Harvard professor Benkler looks at issues of freedom in lecture

The event was sponsored by the Wilson School’s Program in Law and Public Affairs.

His talk, titled “Degrees of Freedom,” analyzed the conditions of freedom and their relation to the integration of political, cultural, legal and technical societal systems.

“When discussing freedom, we need to look at the intersection of the multiple systems of action and how to increase freedom in the spaces in between and within each of these systems,” Benkler said. Due to this problem of integrated systems, he explained, there is a trend in society towards “extralegal private and public partnership of censorship.”

Benkler defined freedom as a “bobbing and weaving” between different systems of constraint that allow individuals or groups to achieve their goals.

His main example of the interaction and power plays between various systems was last year’s controversy over WikiLeaks and its founder Julian Assange.

The organization published documents and videos relating to the wars in Afghanistan and Iraq that were not previously available to the public throughout 2010 and began to release confidential U.S. diplomatic cables that November.

Benkler described the international aftermath of the publication of these leaked documents as a “multisystem attack” on WikiLeaks. Because of society’s previous unfamiliarity with such an organization, he said, governments could frame the leaks of war documents and diplomatic cables as something akin to a “high-tech terrorist attack,” in the words of U.S. Vice President Joe Biden.

Benkler pointed out that traditional media outlets did not face criticism for publishing the cables; rather, the newspapers used terminology that effectively denounced Assange’s actions in regards to both the leaks and his personal life.

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“It’s a lot sexier to talk about sexual violence than about embassy cables,” Benkler said, using PowerPoint examples of articles, graphs and statistics as evidence for how the media “framed” Assange, who is currently appealing a decision to extradite him to Sweden for a sexual misconduct investigation. Benkler went on to describe the technological, industrial and legal systems that influenced the WikiLeaks example and created the “public insinuation of illegality.”

He then addressed some of the side effects that integrated systems can raise with respect to individual or group freedom. For example, in the 1976 Buckley v. Valeo case, he noted, the U.S. Supreme Court upheld a federal law limiting campaign contributions but ruled that campaign financing was a type of constitutionally protected free speech.

This political and legal ruling, Benkler said, had a ripple effect that influenced the landmark case in 2010, Citizens United v. Federal Election Commission, in which the court declared that First Amendment rights prohibit the limitation of corporate funding for political broadcasts.

The Citizens United decision failed to make the distinction between corporate free speech, formal free speech and a different freedom — the freedom from direct state regulation — Benkler said.

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Benkler’s next point involved the phenomenon of fan videos from 1995 to 2003. The fan video, which is made from copyright-protected materials sourced from production companies as well as the Internet, he said, demonstrates how the integrated systems that attempt to limit the freedom of the video’s creator have become increasingly complex with evolving technology.

He graphed the interactions between actors such as Congress, fans, YouTube, Microsoft, the movie industry, the Federal Communications Commission, universities, hackers and others to describe the system interplay that attempts to limit freedoms.

Ultimately, Benkler noted, the design for optimal integrated systems rests on the questions of who has power and who is susceptible across what range of settings and domains.

“I think that Benkler does terrific work with networks,” said Wendy Seltzer, an associate research scholar in the University’s Center for Information Technology Policy who attended the lecture. “He does a lot to explain the shape of open source development and the other forms of community production that followed.”

Benkler is the Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies and the faculty co-director of the Berkman Center for Internet and Society at Harvard Law School. He has won awards and recognition from the Electronic Frontier Foundation, Public Knowledge, the Financial Times and Strategy and Business for his books.