicable to information, knowledge, and culture.

Markets are indeed institutional spaces that enable a substantial degree of free choice.

Commons are an alternative form of institutional space, where human agents can act free of the particular constraints required for markets, and where they have some degree of confidence that the resources they need for their plans will be available to them.

Like property and markets, then, commons provide both freedom of action and security of context.

In the context of information, knowledge, and culture, because of the nonrivalry of information and its characteristic as input as well as output of the production process, the commons provides substantially greater security of context than it does when material resources, like parks or roadways, are at stake.

Autonomy and the Information Environment

The structure of our information environment is constitutive of our autonomy, not only functionally significant to it.

In 1999, Cisco Systems issued a technical white paper, which described a new router that the company planned to sell to cable broadband providers.

In plain English, the broadband provider could inspect the packets flowing to and from a customer, and decide which packets would go through faster and more reliably, and which would slow down or be lost.

It is fairly clear that the new router increases the capacity of cable operators to treat their subscribers as objects, and to manipulate their actions in order to make them act as the provider wills, rather than as they would have had they had perfect information.

The world we live in is neither black box nor cornucopia of well-specified communications channels.

There are two primary types of effects that information law can have on personal autonomy.

The second type of effect that law can have on autonomy is to reduce significantly the range and variety of options open to people in society generally, or to certain classes of people.

"Number and variety" is intended to suggest two dimensions of effect on the options open to an individual.

As long as our autonomy analysis of information law is sensitive to these two effects on information flow to, from, and among individuals and organizations in the regulated society, it need not conflict with the concerns of those who adopt the formal conception of autonomy.

Throughout most of the 1990s and currently, communications and information policy around the globe was guided by a wish to "let the private sector lead," interpreted in large measure to mean that various property and property-like regulatory frameworks should be strengthened, while various regulatory constraints on property-like rights should be eased.

The result of the push toward private provisioning and deregulation has led to the emergence of a near-monopolistic market structure for wired physical broadband services.

The alternative of building some portions of our telecommunications and information production and exchange systems as commons was not understood in the mid-1990s, when the policy that resulted in this market structure for communications was developed.

The choice between proprietary and commons-based wireless data networks takes on new significance in light of the market structure of the wired network, and the power it gives owners of broadband networks to control the information flow into the vast majority of homes.

Imagine a world with four agents - A, B, C, and D - connected to each other by a communications network.

In this simple model, if the network is unowned, then for any communication all that is required is a willing sender and a willing recipient.

Now imagine that D owns the entire infrastructure.

The magnitude of the negative effect on autonomy, or of the influence exaction, depends primarily on (a) the degree to which it is hard or easy to get around D's facility, and (b) the degree of transparency of the exaction.

Because of the importance of the possibility to work around the owned infrastructure, the degree of competitiveness of any market in such infrastructure is important.

If we make standard assumptions of perfectly competitive markets and apply them to our A-B-D example, one would think that the analysis must change.

Actual competition, however, will not eliminate the autonomy deficit of privately owned communications infrastructure, for familiar reasons.

Adopting a regulatory framework under which all physical means of communication are based on private property rights in the infrastructure will therefore create a cost for users, in terms of autonomy.

The traditional progressive or social-democratic response to failures of property-based markets has been administrative regulation.

As a practical matter, then, if all wireless systems are based on property, just like the wired systems are, then wireless will offer some benefits through the introduction of some, albeit imperfect, competition.

The emerging viability of commons-based strategies for the provisioning of communications, storage, and computation capacity enables us to take a practical, real world look at the autonomy deficit of a purely property-based communications system.

Autonomy, Mass Media, and Nonmarket Information Producers

The autonomy deficit of private communications and information systems is a result of the formal structure of property as an institutional device and the role of communications and information systems as basic requirements in the ability of individuals to formulate purposes and plan actions to fit their lives.

Imagine three storytelling societies: the Reds, the Blues, and the Greens.

Now consider Ron, Bob, and Gertrude, individual members of the Reds, Blues, and Greens, respectively.

The difference between the Reds, on the one hand, and the Blues or Greens, on the other hand, is formal.

All this could sound like a morality tale about how wonderfully the market maximizes autonomy.

The fact that our mass-mediated environment is mostly commercial makes it more like the Blues than the Reds.

The networked information economy is departing from the industrial information economy along two dimensions that suggest a radical increase in the number of storytellers and the qualitative diversity of stories told.

The image of everyone being equally able to tell stories brings, perhaps more crisply than any other image, two critical objections to the attractiveness of the networked information economy: quality and cacophony.

The quality problem is often raised in public discussions of the Internet, and takes the form of a question: Where will high-quality information products, like movies, come from?

Rejecting the notion that there will be an appreciable loss of quality in some absolute sense does not solve the deeper problem of information overload, or having too much information to be able to focus or act upon it.

Relevance filtration and accreditation are integral parts of all communications.

As with any flow, control over a necessary passageway or bottleneck in the course of a communication gives the person controlling that point the power to direct the entire flow downstream from it.

The second component of the response to the Babel objection has to do with the organization of filtration and accreditation in the industrial information economy.

Finally, and most important, just like any other form of information, knowledge, and culture, relevance and accreditation can be, and are, produced in a distributed fashion.

Beyond the specific efforts at commons-based accreditation and relevance filtration, we are beginning to observe empirically that patterns of use of the Internet and the World Wide Web exhibit a significant degree of order.

Why, however, is this not a simple reintroduction of heteronomy, of dependence on the judgment of others that subjects individuals to their control?

The core response to the Babel objection is, then, to accept that filtration is crucial to an autonomous individual.

The increasing feasibility of nonmarket, nonproprietary production of information, knowledge, and culture, and of communications and computation capacity holds the promise of increasing the degree of autonomy for individuals in the networked information economy.

Notes

1. Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109, 1130-1132.

2. This conception of property was first introduced and developed systematically by Robert Lee Hale in the 1920s and 1930s, and was more recently integrated with contemporary postmodern critiques of power by Duncan Kennedy, Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity (Cambridge, MA: Harvard University Press, 1993).

3. White Paper, "Controlling Your Network, A Must for Cable Operators" (1999), http://www.cptech.org/ecom/openaccess/cisco1.html.

4. Data are all based on FCC Report on High Speed Services, Appendix to Fourth 706 Report NOI (Washington, DC: Federal Communications Commission, December 2003).